Clark v. Lake

124 N.W. 866, 146 Iowa 109

• Court: Supreme Court of Iowa
• Decided: February 17, 1910
• Status: Published

Opinion

Evans, J.

This is a mandamus proceeding, brought by the plaintiffs, as owners of the official newspapers of Taylor County, against the defendant Lake, as county auditor, asking that he be commanded to furnish to them for publication certain' alleged proceedings of the board of supervisors. The controversy arises over the proper construction of section 1149 of the Code, relating to the canvass of the election returns by the board of supervisors;

Section 1149 is as follows: “At their meeting on the Monday after the general election at twelve o’clock, noon, the board of supervisors shall open and canvass the returns and make abstracts, stating in words written at length, the number of ballots cast in the county for each office, the name of each person voted for and the number of votes given to each person for each different office.” For convenience, of reference in the discussion, we will bracket a portion thereof as follows: “At their meeting on the Monday after the general election at twelve o’clock, noon, the board of supervisors shall open and canvass the returns and make abstracts [stating in words written at length, the number of ballots cast in the county for each officer, the name of each person voted for and the number of votes given to each person for each different office].” Section 441 provides that “all the proceedings of the county board of supervisors . . . shall be published at the expense of the county during the ensuing year” in the official newspapers, and that the “county auditor shall furnish all such papers selected a copy of such proceedings for that purpose.”

It is the contention of the auditor in this case that the canvass of returns and the making of abstracts referred to in section 1149 consists in ascertaining the total number of ballots cast in the county for each office, the name of each person voted for, and the number of votes given to each person for each different office, and in setting forth such result “in words written at ■ length.” On the other hand, the plaintiffs contend that the statute contemplates that abstracts shall be made of the precinct returns of the election as ascertained from the poll books by the canvass, and that such abstracts of the precinct returns should be furnished for publication as a part of the proceedings of the board of supervisors. The defendant did furnish to the plaintiff in written words the number •of ballots cast in the county for each office, the name of each person voted for, and the number of votes given to each person for each different office, in precisq accord with that part of section 1149 which we have inclosed in brackets. The following is a part of the proceedings so furnished for publication and is sufficient to illustrate its general form and character: “Abstract of votes cast at the general election held in Taylor County, Iowa, on the third day of November: For the office of elector at large there were four thousand one hundred eighty-six votes east, of which Thomas T. Anderson received twenty-four hundred sixty votes; John E. Craig received fifteen hundred eighty-five votes; T. S. Coffin received' ninety-four votes; N. P. Alifas received forty-six votes.”

The plaintiffs contend that this is not a compliance with the whole statute. , The following is illustrative of the form of abstracts contended for by the plaintiffs as being within the contemplation of the statute:

The question of construction presented by the dispute is, shall the bracketed portion of the section be deemed as additional to the first portion thereof, or shall it be deemed as a limitation thereon and as a mere definition of the term “abstracts ?” The word “abstract” implies an antecedent subject, and, if we can ascertain such subject with certainty, it necessarily furnishes the key to the construction. “At their meeting on the Monday after the general election at twelve o'clock, noon, the board of supervisors shall open and canvass the returns and make abstracts.” . “Abstracts” of what ? Manifestly, “abstracts” of the “returns” as canvassed. “The board of supervisors shall open and canvass the returns.” What “returns ?” Necessarily, the various precinct returns. It seems clear to us, therefore, that the statute enjoins upon the board the duty (1) of canvassing the precinct returns, and (2) of making abstracts thereof as the only practicable method of making their canvass appear of record. We think, also, -that the bracketed words enjoin the additional duty of setting forth the sum total as to each person and office “in words written,” and that they are not intended to place a restricted meaning or definition upon the term “abstracts.” The statute under consideration is not a model of English composition. It is capable in a rhetorical sense of the construction contended for by the defendant. We think, however, that the other construction (which was adopted by the trial court) is the more reasonable one, and that it is in accord with the real intent of the Legislature. If we may take judicial notice of matters of common observation, we think it must be said that such is the construction which has been commonly put upon it for many years. One of the purposes of the publication of the official proceedings of the board is that it tends to operate as a check against mistakes and against wrongdoing. Such purpose could be little subserved by the mere publication of the total vote of a county, concerning which no person could have independent knowledge, except by independent canvass of the vote. On the other hand, the precinct results are known in each precinct, and, if ia mistake should be made therein by the board of supervisors, such mistake would be likely to be discovered by its publication.

It is said in appellant’s argument that the law does not contemplate any record of the precinct results upon which the official footings are based. This is a logical assumption, if the construction contended for by appellant is adopted. To our minds, it only furnishes a stronger reason why the contrary construction should be adopted. The construction which we here adopt' not only requires the board to open and canvass the precinct returns, but to make abstracts of .such precinct returns as a part of their proceedings. It necessarily follows that they should be preserved as such in some form by the auditor, and that publication should be made. It is said in appellant’s argument that the publishers have a custom of charging a threefold price for tabulated work, and this was one reason why the defendant did not feel warranted in furnishing this tabulated matter. It is sufficient to say that the statute fixes the rate of charges which can lawfully be made by the plaintiffs, and no custom of publishers will justify a departure from the rate fixed by the statute, whatever that rate may be. We may say also that nothing is disclosed in this record which tends to show any improper motive or bad faith on the part of the defendant in raising the question here presented for our consideration.

The conclusions of the trial court were in accord with the views here expressed, and its order is affirmed.