Brown v. Board of Commissioners

Election Retubns— Canvassing Board — Illegal Votes. Where election returns are regular in form and genuine, a canvassing board has no authority to determine whether illegal votes have been received and included in said returns. 2. Votes, Error in Excluding; Mandamus. Where, upon such investigation and determination, certain votes are excluded from such returns and canvass by the canvassing board, held, that such exclusion is erroneous, and said canvassing board may be compelled by mandamus to reconvene and recanvass said returns.

Original Proceedings in Mandamus. On December 27, 1887, an alternative writ of mandamus was issued out of this court upon a verified petition filed there-’ fin’ on behalf of H. L. Brown, and directed to the board of county commissioners of Rush county, and J. R. Stock, A. C. Lippert and J. E. Ruhl, members of said board, and L. K. Hain, county clerk of said county, commanding them to meet on the 31st day of December, 1887, at the office of the county clerk of Rush county, as a board of canvassers, and then and there to canvass the returns of an election held on the 8th day of November, 1887, in said county; and to canvass the returns from the first commissioner district and declare therefrom that H. L. Brown received 308 votes for county commissioner in said first commissioner district in said county, and that R. C. Jeffries received 303 votes for commissioner in said first commissioner district, and to declare that H. L. Brown received a majority of all the votes cast at said election in the first commissioner district in said county for county commissioner, and to duly issue to H. L. Brown a certificate of election therefor. The petition alleged that the first commissioner district of said county was composed of the townships of Center, La Crosse, Fairview, and Big Timber, and that at said election for county commissioner in said district, plaintiff received in Center township 238 votes; in La Crosse township, 16 votes; in Fairview township, 37 votes; in Big Timber township, 17 votes; total, 308 votes; that R. C. Jeffries received for the office of county commissioner in said first commissioner district, in Center township, no votes; in La Crosse, township, 210 votes; in Fairview township, 40 votes; in Big Timber township, 53 votes; making a total of 303 votes; and that the election returns from said townships were duly made to the county clerk of said county. Plaintiff further alleged that on the 11th day of November, 1887, said defendants met as a canvassing board, and proceeded to canvass the returns from said election, and the board threw out and refused to count 17 votes from Center township, and did determine that plaintiff received only 221 votes from said township, instead of 238, as is shown by said returns, and that the board determined and declared that Jeffries had received a majority of all the votes cast in the first commissioner district, and issued a certificate of election to him. On the 5th day of January, 1888, the defendants appeared and filed their motion to quash the alternative writ; and thereupon the attorneys for the plaintiff and defendants entered into the following stipulation: “It is now here stipulated and agreed that the motion to quash the alternative writ be passed for hearing until the February sitting of this court; that this cause be advanced for hearing at that sitting; that if said motion to quash is overruled, the answer of the defendants to be filed instanter, without delay to the hearing thereon at that time.” c Thereupon said cause was continued until the February sitting of the court. On the 10th day of February, the parties appeared, and the defendants, by leave of court, withdrew their motion to quash, and filed their answer. In their answer, among other things, they admitted all the allegations of the plaintiff's petition, but alleged that on the 11th day of November, as a canvassing board they found and determined that at said election in the first commissioner district, in Center township, there had been 17 illegal votes cast, and that said votes were counted and returned in the returns from said township in favor of H. L. Brown for county commissioner of the first district, and that thereupon, and in the presence of Brown, and by his consent, said votes were rejected, thrown out and not counted, and that the returns from the township were counted 221 instead of 238, as shown by the face of the returns. On the part of the plaintiff, the certified returns from the said townships composing the first commissioner district of said county were offered in evidence. No evidence was offered on behalf of the defendants. The opinion herein was filed at the session of the court in February, 1888.