State ex rel. Johnson v. Ely

137 N.W. 834, 23 N.D. 619, 1912 N.D. LEXIS 135

Opinion

Spalding, Oh. J.

(after stating the facts). It is -unnecessary to enter into details regarding the objection to evidence offered and the exceptions taken to rulings of the court thereon, as they all center around the general proposition which we shall discuss briefly.

1. The relators were seeking to have the votes of these townships canvassed and included in the result of the election. They applied to the court to compel such action on the part of the canvassing board, and the court held that the issuance of a writ of mandamus was an act of judicial discretion, and that he might take testimony for the purpose of securing information to enable him to intelligently exercise the discretion reposed in the court. It does not follow that the court was bound to decide in conformity with the testimony taken, particularly had it been conflicting. There was no conflict, and an adjournment for several weeks was taken, undoubtedly for the purpose of giving the relators an opportunity to meet the defense of the respondents, but it resulted in no attempt to do so, further than the filing of the demurrer referred to.

That the court may take evidence for the purpose of enlightening it in the exercise of its discretion cannot be doubted. Had he made private inquiry and sought private sources of information on which to rest the exercise of such discretion, it would have been to the appellants’ disadvantage. No record would have been made, and in case of appeal this court would be compelled to rest upon the lack of showing of abuse of such discretion, but when evidence is taken the record can be present, and the appellate court is in position to review more intelligently the discretion exercised by the trial court, and determine whether it was a legal exercise of such discretion or an abuse thereof. It would be an improper use of the writ of mandamus to issue it when clearly apparent to the court to which application is made, or when it could be readily ascertained, that it could serve no purpose and would be useless when issued. Hence evidence regarding the location of the voting places and the unauthorized change was pertinent and material.

Mandamus is not a writ of right, and will not be granted to compel the performance of an act, even though required by law, when no bene ficial result would be attained, and it is issued only under extraordinary conditions, to compel the performance of a duty imposed by law, in favor of a party beneficially interested, therein. State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Hathorn v. United States Exp. Co. 95 Minn. 442, 104 N. W. 556; Baker v. State Canvassers, 111 Mich. 378, 69 N. W. 656; State ex rel. Vereen v. Marion County, 27 Fla. 438; People ex rel. Wood v. Assessors & Collector of Taxes, 137 N. Y. 201; Rice v. Coffey County, 50 Kan. 149, 32 Pac. 134; State ex rel. Mitchell v. Stevens, 23 Kan. 456, 33 Am. Rep. 175; State ex rel. Smith v. Drake, 83 Wis. 257, 53 N. W. 496. Many other authorities might be cited.

In State v. Drake, supra, mandamus was sought to compel the board to canvass votes. The regular time for opening the polls was 9 o’clock, and they were required to be kept open until sundown. They were open from 9 until 10, when they were closed, and the votes cast before that time destroyed. They were reopened and remained open until 4 o’clock. The Wisconsin court held that “it was no election within any law of the state,” and said that “there must be shown a clear, legal right to the writ. . . . Neither the relator nor anyone else has any legal right to have the result of such a void election determined or carried into effect. It would be illegal to canvass and determine such a vote or return-it to the village clerk.”

In State ex rel. Mitchell v. Stevens, 23 Kan. 456, 33 Am. Rep. 175, Judge Brewer, for the court, refused to issue its writ compelling the board of canvassers to convene and canvass the returns where such returns did not correctly reflect the actual vote returned. That court held that “the writ, to a great extent, was within the discretion of the court where application was made,” "and that “it would be a singular discretion for a court whose duty it was to uphold purity, justice, and honest dealing to give an apparent sanction to such an outrage, so gross and manifest.” The facts were, in that case, that the returns showed a vote cast altogether out of proportion to the population.

We hold that the writ is not one of right, but one to be granted, as a general rule, in the discretion of the court, and that in determining how his discretion should be exercised, that court to which application is made may take testimony, and that it is not an abuse of discretion to deny the writ when it is shown that its issuance would avail nothing to the relators. Belcher v. Treat, 61 Me. 577.

2. Was the alleged election in the precincts in question void ? This court has already held in Elvick v. Groves, 17 N. D. 561, 118 N. W. 228, that where a voting place is duly established by the county commissioners, an election held at another place, over 3 miles distant, is unauthorized, and that the returns of such election should not be canvassed. The only question is whether that holding is applicable to the facts in the instant case. It is unquestioned that no precincts or voting places had been established by the commissioners of Burke county, and if there were legal voting places in these precincts they existed by reason of the action of the Ward county commissioners in March, 1908. The action of that board was subject to criticism. No resolution was passed by the board, as shown by their records, but their books show that they established the voting places at “the usual place.” The records show that in 1908, that is, at the next election after such establishment, the votes were cast at places near the center of the townships. This evidence was offered for the purpose of showing that that was the usual voting place, but it is argued by the appellants that it has no tendency to prove that fact; that evidence should have been introduced showing where the election was held in 1906 and prior years. We, however, are of the opinion that the evidence offered was some evidence of the central localities being “the usual voting places” as designated by the commissioners.

The presumption of law is that the public officials did their duty, and that the 1908 election, held shortly after the designation, was held in accordance with the action of the commissioners. Bank of United States v. Dandridge, 12 Wheat. 64, 6 L. ed. 552; Nofire v. United States, 164 U. S. 657, 41 L. ed. 588, 17 Sup. Ct. Rep. 212; State ex rel. Anderton v. Kempf, 69 Wis. 470, 2 Am. St. Rep. 753, 34 N. W. 226; Powers v. Hitchcock, 129 Cal. 325, 61 Pac. 1076. We think that, in the absence of action by the Burke county commissioners, the places designated by the Ward county commissioners when they had jurisdiction continued to be the polling places until the matter might be acted upon by the Burke county commissioners. In any event, the evidence offered was sufficient, in the absence of any evidence to show the contrary; that is, of any evidence to show that the places where the voting was done in November, 1908, were not the usual voting places. Relators were given ample time in which to submit proof of this fact. They had long been residents of the vicinity, and such proof must have been readily obtainable if it were a fact. The law regarding the place of holding elections is well settled. We need but make reference to Elvick v. Groves, supra, on this question. The reasons are patent to anyone who considers them. Take the instant case as an illustration: The 1908 election, held in the center of the township, the 1910 election on the border of the township, nearly 4 miles distant. It would be an easy matter for the people interested in one candidate as against another, or in one proposition as against another, to advise a portion of 'the voters of the change in the place of voting, and secure votes enough to carry any proposition, while those opposed remained entirely ignorant of the change or where to cast their ballots. We are not saying that any such practice prevailed in the instant case, but we must determine these matters upon what is possible, and the reason for the strict adherence to the law required as to conducting elections at the legal voting place. To sustain such unauthorized changes would be to open the door to fraud upon the electorate, and could only result in the freqrrent defeat of justice. The loss of a few votes on one election is of trifling importance as compared with what might happen if proceedings of this nature were sustained by the courts.

As to this question we may say further that we are not limited to the testimony taken, because the motion hereinbefore referred to and the demurrer filed by the relators both confessed, for the purpose of this case, the truth of the facts alleged in the answer or return. They were adequate to sustain the judgment of the court, and the court would have been justified in granting judgment on the demurrer.

3. The third and last point which we need consider relates to the action of the canvassing board in rejecting'the returns of these precincts. It is said that they are wholly ministerial officers, and that they are disqualified to pass judgment upon the validity of an election. As a general proposition this is correct, but they were presumed to know the locality of the designated voting places and to take notice of the geography of their respective townships, - and when the returns clearly indicated that the election had been held at a point distant from the designated place they were justified in declining to canvass such returns. They are not returns. Of course facts might be made to appear which would not justify them in their action, as intimated in the Elviclc Case, but no such facts are found in the case at bar; on the contrary it is expressly found that none existed. "We do not, however, think that it is necessary for us to determine whether they had a right ’to reject such returns. In fact, they did reject them, and the relators called upon the court to consider that fact and direct the officers to include them in their totals on which to base the certificate of election, when it invoked the extraordinary powers of the court to execute its mandate for that purpose. The court, properly, as we have seen, inquired into the facts, and, finding that on a contest of the election there would be no justification for changing the certificate, declined to issue the writ. This is the sum and substance of the proceeding.

We do not discover any abuse of discretion on the part of the learned trial court warranting a reversal. Relators assert that the defense sustained by the trial court was purely technical. We do not so regard it. We are aware of the motion prevalent in the minds of many people, to the effect that citizenship gives the right to vote, regardless of the regulations wisely provided by the legislature for preserving the purity of elections and the sacredness of the ballot. The Constitution expressly authorized the regulation of elections by the legislative assembly. That body has acted and prescribed the manner and method of holding elections, and by law has provided general rules for fixing the places where voting shall be done.

It is not a technicality to require the law to be obeyed, in spirit at least. If a part of a community may, in direct conflict with express provisions of law, change the voting place at will or to suit the convenience of a portion of the voters, other portions of the same community may do likewise, and there may be as many elections held in a precinct as there are persons to be accommodated or ends to be served. Officers and courts alike are bound by the law.

Those whose desires are defeated are wont to term the cause of their defeat a technicality, and inveigh at officers and courts who read and obey. Yet this cry furnishes no excuse for those whose sworn duty is to obey and construe to disregard the wise regulations made by the legislative department.

Litigants are fortunate if not required to obey unwise legislation, and courts cannot relax tbe rule simply because tbey see, as tbey often do see, that a provision might be improved or might have been made more reasonable. We have, in this case, disregarded everything but the merits, when we might in fact, with less trouble, have rendered a decision on questions of practice, with the same result.

The holding in Elvick v. Grove, supra, is supported by the great weight of authority, but even if we were inclined to depart from the rule therein announced, and follow the minority rule, it would avail relators nothing, as they have not brought themselves within its terms. Under it the burden was on them to show that the change was made in good faith, without fraud, and without no intent to injure the cause of respondents, and that in fact no one was thereby deprived of his vote..

Relators showed none of these things. See Whitcomb v. Chase, 83. Neb. 360, 119 N. W. 673, 17 Ann. Cas. 1088, and note p. 1090.

The judgment is affirmed.

Mr. Justice Goss, being disqualified, did not participate.