Изображения страниц
PDF
EPUB

result of said election from said county, and that the abstracts of the result, required by law, be made and certified, and that the certified copy of the names of the persons voted for, and the number of votes received by each for the office of delegate to said convention from said county be made, and that certificates of election of such delegates be issued and transmitted to said persons severally.

Failure on your part to at once comply with this demand will result in an application for a writ of mandate to compel you to perform your duties in the respects aforesaid. I am authorized to make this demand by each of said persons. Respectfully submitted.

CHARLES CRANE.

The canvass of the returns was then resumed, Commissioner Tatlock being absent and Commissioner Sherman protesting against such procedure on the part of the Board. A recount of the ballots was begun by precincts, in alphabetical order, and continued during the day, Chester and Ephraim being counted. At 5 p. m. the Board was served with a writ of mandate issued by Hon. G. W. Bartch, one of the judges of the district court, commanding the Commission to accept the returns from Sanpete County as correct, to make certified abstracts of same, and declare the result thereof, showing the election of the plaintiffs to the office of delegates, and to make out and transmit certificates of election to said parties. The writ was made returnable on December 17. On December 7, 1894, the Board reconvened (Commissioner Tatlock absent), and the following resolution, offered by Commissioner Norrell, was adopted:

Resolved, That the Commission now take up the canvass of the ballots in Sanpete County where it left off on the 6th instant, and proceed to finish the same. The Utah Commission expressly declares that it has no intention of certifying or declaring the result except under the direction of the court, as shall be eventually decided in the mandate proceedings now pending.

Commissioner Sherman opposed the resolution on the following grounds:

First. The complete returns from Sanpete County already canvassed are sufficient upon which to base a declaration of the result, and there can be no excuse for going into the ballot boxes unless it be a desire to reverse the face of the returns.

Second. Pending the proceedings in the third district court upon a writ of mandate issued by that court, naming the members of this Commission as defendants, relating to the returns from Sanpete County and especially to the manner in which the canvass should be made, it is manifestly in bad taste and discourteous to that court to proceed as contemplated in the resolution.

The precincts of Fair View and Gunnison were recounted and the Board adjourned until December 8, at which time the remainder were completed.

On December 11 additional writs (similar to those in the preceding case) were served upon the Commission, made returnable December 22. On December 12 a protest was filed by Hon. Jacob Johnson, chairman of the Sanpete County Republican committee, as follows:

To the UTAH COMMISSION:

In behalf of J. D. Page et al., also the judges of election, and the voters of Sanpete County generally, I respectfully protest against the recount by your honorable body of the ballots of the several precincts of Saupete County, for the reason "that said ballots show a different result now from what they did on November 6; that since said election the ballot boxes have been insecurely kept, most of them not sealed, some of them not locked, and kept at such places that they might have been easily tampered with; that the ballots counted are not all the same as those counted by the judges on the day of the election.

In view of these facts, I ask and demand that a full and public investigation of the matter be made, and for this purpose all the judges of election be summoned before your body to testify in this matter, with such other parties as may be produced, to the end that the true result of the election may be determined and declared.

Respectfully,

JACOB JOHNSON,

Chairman Sanpete County Republican Committee.

Mr. Johnson also made a request that the Commission should visit Sanpete County, at a date to be fixed, there to meet the judges of election from the several precincts and such other witnesses as they might call.

The request was agreed to and the invitation accepted, and further action in the canvass of the returns was deferred pending same. The recount of the ballots in the several precincts in question showed a change in the result, as announced previously by the judges, three out of the seven persons stated to have been elected failing to receive a majority of the votes cast.

WEBER COUNTY.

On December 13 the Board proceeded to the examination of the returns from Weber County, and the following table was made:

[blocks in formation]

The discrepancies being greater than the difference in the vote between several of the candidates, the ballot boxes were ordered to be sent in for the purpose of making the necessary recount. Before they were received writs of prohibition on behalf of J. N. Kimball et al., candidates for delegates to the convention, were served upon the Commission, and further proceedings were stayed.

PROCEEDINGS IN COURT.

The several suits or proceedings in mandamus and prohibition having been commenced as above indicated, by agreement they were consoli dated for the purpose of trial, the result in one to be determinative in all. The hearing was first set for December 17, but was continued until the 27th and 28th, and further until January 3, 1895, the trial lasting over several days, and both branches of the cases being considered.

After hearing the evidence and arguments of counsel, the court rendered a decision on January 11, 1895, as follows:

G. W. BARTCH, Judge:

The relator in this case was, at the general election held in November, 1894, a candidate for delegate to the constitutional convention which is to convene in March, 1895, to draft a constitution for the new State in pursuance of the act of Congress approved July 16, 1894, known as the "enabling act."

The defendants constitute the Utah Commission, a board appointed by the President of the United States, and clothed with certain powers, under the laws of the United States, in the management and conduct of the elections in this Territory. The controversy arose because of an attempt by the Commission to exercise certain powers which the relator claims are not within its province, and because of its failure to perform certain acts which the relator claims it was its duty to perform.

The relator avers that at the time of the election, which was held on the 6th day of November, 1894, he was a duly registered and qualified elector, and candidate in

the county of Sanpete in this Territory, and was eligible to the office for which he was a candidate: that judges and clerks of election were appointed as provided by law, and acted at said election, and that the formalities provided and required by law were in all respects complied with, and the election was in all respects duly and legally conducted; that as soon as the polls closed the judges and clerks immediately proceeded to canvass the votes cast in the several precincts of said county, and without adjournment completed the canvass in accordance with law; that he was a candidate for election to the office of delegate to said constitutional convention as one of several delegates apportioned to said county by said "enabling act;" that it was determined by said canvass that he received a majority of the votes cast for said office; that the results of said canvass were placed on the lists, were certified, and the lists sealed and forwarded, as directed by said Utah Commission, in the manner provided by law; that said Commission received the returns of said election, and, having broken the seals and carefully examined the returns, no irregularities or discrepancies appeared therein affecting the result of said election or the result of the election of said relator, or of any candidate for said office, nor the rights of any person voted for for said office; that the said Commission refused to accept said returns as correct; that there was no occasion to open the ballot boxes from the precincts of said county for the purpose of canvassing the same to determine the rights of any person to said office, because there was no disagreement in the returns which affected the rights of any person to said office; that the Commission after the completion of the canvass refused to declare the result thereof, and refused to make an abstract thereof, or to certify to its correctness as required by law, and that it has refused to make an abstract of the returns showing the election of the relator to said office, or to make out and transmit to him a certificate of his election, after demand made therefor.

The defendants deny the allegations of the relator as to his right to the office as a result of said election, and that there were no discrepancies in the returns of the election which affected the result of the election as to the relator or others; and allege that there were such irregularities and discrepancies on the face of the returns that the right of the relator was affected thereby, and that for that reason there was occasion to open the ballot boxes, and because of such irregularities and discrepancies the ballot boxes were opened by the defendants in order that the ballots might be canvassed and the error corrected.

After an alternative writ of mandate had been granted, the relator made application for a writ of prohibition, alleging substantially the same facts, and asked that the defendants, the said Utah Commission, be prohibited from certifying the result of said election, and the number of votes cast for the plaintiff from the canvass of the said ballots otherwise than from said returns. An alternative writ was issued as prayed for, and thereafter various other candidates for delegates to the constitutional convention applied for writs of mandate and prohibition, all of which were based substantially on the same facts and raise similar questions of law. Therefore it was agreed by both sides that the determination of the questions of law under the statute raised in the case at bar should determine such questions raised in all similar cases pending in this court.

It appears substantially from the facts admitted and from the evidence in the case that the relator was a candidate in Sanpete County for the office of delegate to the said constitutional convention; that the election for such delegates was held on the 6th day of November, 1894; that registration officers were appointed and the election conducted substantially as required by law; that the ballots were canvassed, the results declared, and returns forwarded by the election officers; that the papers or documents forwarded by said officers to the defendants consisted of the poll list, judges' list, and tally sheets in duplicate; that the defendants received the said returns and canvassed the same; that the tally sheets show the number of votes cast at said election in said county, as canvassed and declared by said election officers, and show that the relator according to said canvass received a majority of the votes cast, and show no irregularity or discrepancy as to the relator, or affecting his right, or the right of any person to the office; that the defendants by comparing the tally sheets with the registry lists and judges' lists, and by adding together the whole number of votes cast and dividing this sum by the number of candidates, and then comparing the result thus obtained with the results on the registry and judges' lists, found discrepancies in said county amounting to 44 votes, which were more than the majority of votes in favor of the relator as shown by the tally sheets; and that the defendants refused to issue a certificate of election to the relator after demand made, claiming the right to go behind the returns and canvass the ballots. Under this state of facts and the pleadings in the case it becomes necessary to inquire what powers the defendants may or may not exercise, and what their duties are in the conduct of elections.

The laws applicable to this case are found in the act of the Territorial legislature approved February 22, 1878, and in the act of Congress approved March 22, 1882.

After the provision made for the registration of voters, the said Territorial act, in section 9, provides as follows:

"The county court shall, at its first session in June of each year, appoint three capable and discreet persons in each precinct in the county, one at least of whom shall be of the political party that was in the minority at the last previous election, if any such party there be in such precinct, to act as judges of general and special elections; and they shall designate one of the persons appointed to preside, and the other two to act as clerks of said elections;" and then provides that such persons shall be notified of their appointment by the clerk of such court, and how they shall qualify, and in case of a vacancy how it shall be filled.

This section places the power to appoint the judges of election in the county court, and section 10 makes it the duty of said court to provide the necessary books, blanks, stationery, and ballot boxes for the elections, and specifies how and of what material the ballot boxes shall be made, with what kind of locks, and the number of keys they shall be provided, and by whom the keys are to be kept.

Section 11, after requiring that the county court shall furnish the judges of election in every precinct with envelopes, directing how they shall be made, provides that: "Before opening the polls the ballot box shall be carefully examined by the judges of election, who shall satisfy themselves that nothing is therein. It shall then be locked and the key thereof delivered to the presiding judge; and the ballot box shall not be opened during the election."

Under section 12 the judges of election, at the opening of the polls, are required to direct one of the judges acting as clerk to have in custody the registry of voters, and to make the entries therein required by law; and the other of the judges acting as clerk is required to write the name of each person voting, and opposite to it the number of the vote as it is polled. This section authorizes the keeping of two lists, one the registry list, which contains the registration of voters, to be kept, while the polls are open, by one of the judges acting as clerk; the other the judges' list, on which is to be written the name of each person voting by the other judge acting as clerk. This list is to be made up as the voting progresses.

Section 13 provides how the ballot shall be prepared by the voter, to whom it shall be delivered, by whom an l under what circumstances deposited; and section 14 provides that where a person has cast his ballot the judge having the registry list shall write opposite the name of such person the word "voted," and the other judge acting as clerk shall write upon a list to be made by him the name of such voter and the number of the vote. The lists here referred to are the same as those mentioned in section 12.

Thus far the act deals almost entirely with the registration of voters, their qualifications and the manner of holding and conducting the elections, and of casting and receiving the ballots. The requisites necessary to constitute an election lawful are clearly and distinctly set forth.

When the ballots have been received and the polls closed it is incumbent upon the judges to determine the result of the election, and the legislature has clearly indicated how this shall be done.

Section 15 reads as follows: "As soon as the polls shall be closed the judges of election shall immediately proceed to canvass the votes cast at such election, and continue without adjournment until completed;" and then provides that all candidates may be present, either in person or by representative, to witness the canvass, and that when two ballots are found in one envelope only one shall be counted.

The judges must proceed with the canvass immediately after the polls have been closed, and continue without intermission until completed. This provision is mandatory, and is evidently intended to prevent any unlawful interference with the ballots.

Section 16 specifies that the judges, acting as clerks, shall commence the canvass by comparing their respective lists to ascertain the number of votes cast; that is, the registry list and the judges' list, mentioned in section 12. Then the boxes shall be opened, the ballots counted, and the judges, acting as clerks, shall each make a list of all persons voted for. It further provides as follows: "The presiding judge shall then proceed to open the ballots and call off there from the names of the persons voted for, and the offices they are intended to fill; and the judges, acting as clerks, shall take an account of the same upon their lists; and all the ballots shall immediately be returned to the ballot box; and the ballot box shall be locked and securely sealed."

This section gives specific directions how to proceed with the canvass and what to do with the ballots after the same have been canvassed. Its intentions are mandatory, and the judges can not intentionally or willfully disobey them without doing violence to their oaths. The list of all the persons voted for which each judge, acting as clerk, is by the terms of the statute required to make, is what is known as the tally list, and is distinct from those mentioned in section 12. It is incumbent upon the judges to lock and securely seal the ballot boxes after the ballots have been returned to them.

Section 17 reads as follows: "After the canvass shall have been completed the judges of election shall add up and determine the number of votes cast for each person, for the several offices, which result shall be placed on the list made by the judges acting as clerks of the election, and the judges shall thereupon certify to the same, and forward all the lists, securely sealed, together with the ballot box, to the clerk of the county court, by a qualified voter of the county, who shall before taking the same take and subscribe an oath to the effect that he will deliver the same to the said clerk without unnecessary delay, and that he will use his utmost ability to prevent any interference whatever therewith by any person whatsoever."

It will be noticed that this section imposes upon the judges the duty to determine the number of votes cast for each candidate for office, place the result upon the lists of the judges acting as clerks, certify the same, and forward all the lists, securely sealed, together with the ballot box, to the clerk of the county court, and they must be so forwarded by a voter under oath, for the law makes this a prerequisite. It was evidently the intention of the legislature that the delivery by the judges to such "qualified voter" should be a personal delivery, made without delay, and likewise the delivery by him to said clerk, and this to avoid unlawful interference. Any other manner or any other means of forwarding is unwarranted under the law. When all the lists and the ballot box have thus been forwarded to said clerk by the judges their authority as such election judges is at an end. Nor have they any further responsibility.

The lists thus forwarded are mentioned as returns in the next section of the act, and there has been much contention on the question as to what lists or documents constitute the election returns. Counsel for the relator appear to maintain that the tally sheet or lists made by the two judges, acting as clerks, while canvassing the vote, alone constitute the returns, while counsel for defendants insist that the registration lists and judges' lists, mentioned in section 12, together with the tally lists, constitute the returns. I am of the opinion that counsel for the defendants are correct in their view on this question. The legislature evidently intended by the use of the word "all" in the clause, and forward all the lists, securely sealed," to include not only the tally list but also the registry list and the judges' list in order that the canvassing board which would have charge of the same thenceforth, if, in any proper case, it would become necessary to again canvass the ballots, might be placed in the same position, so far as the lists were concerned, as the judges of election were in when they made the canvass.

I hold, therefore, that the registry list, the judges' list, and the tally list constitute the returns to be forwarded as directed in this section.

Section 18 reads as follows: "On receipt of the ballot boxes and returns of election the clerk of the county court, in the presence of at least one member of the county court, who is not publicly known as a candidate voted for at such election, shall break the seal of the returns, and all candidates may be present, as provided in section 15 of this act, and said clerk and member or members of the county court shall carefully examine the returns, and if no irregularity or discrepancy appear therein affecting the result of the election of any candidate, they shall accept said returns as correct, but if the right of any person voted for for any office is in any way affected, then the clerk and said members of the county court shall open the ballots from said precinct and canvass the same so far as to determine the rights of the person whose office may be affected. They may also cause to appear before them any persons whom they deem proper, and take their testimony in relation to said election in said precinct." This provision of the law makes it the duty of the clerk of the county court, on receipt of the ballot boxes and returns, to break the seal of the returns, and he must do this in the presence of at least one member of said court and of all candidates who wish to be present, and then such clerk and member or members of said court shall examine the returns and accept them as correct, unless they show such irregularity or discrepancy as will affect the result of the election of any candidate. If such irregularity or discrepancy appear in the returns then, to determine the rights of the candidate whose office may be affected, they “shall open the ballots for said precinct and canvass the same." Even in such case the opening of the ballots appears to be limited to the precinct wherein such irregularity or discrepancy exists as shown by the returns. When the returns show a case which renders it necessary for such canvassing board to open the ballots it may summon persons before it to take their testimony in relation to the election. The power to go behind the returns and open the ballot boxes in proper cases for the purpose of recounting the ballots is expressly conferred upon the clerk of the county court and the members thereof.

Section 19 provides as follows: "If there shall be any disagreement in the returns in regard to the number of votes cast for any Territorial officer, or any officer whose election is affected by the votes of more counties than one, then said members of the county court shall canvass the votes, and proceed as herein directed. After the completion of the canvass said member or members and the clerk of the county court

« ПредыдущаяПродолжить »