This is a proceeding in mandamus, brought under section 25 of the general election law (Statutes 1917, p. 358), which, among other things, provides as follows:
"On the tenth day (or if that day shall fall on Sunday, then on the Monday following), after the close of any election, or sooner, if all the returns be received, the board of county commissioners shall proceed to open said returns and make abstracts of the votes * * * And it shall be the duty of the board of county commissioners to cause a certificate of election to be made out by the respective clerks of said board of county commissioners to each of the persons having the highest number of votes for members of the legislature, district, county, and township offices, respectively, and to deliver such certificate to the person entitled to it on his making application to said clerk at his office; provided, that when a tie shall exist between two or more persons for the senate or assembly, or any other county, district or *Page 307 township officer, any of said persons shall have the right to demand of the board of county commissioners a recount of all the ballots cast for them for the office for which they were candidates. * * *"
The record discloses that the board of county commissioners of Ormsby County, upon making an abstract of the votes cast at the recent general election for candidates for the assembly, ordered its clerk to issue a certificate of election to V.E. Maher as the candidate receiving the highest number of votes for that office. The result of the canvass shows that L.J. Blake was defeated for the office by one vote. He wants a recount. Subsequent to the board's order to issue the certificate of election to his opponent, he inspected the tally list, made a part of the election returns by section 17 of the statute, and discovered that the tally list from precinct No. 1 revealed a condition which he believed entitled him to demand of the board a recount. He thereupon made demand upon the board to order a recount, which was refused. He then applied to and obtained from this court an alternative writ of mandamus, commanding said board to immediately order a recount, or show cause before this court on a day fixed in the writ why it had not done so. The board appeared and interposed a general demurrer to the petition for the writ. Preliminary to the hearing, it was in effect stipulated by the attorneys for the respective parties that the relator should make proof of the facts alleged in his petition, and that the entire matter upon argument, be submitted to the court for decision. The relator put in his proof. The respondent board made no proof whatever. The demurrer was not pressed, but the respondent took the position that, upon the admitted and undisputed facts, the relator was not entitled to the writ commanding the respondent to order a recount.
I regard the case as one of primary importance, not so much, perhaps, from the effect that its decision may have upon the candidates for the assembly or the temporary prospects of political parties, but from the permanent influence which the decision will have upon *Page 308 the duties of county boards, with respect to recounts of ballots cast for the particular officer named in the statute.
The first question I will consider is: What is the power of the court in this summary proceeding to compel county boards to order a recount? Counsel for the respective parties have argued the question upon the assumption that, since canvassing boards are ministerial officers, their actions may be controlled by mandamus. In a proper case this, as a general proposition, is true, but here we are dealing, not so much with the powers and duties of county boards with respect to the canvass of the result of an election held, as with their duty to order a recount upon the demand of a defeated candidate when no tie is shown to exist. The relator bases his right to a recount, not upon the ground that a tie exists, but upon the hypothesis that, if the board had made a proper and legal abstract of the official returns, a tie would have existed, and therefore this court should compel the board to declare the result a tie and then order a recount. It is a new question. It is apparent, from the hypothetical statement of the facts, that the issuance of the writ is made dependent upon the contingency that a proper computation of the returns shows that a tie exists. Both upon principle and upon authority, I take the general position in this matter that a court can neither direct canvassing officers what result to ascertain or declare from their investigations, nor can it, by any processes of its own, ascertain for them a result by which they will be bound to make their return. Barnes v. Gottschalk, 3 Mo. App. 225. In this case the court is asked to place itself in the position of the respondent board, and determine for it whether a tie exists, and compel the board to act in accordance with its decision of this question. In other words, the court is asked to consider questions which the canvassing board itself had no power to consider and to compel action by the board, based upon its decision of such questions. This cannot be done. In Re Woods,5 Misc. Rep. 575, 26 N.Y.S. 169; 15 Cyc. 385.
As before stated, this is a summary proceeding to *Page 309 compel public officials by mandamus to perform a certain act, to wit, order a recount. It must be conceded that before the board can be required to perform the act it must be one "which the law especially enjoins as a duty resulting from an office, trust, or station." Revised Laws of Nevada, sec. 5695; State of Nevada v. Gracey, 11 Nev. 233. It is well settled that mandamus does not lie to compel a board of canvassers to do an act which, without its command, would not have been lawful for the board to do. The writ, whether alternative or peremptory, must not only show the obligation of the defendant to perform the act, but must also show his omission to perform it. Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 P. 129, 19 L.R.A. 157.
It is not controverted that the determination of the result of an election by a canvassing board is not a judicial act. It is purely a matter of calculation. State v. Osburn, 24 Nev. 187,51 P. 837; McCrary on Elections (4th ed.), sec. 261, 15 Cyc. 279, 280. In section 265, McCrary on Elections, it is said 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. Applying the above principles to the statute under consideration, I fail to discover anything in the law which enjoins upon county boards a duty or obligation to order a recount, when no tie is shown to exist from the calculation made by the canvassing board of the official returns.
It is urged on the part of the relator that the statute itself assumes it to be the duty of county boards to correct mistakes apparent upon the face of the returns, and, the respondent having refused to correct the mistake complained of, mandamus lies to compel its correction. I concede that, where the mistake is one made by the board itself, as, for example, an error in addition or of some kind too clear for controversy as a matter of simple justice the aggrieved party is entitled to have the mistake corrected, whatever may be the result, or whoever it may affect. But we are dealing in this instance with the question of the power of county boards to order a recount in the face of the express *Page 310 inhibition of the statute. There is nothing clearer to my mind than that the statute does not authorize county boards to correct mistakes which have occurred on the part of the inspectors of election in a given precinct. It was once the law that, when the county board had canvassed the votes for candidates for the legislature, and it appeared from such canvass that any legislator voted for had received a majority of 10 votes or less, in such case, upon the application of the defeated candidate, setting forth under oath that he had reason to believe and did believe that a mistake or mistakes had occurred on the part of the inspector of election in any election precinct or precincts sufficient to change the result, it then became the duty of the board to immediately proceed to recount the ballots. Section 1513, Revised Laws. But this section of the county government act was expressly repealed by the legislature in 1915 (Statutes 1915, p. 6), and in consequence of the repeal the law as to recounts stands now as it has stood since 1861. I am of opinion that the relator seeks, by this summary proceeding, to have the court revive a repealed law by attributing to the respondent board a mistake, if it be a mistake of the election officials, and thus circumvent the plain meaning and purpose of the law as to recounts.
It is strongly urged on the part of the relator that, in a case where a discrepancy exists between tally markings and the statement of the total votes for a candidate made by the election officials, the former control and require a declaration to be made in conformity therewith. I do not concede that any such discrepancy is shown in this case. According to the returns, the relator received 170 votes in precinct No. 1, when the tally markings opposite his name are counted by squares, five marks each to the square. But, if each mark opposite the name of the relator is to be counted as a vote, he received 171 votes in that precinct. Assuming, for the sake of the argument, and the argument only, that it was within the discretion of the board, from the condition revealed by the tally list, to accept the count by squares as the correct number of votes cast *Page 311 for the relator, the board cannot be compelled by mandamus to alter its determination. It is certain that the board could not determine judicially whether the mark was in fact a vote for the relator.
It is claimed that this court should take judicial notice that the extra mark in square 33 (which gave rise to this controversy) was recorded as a vote cast for the relator. My answer is, as a matter of principle, judicial notice of a fact that is reasonably open to dispute should not be taken. Only such facts as are reasonably not open to dispute should be judicially noticed.
It is suggested that the conclusion reached leaves the relator without a remedy. If this be true it is the fault of the legislature; not the fault of the respondent board or this court. But I am not prepared to concede that the relator is without a remedy. This question, however, is not involved, and I intimate no opinion upon it.
As I conclude that the statute imposes no duty upon the board to order a recount in the present case, it is unnecessary to enter upon a discussion of the evidence, but, if I were pressed to do so, I should say that no unfavorable inference is to be drawn from the relator's failure to put in evidence the corresponding or duplicate tally list which is not made a part of the election returns by the statute. The board itself had no right to consider such list (15 Cyc. 382), and, since this court can go no further than the board, it is probable that, had the duplicate list been offered, it would be immaterial. But I am clearly of opinion that an unfavorable inference is to be drawn from the failure of the parties to place before the court the poll book or poll list of the number of votes cast in precinct No. 1, which is a part of the official returns. It is possible that the poll book would have settled this controversy one way or the other, and why it was not placed before the court is a matter of conjecture.
In any view of the case, this court cannot by mandamus help the relator out of the dilemma in which the law places him.
The writ was improvidently issued, and the proceeding should be dismissed. *Page 312