This is an original action in the nature of mandamus instituted by the state on relation of the Attorney General for a mandatory writ requiring the State Election Board to issue in lieu of an alleged erroneous certificate a new one certifying to the Governor the results of a referendum election on a proposed amendment to the Constitution.
The proposed amendment was duly submitted to the people at the general election of November 3, 1942, pursuant to Senate Joint Resolution No. 18, S. L. 1941, and the Constitution and statutes governing such elections (sec. 1, art. 24, Const.; 34 O. S. 1941 §§ 14, 64). The object thereof was to amend section 3, art. 6, of the Constitution, defining the qualifications of certain major state officers.
The Attorney General as relator alleges that the certificate of the State Election Board certifying the results of the election on said measure to the Governor as directed by 34 O. S. 1941 § 66, and showing that the amendment had failed of adoption, was erroneous in that it was based upon incorrect returns certified to the board by county election officials.
According to the petition, the particular error referred to took place in a certain county wherein the election officials in attempting to make their returns to the state board pursuant to 34 O. S. 1941, §§ 22, 66, erroneously certified a larger number of electors as having voted at the election in said county than the number actually voting; that as a result of said error the State Election Board certified to the Governor a larger number of electors as having voted at the election than actually voted, and that the error if corrected would reduce the total number so certified sufficiently to insure the adoption of the measure as having received a majority of the votes of all electors voting at said election as by the Constitution required (sec. 1, art. 24). More specifically, the State Election Board in its certificate to the Governor as required by 34 O. S. 1941 § 66 certified that the total number of electors voting at the general election was 406,833; that 201,763 voted for the adoption of the measure, and 98,013 voted against its adoption; that the erroneous returns from the county aforesaid certified that 10,861 electors had voted in that county, whereas in fact only 4,956 electors voted, thus making the total number of electors voting throughout the state only 400,928, and therefore giving to the measure a clear majority as contemplated by the Constitution, that is, the portion of section 1, art. 24, supra, which provides:
"If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution."
The Attorney General in his brief in support of the petition to this court to assume original jurisdiction looks to section 2, art. 7, of the Constitution, extending the original jurisdiction of the court to the general superintending control over all inferior courts, commissions, and boards created by law, and its power thereunder to issue writs of mandamus, certiorari, quo warranto and other remedial writs, and to hear and determine the same. He cites also Clark v. Warner,85 Okla. 153, 204 P. 929, wherein it was held as follows:
"The power of the Supreme Court to grant mandamus and to hear and determine the same as authorized by section 2, art. 7, of the Oklahoma Constitution, will be exercised only when the questions involved are publici juris, or when some unusual situation exists, whereby not to entertain jurisdiction would work a great wrong or result in a practical denial of justice."
As a matter of fact this court will assume original jurisdiction in any action in mandamus where the petition shows a clear right to relief, if the writ is to be directed to an inferior court, commission, or board as contemplated by the Constitution, supra. Whether the question involved is of common public interest, or whether the alleged injustice may be grievous or of minor degree, is of no particular importance in determining whether this court shall assume jurisdiction. In every case we either do or do not have jurisdiction, and the petition determines that question. Where the petition states no cause for relief it is insufficient to invoke the court's powers; if it shows a clear right to relief, our jurisdiction attaches as a matter of course, and a hearing on the merits is in order.
In this case we are asked to examine into the proceedings of the State Election Board with reference to its statutory functions in assembling the returns in a state-wide referendum election and its report of the results thereof to the Governor (34 O. S. 1941 §§ 22, 66), and to direct the board to reconsider its action and to correct an alleged error in said returns as received from the
county election officials, an error not appearing upon the face of those returns, but one that is allegedly made manifest by certain evidence not contained in the official returns.
The petition clearly sets out the error which, if true, would, on correction, change the result of the election. The state itself complains of this injustice that has come about by reason of the alleged error. But the mere allegation of a wrong suffered by the people is not sufficient to invoke the judicial powers of this court to order rectification thereof by remedial writ. It is said that for every wrong there is a remedy. That is fundamentally true, but, in addition to the wrong, it must appear that the remedy pursued is authorized by law, or calls forth the inherent power of the court.
The petition further shows that the election board had fully performed its statutory functions, and the matter finally closed as a ministerial act. We say that the functions of the board in such case are wholly ministerial and require no discretionary action. It takes the returns as received from the counties and from the face thereof prepares the certificate to the Governor showing the results. When that is accomplished in good faith and without error the board's duties are fully and finally performed and the matter closed. It cannot be compelled to recanvass the original returns by the aid of evidence outside those returns subsequently submitted. No judicial power to ascertain the results from outside evidence is conferred. In Roberts v. Marshall, 33 Okla. 716, 127 P. 703, it was said:
"The authority conferred and duty imposed by the statute upon the State Election Board is to ascertain the result of the vote for the candidate for any office by canvassing the vote cast in each county as shown by the abstract of votes from each county certified by the county election board to the state board. No judicial power is conferred for ascertaining such result from any other papers or other evidence. Its duties are ministerial, and it cannot hear evidence aliunde the returns or go behind the returns, regular and valid upon their face, for the purpose of determining whether the election officers of the county have irregularly or fraudulently canvassed the returns of any county."
That action involved the recanvass of returns in the election of state officers, but the decision therein well applies here.
Neither the Constitution nor legislative enactment has authorized this court to compel the State Election Board to reconvene and recanvass by aid of outside evidence the returns of initiative and referendum elections. Nor is this court authorized to entertain and conduct an original proceeding in the nature of an election contest.
In State ex rel. Hayman v. State Election Board,181 Okla.
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This is an original action in the nature of mandamus instituted by the state on relation of the Attorney General for a mandatory writ requiring the State Election Board to issue in lieu of an alleged erroneous certificate a new one certifying to the Governor the results of a referendum election on a proposed amendment to the Constitution.
The proposed amendment was duly submitted to the people at the general election of November 3, 1942, pursuant to Senate Joint Resolution No. 18, S. L. 1941, and the Constitution and statutes governing such elections (sec. 1, art. 24, Const.; 34 O. S. 1941 §§ 14, 64). The object thereof was to amend section 3, art. 6, of the Constitution, defining the qualifications of certain major state officers.
The Attorney General as relator alleges that the certificate of the State Election Board certifying the results of the election on said measure to the Governor as directed by 34 O. S. 1941 § 66, and showing that the amendment had failed of adoption, was erroneous in that it was based upon incorrect returns certified to the board by county election officials.
According to the petition, the particular error referred to took place in a certain county wherein the election officials in attempting to make their returns to the state board pursuant to 34 O. S. 1941, §§ 22, 66, erroneously certified a larger number of electors as having voted at the election in said county than the number actually voting; that as a result of said error the State Election Board certified to the Governor a larger number of electors as having voted at the election than actually voted, and that the error if corrected would reduce the total number so certified sufficiently to insure the adoption of the measure as having received a majority of the votes of all electors voting at said election as by the Constitution required (sec. 1, art. 24). More specifically, the State Election Board in its certificate to the Governor as required by 34 O. S. 1941 § 66 certified that the total number of electors voting at the general election was 406,833; that 201,763 voted for the adoption of the measure, and 98,013 voted against its adoption; that the erroneous returns from the county aforesaid certified that 10,861 electors had voted in that county, whereas in fact only 4,956 electors voted, thus making the total number of electors voting throughout the state only 400,928, and therefore giving to the measure a clear majority as contemplated by the Constitution, that is, the portion of section 1, art. 24, supra, which provides:
"If a majority of all the electors voting at such election shall vote in favor of any amendment thereto, it shall thereby become a part of this Constitution."
The Attorney General in his brief in support of the petition to this court to assume original jurisdiction looks to section 2, art. 7, of the Constitution, extending the original jurisdiction of the court to the general superintending control over all inferior courts, commissions, and boards created by law, and its power thereunder to issue writs of mandamus, certiorari, quo warranto and other remedial writs, and to hear and determine the same. He cites also Clark v. Warner,85 Okla. 153, 204 P. 929, wherein it was held as follows:
"The power of the Supreme Court to grant mandamus and to hear and determine the same as authorized by section 2, art. 7, of the Oklahoma Constitution, will be exercised only when the questions involved are publici juris, or when some unusual situation exists, whereby not to entertain jurisdiction would work a great wrong or result in a practical denial of justice."
As a matter of fact this court will assume original jurisdiction in any action in mandamus where the petition shows a clear right to relief, if the writ is to be directed to an inferior court, commission, or board as contemplated by the Constitution, supra. Whether the question involved is of common public interest, or whether the alleged injustice may be grievous or of minor degree, is of no particular importance in determining whether this court shall assume jurisdiction. In every case we either do or do not have jurisdiction, and the petition determines that question. Where the petition states no cause for relief it is insufficient to invoke the court's powers; if it shows a clear right to relief, our jurisdiction attaches as a matter of course, and a hearing on the merits is in order.
In this case we are asked to examine into the proceedings of the State Election Board with reference to its statutory functions in assembling the returns in a state-wide referendum election and its report of the results thereof to the Governor (34 O. S. 1941 §§ 22, 66), and to direct the board to reconsider its action and to correct an alleged error in said returns as received from the
county election officials, an error not appearing upon the face of those returns, but one that is allegedly made manifest by certain evidence not contained in the official returns.
The petition clearly sets out the error which, if true, would, on correction, change the result of the election. The state itself complains of this injustice that has come about by reason of the alleged error. But the mere allegation of a wrong suffered by the people is not sufficient to invoke the judicial powers of this court to order rectification thereof by remedial writ. It is said that for every wrong there is a remedy. That is fundamentally true, but, in addition to the wrong, it must appear that the remedy pursued is authorized by law, or calls forth the inherent power of the court.
The petition further shows that the election board had fully performed its statutory functions, and the matter finally closed as a ministerial act. We say that the functions of the board in such case are wholly ministerial and require no discretionary action. It takes the returns as received from the counties and from the face thereof prepares the certificate to the Governor showing the results. When that is accomplished in good faith and without error the board's duties are fully and finally performed and the matter closed. It cannot be compelled to recanvass the original returns by the aid of evidence outside those returns subsequently submitted. No judicial power to ascertain the results from outside evidence is conferred. In Roberts v. Marshall, 33 Okla. 716, 127 P. 703, it was said:
"The authority conferred and duty imposed by the statute upon the State Election Board is to ascertain the result of the vote for the candidate for any office by canvassing the vote cast in each county as shown by the abstract of votes from each county certified by the county election board to the state board. No judicial power is conferred for ascertaining such result from any other papers or other evidence. Its duties are ministerial, and it cannot hear evidence aliunde the returns or go behind the returns, regular and valid upon their face, for the purpose of determining whether the election officers of the county have irregularly or fraudulently canvassed the returns of any county."
That action involved the recanvass of returns in the election of state officers, but the decision therein well applies here.
Neither the Constitution nor legislative enactment has authorized this court to compel the State Election Board to reconvene and recanvass by aid of outside evidence the returns of initiative and referendum elections. Nor is this court authorized to entertain and conduct an original proceeding in the nature of an election contest.
In State ex rel. Hayman v. State Election Board,181 Okla. 622, 75 P.2d 861, relief was sought by way of certiorari to review the action of the State Election Board in a similar case. The relators in that case denominated their petition as one for writ of certiorari to review the action of the election board, but this court declined to consider it as such, saying that the action of the board could not be so reached and corrected. It was there said that the courts may determine in a proper proceeding whether the Constitution has been amended. Thereupon we proceeded to consider the petition as one to contest the election by the introduction of evidence outside the certified returns of the election officials of the respective counties, and held in effect that even assuming that the election could be so contested, the petition and the evidence submitted were insufficient to show that the measure had received the required majority at the polls.
On casual inspection of the Hayman Case it might appear that we had assumed jurisdiction of a proceeding of this character, and had determined the same upon the merits. But that was not done, as the language of the court will disclose. In considering the petition as one to contest the election, or to make
the returns speak the truth, the court said:
"Relators contend that there are errors in said certificates in that in 81 precincts, scattered throughout various counties of the state, they have ascertained by an individual investigation, and by evidence aliunde the election returns, that a less number of voters voted in said precincts than were certified by the county election boards to the State Election Board. However, relators point out no statutory proceeding for correcting such certificates, either by proceedings before the State Election Board or in any other manner. Should there be such errors, certainly this court in this kind of proceeding is not the forum for correcting such errors. For this court to enter upon a determination of such questions, many additional parties, other than the State Election Board, would be necessary parties to this proceeding, and this action, which relators denominate a writ of certiorari (which we do not determine), would be resolved into a glorified election contest, casting doubt and uncertainty upon the result of the canvass of the votes as to every state officer and state question upon which the people of the state as a whole vote. We cannot concede that such evidence aliunde is permissible in this proceeding in this forum."
The courts may have jurisdiction to determine whether the Constitution has been amended, but not in total disregard of the final action of the State Election Board performed in strict conformity to law. We do not say that its mistakes, its arbitrary or fraudulent actions, may not be corrected by original proceedings in this court. But the board is not charged with mistake or wrongful act of any kind in the performance of its duties.
It is said in the brief amici curiae that the returns of an election held pursuant to section 1, art. 24, of the Constitution, as was the case here, are not governed by 34 O. S. 1941 § 22, which requires that the county election board "transmit to the State Election Board a certificate showing the total number of votes cast at any such election," but are governed by 26 O. S. 1941 § 368.
The latter section provides that the counters in each precinct shall prepare a certificate showing the total number of votes cast for each candidate appearing on the county ballot, and a certificate showing the total number of votes cast for each candidate on the state ballot, and that duplicates thereof be transmitted to the county election board, whereupon those duplicates become "the returns to the county election board." It is also provided that a duplicate certificate pertaining to the total number of votes cast for each candidate on the state ballot be transmitted to the State Election Board.
The amici curiae take the position that a like certificate on the state question is also prepared in each precinct and transmitted to the State Election Board and that they constitute election returns that must be taken into account and considered by the state board in certifying the results to the Governor. It is insisted that the counters' certificates and not the county election board's certificates are made prima facie evidence of the correctness of the precinct vote, and that the state board must determine from them the total number of electors voting in the election. It is said that the counters' certificates more truly reflect the total number of electors voting than do the county election board's statements. The amici curiae seem to believe that the counters' certificates are controlling over the certificates of the election boards.
But the argument ignores the fact that section 368, above, applies specifically to election of officers, while section 22 applies specifically to initiative and referendum elections. Section 22 was enacted in 1910, and, contrary to counsel's contention, the title to the act shows that it was made to apply to all elections on proposed constitutional amendments.
Said section 22 requires that the counters in each precinct transmit to the county election board a certificate of the total number of electors voting at the elections. The county board is required to keep a record thereof by precinct
and to certify to the state board the total number of votes cast. Those certificates constitute the official returns, and a proposed amendment must receive a majority of the votes so certified if it is to become effective. And, as provided by 34 O. S. 1941 § 66, the state board must determine the election results from those returns and certify the same to the Governor.
It is strongly insinuated that the State Election Board was hostile to the proposed amendment, and willfully avoided its alleged duty to canvass the counters' certificates as the true returns. But the presumption of willful disregard of duty, even where performance is lacking, has no place in the determination of questions such as this. One who is permitted to appear in any cause as friend and advisor of the court should confine his efforts to the real merits of the controversy.
The petition is insufficient to entitle the relator to any relief in that it shows on its face that the Election Board made no error, and in every way performed its duty as by law required. The petition is therefore insufficient to invoke the powers of the court. The law does not authorize this court to interfere with a ministerial act of an officer after the performance thereof where such officer made no mistake or committed no unlawful act.
The writ is denied and the petition dismissed.
RILEY, OSBORN, BAYLESS, WELCH, and DAVISON, JJ., concur. CORN, C. J., and HURST and ARNOLD, JJ., dissent.