Woods v. Sheldon , 9 S.D. 392 ( 1896 )

Corson, P. J.

This is g,n application by the plaintiff, Richard J. Woods, for a peremptory writ of mandamus, directed to Charles H. Sheldon, as governor of the state of South Dakota, and Thomas Thorson, secretary of said state, commanding them to issue to the plaintiff a certificate of election as presidential elector of this state. The case comes before this court on an order to show cause. The affidavit for the writ contains the usual statements as to the holding of a general election on November 3, 1896, and that the plaintiff was a candidate on the republican ticket for presidential elector; that the said governor and secretary of state, on the 3d day of December, 1896, met at the senate room in the state house at the capital of the state,* and proceeded to open and canvass the returns for members of congress and presidential electors, and declared the result of the said canvass, by which it appears that the plainuiff had a plurality of the votes cast at said election for a presidential elector. It is not stated, however, that all the returns from all the counties of the state were canvassed, nor that the canvassers had adjourned. A demurrer was interposed on the part of the governor and secretary of state to the affidavit of the plaintiff, on the ground that it did not state facts sufficient to constitute a cause of action. The specific grounds urged on the argument were that, the governor being the head of a co-ordinate department of the government of the state, this court had no power to control his action in the discharge of his official duties by mandamus; and also that it does not affirmatively appear either that all the returns from the several counties of the state have been canvassed, or that the canvassers have concluded the canvass and adjourned.

As the only ground of the demurrer is that the affidavit does not state facts sufficient to constitute a cause of action, the question of the jurisdiction of this court of the person and subject-matter is not raised, and therefore need not be decided in this proceeding. Comp. Laws, § 4909. It is due the governor, however, to state that he, through his counsel, in open court, expressed a desire that the matter should be disposed of on its merits, and waived all questions as to the jurisdiction of the court. I am of the opinion that the complaint does, in effect, state that the canvass was completed, and the canvassers had adjourned, upon the plaintiff’s theory of the effect of the acts of the governor and secretary of state, which is that the canvassers having declared the result of the canvass as far as completed, and decided that the returns from the counties of Butte and Lawrence were not such as they were required to canvass, the canvass was concluded. As the decision upon this demurrer was reserved without prejudice, I am of the opinion that it should be overruled.

An answer was filed by the defendants, which is very full and specific, and sets out all the proceedings had by the canvassers. A demurrer was interposed to this answer, on the ground that it does not state facts sufficient to constitute a defense to plaintiff’s application for the writ. It appears by the answer that the canvassers canvassed the returns for all the counties of the state except Butte, and unorganized counties attached to Butte, and Lawrence county, and that the canvassers, having found the returns from those counties defective, took a recess from day to day until proper returns could be obtained from those counties; that a messenger had been sent for properly certified returns from those counties; and that, upon their receipt, the canvassers intended to proceed and complete the canvass. Certified copies of the purported returns from those counties are annexed to the answer. From these it appears that in the two purported returns from Butte county, one of that county proper, and one of the unorganized counties attached to that county, there were no certificates of the auditor, of any description, upon the purported copies of the abstracts. The blank for the auditor’s certificate was not filled out, signed, or sealed in either case.' It also appears that the certificate of the auditor of Lawrence county to the purported returns from that county contained no seal on any part of the purported copy.

It is contended by the learned council for the plaintiff that the canvassers had no authority to take such recess, or to send a messenger for proper returns from those counties, and that, when the canvassers had canvassed the returns they found properly authenticated, the canvass was concluded. The learned counsel for the candidates upon the People’s party ticket insist: First, that the returns from the counties named were sufficient, and that it is still the duty of the said canvassers to canvass the returns from those counties; second, that, if not sufficient, then the canvassers had the power and authority to take a recess from day to day and to send a messenger to those counties for legal returns. The court held the answer sufficient and overruled the demurrer. Thereupon all parties submitted the case for the decision of the court upon the pleadings and papers before the court. A discussion, therefore, of the facts stated in the answer of the defendants, will be all that will be necessary in the decision of this case. The questions presented are important, and require careful consideration.

Sec. 3, Chap. 84, Laws 1890, defining the duties of the said governor and secretary of state in canvassing the returns for members of congress and presidential electors, reads as follows: “Within 30 days after said election, the governor and secretary of state, in the presence of the auditor of the state, the attorney general and one or more judges of the supreme court shall open the returns made to the secretary of state, for members of congress and for electors of president and vice president of the United States, and shall forthwith proceed to ascertain the number of votes given to the different persons for said offices; and the person having the highest number of votes shall be considered duly elected; * * * and to each person duly elected the governor shall give a certificate of election, signed by him, sealed with the great seal, and countersigned by the secretary of state, and shall transmit the said certificates to each person so elected, and shall issue and publish his proclamation declaring the election of such persons.’’ This section is somewhat vague and indefinite, and, in order to fully understand the meaning of the section and the duties imposed upon the governor and secretary of state, it will be necessary to examine other sections of the act. The first section of the act, after specifying the manner in which the county board of canvassers shall be organized, provides that said board “shall proceed to open the returns from the various voting precincts of the county, and make abstracts of the votes in the following manner: The abstract of the votes cast for governor * * * shall be upon one sheet; the abstract of votes for members of congress and electors of president and vice president of the United States shall be upon one sheet.” The second section provides that “each of the aforesaid abstracts of the votes made, as aforesaid, shall be duly signed and certified by the said canvassers, under the seal of said county clerk or auditor, and shall be deposited in the office of said clerk or auditor. It shall be the duty of said clerk or auditor to immediately make a certified copy. * * * He shall also make a certified copy of the said abstract of votes for members of congress and electors of president and vice president of the United States, and shall inclose the same, and direct to the secretary of state and indorse on the envelope * * * the said auditor’s or clerk’s signature; and shall forward the same to the secretary of state without unnecessary delay.” And Sec. 4 provides that “if the returns are not received by the secretary of state, within twenty days after election, he shall send a messenger for them.” While Sec. 3 does not specifically proyide that the canvass shall be of sill the votes from all the counties, such a duty is necessarily implied from the duty imposed upon them to canvass the vote. “What is necessarily implied in a statute is expressed.” Gardner v. People, 62 N. Y. 299. It is clearly the duty, therefore, of the governor and secretary of state, to canvass all the votes from all the counties of the state; and until that duty has been performed, if the purported returns are obtainable, there is no authority on the part of those officers to make any declaration of the result of the votes cast at the state election, or to issue certificates of election to any candidate for presidential elector. It is only “to each person duly elected” that the governor is authorized to give the certificate of election. And the canvassers can only determine who is “duly elected” after a full canvass of all the votes cast in all the counties of the state, if duly authenticated returns are obtainable.

The canvass not having been completed as required by law and it affirmatively appearing that the returns of some of the counties of the state have not been canvassed, and the governor and secretary of state having taken a recess from day to day until proper and legal returns can be obtained from those counties, the question is presented as to the power of the canvassers to take such a recess, for a reasonable time, in order to obtain proper and legal returns from those counties. They are not, in terms, prohibited from taking such a recess, and their right to so take it, in order to enable them to properly perform the duties imposed upon them by law, it seems to me, is necessarily implied and included in the powers granted. The returns or purported returns are sealed up by the auditor, and in that condition transmitted to the office of secretary of state. By Sec. 5 it is provided that such returns (“said abstracts”) shall be kept in the office of the secretary of state, unopened, until the day appointed for opening them, and shall only be opened in the presence of the board. Suppose one of the envelopes when opened contains no certified copy, or any purported copy, of an abstract of the votes cast for the candidates for members of congress or presidential electors, but contains a purported copy of the abstract of county officers of the county or some other equally irrelevant paper; would it be seriously contended that the failure of the county auditor to perform the duty imposed upon him by law could disfranchise the electors of the county, and deprive the officers actually receiving the highest number of votes at the election of their certificates of election? I apprehend not. Such a theory, if sustained, would place it in the power of a county auditor, intentionally, or by accident or mistake, to destroy an election, and enable parties not entitled thereto, to obtain certificates of election.

As we have seen, the envelope purports to contain the election returns, and are sealed by the auditor, and in that condition transmitted to the office of the secretary of state. When properly indorsed, the secretary of state must presume that the envelopes contain the duly authenticated returns, as he has no authority to open the envelopes, except at the time of the canvass, in presence of the canvassers. He is precluded, therefore, from sending a messenger for them, as provided by Sec. 4, of the act. If, when opened, the envelope contains no duly authenticated copy of the abstract, are the canvassers without power to supply the proper returns? Clearly not. There must, of necessity, be vested in the canvassers the power to obtain a duly authenticated copy of the abstract, in order that they may perform the duties imposed upon them by law, namely, to canvass all the votos, and issue to the parties having the highest number of votes the certificates to which they are entitled. Smith v. Lawrence, 2 S. D. 185, 49 H. W. 7.

I am of the opinion, therefore, that the power of the canvassers of the vote for members of congress and presidential electors, to adjourn to a day certain, or take a recess from day to day, for a reasonable time, to enable them to obtain properly authenticated returns, and to send a messenger for the same, is clearly and necessarily implied from the duty imposed upon them by the statute, and that the canvassers are required to exercise that power whenever necessary to enable them to properly canvass the entire vole of the state. Much stress is laid upon the clause found in Sec. 3, “shall forthwith proceed to ascertain the number of votes given,” etc. This direction is evidently based upon the presumption that legal and proper returns, such as it is the duty of the auditors to furnish, have been received by the secretary of state, and are before the canvassers. This provision, like all other statutory provisions, must receive a reasonable construction, so as to prevent it from defeating the will of the people, as expressed by their vote. The expression “forthwith,” therefore, used in Sec. 3, means the canvass must be completed within such reasonable time as is required to perform the duty enjoined upon the canvassers, namely, to canvass all the votes from all the counties of the state, as shown upon the face of the abstract, deposited in the office of the county auditor, so that the results of the county canvass can be obtained within a reasonable time.

I do not deem it necessary, in this case, to decide whether or not the returns or purported copies of the abstracts sent to the office of the secretary of state, from the counties of Butte and Lawrence, were such as the canvassers would have been justified in canvassing. That question will properly arise in another proceeding now pending in this court, in which a writ of mandate is sought to compel the governor and secretary of state to proceed to canvass the returns of those counties now before them; and I do not deem it proper to anticipate or discuss the questions that will arise in that proceeding.

The canvassers of the congressional and presidential returns are entitled to have before them regular and legal returns in making their canvass, and county auditors are required to furnish them with such returns. The duties imposed upon county auditors are so plain and simple that a failure to comply with the requirements of the statute can only result from gross carelessness.

My conclusions are that the governor and secretary of state, as canvassers of the returns for members of congress and presidential electors, not only possessed the power to adjourn until the proper and legal returns could be obtained from the counties named, and to send a messenger for such returns, but that they were fully justified in so doing under the facts disclosed in their answer. The writ must therefore be denied, and it is so ordered.