3

papers not being proper parts of the return, the secretary of state had no official duty relative to them, and was at liberty to burn or destroy them as waste paper.1 The board of county canvassers may be compelled by this writ to return the election returns to the board of inspectors for the correction of certain clerical errors. When it appears in a mandamus proceeding that certain returns, though on their face proper and valid, are the result of illegal action on the part of the canvassing board which prepared them, by which it departed from its sphere as a ministerial body, and in excess of its jurisdiction made an illegal or erroneous canvass, the superior canvassing board may be required to canvass without regard to such returns. When the secretary of a board of canvassers refuses to attest its action as required by law, it may appoint a secretary pro tempore to do so, since it has by law power to make the canvass and certify its work. The canvassing board cannot reject the returns or refuse to sign a certificate of election, because illegal votes were received or other frauds or irregularities were practiced at the election. They will be required by this writ to correct clerical errors on their part, which are apparent on the books from which they canvassed. Since their duties are confined to counting the votes and certifying the result, they cannot refuse to count the votes cast for a candidate for a certain office, because another officer failed to include such office in his proclamation relative to the election. They cannot seek evidence aliunde to sus

1 People v. Rice (N. Y., Dec. 29, 1891), 29 N. E. Rep. 355.

2 People v. Onondaga Co. (Bd. Co. Com'rs, N. Y., Dec. 29, 1891), 29 N. E. Rep. 361.

3 People v. State Canvassers (Bd., N. Y., Dec. 29, 1891), 29 N. E. Rep. 355. In this case allegations to this effect were contained in the petition, and they were not denied, nor even alluded to in the return.

4 People v. State Canvassers (Bd., N. Y., Dec. 29, 1891), supra.

5 Lewis v. Marshall Co. (Com'rs), 16 Kans. 102; Com. v. Emminger, 74 Pa. St. 479; Dalton v. State, 43 Ohio St. 652; Burke v. Monroe Co. (Sup'rs), 4 W. Va. 371; Peck v. Weddell, 17 Ohio St. 271; Privett v. Stevens, 25 Kans. 275; Smith v. Lawrence (S. Dak., June 19, 1891), 49 N. W. Rep. 7.

6 State v. Hill, 20 Neb. 119.

7 Morgan v. Pratt Co. (Com'rs), 24 Kans. 71.

tain or overthrow the returns. Their action is to be care fully confined to an examination of the papers before them, and a determination of the result therefrom in the light of such facts of public notoriety connected with the election as every one takes notice of, and which may enable them to apply such ballots as are in any respect imperfect to the proper candidates or officers for which they are intcnded, provided the intent is sufficiently indicated by the ballot in connection with such facts, so that extraneous evidence is not necessary for this purpose.2

§ 180. Will any evidence be received except the returns, when a mandamus is asked for against the canvassers of an election. Since the office of a mandamus is to compel an officer to do what was his duty without the mandamus, it is claimed to be a universal rule that a court in such a proceeding will not hear evidence of any fact, affecting a return, which the canvassers are called upon to canvass and abstract. It would seem to be inconsistent to adjudge officers as derelict in duty, when such duty proceeded from matters which were not within their knowledge, since they were prevented from considering anything but the papers before them and matters of general notoriety. one case, where it appeared that an alteration had been made in the return of the votes, but the canvassers did not know whether such alteration was made before or after they received the returns, the court heard evidence on the sub

1 State v. State Canvassers, 36 Wis. 498; Dalton v. State, 43 Ohio St. 652. In State v. Kavanagh, 24 Neb. 506, the canvassing board received affidavits and oral testimony concerning an alteration of the returns and then rejected them, and were sustained in such action by the court.

2 Cooley's Const. Lim., 623; State v. Foster, 38 Ohio St. 599; State v. Williams, 95 Mo. 159; State v. Dinsmore, 5 Neb. 145. Contra, Clark

In

v. Board of Examiners, 126 Mass. 282, where a board of canvassers were not allowed to count votes cast for L. Clark in favor of Leonard Clark, because they were confined to the record of the votes returned and laid before them. In similar cases another court decided that the action of the canvassing board would not be controlled. State v. Foster, 38 Ohio St. 599; Dalton v. State, 43 Ohio St. 652.

3 Dalton v. State, 43 Ohio St. 652.

3

Where

ject and instructed the canvassers accordingly. This is said to be the only case where this has ever been done. a mandamus was asked to compel the canvass of over twentynine hundred votes cast in a county election, and the return was that the vote was fraudulent, and that there were only about eight hundred voters in the county, the court refused the writ, because it knew, as a matter of general notoriety, that the return was true. Where it appeared on the undisputed facts that the relator was ineligible to the office for which by the writ of mandamus he sought a certificate of election, the petition was overruled. The court admitted that the returning board had no right to inquire into the eligibility of a candidate, but asserted that it would not aid in carrying out an unlawful proceeding, and that a relator must always show a good title.' This case is in harmony with the general rule, because the facts were undisputed.

§ 181. A mandamus will issue to compel the proper officer to declare the result of the election. When it is the duty of an officer to declare the result of the election, he may be required to do so, and will not be allowed to confine himself to a declaration of the votes cast for each proposition. Where, in case of a tie vote, the law requires the judge of the election to determine by lot which of the two candidates is elected, he will be required to perform such duty, even though the relator asked him not to do so, since the law fixes his duties. When an appeal is taken from a canvassing board to an appellate canvassing board, whose members are equally divided on the question of affirming the action of the lower board, such a vote is an affirmance of the action of the lower board, and such appellate board may be required by a writ of mandamus to

1 State v. Garesche, 65 Mo. 480.

2 Dalton v. State, 43 Ohio St. 652.

3 Hall v. Stewart, 23 Kans. 396. 4 People v. State Canvassers (Bd., N. Y., Dec. 29, 1891), 29 N. E. Rep.

5 Steward v. Peyton, 77 Ga. 668; State v. Malcolm, 77 Ga. 671.

6 Johnston v. State, 128 Ind. 16; 27 N. E. Rep. 422.

issue the certificate required from them in case of the affirmance of the action of the lower board.1

§ 182. Mandamus will issue to the canvassing board, though they have already given another the certificate. The fact that a canvassing board has already declared the result and issued a certificate of election to another person is no adequate return to an alternative writ of mandamus to canvass the returns properly and to declare the proper result, when returns have been improperly counted or improperly rejected. Such action does not oust the incumbent, and is often necessary to put the relator in a position to contest his rights.

§ 183. The peremptory writ will specifically direct the canvassing board what to do.- Before issuing the peremptory writ in such cases, the court will ascertain the specific duty of the canvassing board, and will order its performance, will order them to count votes which they failed to count, and to reject votes which they ought not to have counted, and to give the certificate to the person appearing on the face of the votes to be elected. It is no objection to a mandamus to canvass the returns, that the office affected is that of a member of congress, since the duty of canvassing those votes is imposed on the canvassing board by the law of the state."

§ 184. Mandamus not lie when another remedy or the board had discretion or the election was illegal. A man

1 Elliott, Ex parte, 33 S. C. 602. 2 State V. State Canvassers (Bd.), 17 Fla. 29; Brown v. Ed. Com'rs, 38 Kans. 436; Ellis v. Bristol Co. (Com'rs), 2 Gray, 370; People v. Rives, 27 Ill. 242; People v. Hilliard, 29 Ill. 413; Johnston v. State (Ind., April 8, 1891), 27 N. E. Rep. 422; Smith v. Lawrence (S. Dak., June 17, 1891), 49 N. W. Rep. 7. Even though the party commissioned has entered upon the discharge of the duties of the office (State v. Howe, 28 Neb. 618. Contra:

Oglesby v. Sigman, 58 Miss. 502; Magee v. Calaveras Co. (Sup'rs), 10 Cal. 376); because another had been commissioned (Myers v. Chalmers, 60 Miss. 772); because the certificate was given to one who was filling the office (State v. Rodman, 43 Mo. 254).

3 State v. Williams, 95 Mo. 159. 4 State v. Berg, 76 Mo. 136. Kisler v. Cameron, 39 Ind. 488. 6 State v. Alachua Co. (Bd. Can.), 17 Fla. 9.

damus is allowed to canvassers of elections because it is considered that there is no other adequate remedy. A quo warranto was asserted not to be an adequate remedy, because such a defense in a mandamus proceeding obtains only when such remedy is attainable against the party against whom the mandamus is sought, and while the mandamus would run against the canvassing board, the quo warranto would be against the party declared to be elected.1 Where a remedy considered adequate is provided by statute, as by contest or appeal, the writ will be refused.2 When the election officers have a discretion in the matter, or are authorized to determine all contests and to decide on the qualifications of the parties, their action in the premises will not be reviewed by this writ. A mandamus will not lie to canvass votes cast at an election for an office, which was then legally filled, and when no election therefor was proper; nor when such election was held without authority of law.5

4

§ 185. By mandamus the canvassing board may be required to reconvene and do their duty, though they have adjourned sine die. Though the board of canvassers have counted the votes, announced the result and adjourned sine die, they may be compelled by a mandamus to re-assemble and recount the votes, if it appears that upon the first canvass they made an erroneous count. The board continues

1 People v. Greene Co. (Sup'rs), 12 Scarborough, Ex parte (S. C., Jan. Barb. 217.

2 State v. Stewart, 26 Ohio St. 216; State v. Smith, 104 Mo. 661; Mackey, Ex parte, 15 S. C. 322; State v. Berry, 14 Ohio St. 315. A contest in Nebraska is not considered to be an adequate remedy. State v. Stearns, 11 Neb. 104.

3 Grier v. Shackleford, 3 Brev. 491; Vicksburg (Mayor) v. Rainwater, 47 Miss. 547; State v. Baton Rouge (Selectmen), 25 La. An. 310; State v. Strong, 32 La. An. 173;

26, 1891), 12 S. E. Rep. 666.

4 Peters v. Board State Canvassers, 17 Kans. 365.

5 State v. Whittemore, 11 Neb. 175.

6 Lewis v. Marshall Co. (Com'rs), 16 Kans. 102; State v. Berg, 76 Mo. 136; State v. Stearns, 11 Neb. 104; State v. Peacock, 15 Neb. 442; State v. Hill. 20 Neb. 119; State v. Gibbs, 13 Fla. 55; State v. Howe, 28 Neb. 618; 44 N. W. Rep. 874; Johnston v. State, 128 Ind. 16; 27 N. E. Rep.