
    [No. 7026.]
    Leary et al. v. Jones.
    X. Mandamus — To Judges of Election — In the interpretation of the ballot by what appears upon its face, the actual count thereof, and the determination of the result, the judges of an election act judicially, and proceeding in good faith, are not controlled by mandamus — (198).
    But their duty to count the ballots', and afterward make return of the result is entirely ministerial, and mandamus will lie to compel its performance — (19'3).
    2. -Answer — Wh'ere upon mandamus against -two of the judges of an election, to compel them to certify to the result, the answer by its silence admitted the counting of the ballots’ by th'e three judges, and that if the result, as so ascertained, had been certified, it would have shown the election of the petitioner, an averment that only a certain number of votes were cast, and that upon opening the ballot box after the close of the election a much greater number of ballots was found therein, in the exact similitude of the official ballot, was held to present no defense — (200).
    3. -Adjournment of the Board — Effect—The adjournment of the judges, and their separation, is no answer to a mandamus to compel them to return, the result o-f their count of the ballots; •they may be compelled to re-assemble — (199).
    4. -Judgment — Where the pleading® show that, complying with the law, only a certain return can be made, it is proper to command the judges to sign and certify such return — (200). ’
    5. -Parties — A defect of parties which is injurious only to the petitioner does not avail the respondent — (200).
    6. Appeal — Questions Not. Presented Below — The court will not entertain questions which were waived or not presented in the court below — (201).
    
      Error to Denver District Court — Hon. Hubert L. Shattuck, Judge.
    Mr. Charles S. Thomas and Mr. Theodore H. Thomas for plaintiffs in error.
    Miss Gail Laughlin for defendant in error.
   Mr. Justice Hill

delivered the opinion of the Court:

It appears from the pleadings, that the plaintiffs in error (who were the respondents in the court below) with one Moran, constituted the judges of election in precinct No. 3 for the school election held in the City and County of Denver on the 3rd day of May, 1909; that, after the closing of the polls, all the judges of election from the thirty-one precincts (which constitute said school district), including the respondents, and Moran, immediately repaired to one of the voting places, to-wit, the East Denver High School, and then and there proceeded to count the ballots cast in their respective precincts. It is alleged, and not denied, that the judges for all of the other precincts, immediately after having counted the ballots in their respective precincts, reported their results to the secretary of the school board, who entered such returns upon a tally-sheet, to which all the other judges affixed their respective signatures; but that the respondents, after the count of the ballots found in the box in precinct No, 3, refused to make a report of the result of said count to the secretary of the board, or at all; that Moran did; report in writing to the secretary, the result of said count, which report the respondents refused to sign and have ever since so refused to do; that the Board of Directors refused to accept the report from precinct. No. 3 signed by Moran, as a proper return, and have denied to the relator (defendant in error here) the right to participate in the deliberations of said board,, after proper and lawful demand was made therefor, etc. Upon account thereof she instituted mandamus proceedings against the respondents, to compel them to-certify the result of the count in their precinct, alleging, in addition to the foregoing, that the result of the-count of said respondents and Moran, for said precinct, was a certain number for each of three candidates, naming them, and giving the number for each,, followed with the total vote of the district, which, when this precinct was included, showed that the relator had1 been elected, and that if the result of said election in said precinct was so certified, the total would then-show that she was elected as a member of the directors-, of said board, entitled to qualify, etc.

A demurrer was sustained to the answer; the respondents elected to stand by their answer; judgment was in favor of the relator, making the alternative writ peremptory, commanding the respondents, within five days, to sign the returns from precinct No. 3 of the vote cast in said precinct at the election held on the 3rd day of May, 1909, theretofore signed by said Moran. The respondents bring the case here for review upon error.

The answer, including its admissions, and by its failure to deny certain allegations of the relator, sets forth only two defenses. In substance, the first and principal defense is, that while it is true the respond-exits and Moran acted as said judges of election, that three hundred sixty-five persons, and no more, cast ballots in said precinct and deposited the same in the ballot box prepared, and used for that purpose at said election; that their names were duly recorded upon the poll book or voters’ list kept by the clerks of said election precinct; that immediately after the polls were closed, all three judges went to the East Denver High School for the purpose of counting and canvassing the ballots; that, when they opened the ballot box, they found therein one thousand one hundred Sixty-three ballots, each of which was in exact similitude of the official ballot voted at the several precincts, or seven hundred ninety-eight excess papers or ballots. By failing to deny, they admit the allegation that the ballots disclosed upon their faces the result as set forth by the relator, but they allege that on account of the above facts they were unable to ascertain or determine which of said papers were ballots cast by the three hundred sixty-five voters who voted in said precinct at said election, and which were not such ballots, for which reasons they allege they made a return to the board containing the above statement, including the fact that they were unable to determine what ballots were good, and what ones fraudulent, and therefore made return that no valid election was held in said precinct, and that they ought not to be required to furnish a false and fraudulent report and return. As a part of this defense, they set forth the further facts, that, eliminating this precinct, another candidate, other than the relator, had received the highest number of votes for such office and that there being no election in this precinct, on account of such frauds, the other candidate, naming him, and not this relator, was elected to said office and entitled to the seat.

The second defense is that inasmuch as the respondents have fulfilled their mission, made their report to the board of school directors, surrendered the ballot box and poll list, and departed their several ways, their offices as judges of the school election absolutely ceased, and that since said time they have not been, nor are they now, judges of the school election.

The first question necessary to consider is the duties of judges of election. It is claimed by the relator that they are purely ministerial, and if performance is refused it may be compelled by mandamus. In support of this position we are referred to Vol. 15 Cyclopedia of Law and Procedure, page 379, wherein it is stated:

“Inspectors and judges of election are ministerial officers, and where they neglect or refuse to make a return or make an erroneous or improper one they may be compelled by mandamus to perform their duty.”

Also, to McCrary on Elections, 4th Ed., Sec. 264, wherein that learned author says,

“The doctrine that canvassing boards and'return judges are ministerial officers possessing no discretionary or judicial power is settled in nearly or quite all the States.”

Also, to Vol. 26, Cyclopedia of Law and Procedure, p. 278, wherein it is said,

“It is very generally held that certifying or declaring the results of an election is a ministerial duty which may be compelled by mandamus, and this, it has been held, although the refusal to act Ayas on the grounds of fraudulent voting.”

Also, to the case of People ex rel. v. Bell et al., 119 N. Y. 185, wherein that court said,

“We cannot hold otherwise as to inspectors of elections than that they are, under the provisions of the election- law, made ministerial officers wholly, for their duties are pointed out by the law definintely.”

The respondents contend that for the purpose of determining the result in the precinct, and certifying the returns, the decision rests solely with the judges of election as to the result of the votes, what is legal and' what is not, for whom cast and for whom not, and the right to so certify, and that in the performance of these duties, their acts are judicial and not ministerial, that it requires the exercise of official judgment, the sound discretion of the person in whom the duty is confided, and that in all such cases mandamus will not lie. To support this position they cite People v. Reardon, 3 N. Y. S. 560, wherein it is said: “a majority made and signed and filed with the city clerk the result as found by them. This action on their part was judicial in its nature. A writ of mandamus does not lie to compel an officer, exercising judicial functions, to make any particular decision, or to set aside a decision already made.”

They also cite the case of People ex rel. Haverly v. Hanes et al., 90 N. Y. S. 61, wherein the Court said:

“Inspectors of election have both judicial and ministerial duties to perform. In determining what ballots shall be counted for or against any candidate, or any question voted on, or what ballots shall be rejected, they act judicially. They may, perhaps, be required by mandamus to perform merely ministerial acts in a particular way, and they may also be required to exercise their judicial functions; but they cannot be required by a common-law mandamus to decide in a particular manner. * * * It is the performance of a judicial act on the part of the inspectors which is complained of in this case; not the failure on their part to act judicially, but the judicial conclusion reached by them; and it is this judicial conclusion which it is sought to have changed. The inspectors have performed the judicial act complained of. They may not have reached a correct conclusion, but they have acted and exercised their judgment, and the conclusion reached by them cannot be reviewed herein.”

Also, the case of Dent v. Board of Commissioners, 45 W. Va. 750, wherein the court said:

“One canvasser says that it is correct, and satisfies his judgment and conscience; the other says it is not correct, and does not satisfy his judgment and conscience. Shall he be compelled to give an assent under such circumstances? * * * they act-judicially in determining that the ballots, poll books, and certificates of the election returns are genuine or altered.”

They also cite, as supporting their position, the cases of Metz v. Maddox, 189 N. Y. 461; Cannon v. Board of Canvassers, 24 R. I. 473; Corbett v. Naylor, 25 R. I. 520; County Judge v. Kenner, 105 Ky. 517.

From a careful examination of the authorities cited, we are of opinion that all of those referred to, when limited to the particular matters intended to be covered, are, in the main, correct.

Under the provisions of our statutes, judges of election evidently have both judicial and ministerial duties to perform; most of their duties, however, are purely ministerial, in which cases the method of their performance is specifically pointed out and no discretion is to be exercised. Under the facts as disclosed by the pleadings, the duty of certifying to the result of this election was purely ministerial, and the respondents were not justified in refusing.

Considered with the allegations of the relator not denied, the answer, as a whole, shows, that the respondents were two of the judges of election; that they, with Moran as the third, conducted it, and as such, after the polls were closed, went to the proper place to canvass and ascertain the result; that in doing so they ascertained that there was a certain number of ballots in the box proper in form; that they were cast or purported to have been cast for the different candidates, as alleged by the relator. When this condition was %scertained, and these facts were disclosed and so-found by them as judges of the election, it was their duty to complete the remainder of their work by certifying to the result (which was purely a ministerial duty, clerical in its nature) and they had no right to-refuse because of their claim (if true) that there were irregularities, frauds and illegal votes in the ballot box; that was not a question at this stage of the procedure-for them to determine, that question should have been left for the courts, as said in the case of People v. Reardon, supra, cited by respondents, “when the party who is thereby shown elected shall fill the office, a quo warranto is the proper remedy to determine whether he has been duly elected. If upon the hearing it shall be adjudged that the claimant is entitled to the office, a mandamus, if necessary, will be allowed to compel his restoration to it.” It is not proper for judges of election in one particular precinct to attempt to decide that on account of frauds having been committed no election has been held.

A somewhat similar state of facts is to be found in the case of The State ex rel. Reynolds, etc., v. The Mayor and Council of Monroe, 46 La. Ann. 1276, in which case it was held that the promulgation of the-returns of election by a mayor and city council is a ministerial duty; obedience to which will be compelled' by mandamus. In which case, concerning the question of frauds, the court said:

“If frauds are committed in the election of a character to vitiate the tax, or other causes exist to oppose it, the remedy is not to be sought in any discretion of the council. Instances are not infrequent of taxes of this character being resisted, nor has there been the least difficulty in finding suitable remedies where there is ground for their application, but remedy and relief is not by the refusal of the municipal authorities to perform ministerial acts. There is, in our view, no place in this discussion for questions of fraudulent voting, or other defences intimated against the tax itself. Such issues can have no determination to bind anybody to the mere issue whether the result of an election shall be announced by those charged with the duty. Hence, while we have given due attention to all these defences, we are clear they are foreign to the issue here and need no other comment.”

We think these comments are applicable to the case at bar. A trial between the relator and these respondents, upon such issues as are attempted to be raised by the answer, can have no determination to bind anybody. The result would not be conclusive in a quo warranto or otherwise, to decide who was entitled to the office, and those facts are foreign to the issue here which refers to the performance of a purely ministerial duty.

Counsel for plaintiffs in error have cited numerous well reasoned cases, including some by this court, to the effect that where fraud and irregularity occur in the conduct of an election to such an extent that it is impossible for the contesting tribunal to separate, with reasonable certainty, the legal from the illegal or spurious votes, the precinct wherein the frauds occur should be excluded. We have no contention with this principle, nor with the authorities cited in its support. If the facts exist, pertaining to this precinct, as alleged by the respondents, and no way can be pointed out (as stated by them) whereby the legal votes can be separated from the illegal, and effect be given to the honest votes cast, we can make no suggestion that will aid in the determination of the result of the vote in the precinct, and would probably assume (following former cases) that when the question was properly raised in the proper tribunal, the precinct would have to be rejected in its entirety, but that question is not here for determination; yet, if conditions did exist, as alleged, we have not the language at our command to emphasize sufficiently our disapproval of the acts of any citizen, be he great or small, who will participate in, recognize or countenance such practices, including any official, high or low, who, in the performance of his official duty or otherwise, will allow it to be done, when he can prevent it. But this is not the question for determination; to the contrary, the question presented is whether the judges of election, or a majority of them, can raise such an issue as an excuse for their non-compliance with the law in making their official returns.

McCrary on Elections. 4th ed. sec. 264, upon such questions of frauds, says.

“In Attorney-General v. Barstow, supra, the supreme court of Wisconsin say that the canvassing officers ‘are to add up and certify by calculation the number of votes given for any office; they have no discretion to hear and take proof as to frauds, even if morally certain that monstrous frauds have been perpetrated.’ ”

We think the case of State ex rel. v. Stevens, 23 Kans. 456, relied upon by the respondents, is distinguishable from the case at bar. Tt pertained to the refusal of the county canvassing board to canvass the returns from the entire county, for the reason that the purported returns disclosed a total vote of two thousand nine hundred and forty-seven, when there were only about eight hundred legal voters in the county. Referring to the election in its entirety, the court said,

' “If it be said that this wrong may only have occurred in the returns from certain precincts, and that the others should have been canvassed, we reply that no such question is here presented. The answer presents the matter as a whole, and as though the wrong was universal.”

This election also involved the removal of a county seat, which usually engenders the most bitter fights, and presents the greatest of temptations to commit fraud at any elections. Referring to the other questions, the court, among other things, said:

“Our general knowledge of matters and events assures us that in an outlying and frontier county like Harper, there is no such number of legal voters, and hence that the return of the commissioners that the large majority of such apparent vote is illegal and fraudulent, is substantially correct.
“The question therefore presented is not, whether, when there have been, or is charged to have been, here and there, illegal votes received, or legal votes rejected, or fraudulent or irregular practices on the part of the officers in any one or more voting precincts, the county board has a right to inquire into the merits of such votes, or the conduct of such officers, but whether, when there are sent in to the canvassing board returns showing such an enormous number of votes as to be perfectly obvious that they are not true returns of legal votes actually cast, but simply manufactured evidences of an attempt to defeat the popular will, this court will, by mandamus, compel the board to accept as true these fraudulent returns and canvass, and declare the result as though they even prima facie showed the actual vote.”

It will be observed from the above that the eminent jurist who wrote the opinion expressly eliminated from their consideration any case similar to the one at bar. Also, it is not alleged in the pleadings here that there were not as many legal voters in this precinct as there were ballots found in the box; nor are any reasons given by the respondents why they permitted, or why they could not have prevented, the spurious and excess ballots from being deposited in the box. Other cases cited by counsel are mostly where a dispute has arisen as to the counting or rejecting of some particular ballot upon account of the way it has been cast, which involves the performance of a judicial duty by the board.

In the case of People ex rel. v. Hanes, supra, it was sought, by mandamus, to compel the board to recount and recanvass ballots theretofore counted and canvassed by them, and on such recount to reject ballots theretofore counted and to count ballots theretofore rejected as void. The result of the election showed an equal number of votes for and against the local option question. The inspectors had rejected four ballots, one of which it was claimed should have been counted. They also counted a number of ballots which, the relator claims were void, but had made complete returns of the result; in which case it was held that inspectors of election have both judicial and ministerial duties to perform, and, having-performed both, that the judicial conclusion reached by them was not subject to change by mandamus. The court said they may not have reached the correct 'conclusion, but they have acted and exercised their judgment, and the conclusions reached by them cannot be reviewed herein.

To the same effect is the case of County Judge v. Kenner, 105 Ky. 517, where the canvassing board met, as provided by law, and acted upon the returns made to them; there was no complaint of their failure to discharge the duty imposed upon them. The complaint was that they decided wrong, and counted ballots which they ought not to have counted. It was held that in this respect they were invested with judicial functions.

The same principle is announced in Corbett v. Naylor, supra, where it was held that where the votes cast had been counted by the moderator, the result announced, and the ballots sealed up and delivered to the state returning board, mandamus would not lie to compel the moderator to count a certain ballot in favor of the petitioner, that all that could be accomplished by mandamus would be to compel the moderator to use his judgment in counting the ballots (which he had done). and not to direct him how to count them.

The case of People ex rel. v. Bell et al., supra, is quite similar to the case at bar. In that case a mandamus was sought against two judges of election to compel them to sign and certify as correct, a report, which had been made by two other judges, of the vote cast in the precinct, in which the four had served as judges, or inspectors of election, as they are called in New York. It was shown, that, after the closing of the polls, they counted the ballots east and ascertained the result, but refused to affix their signatures, upon the ground that fraudulent votes were cast by persons who were not registered, but who falsely personated registered voters, and who, upon being challenged, complied with the statutory test in taking the oath. In which case it was held that it was their duty to make return of all the votes cast, and of each to attach his signature to the return, and that a peremptory writ of mandamus was properly granted. Upon this subject the court, at page 185, said:

“They are bound to an exact obedience of the particular commands which the law has laid upon them as its officers, and they may not act on their own opinions or knowledge.”

Upon the question of frauds the court, among other things, said:

“If, with all the safeguards with which popular elections are legally and naturally surrounded, frauds are perpetrated, the tribunals are open, and laws and a system of procedure exists, for the punishment of the offenders and for the rectification of consequent errors.”

This reasoning is in harmony with our conclusions. The actual count,- and determination of the result of the count of the ballots, when honestly exercised in good faith, has always been the exclusive province of the judges of election, as where there is a dispute as to the count, or the result of a ballot, to be determined from what is shown upon its face, and their disposition of it, so far as their action is concerned is judicial, and is not subject to review by mandamus other than to-compel them to certify the result of such action; but in the case at bar, by their answer, the respondents eliminate all these questions by setting up the fact of the result of the count, and by failing to deny the facts stated by the relator. In other words, in the performance of their judicial duties, they have determined all questions-over which the court, by mandamus, could not dictate the result of their action, the only thing left was to certify the result-which cannot be refused by raising a question which is not properly triable in an action of this kind.

At least twice this court has held that the regular duties of the county board of canvassers are purely ministerial, and where the returns are substantially regular upon their' face, their only duty is to count and certify the result of the vote as certified to them by the judges of election. — Kindel v. Le Bert. 23 Colo. 385; Lehman v. Pettingell, 39 Colo. 258.

In Pennsylvania, where the return judges of two counties composing a senatorial district, made a due-return in their respective counties for the votes for senator, and where the return judges of the whole district refused to sign a certificate of election, for the reason, as they alleged, that fraud and bribery had been made use of in obtaining votes to so large an extent as to vitiate the election, or change the result, it was held that they could be compelled, by mandamus, to sign a proper certificate and that they were bound to certify that the person appearing, by the county returns, to have the greatest number of votes, was elected, that in that case the senate is the only tribunal to investigate charges of fraud, etc., in the election of one of its members; in which case, among other things, the court said, in substance, that to allow this as a defense for the failure to comply with their duty would simply be preposterous, And that the return judges had no jurisdiction of the existence of alleged frauds in the election, and that their plainly expressed duty in certifying the returns clearly excluded the exercise of any other duty incumbent with it.

To the same effect, in substance, are the cases of the State v. County Judge, 7 Iowa, 188; Dalton v. State, 43 Ohio St. 652; Lewis v. Commissioners, 16 Kans. 102; Holt v. People, 102 Ill. App. 279.

Respondents make the contention that the writ should not be granted, for the reason that they, as judges of election, in the performance of their duties as a canvassing board, having adjourned, could not be required by law to reconvene for the purpose of making Another certificate; as they had no power to reconvene, the courts cannot compel them to do what they are powerless to do themselves. We do not think this position is well taken. In the first place, the purported return, setting up certain facts and stating that on account thereof no election had been held, was no return at all. Second, if their position is correct, it would apply to at least two of the county board of canvassers in all counties throughout the state where the county clerk calls to his assistance two justices of the peace.

In the case of Lehman v. Pettingell, 39 Colo. 259, this question was directly raised, in commenting upon the fact this court said:

“The fact that the board may have adjourned without completing its work we do not regard as material. The board can be compelled by mandamus to reconvene to make a canvass of the returns from all the precincts whenever it appears, by proper petition, that it has failed to do so.”

We think the same principle is applicable here, and that the court committed no error in this respect.

The contention is also made that the court erred in compelling the respondents to act in a certain manner, to-wit, to sign the returns theretofore signed by Moran. It is contended that the extent of the court’s jurisdiction was to compel the respondents to act, and that it was without jurisdiction to compel action in a certan manner. We deem it unnecessary to pass upon this question, for the reason that if the trial court erred in this respect it was harmless error to the injury of no one. By the statements and admissions in their answer, it is shown that when the respondents comply with the law, the result of their actions can not be other than as contained in the Moran certificate, for which reason that portion of the order compelling them to make a certain return instead of making a return, if erroneous, was entirely harmless as against them, or any one to be affected by it.

At the oral argument, the further contention was made that the proper parties are not before the court. Two positions were urged in this respect: first, that under the provisions of the statute pertaining to the canvass of the returns of a school election, in order to secure the relief prayed for, the judges of the election for each of the thirty-one precincts in the City and County of Denver, must be made parties. It is claimed the rule is that where all parties necessary are not before the court, the writ will be refused. The second contention is that at least the other judge of this precinct, Moran, must be made a party; that he was not so made, and for that reason the writ should have been refused. Neither of these questions was raised in the court below; nor is either of them covered by the assignments of error or the briefs, for which reasons, it is not incumbent upon us, at this time, to make any ruling thereon. The first was expressly eliminated by the answer of the respondents themselves, wherein they state,

“That they are without definite information as to what was- done by the judges of other precincts on the •occasion referred to, and respectfully suggest,- that for the purposes of this proceeding, what was done by other judges in other precincts, is immaterial.”

Having taken this view at the trial and having had their case disposed of accordingly, they ought not now be allowed to change their position and allege that the action of the other judges was material and that they were necessary parties.

The record discloses that the other judges, including Moran, for this precinct, had already executed and signed their respective returns, and while, for the.reasons stated, we deem it unnecessary to establish a precedent by passing upon the question of whether they were necessary parties, it appears that if the writ was issued against them, it would only be to command them to do what they had already done. By their answer the respondents concede it was their duty to make a return for this precinct; their defense is that they did so and the ■case appears to have been disposed of along these lines presented by them. The record being as it is, we do not think the respondents are in a position to raise either of these last two questions. Should the relator, upon account of her failure to have the necessary parties in court, fail to secure the desired result in establishing ■prima facie her title to the office, that would be her misfortune, but would work no injury to-these respondents and is no excuse for them, after having waived these questions by failing to raise them in the court below, to now have the right to present them, for the first time, in this court.

The judgment is affirmed. Affirmed. .

Decision en banc.

Mr. Justice Musser dissents.  