shall declare the result thereof, and the clerk of the county court shall immediately make out and transmit a certificate of election to each person elected to any precinct or county office."

It is insisted by counsel for the relator that this section does not authorize the clerk of the county court and members thereof to go behind the returns and canvass the ballots to determine the rights of candidates for Territorial offices or of members for the legislature; that as to such officers and members they can only canvass the returns; and that no such authority is vested in any other board under our election laws. I am unable to adopt this view. The law says. "If there shall be any disagreement in the returns "-and evidently the word "disagreement" here means an irregularity or discrepancy which affects the right of a candidate-" then said members of the county court shall canvass the votes as herein directed." It seems clear that the word "herein" does not simply refer to this section, but also to the one preceding it. The word "votes" being used in the same sentence instead of the word "returns" also has an important bearing in the construction of this section of

the act.

Doubtless it was the intention of the legistature to confer upon the board, as thus constituted in each county the authority to canvass, in proper cases, the ballots cast in such county, for any Territorial officer or for any officer whose election is affected by more than one county. While, however, the law thus confers the power to canvass the votes in proper cases upon such board, regardless of the rank of the office, it restricts the powers of the clerk of the county court in making out and trausmitting certificates of election to county and precinct officers. The power to make out and transmit certificates of election to Territorial officers, and to such officers whose election depends on more than one county, is conferred upon another officer, as will be seen in subsequent sections in the statute. It is incumbent upon such clerk and members of said court, after such canvass has been made, to declare the result thereof, and under section 20 the ballots must immediately, after such inspection, be returned into the ballot box, which must then again be locked and securely sealed, and "so preserved for ten days after the result of the election has been declared;" then, immediately after the expiration of the ten days, said clerk shall, in the presence of at least one member of the county court, and of such candidates as may be present, "open each of the ballot boxes and destroy all the ballots contained therein."

When this is done the clerk of the county court and the members thereof have no further duty to perform as an election board, and the duties of such members cease altogether so far as such election is concerned; but the clerk of said court is required under section 21, "as soon as possible after the result of the election has been so determined," to make out a general abstract thereof in triplicate, certify to its correctness, and then forward a certified copy of the names of the persons voted for, and the number of votes each has received for Territorial offices" to the secretary of the Territory; and to make other disposition of the abstract as provided by law. The copy here provided for constitutes the returns mentioned in section 22, which is the only remaining provision of the Territorial act necessary to be considered in the decision of this case, and it reads as follows: "As soon as all the returns are received by the secretary of the Territory, he shall, in the presence of the governor, unseal and canvass the same, and make an abstract thereof, and the secretary shall, within ten days thereafter, make out and transmit a certificate of election to each member of the legislature and Territorial officers elected." The secretary's duties under this section are simple. He has but to unseal and canvass the returns in the presence of the governor, and make an abstract thereof, and make out and transmit the certificates of election within ten days after the returns are received by him. He has nothing whatever to do with irregularities or discrepancies, or with canvassing the votes, and he can only issue certificates to Territorial officers and members of the legislature. He must see, however, that the returns are genuine, and made out as required by law.

Thus, from an examination of the act of 1878 as it was before the act of Congress took effect, it will be seen that there is a provision made for four distinct classes of officers, and that each class is endowed with certain special powers and required to perform certain specific duties. These classes are:

First, the registration officers, whose duty it is to register the voters. The statute constituted the assessors of the respective counties such officers, with power to appoint deputies.

Second, the judges of election, whose duty it is to open the polls, receive the ballots, close the polls, canvass the ballots, declare the result, certify and transmit the returns, with the ballot box, to the clerk of the county court. They are appointed by the county court.

Third, the clerk and members of the county court, acting as a canvassing board, whose duty it is to canvass the returns, declare the results thereof, and, in proper cases, canvass the ballots and declare the result, and such clerk must then issue

certificates of election to county and precinct officers, and forward a certified copy of the names of the persons voted for, and the number of votes each has received for Territorial offices, to the secretary of the Territory, and, at the time specified in the statute, destroy the ballots.

Fourth, the governor and secretary of the Territory; and it is the duty of the secretary of the Territory to canvass the returns for Territorial officers so transmitted to him by the clerk of the county court in the presence of the governor, and issue certificates to all Territorial officers, including members of the legislature.

Having thus indicated my conclusions as to the powers and duties of election officers and as to what constitutes the returns under the act of 1878, one of the most important questions yet to be entertained in this case is how and in what respect its provisions are modified or changed by the act of Congress approved March 22, 1882, known as the "Edmunds law."

Section 9 of this act, so far as material here, provides as follows: "That all the registration and election offices of every description in the Territory of Utah are hereby declared vacant, and each and every duty relating to the registration of voters, the conduct of elections, the receiving or rejection of votes, and the canvassing and returning of the same, and the issuing of certificates or other evidence of election in said Territory, shall, until other provision be made by the legislative assembly of said Territory, as is hereinafter by this section provided, be performed under the existing laws of the United States and of said Territory by proper persons, who shall be appointed to execute such offices and perform such duties by a Board of five persons, to be appointed by the President," etc. Under this section all the election offices created by the Territorial act of 1878 were declared vacant, and the President of the United States was authorized to appoint a Board of five persons. This Board is known as the Utah Commission, and the defendants in this case constitute said Board, which is given power to fill all the offices thus declared vacant by the appointment of "proper persons."

The duties, powers, and requirements of such "proper persons" are the same as those which were incumbent upon the persons who filled said offices under the Territorial act before the enactment of the “Edmunds law." No part of the methods of procedure prescribed by the act of 1878 is repealed or limited or modified by the section under consideration, except that the officers required to carry out the provisions of the Territorial act must be appointed as provided in this section of the law of Congress.

With this exception, the Territorial act remains in full force and effect, and is the rule of action to guide the defendants. It is manifestly the duty of the defendants to appoint all the officers required for the conduct of elections in the manner prescribed in the Territorial act, and they can not themselves perform any powers or duties under said act which have not been devolved upon them by express provision of the act of Congress. The donee of a power to appoint is not necessarily, or by reason of being such donee, clothed with power to perform.

It is insisted, however, by counsel for defendants that the powers and duties to be performed under sections 18 and 19 of the act of 1878, in so far as elections for members of the legislative assembly are concerned, are devolved upon the defendants by section 9 of the act of Congress, of which another material clause affecting the question reads as follows: "The canvass and return of all the votes at elections in said Territory for members of the legislative assembly thereof shall also be returned to said Board, which shall canvass all such returns and issue certificates . of election to those persons who, being eligible for such election, shall appear to have been lawfully elected, which certificates shall be the only evidence of the right of such persons to sit in such assembly."

Notwithstanding the able arguments of counsel in support of their position, I am unable to agree that this or any clause of said section confers such powers upon said Board. Such a construction would not only render useless and ineffectual sections 21 and 22 of the act of 1878, without any words of repeal or limitation in the provision which is claimed to produce such a result, but also would do violence to the spirit and intent of the Territorial act and to the economical method of procedure provided thereby in cases of irregularities and discrepancies in the returns which would affect the rights of persons to such offices. If Congress had intended such a result, if it had intended to confer upon the Board such great power, it is but reasonable to presume that it would not have left such intention to mere implication. Nor is there any express provision in section 9 of the act of Congress for the delivery of ballot boxes to said Board, by special messenger or otherwise, as provided in the act of 1878.

This important provision of the Territorial law, by which the purity of the ballot could be preserved, would also be rendered nugatory by the interpretation contended for, unless that power too were conferred upon the Board by mere implication.

The rule of law is that such a Board, being the creature of statute, must look to such statute for its authority and power, which otherwise would not exist in its favor, and that it will not be aided by implication or judicial construction.

It is evident that the word "returns," in the clause of section 9, last quoted, was used in the same sense and should be given the same interpretation as in section 22 of the Territorial act.

By comparison of the two statutes it will be seen that before the passage of the "Edmunds law" the assessors were the registration officers; now said officers are appointees of said Board; then the judges of election were appointed by the county court; now they are the appointees of the Board; then the clerk of the county court and members thereof constituted the board to canvass the returns from the judges of election and recount the ballots in proper cases; now such canvassing board must be appointed by the Board of Commissioners; then the secretary of the Territory, in the presence of the governor, canvassed the returns under section 22, which are provided for in section 21 of the act of 1878, and issued certificates of election to the members of the legislature; now, in addition to making all the appointments of election officers provided for in said last-mentioned act, the Board of Commissioners perform the duties formerly devolved upon the secretary of the Territory and the governor. Under the act of Congress of 1894, to admit this Territory into the Union as a State, the said Board is also required to canvass the election returns for delegates to the constitutionl convention, which returns must be canvassed and certificates issued by the said Board in the manner provided in section 22 of the Territorial act.

Nowhere do I find any authority, either by express provision of statute or by necessary implication, for said Board, in any case whatever, to go behind the returns and open the ballot box for the purpose of canvassing the ballots to declare the result of any election of any candidate for office. This is an assumption of power unauthorized by law. Nor is there any provision of law which authorized the sending of a ballot box to said Board for any such purpose, or for any purpose. The ballot box, after the close of an election, must be kept and the ballots disposed of by a board of proper persons," appointed by said Board of Commissioners, and they must be kept and the ballots disposed of in the manner provided in section 20 of the act of 1878.

The next material question is whether mandamus is the proper remedy to enforce the performance of an official duty on the part of said Board in a case where they refuse such a performance.

Where the performance of a specific act, ministerial in its character, is refused by an officer or board of officers, upon whom the duty of its performance is devolved, and any person will be injured because of such refusal, such person may have a writ of mandamus to compel its performance.

So where, as in the case at bar, an election board, whose duty it is to canvass the returns of an election, make an abstract thereof, and issue a certificate of election to the candidates for offices, refuses, after the canvass and abstract have been made, to issue such certificates, which is purely a ministerial duty, the person who will be injured because of such refusal may have a writ of mandamus. (Thropp on Public Officers, secs. 156 and 538; McCrary on Elections, sec. 376; Board of Liquidation v. McComb, 92 U. S., 531.)

In this case, no question being made as to the legality of the election, although there appears to have been some irregularity in its conduct, the court will presume, in order that justice may be done, that the law was substantially complied with.

IN PROHIBITION.

In the case of the application for the writ of prohibition, the controversy is between the same parties, and the legal questions arising under the statutes are substantially the same, and therefore the construction of the statute in the mandamus proceeding applies with equal force in this proceeding.

The only remaining question is whether under the circumstances of this case the writ of prohibition will lie to prohibit the said Board from canvassing the ballots and declaring the result of the election as to any candidate, and issue a certificate of election on such canvass.

It is shown by the evidence that the ballots were canvassed and the result of the election declared on said canvass, and that the only act remaining, which the defendants were attempting to perform under an assumption of power, was the issuance of a certificate of election.

At the close of the trial the defendants signified their willingness to issue the certificate in accordance with the original canvass. Under the circumstances there appears to be no necessity for the writ.

The objection of counsel for the relator to the admission in evidence of the registry lists and judges' lists is overruled.

The admissions made by the defendants in the prohibition cases as to the evidence render it unnecessary to rule on the points raised during the course of the trial. The writ of mandamus is granted. The writ of prohibition is denied.

On January 29th the court changed the last order and granted the writ of prohibition.

APPEALED TO SUPREME COURT-DECISION.

Appeals were duly taken from the decision of the district court to the supreme court of the Territory and a hearing had on February 2, 1895, and on the 24th of February the following opinion was handed down: H. W. Smith, Judge:

This was a proceeding in mandamus begun by the plaintiff against the defendants to compel the issuance to him, the plaintiff, of a certificate of election as a delegate to the constitutional convention soon to meet under the enabling act to form a constitution for the State of Utah.

The affidavit on behalf of plaintiff on which the alternate writ was issued set out substantially that the plaintiff was an elector duly registered in Sanpete County, Utah Territory, at the time of the general election held November 6, 1894, in said Territory. That the defendants constitute the Board commonly known and called "The Utah Commission," the same being created under section 9 of an act of Congress approved March 22, 1882, and commonly called the "Edmunds law." That an election of delegates to the constitutional convention for the proposed State of Utah was legally held on November 6, 1894. It set out in detail that the judges of election were regularly appointed and qualified and regularly received and canvassed the votes cast in Sanpete County for election of the delegates to said convention. It was alleged that plaintiff was a candidate for delegate to said constitutional convention and received a majority of the votes cast in said Sanpete County for such office. That the judges of election made due and legal returns of their canvass of the votes cast for the plaintiff to the defendants, who constitute the board of canvassers, as above stated. That there was no irregularity or discrepancy or disagreement appearing from the face of said returns, and that by the face of the returns the plaintiff was elected. It is then alleged that the defendants have completed their canvass of the votes, and have refused to issue to plaintiff any certificate of election, although the plaintiff has demanded the same, and that the plaintiff has no plan speedy or adequate ready in the ordinary course of law. The alternate writ of mandate was issued and contained the substance of the affidavit.

The defendants answered and denied: First, that the plaintiff received a majority of the votes cast in Sanpete County for delegate to the constitutional convention. Denied that any irregularity, discrepancy, or disagreement appeared on the face of the returns, and alleged that there were irregularities, discrepancies, and disagreements that affected plaintiff's election, and allowed there was a disagreement as to the votes cast for plaintiff shown by the face of the returns. Third, denied that their refusal to issue certificate of election to the plaintiff was wrongful or unlawful. Fourth, denied that plaintiff was without remedy; and fifth, alleged that discrepancies and irregularities appearing on the face of the returns, they have opened and canvassed the ballots, and that it was then ascertained that plaintiff is not entitled to a certificate of election.

Without setting out the findings of fact in this opinion in detail, it is sufficient to say that the court found the issues in favor of the plaintiff on all contested questions, and especially found that there was no irregularity or discrepancy apparent upon the face of the returns, and granted a peremptory writ of mandate, requiring defendants to issue to the plaintiff the certificate of election as prayed for.

A motion for a new trial was overruled, and the defendants appeal from the judg ment and order denying a new trial. Several errors are assigned, but they may be grouped under three heads:

First. That the evidence was insufficient to justify the judgment and decision of the court.

Second. The court erred in receiving any testimony on behalf of the plaintiff'; and, Third. The court erred in awarding a peremptory writ.

We shall examine these assignments of error in the order stated.

WHAT CONSTITUTES DISCREPANCIES,

The particular finding which is assailed as not supported by the evidence is the eighth, which is the finding in effect that there were no irregularities upon the face of the returns authorizing a recanvass of the ballots cast. We have carefully examined the evidence contained in the statement, including the original returns which are made a part of it, and are unable to find any irregularities or discrepancies which in any way affect the result of the election of the plaintiff. The irregularities and discrepancies which defendants claim the returns disclose are as follows:

The registry list containing the word "voted" opposite the names of certain voters is compared with the poll list, or list of the names of voters made at the election, and they are found not to correspond in certain particulars, as follows:

3815-3

In the precincts of Chester. Ephraim, Gunnison, and Moroni there is found to be an aggregate of 17 more names marked "voted" than appear on the poll list or list of votes made at the election in these precincts; while in the precincts of Fairview, Fountain Green, Mauti, Mount Pleasant, and Spring there appears to be an aggregate of 21 more names of voters on the poll ist than there are names marked "voted" on the registry list; and in only one case does there appear to have been any larger number of votes canvassed as shown by the tally sheets than the smallest number shown by either the voted registry list or the poll list, and this case occurred at Mount Pleasant, where only 498 names are marked “voted” on the registry list, while 3,500 votes were cast for candidates for delegates to the constitutional convention, which would be 14 votes in excess of the number that could have been legally cast, as each voter could only cast 7 votes in that county, there being 7 delegates to Sanpete County by the enabling act. This makes an apparent discrepancy of 2 votes on an average for each candidate, but in this precinct the poll list shows that 507 men voted, which would have permitted an aggregate legal vote of 3,549, if each man had voted a full ticket, or an average vote of 507 votes for the opposing candidates for each office of delegates for the constitutional convention. The plaintiff's majority, as appears by the face of the returns, was 30 votes over his next competitor, so that if it be conceded that there is an irregularity and discrepancy in the return from Mount Pleasant of 2 votes, still it would not affect his election. But it is claimed that the difference between the voted registry list and the poll list are irregularities that authorize a recount of the ballots by the canvassing board. We can not agree to this.

The statute, after pointing out what shall constitute the returns and that on their receipt by the canvassing board they shall be opened and examined, provides: “And if no irregularity or discrepancy appear therein affecting the result of election of any candidate, they shall accept said returns as correct; but if the rights of any person voted for for any officials are in any way affected then (the canvassing board) shall open the ballots from said precinct and canvass the same so far as to determine the rights of the person whose office may be affected." (See sec. 256, par. 324, of vol. 1, Comp. Laws of Utah.) It will be seen that the irregularity and discrepancy must appear upon the face of the returns; in the language of the statute: "It must appear therein." It must be such as to affect the election of the candidate, and it is apparent also that it must be one which may be corrected or reconciled by a recount of the ballots; otherwise a recount can do no good.

Some

Now let us see what irregularities or discrepancies would fulfill these manifest requirements, and whether the difference between the voted registry lists and the poll lists are of such character. The tally sheets, according to the statute, are to be made in duplicate, and are a tabulation of the face of the ballots. Manifestly, therefore, if there appears to be more ballots counted than were cast as shown by the voted registry list and poll list, this is an irregularity indicating that the judges have made a mistake in the count, or that they have suffered ballots illegally to be put into the boxes and counted. A recount of the ballots will at once disclose which it is, and permit its instant correction; but it may be asked if the tally sheet shows a less number than the poll list and voted registry list, why is not this an irregularity? The answer is plain. The voter may not vote a full ticket. names may be scratched and no others inserted. This would be perfectly legal. The presumption is that the judges of election have done their duty. Therefore when they make a return which is legally consistent with itself no irregularity is then apparent therein; and whether tabulation of the ballots shows a number of votes counted no greater than is cast, then the return is legally consistent. The statute requires the tally sheets, as we have before stated, to be made and returned in duplicate. If they agree with each other, there is no discrepancy; if they disagree, then a recount of the ballots will show which, if either, is right. This discrepancy, therefore, is one pointed out by the statute that authorizes a recount of the ballots. We have seen that the return from Sanpete County at the late election in every instance shows either an equal or less number of votes counted than were cast, except at Mount Pleasant, where there is a disagreement of two votes between the voted registry list and the tally sheets, and there is no discrepancy apparent in the duplicate tally sheets at all. The differences between the voted registry list and the poll list could in no wise be reconciled or explained by a recount of the ballots, and it is not pretended that they could. We are therefore of the opinion that there were no irregularities or discrepancies appearing upon the face of the returns affecting the plaintiff's election, and that the court below properly so found.

POSSESS MINISTERIAL POWER ONLY.

The next question is whether the court erred in admitting evidence in support of the alternative writ of mandamus. The contention of appellants is that inasmuch as the defendant canvassing board must, in the first instance, decide whether there are irregularities, that their decision is not subject to review by mandamus, and it is not