Cunningham v. Kumalae

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  Separate proceedings in mandamus were brought by petitioners to
compel the county clerk of Hawaii county to place their names on
the county ballot of the general election for county offices to
be held in the County of Hawaii on November 8, 1938. The
alternative writs are the same in both cases with the exception
of the number of precincts involved in alleged irregularities.
Pursuant to stipulations of the parties, the cases were
consolidated in the lower court and in this court.
  The primary election of candidates for office at the general
election had been held on October 1 previous. The petitioner
Cunningham was a nonpartisan candidate at the primary for
nomination to the office of supervisor at large of Hawaii county;
the petitioner De Mello was a nonpartisan candidate at the same
primary for nomination to the office of supervisor of Hawaii
county from the second representative district. There were two
candidates for nomination to the office of supervisor at large
and six to the office of supervisor from the second
representative district. But one supervisor at large was to be
nominated and three supervisors were to be nominated from the
second representative district. The county clerk certified that
Cunningham's opponent had received the votes of a majority of the
registered voters voting in the district in which he was a
candidate and issued to him a certificate of election as
supervisor at large of Hawaii county; he also certified that
three of De Mello's opponents had received the votes of a
majority of the registered voters voting in the district in which
they were candidates and issued to them certificates of election
to the office of supervisor of Hawaii county from the second
representative district.

The petitioners, by the alternative writs, sought to impeach the
certificate of the county clerk of the result of the election and
the certificates of election issued by him upon the grounds
specifically, (a) that the boards of inspectors of certain
precincts involved had wholly failed to return to the county
clerk the totals of votes cast or totals of ballots spoiled in
their respective precincts on their official returns of results;
(b) that the ballot bags of certain precincts involved were not
sealed as required by law when received by the county clerk and
it could not therefore be ascertained from the condition of the
bags whether the ballots therein contained were the veritable
ballots cast in the precincts and the official returns of results
from the precincts could not be verified, the condition of the
bags making it impossible to verify the tally of total votes of
registered voters cast in the precincts; (c) that the boards of
inspectors of certain precincts involved had failed to certify in
their respective rosters of voters to the number of electors who
failed to vote, the number of electors assisted and the number of
applicants registered so that their official returns were not
subject to verification; and (d) that boards of inspectors of
certain precincts involved had wholly failed to certify to the
rosters of voters and their official returns were not therefore
capable of verification and generally that by reason of the
irregularities detailed, it was impossible for the county clerk
to ascertain from the official returns received by him the total
of votes of registered voters cast at the primary election or the
percentages of votes cast for any candidate, particularly those
of the petitioners, unless the candidates received more than
fifty per cent of the number of registered voters at the primary
election. No fraud on the part of any board of inspectors or on
the part of the county clerk was alleged. It was the claim of the
petitioners that the duties of the respondent were purely
ministerial; that the official returns of the

election, upon which the respondent certified to the outright
election of the petitioners' opponents and upon which he had
refused to place the names of the petitioners on the ballots for
the general election, were incomplete, inadequate, unlawful and
wholly insufficient to enable him as county clerk to certify to
the results of the primary election; that the county clerk in so
certifying had attempted to perform judicial functions in
determining the total of votes of registered voters cast at the
primary election; and that hence his certificates were null and
void.
  Demurrers to alternative writs were overruled and the cases
proceeded to the merits resulting in the writs being made
peremptory. The county clerk appealed. Upon the record on appeal
being docketed in this court, due to the imminence of the general
election the rules of court pertaining to the filing of briefs
were waived, the cases set for immediate hearing and upon
submission, we announced our conclusion in the form of a court
order reversing the orders appealed from and remanding the cause
with instructions to forthwith reverse, vacate and set aside the
orders for the issuance of the peremptory writs to quash the same
and to dismiss the petitions. It remains to express the reasons
for our conclusion.
  In our opinion the alternative writs failed to set forth facts
sufficient to entitle petitioners to the relief prayed for the
reasons: (a) None of the irregularities complained of, with the
exception of the omissions from official returns of boards of
inspectors of a return of the number of votes cast, were involved
in the performance by the county clerk of his statutory duty to
prepare a certified statement of the result of the primary as to
candidates for the various county offices, and, in the absence of
fraud, were mere irregularities and did not vitiate the election;
and (b) that, in the absence of allegations to the contrary,
there were in the possession of and accessible to the county
clerk official

records of the primary to which he might resort and supplement
the omissions in the returns as to the numbers of votes cast.
  The primary law is not complete in itself. It does not pretend
to set up the complete machinery for the holding of a primary
election. It depends in part upon the provisions of the county
Act pertaining to county elections and to the extent that the
latter is incomplete upon the territorial general election laws.
By the provisions of section 7747 of the primary law it is
provided that "the laws relating to election shall apply to all
primaries" in so far as they shall be consistent with the primary
law. And the section referred to expressly declares that in so
providing the legislature intended to place the primary under the
regulation and protection of the election laws as far as possible
consistent with the provisions of the primary law. The laws
relating to county elections are sections 2817 to 2825, R.L.
1935, both inclusive; those pertaining to elections generally are
sections 7640 to 7715, both inclusive. Section 2817 of the county
election laws makes the general election laws applicable to
county elections except as provided in the county election laws.
  The county election laws were passed subsequent to the
enactment of the general election laws. Both the general election
laws and the county election laws were in existence at the time
of the passage of the primary election laws. In construing the
provisions of the primary law, we proceed upon the premise that,
under the provisions of section 7747 and section 2817, as between
the provisions of sections 2817 to 2825, both inclusive,
pertaining to county elections on the one hand and sections 7640
to 7715, both inclusive, pertaining to elections generally on the
other, where any inconsistency occurs the former control and that
neither the provisions of law pertaining to county elections nor
those pertaining to general elections apply in

so far as they may be inconsistent with the primary law.
  Section 7734 included in the primary law provides as follows:
"Immediately upon the closing of the polls at the primary the
inspectors shall count the votes cast, in the same manner as
provided by law for the counting of votes at an election. The
inspectors shall, on separate sheets or blanks to be provided for
that purpose, make full and accurate returns of the votes cast
and shall forthwith send one copy thereof to the secretary of the
Territory and to the county clerk where the primary is held and
one copy to the chairmen of the territorial central and county
committees of each party." No claim was made that any return
involved did not comply with the provisions of section 7734 to
the extent of not containing full and accurate returns of the
votes cast for each candidate. What form the separate sheets or
blanks took with which the inspectors of election had been
provided for the purpose of making their returns does not appear.
  Paragraph 2, section 7735, provides as follows: "As soon as may
be after the count at the primary the county clerk shall prepare
a certified statement of the result of the primary as to
candidates for the various offices and shall send a copy thereof
to the territorial central and county committees of each party."
  Section 7720 of the primary law concludes with the following
paragraph: "This chapter shall be liberally construed so that the
real will of the electors may not be defeated by any informality
or failure to comply with the provisions of law in respect to the
giving of any notice, or the conducting of any primary, or the
certifying of the results thereof."
  The gravamen of these proceedings is that the official returns
of the election, upon which the county clerk certified to the
outright election of petitioners' opponents and upon which he had
refused to place their names on the

ballots for the general election, were incomplete, inadequate,
unlawful and wholly insufficient to enable him as county clerk to
certify to the results of the primary election and that the
county clerk in so certifying had attempted to perform judicial
functions in determining the total votes of registered voters
cast at the primary election. The irregularities and omissions
complained of must therefore be considered from the standpoint of
the statutory duty of the county clerk to certify to the results
of the election. If not involved in the performance by the county
clerk of that duty, they affect the election generally and, in
the absence of fraud, are mere irregularities and do not vitiate
the election.
  That portion of paragraph 1, section 7735, with which we are
concerned, provides as follows: "The person receiving the
greatest number of votes at a primary as a candidate of a party
for an office shall be the candidate of the party at the
following election, and any nonpartisan candidate receiving at
least twenty per centum of the votes of registered voters cast at
such primary shall also be a candidate at the following election;
provided, however, that any candidate receiving the votes of a
majority of the registered voters voting of the district in which
he is a candidate shall be thereby duly and legally elected to
the office for which he is a candidate at such primary."
  The only data necessary or material to the preparation by the
county clerk of the statement of the result of the primary
election was that upon which the results of the election
depended, namely, the number of votes received by each person as
a candidate of a party for an office; in the case of a
nonpartisan candidate the number of votes of registered voters
cast; and the number of votes constituting a majority of the
registered voters voting of the district in which a person was a
candidate. None of the irregularities or omissions complained of,
with the exception of the omission

from official returns of boards of inspectors of a return of the
number of votes cast, were involved in the performance by the
county clerk of his statutory duty to prepare a certified
statement of the result of the primary as to candidates for the
various county offices. The failure of boards of inspectors to
include in their rosters the number of electors who failed to
vote, the number of electors assisted and the number of
applicants registered could not possibly affect the determination
of the result of the election. None of the information omitted
was necessary to such determination. The number of electors who
voted, not those who failed to vote, was a determining factor.
Whether an elector voted unassisted or was assisted neither
increased nor diminished the number of votes cast. Information
upon the number of applicants registered was of similar import.
These were all matters of detail that did not affect the result.
Similarly in respect to the alleged failure of the inspectors to
include in their returns the totals of ballots spoiled and to
certify to their rosters. A return of the number of ballots
spoiled was unnecessary to the performance by the county clerk of
his statutory duty. The absence of certification by the board of
inspectors could not possibly affect the performance by the
county clerk of his statutory duty unless it further appeared
that the roster could not be otherwise identified. Absence of
certification does not foreclose identification by other means.
Nor is a roster itself the only means of ascertaining the
information to which it refers.
  In the same category is the unsealed condition of certain bags
containing election records received by the county clerk which,
according to the allegations of the alternative writs, prevented
the county clerk from verifying the ballots. There is no
allegation that the contents of the bags were tampered with or
any of their contents removed. Apparently the records were intact
and were in no different

condition than if received with the seal intact. The contents of
the unsealed bags, in the absence of allegations to the contrary,
possessed the same means of identification as the contents of a
sealed bag. It is inconceivable how this circumstance could
affect the ability of the county clerk to use the official
returns contained in the bags. Moreover the verity of the ballots
was not in question.
  From the allegations of the alternative writs the petitioners
apparently were able to identify the precincts from which the
unsealed bags emanated. A legitimate inference is that the county
clerk could do likewise. Where, as here, no fraud is alleged and
no claim is made that the returns are incorrect, there was no
occasion, even if the county clerk possessed that power, to
verify the tally of total votes of registered voters cast in the
precincts.
  Thus far we have assumed that the delinquencies of which the
boards of inspectors were allegedly guilty resulted from their
failure to observe or perform positive duties imposed upon them
by law. Whether this assumption is warranted by the provisions of
the election laws, we deem unnecessary to decide. Assuming, but
not deciding, that to the extent and in the particulars alleged
the boards of inspectors failed to observe and perform positive
duties imposed upon them by law where, as here, the election laws
provide that they shall be liberally construed so that the real
will of the electors may not be defeated by any informality or
failure to comply with the provisions of law in the conduct of a
primary election, in the absence of fraud, the statutory duties
violated will be considered directory and their nonobservance or
nonperformance mere irregularities not in any way affecting the
legality of the election. (McCrary, Elections [4th ed.], pp. 183,
184; Howard v. Shields, 16 Ohio St. 184, 191; Jones v.
State, 153 Ind. 440; State Ex Rel. Doyle v. Superior Court,
138 Wash. 488,

244 P. 702; Hooker v. Foster, 19 S.W. [2d] [Tex. Civ.
App.] 911.)
  Finally as to the alleged failure of election inspectors to
include in their returns the number of votes of registered voters
cast. Construing paragraph 2 of section 7735 in the light of the
purposes of election returns, the provisions of law determining
the results of the election and the necessity of an official
determination of the result of application of the law to the
arithmetical results obtained, the conclusion is inevitable that
the statute in the use of the words "full and accurate returns of
the votes cast" includes a return of the number of votes of
registered voters cast at the primary in the precinct to which
the returns refer. A return merely of the votes cast for the
several candidates would not necessarily disclose the total
number of votes cast. And the number of votes cast in each
precinct is necessary to permit a county clerk to determine
whether a nonpartisan candidate received at least twenty per
centum of the votes of registered voters cast and to determine
whether any candidate has received the votes of a majority of the
registered voters voting in the district in which he was a
candidate. The omission to return the number of votes cast was
one, however, that could have been supplied by the inspectors of
election upon request of the county clerk. This being so, we see
no reason why the county clerk in the absence from returns of the
information required could not resort to other official records
in his possession or to which he had access to supply the
necessary material. In so doing, the return would be supplemented
from the same source to which the inspectors themselves would
have resorted had a request been made of them by the county clerk
for the omitted data. Reference by the county clerk to other
official sources of information is not to impeach but to
supplement the returns. At the conclusion of the primary
election, under the primary law, as amplified by the county

election laws and the general election laws, there were in the
possession of or available to the county clerk the following
official county records of each precinct in the county: 1. A list
of registered voters of the precinct, hereinafter also referred
to as the "register of voters," prepared by the county clerk
pursuant to section 7655 and sent by him to the inspectors of
election of the precinct pursuant to sections 7655 and 7731, upon
which had been checked off by the inspectors, pursuant to
paragraph 5, section 7667, the name of each voter polling a vote
and transmitted by the inspectors to the county clerk personally,
pursuant to paragraph 12, section 7667, and section 7704; 2. A
copy of the returns of the votes cast made by the inspectors upon
separate sheets or blanks provided for that purpose and sent by
them to the county clerk pursuant to the provisions of section
7734; 3. All precinct ballots, lists and records concerning the
primary election of county nominees transmitted by the inspectors
to the county clerk pursuant to section 2820, including: (a) the
original returns of the inspectors of votes cast, a copy of which
had been sent to the county clerk pursuant to section 7734; (b)
all blank ballots, whether used or not, and all printed ballots
used, spoiled ballots cancelled pursuant to section 7694 and
ballots rejected pursuant to section 7700; (c) the name of each
voter polling a vote in the precinct recorded by the board of
inspectors pursuant to paragraph 5, section 7667, referred to
generally as the "roster"; (d) a list showing the names of all
electors on the list of voters failing to vote prepared by the
inspectors pursuant to paragraph 12, section 7667; and (e) all
other records pertaining to the primary.
  The correctness of the official records of the primary election
other than those referred to in the alternative writs has not
been challenged. The presumption of regularity is sufficient upon
which to predicate the conclusion that as to them they were in
due and regular form. Moreover

under the provisions of section 7707 every record made in
pursuance of law by the board of inspectors of the election is
prima facie evidence of the facts therein set forth. From the
contents of the official records of the primary in the possession
of or available to the county clerk, other and in addition to
those subject to attack, it is apparent that to the extent that
any copy of the returns of election was deficient, by reason of
the failure of the inclusion therein of the number of votes of
registered voters cast in the precinct to which they refer, that
deficiency could have been supplied from three different sources,
first, from the list of registered voters of the precinct checked
off by the inspectors, second, from the roster and third, from
the original return which, under the presumption of regularity,
included what the copy sent to the county clerk lacked. The
presumption is that the original return which the inspectors
retained and later sent to the county clerk with the remaining
records contained that information.
  It might not be inappropriate at this juncture to remark that
upon the trial in all of those instances where the returns of
inspectors of the votes cast were incomplete, due to the omission
of the total votes cast, the rosters of the precincts involved
were complete even to certification by the inspectors and
supplied the necessary information.
  Unquestionably the statutory duties of the county clerk are
purely ministerial. But to concede to the county clerk the right
to canvass the results of the primary election by resorting to
other official election records to supply omissions in the
official returns, is not to admit the exercise by that officer in
so doing of any judicial function. That the necessity may exist
for the ascertainment from official sources other than the
returns of the state of facts on which the performance of his
official duty depends does not operate to convert it into an act
judicial in its nature. As said by the court in Grider v.
Tally, 77 Ala. 422,

426: "That a necessity may exist for the ascertainment, from
personal knowledge, or by information derived from other sources,
of the state of facts on which the performance of the act becomes
a clear and specific duty, does not operate to convert it into an
act judicial in its nature." The county clerk in resorting to
official records other than the returns is not going behind the
returns but merely supplementing the same to the extent of their
omissions. In so doing he is not doing any more than what the
inspectors of election should have done. He resorts to the same
material to which the inspectors would have resorted and employs
the same figures that the inspectors would have employed. To that
extent the county clerk is acting in a ministerial and not in a
judicial capacity. (State v. Byrne, 65 N.D. 283,
258 N.W. 121, 124.)
  The demurrers should have been sustained upon the ground
discussed and the petitions dismissed.