
    HILL v. MOSS et al.
    No. 3915.
    Decided December 30, 1922.
    (211 Pac. 994.)
    1. Mandamus — Board of Education as Canvassing Board may be Compelled to Issue Certificate of Election to Successful Candidate for Member of Board, Though Failing to Qualify as Such. Under Comp. Laws 1917, § 2243, providing that the board of county canvassers must declare elected the persons having the highest number of votes given for each office to be filled by the votes of a single county or subdivision thereof, and section 2244, providing that the county clerk must immediately make out and deliver to such person a certificate of election signed by him and authenticated with his seal, a board of education sitting as a canvassing board, and withholding a certificate of election to a successful candidate as a member of a school board on the alleged grounds that he had not qualified as a candidate under Comp. Laws, § 4602, as amended in Laws 1921, c. 102, and that they issued a certificate to his opponent, who received a less number of votes, but who qualified as a candidate, upon the advice of the superintendent of public instruction, under Comp. Laws 1917, § 4520, providing for his advice to school boards upon all matters involving the welfare of the schools, will be compelled to issue a certificate of election to such successful candidate, for the reason that the qualifications of candidates for election as members of school boards are judicial questions, and not for determination by the board of canvassers.
    
    
      2. Mandamus — Law Relating to Election Contests Held not to Afford Adequate Remedy to Successful Candidate for School Board Denied Election Certificate. Comp. Laws 1917, § 2410, relating to election contests, does not afford an adequate remedy to candidate for election as a member of a school board, where there is contest as to his election, who is denied a certificate of election by the board of education because he did not qualify as such candidate.
    3. Mandamus — Issuance of Certificate to Unsuccessful Candidate for School Board Held no Reason why Successful Candidate Should be Denied Peremptory Writ. Issuance ,by the board of education of a certificate of election to an unsuccessful candidate as member of school board is no reason why the candidate should be denied a peremptory writ to compel issuance of a certificate to him.
    Application for mandamus by Joseph Hill against James E. Moss and others, as members of the Board of Education, and Clerks of Granite School District.
    WRIT GRANTED.
    
      Stewart, Stewart & Alexander, of Salt Lake City, for plaintiff.
    ,0. W. Carlson, of Salt Lake City, for defendants.
    
      
       Rich v. Henderson, 49 Utah, 258, 162 Pac. 621.
    
   THURMAN, J..

This is a proceeding in mandamus to compel the issuance of a certificate of election to plaintiff as a member of the school board of Granite school district, Salt Lake county, Utah.

The material facts which are not in dispute are substantially as follows: The defendants are the officers — members of the board of education and clerk — • of said school district, which is divided into five representative precincts. The plaintiff is a citizen of the United States, a resident taxpayer and qualified voter of the Fifth precinct. An election was called for and held in said district on the 6th day of December, 1922, for tbe election of three members of the board- — one for the first precinct, one for the third, and one for the fifth. The members of the board of education, sit-ting as a canvassing board, canvassed the returns of'said election and counted the votes. The canvass showed that for member of the board for the Fifth precinct plaintiff received 397 votes and Calvin S. Smith received 141. The result of the canvass, findings, and order of the board were made part of the official records of the district. Upon the returns and canvass so made plaintiff demanded of the defendants a certificate of election as member of the board. Defendants refused to comply with plaintiff’s demand, but issued the certificate to said Calvin S. Smith.

The foregoing facts alleged in plaintiff’s application are ■not only admitted by defendants’ general demurrer filed in the case, but are also affirmatively admitted in their return to the order to show cause. It is also admitted that all the proceedings relating to the election, qualifications of voters, canvassing returns, and counting the votes were regular and according to law. It is alleged, however, by defendants, that the plaintiff, who received the highest number of votes, had not qualified as a candidate as required by law, and was therefore not entitled to receive a certificate of election. This seems to be the principal defense of defendants as shown by their returns to the oyder to show cause, but they also urge the contention that plaintiff has. a plain, speedy, and adequate remedy at law, that mandamus is not a proper remedy where a certificate of election has been issued to another person, and that in issuing the certificate to Calvin S. Smith they acted upon the advice of the superintendent of public instruction and his interpretation of Comp. Laws of Utah, § 4602, as amended in Session Laws of 1921, p. 293, which reads as follows:

“Elections for members of the hoard shall he called and conducted, and the canvass of returns shall he made, and the qualification of electors shall he as provided in the general registration and election laws, except as in this section hereinafter provided. There must he at least one voting place in each school representative precinct. It shall he necessary for each candidate, or at least five citi zens in behalf bf the candidate, to file with the clerk of the board of education not less than fifteen days next preceding the day of election, a signed statement announcing that he or she is a candidate, and said clerk shall 'immediately thereafter furnish a list of said candidates to any citizen who may call upon him for the same. Appointments of judges of election shall he made by the board of education at any convenient time prior to the day of election. The board of education shall furnish the judges of election at every polling place with a sufficient number of official ballots for election purposes and shall pay all other lawful and necessary expenses of the election. The election shall in all other respects be conducted in accordance with the general election laws of the state. The board of education shall exercise all such powers relative to school elections in their respective districts as are conferred upon the board of county commissioners in other elections, so far as conformable with this chapter.” (Italics supplied.)

It does not appear from plaintiff’s application that he complied with the italicized provision of the section just quoted by filing the statement therein required, either by himself or by five citizens in his behalf, and upon this ground defendants insist that their demurrer to the application should be sustained. On the other hand, plaintiff contends that' it was not the function of the canvassing board to determine the qualification of candidates, or to attempt to adjudicate the same; that, their sole and only function was to canvass and count the votes cast and issue a certificate to the person receiving the highest number. There is much force in this contention, and, unless there is some controlling feature in the case that takes it out of the ordinary rule, plaintiff’s contention shoúld be sustained.

Comp. Laws Utah 1917, § 2243, reads:

“The board must declare elected the persons having the highest number of votes given for each office to be filled by the votes of a single county or subdivision thereof.”

The next succeeding section is also pertinent in this connection :

“The county clerk must immediately make out and deliver to such person a certificate of election signed by him and authenticated with his seal.”

In these two sections the duty of the canvassing board and its clerk are clearly defined. The duty of the board is to declare elected tbe person receiving tbe highest number of votes, and tbe duty of the clerk is to issue to such person a certificate of election.

As indicating tbe limited powers of a canvassing board and tbe scope of their duties under tbe statutes of tbe state, tbe case of Rich v. Henderson, 49 Utah, 258, 162 Pac. 621, is instructive. In that case tbe defendants, tbe same as here, constituted tbe board of education and clerk of tbe school district. An election was duly called and held for tbe election of a member of tbe board in each municipal ward of tbe city. Tbe report of the judges of election showed that 1,458 votes had been east in tbe Fourth municipal ward for tbe candidates for member of the board, of which tbe plaintiff received 729 votes, tbe next highest candidate 718, while 11 votes were cast for a third candidate. The votes were tallied, certified, and returned by the judges to the clerk of tbe board of education. Thereafter the defendants met as a board of canvassers and canvassed the votes as required by law. The board found that the polling list failed to disclose more than 1,439 persons voting at said election, and therefore resolved that it was impossible for them as a canvassing board to determine from the returns what candidate had received a plurality of the votes, and for that reason refused to issue a certificate to either of the persons for whom votes had been cast. The plaintiff, who, according to the returns, had received the highest number of votes, applied to this court for a peremptory writ of mandate requiring the defendants to issue to him a certificate of election. This court, in passing upon the question submitted, quotes at length the following statute, now section 2241, Comp. Laws 1917:

“The canvass must he made in public by opening the returns and .determining therefrom the vote of such county or precinct for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof. In canvassing, no returns must he rejected, if it can he ascertained therefrom the number of votes cast for each person. The fact that the returns do not show who administered the oath to the judges of election, or a failure to fill out all the certificates in the poll books, or to do or perform any other act in making up the returns that is not essential to determine for whom the votes were cast, is not such an irregularity as to entitle the hoard to reject the same, hut they must be canvassed as are other returns.”

The opinion of the court then proceeds as follows:

“It plainly appears from the foregoing statute that ‘irregularities’ in the returns are to he disregarded hy the canvassing hoard, and that a failure ‘to do or perform any other act in making up the returns that is not essential to determine for whom the votes were cast’ are not to he taken into account by theih. It appears from the face of the returns made at this election that the plaintiff did receive a plurality of votes. As to whether tjhere were a greater number of ballots cast than there were persons voting at the election we are of the opinion the hoard of canvassers are not called upon to decide; that their duties were, in this regard, wholly ministerial, and that upon their finding that a plurality of votes, as shown upon the face of the returns, were for the plaintiff, they should have caused a certificate of election to issue to him, in due form; that the board of canvassers were not called upon to consider and take into account the discrepancy between the tally sheets and the polling lists, but should have caused a certificate to issue to the person shown by the returns to have received the highest number of votes, and left the matter of determining' his rightfulness to hold the office to investigation and proceedings to be had in a court having jurisdiction to hear and determine the facts which the defendants, as a board of canvassers, could not consider, and which this court in this proceeding cannot determine. Page v. Utah Commission, 11 Utah, 119, 39 Pac. 499; Brown v. Jeffries, 42 Kan. 605, 22 Pac. 578; 10 A. & E. Ency. of Law, 747; Lehman v. Pettingill, 39 Colo. 259, 89 PaC. 48.”

The opinion not only interprets the scope and meaning of section 2241, but, without referring to them, it likewise emphasizes the meaning and effect of sections 2243 and 2244, hereinbefore quoted.

We have reviewed that case at considerable length because it is the latest expression of the court and in principle involves questions analogous to the case at bar. It emphasizes the fact that it is the bounden duty of a board of canvassers to ascertain, if possible, the highest vote cast for any candidate as appears on the face of the returns and to declare such candidate elected, without regard to discrepancies, irregularities, or. other considerations not essential to determine for whom the votes were cast.

In the instant ease the answer and return of the defendants show that Calvin S. Smith qualified as required by the provisions of section 4602, supra, and, also that he was in every other respect qualified to be elected as a member of the board. The point is further made by defendants that in issuing the certificate of election to him they followed the advice of the superintendent of public instruction, as provided in Comp. Laws Utah 1917, § 4520, which reads:

“He shall advise with county superintendents and with school hoards and other school officers upon all matters involving the welfare of the schools. He shall, when requested hy superintendents or other school officers, give them written answers to- all questions concerning the school law. His decisions shall he held to he correct and final until set aside hy a court of competent jurisdiction or hy subsequent legislation.”

The answer to all of these contentions of defendants is that they assume that the board could exercise judicial functions. Whether or not the provisions of section 4602 requiring candidates, or five citizens in their behalf, to file the statements therein referred to are mandatory or merely directory, in the opinion of the writer, is a judicial question beyond the powers of the canvassing board to determine. The same may be said as to the effect that should be given to the advice of the superintendent of public instruction under the provision of section 4520. We are clearly of the opinion that all of these questions, within the principles enunciated in Rich v. Henderson, supra, are judicial questions determinable only by a court of competent jurisdiction. We purposely omit intimating any opinion as to how these questions should be decided, for they are not in any sense within the purview of this opinion except to determine that they are judicial questions and should not be determined by a board of canvassers.

In the instant ease it appears that all of the votes cast for plaintiff were inserted in writing by the voters in their proper places in the blank ticket. This manner of voting is authorized by section 2216, and as to whether or not the provision is by implication repealed by section 4602, supra, as far as pertains to school elections, that is also a judicial question beyond the power of the board to determine. As far as that provision is concerned, it was the duty of the board to count the votes, leaving their legality, if challenged, to be determined by a competent judicial tribunal.

It is also urged by defendants that Comp. Laws Utah 1917, c. 16, relating to election contests, afford plaintiff an adequate remedy, and that therefore a peremptory writ of mandate should not issue.

The application in this case is for a writ of mandate compelling defendants ;to issue a certificate of election to the plaintiff. It is not a proceeding to have him declared entitled to the office. If it were the latter, defendants’ contention would be sound and, in all probability, unanswerable. But a demand for a certificate of election by a person having the highest number of votes on the face of the returns, and a demand to be declared entitled to an office irrespective of the returns, present questions entirely different and demand different remedies for their determination. It cannot, therefore, be assumed that one form of action is a complete and adequate remedy for the other. If plaintiff, on the face of the returns, was clearly entitled to be declared elected under the law regulating the duties of a canvassing board then it was the duty of the board to declare him elected, and, likewise, the duty of the clerk to issue him a certificate. This would at least be prima facie evidence of his right to the office, and, if subsequent proceedings were had involving actual title to the office, he would be placed in the position of contestee instead of contestant with whatever advantages that might result from questions relating to the burden of proof. In view of these considerations we are not prepared to hold that section 2410, c. 16, Comp. Laws Utah 1917, was a complete and adequate remedy.

Finally, it is contended by defendants that, a certificate having been issued by the board to Calvin S. Smith, a certificate should not now be issued to the plaintiff, as that would invite further contest proceedings. In other words, in order to foreclose and prevent further contest proceedings, defendants’ position seems to be that what bas already been done by tbe board, or omitted to be done, should be permitted to stand, notwithstanding they may have failed to discharge a mandatory duty imposed by law — a duty which the plaintiff, a resident citizen and taxpayer, had a clear right to have enforced.

The writer confesses his entire lack of sympathy with the proposition that, because the board has already issued a certificate to a person who on the face of the returns was not entitled thereto, therefore they should not now be required to issue a certificate to the person entitled thereto on the face of the returns. Defendants,, howewer, cite many cases tending to support their contention. Magee v. Caleveras County, 10 Cal. 376; Sherburne v. horn, 45 Mich. 160, 7 N. W. 730; State v. Rodman, 43 Mo. 256; State v. Stewart, 26 Ohio St. 216; People v. Greene County, 12 Barb. (N. Y.) 217; Territory v. Mohave County, 2 Ariz. 248, 12 Pac. 730; State v. Smith, 104 Mo. 661, 16 S. W. 503; O’Hara v. Powell, 80 N. C. 103; Brown v. Bragunier, 79 Md. 234, 29 Atl. 7.

On the other hand, plaintiff has called our attention to numerous cases expressing the opposite view, cases which, in our opinion, are better considered and based upon sounder reason. State v. Trimbell, 12 Wash. 440, 41 Pac. 183; People v. Hilliard, 29 Ill. 413; Smith v. Lawrence, 2 S. D. 185, 49 N. W. 9; Call v. City Board, 83 Mich. 367, 47 N. W. 227; State v. Howe, 28 Neb. 618, 44 N. W. 878; Election Board v. State, 43 Okl. 337, 142 Pac. 984; State v. Canvassing Board, 13 Mont. 23, 31 Pac. 883; People v. Rives, 27 Ill. 242; State v. Wilson, 24 Neb. 139, 38 N. W. 31.

It is unnecessary to review these cases at length. They speak for themselves, and extended comment would be a useless consumption of time and space. We are of opinion that the fact that defendants have issued a certificate of election to Calvin S. Smith for the office in question is no reason why plaintiff should be denied the peremptory writ of mandate prayed for in his application.

In arriving at the conclusions reached in this case we have studiously tried to avoid tbe determination of tbe proposition as to wbo is in fact entitled to tbe office in question. It is one of tbe' anomalies of tbe law tbat in eases of this kind one person may be entitled to a certificate of election in a .proper, proceeding, while another person in a different proceeding may be entitled to tbe office. As to wbo is entitled to tbe office in tbe instant ease we made no decision.

For tbe reasons stated, tbe peremptory writ of mandate is granted as prayed for in tbe application.

CÓRFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.  