describing board’s function as a "mere mechanical or mathematical duty” in which votes are computed and results declared
How later courts described this case
- describing board’s function as a "mere mechanical or mathematical duty” in which votes are computed and results declared
Written by the judges who cited it.
The opinion
Mr. Justice Carter, dissenting:
I cannot concur in that part of the opinion which holds that in the mandamus proceedings the question whether appellant or appellee was legally elected on the record in that case could not be there decided. It is true- that the canvassing of election returns and the issuing of certificates of election are duties that are merely ministerial in their nature, but the circuit court, in passing on the question whether it would mandamus the election board with reference to canvassing the votes cast by the women, was authorized to pass on the constitutionality of the statute in question. In People v. Czarnecki, 265 Ill. 489 , this court mandamused the election board, requiring it to issue ballots for women which would contain no names of candidates for president of the board of county commissioners. The principle involved in that case is identical with the principle involved in this case on this point as to the power of the circuit court to pass on the validity of the statute permitting women to vote for the city judges here in question. Because the election" officials could not authoritatively determine the judicial question as to whether this statute was constitutional or not does not prevent a court of competent jurisdiction in a mandamus proceeding from passing on the constitutionality of a law and then directing the canvassing board to perform its functions in accordance with the court’s determination as to what the law is.
The suggestion that mandamus is not the proper remedy to determine the title to office is ordinarily true but is not true when the facts to be passed upon are similar to those in this proceeding. In the case of People v. Hilliard, 29 Ill. 413 , this court by mandamus proceedings settled the title to an office, and, in effect, decided an election contest. This court also practically did the same thing in People v. Nordheim, 99 Ill. 553 . See, also, to similar effect, Davies v. McKeeby, 5 Nev. 369 . To hold otherwise in this case, it seems to me, is to base the decision more on form than substance.
As I understand this record, with all deference to the opinion of the court, I am disposed to think that other candidates should have been made parties to this contest.