
    
      W. O. CARBIS v. W. H. DALE.
    Election — Election Contest — Filing op Statement — Time foe.
    Revised Statutes, section 917, requiring a contestant to file a written statement of election contest within forty days after the return day of the election, requires the filing of such statement within such time after the board of canvassers meets to canvass the returns on the Monday next after the election as required by section 869, and not from the time the result is declared and recorded as required by section 873.
    Decided April 25, 1901.
    Appeal from District Court Salt Lake County. — Hon. W. G. Hall, Judge.
    Election contest. From a judgment of dismissal, contestant appealed.
    AFFIRMED.
    
      George L. Nye, Esq., for appellant.
    
      Messrs. Erick & Edwards and O. W. Boyd, Esq., for respondent
   BASKIN, J.

This is an election contest. The contestant, W. 0. Carbis, and the contestee, "W. H. Dale, were, as candidates for the office of county treasurer, voted for at the general election held in Salt Lake county on the sixth day of November, 1900. The board of canvassers of said county on the twenty-first day of said month determined and declared that the said Dale had received the greater number of votes for said office, and a certificate of election was issued to him. The petition or statement of contest was filed by tbe said Car-bis in tbe court below on tbe twenty-sixtb day of December, 1900. Tbe contestee moved to dismiss tbe contest on tbe ground that tbe contestant failed to file tbe written statement of contest required by section 917 of the Eevised Statutes within forty days after tbe return day mentioned in said section, and that therefore tbe court bad no jurisdiction to bear or determine tbe grounds of tbe contest. Tbe requirements of said section referred to are as follows: “When an elector contests tbe right of any person declared elected to such office be must within forty days after the return day of tbe election, file with tbe clerk of tbe district court of tbe county within or for which such office is to be exercised, a written statement, setting forth specifically: (1) The name of tbe party contesting such election,” etc. Tbe court below granted tbe motion and dismissed tbe action.

Tbe appellant claims ,tbat tbe return day mentioned in tbe statute is tbe day on which tbe county canvassers declare tbe result of tbe election for a particular office, and tbe result is entered of record, as provided in section 873 of tbe Eevised Statutes. Tbe respondent claims that it is the day on which tbe board of canvassers is required by tbe statute to meet for tbe purpose of canvassing tbe election returns. As stated in tbe brief of contestant’s counsel, the foregoing is tbe only point of contention on this appeal. It is apparent that tbe Legislature used tbe terms “return day” in connection with some antecedent provisions of tbe election law which required a return to be made of something by some person or body to some other person or body on a particular day, and that that day was tbe one designated as tbe return day. It is therefore necessary to ascertain from tbe antecedent sections of tbe election law what they required to be returned, by whom, to whom, and on what day and for what purpose the return was to be made; Tbe thing to be returned is designated in section 864, Revised Statutes, “election returns,” and consists of the documents and things constituting the election returns, mentioned in sections 859 and 860, and which by said sections are required to be inclosed in sealed envelopes. . Section 863 requires these sealed packages to be delivered to one of the judges of election of the respective election precincts, selected by lot or agreed upon, before adjournment, after the judges have performed their prescribed duties, and the judge to whom the said packages are delivered is required, within twenty-four hours after receiving them, to deliver the same to the county clerk; and by section 867 the county clerk is required to produce the packages containing the same before the board of canvassers, when in session, for the purpose of canvassing the returns. By section 869 the board of county commissioners are ex officio the board of canvassers, and are required to meet as such to canvass the returns at their usual place of meeting at 12 o’clock noon on the Monday next after the election. From these provisions it appear§ that the things to be returned are the election returns of the respective election precincts of the county; that the .return is to be made by the judges of election, and by the county clerk to the board of canvassers, and that the last of the steps required to be taken.in making the return is the presentation of the election returns by the clerk to the board of canvassers on the Monday next after the election; and that the purpose of the return to said board is the canvassing of said returns. There is no provision requiring the board of canvassers to make.to any one election returns, or to do any act which, under any tenable construction, can be considered as making such a return; but their duties respecting the returns consist in canvassing the returns made to it, declaring the result, and entering the same on its records. Sections 869-873. It is evident that the first Monday after the election is the day referred to in section 917 as the return day, and was tbe one which the Legislature had in view when said section was adopted. The first Monday after the election in question occurred on the twelfth day of November, 1900, and the petition of the contestant was not filed within forty days thereafter. It is ordered that the judgment of the lower court be affirmed, at the contestant’s costs.

Bartch, J., and Hart, District Judge, concur.  