It is conceded on all sides that, under the Political Code, the duty of canvassing the election returns of a county, and declaring the result, is confided exclusively to the Board of Supervisors, and that its action in the premises, when duly entered of record, is absolutely conclusive, except in the case of a contested election. The method of procedure in canvassing the returns and declaring the result is prescribed by the statute, and is not only perfectly simple, but is entirely free from ambiguity. The Board must convene at its usual place of meeting on a specified day, and if all the returns from each precinct in the county in which polls were opened have been received, the Board must then and there proceed to canvass the returns; but if all the returns have not been received, the canvass must be postponed from day to day until all of the returns are received, or until six postponements have been had. The canvass must be made in public, and by opening the returns and estimating the vote of such county or township for each person voted for, and for and against each proposition voted upon at such election, and declaring the result thereof (secs. 1278,1279,1280, and 1281). “ The Clerk of the Board must, as soon as the result is declared, enter on the records of such Board a statement of such result, which statement must show: 1. The whole number of votes cast in the county. 2. The names of the persons voted for, and the propositions voted upon. 3. The office to fill which each person was voted for. 4. The number of votes given at each precinct to each of said persons, and for and against each of such propositions. 5. The number of votes given in the county to each of such persons, and for and against each of such propositions ” (sec. 1282). The duty of the Clerk is purely ministerial, and consists in entering upon the records of the Board a statement of the result as declared by the Board. lío one pre*22tends that he has any greater power, or that he has authority to enter upon the records any statement of the result "different from that declared by the Board. If, in making the entry upon the record, he had a supervisory power to correct mistakes, real or fancied, made by the Board in declaring the result, he would become, practically, the canvassing officer, and the record would show, not the result' as ascertained and declared by the Board, but as declared by the Clerk. It is not claimed that he has any such supervisory power. After the result, as declared by the Board, has been properly entered of record by the Clerk, his next duty, in respect to a general election, is prescribed by secs. 1288 and 1289, which provide, that “ so soon as the statement of the vote of his county is made out and entered upon the records of the Board of Supervisors, (he) must make a certified abstract of so much thereof as relates to the votes given for persons for offices to be filled at such * * * general * * election,” and “ must seal up such abstract, indorse it Election returns,’ and without delay transmit it by mail to the Secretary of State.” It has thus been shown that the only statement of the result which the Clerk is authorized to enter upon the record is that declared by the Board, and it is a certified abstract of this statement, and none other, which he is directed to transmit to the Secretary of State. It appears, from the petition in this case, that on the 17th November, 1876, after the statement of the result of the election in Monterey County had been entered of record, and after the record had been signed by the Chairman of the Board of Supervisors and by the Clerk, the latter made out and transmitted to the Secretary of State a certified copy of the record, (which on its face is in due form) showing that at the election in Monterey County, held in November last, the petitioner received one thousand two hundred and eight votes, and his competitor, P. D. Wigginton, nine hundred and eighty-six votes, for Representative to Congress. A copy of the certified abstract referred to is annexed to and made a part of the petition, and from the tabulated statement incorporated into the abstract it appears that at San Lorenzo Precinct, in said county, the petitioner received fifty-one votes, and Wigginton twenty-seven votes. It is contended on behalf of the *23petitioner, first, that after the record of the action of the Board of Supervisors in canvassing the returns and declaring the result was authenticated by the signatures of the Chairman and Cleric of the Board, it became and is the only authentic record of their proceedings, and as such, like all other records, imports absolute verity, and cannot be impeached by evidence aliunde, in a collateral proceeding. Second. That the Clerk had no authority in law to make out and transmit to the Secretary of State any other certified statement or abstract than an abstract so signed and authenticated, and as it now exists.
• In support of the first point it is contended that inasmuch as the statute directs that the record of the proceedings of the Board be signed by the Chairman and Clerk, it was intended, that when so signed it should stand as the only authoritative exposition of the action of the Board, and cannot be impeached collaterally. It may be conceded that in directing the record to be so signed, the statute intended to impart to it a greater degree of certainty than it might otherwise have had, as a correct exposition of the action of the Board; and it may be assumed that when thus signed it is prima facie evidence of its correctness. But it has been uniformly held, so far as I am aware, that such statutes are directory only, and that a failure to comply with them does not of itself invalidate the record. In Wisconsin there was a statute directing the Judge to sign the record at the end of each day’s proceedings; and in Eastman v. Harteau, 12 Wis. 267, the record of a judgment was offered in evidence which had not been signed by the Judge. It was objected to on this ground; and Dixon, C. J., in delivering the opinion of the Court, said: “There is fair reason for saying that this provision was directory, and that it was not intended that its non-observance would invalidate the judgment.” In support of this proposition numerous authorities were cited, among which are the following: Briggs v. Clarke, 7 How. (Miss.) 457; Pendar v. Fells, 2 Smedes & M. 585; Colman v. McKnight, 4 Mo. 83; Venable v. McDonald, 4 Dana, 336; Buckmaster v. Carlin, 3 Scam. 104; Hall v. Law, 2 Watts & S. 135; Kellogg, Ex parte, 6 Vt. 509; Reed v. Sutton, 2 Cush. 115; Boston v. Weymouth, 4 Cush. 542. In People v. Eureka *24Lake & Y. C. Co. 48 Cal. 143, the action was to enforce the collection of a tax levied by the Board of Supervisors, and at the trial the plaintiff offered in evidence the record of the Board levying the tax. But the record was not signed by either the Chairman or the Clerk of the Board, and it was objected to on this ground. In discussing this point, we said: “ The statute does not declare that the record shall not be proof of the action of the Board, if not signed by the officers named; but the effect is only to make their signatures evidence, identifying the minutes. The failure of the Chairman and Clerk to discharge the. particular duty only imposed on the party desiring to prove the official action of the Board some additional trouble, in establishing the handwriting of the entries, their contemporaneous character, and the official custody from which the book was produced.” This was a distinct adjudication that the signatures of those officers were not essential to the validity of the record as such, and that the only effect of the omission was to impose upon the party relying on the record the necessity for some additional proof as to its authenticity. I conclude, therefore, that the record of the Board, if otherwise correct, is none the less a record, because not signed by the Chairman and Clerk; and this brings us to the question whether the Clerk had any authority in law in making the abstract to be transmitted to the Secretary of State, to make any other certified statement or abstract than one taken from the record as required “by the Chairman and Clerk. If he has not, the inevitable result must be that though the record, as originally made up, was in all respects correct, and contained a true and accurate statement of the action of the Board in canvassing the returns and declaring the result; yet, if it was afterward altered or interpolated, through fraud or mistake, before it was signed by the Chairman and Clerk, the abstract must nevertheless be made from the false and simulated record, though the Clerk may have before' him the most conclusive proofs of the fraudulent or unauthorized alteration, and even though the record, on its face, discloses the fraud or unauthorized interpolation. But I cannot assent to this proposition.
When the Clerk, in the performance of his duty, transcribed *25into the proper record-book the action of the Board in canvassing the returns and declaring the result, the presumption of law is that he properly performed his duty, and that the record so made contained a true and accurate statement of the action of the Board. From that time it became and was a record in the sense of the statute, though not signed by the Chairman and Clerk, or either of them. If it was afterwards altered in a material part through fraud or mistake, either before or after it was signed by the Chairman and Clerk, the alteration must be rejected as forming no part of the record, which must be read as though the alteration had not been made. It will scarcely be claimed that if there was an unauthorized change in the record in a material part after it was signed by the Chairman and Clerk, the latter, in making up his abstract, would be bound by the alteration, or that he might not reject that part of it which was spurious, and which for that reason formed no part of the record; and if the signatures were not essential to the validity of the record as such, I do not see on what ground it can be held that the Clerk is concluded by a spurious alteration of the record, made before it was signed. Whether made before or after the signature, the unauthorized alteration formed no part of the record. If the original record is destroyed by accident or design (as by fire, or by fraudulently cutting out and abstracting the leaves containing the' entries) there would, of course, be no record in esse from, which the Clerk could make the abstract required by sec. 1288. In like manner if the record be so mutilated by unauthorized erasures and interlineations that it is impracticable to distinguish the true from the false, it would be practically destroyed, and no valid record would remain from which the abstract could be made. In such cases the Clerk would be disabled from performing the duty enjoined upon him by sec. 1288. It is said, however, that it would be intrusting a dangerous power to the Clerk, if he has authority, at his discretion, to reject such parts of the record as he shall decide to be spurious. The answer to this suggestion is, that all power must be lodged somewhere, and it is always liable to abuse. The Chairman of the Board and the Clerk might fraudulently and by collusion make up a false record, and on the *26theory advanced on behalf of the petitioner, such a record, when signed by the Chairman and Clerk, would import absolute verity, and could not be attacked collaterally. The danger from such a fraud might be somewhat less in degree than from a fraud perpetrated by the Clerk alone; but it would be only less in degree, and not different in quality.
The petition further shows that on the 11th day of December, 1876, the Clerk filed with the Secretary of State another paper, purporting to be a certified copy of the minutes of the Board of-Supervisors, in canvassing the election returns and declaring the' result thereof; from which it appears that the Board declared that at San Lorenzo Precinct Wigginton received twenty-nine and Pacheco fifty-one votes. Appended to this paper is a certificate of the Clerk, to the effect that, when the Board adjourned after canvassing the returns and declaring the result, the minutes were in pencil, and that after the adjournment, and on the same day, the Clerk correctly transcribed the minutes into the minute-book of the Board, and that the said minutes as originally transcribed into the book yet remain in said book, except that the name of the Chairman of the Board has since been appended to said record, and except also that, since the original entry in the record, the tabulated statement of the vote at San Lorenzo Precinct has been changed, so as to allot to Wigginton only twenty-seven instead of twenty-nine votes at that precinct, and the column of totals has been changed so as to reduce Wigginton’s vote in the county from nine hundred and eighty-eight to nine hundred and eighty-six. It further appears from the petition that on the 4th day of December, 1876, the said Clerk filed with the Secretary of State another statement or certificate, detailing the circumstances under which the alteration in the record was made. From this document it appears that, after the returns were canvassed, and the result declared by the Board, awarding to Wigginton twenty-nine votes at San Lorenzo Precinct, and nine hundred and eighty-eight votes in the county, and after the minutes stating this result had been correctly transcribed by the Clerk into the minute-book of the Board, but before the minutes were signed by the Chairman, the Clerk became convinced that Wigginton had received only *27twenty-seven votes instead of twenty-nine at San Lorenzo Precinct, and only nine hundred and eighty-six instead of nine hundred and eighty-eight votes in the county, and thereupon he altered the tabulated statement on the record accordingly, so as to make the result conform to the true vote, as he understood it, thereby allotting to Wigginton on the record as changed two votes less than were awarded to him by the Board of Supervisors. In respect to these documents, it is contended by counsel, first, that when the Clerk transmitted to the Secretary of State the certified abstract of November 17th, (which was in due form) his power in the premises was exhausted, and he had no authority in law to transmit another and a different certificate; 2nd, if he had that power, these papers are not and do not purport to be certified abstracts from the record of the Board, or from any record, but are only ex parte statements, reciting certain transactions, resting partially in parol, and which cannot be considered as in any manner affecting the duty of the Secretary of State in counting the vote. In the view I take of the case I deem it unnecessary to consider the first point, and before proceeding to the second, it is to be observed, in limine, that the petition does not question the truth of the facts stated in the Clerk’s certificates of December 4th and December 8th, but denies that they are of any legal significance, or are entitled to be in any manner considered by the Secretary of State in the performance of his duty, or by this Court in determining whether a peremptory writ of mandate ought to issue. For the purposes of this decision, the facts stated in the documents referred to, not being denied, must be assumed to be true; and the point to be determined is, whether they have any legal significance or are entitled to be considered for any purpose material to this inquiry. The case as made by the petition may be briefly stated as follows: That at San Lorenzo Precinct, Wigginton received only twenty-seven votes, and nine hundred and eighty-six votes in the county; but in canvassing the returns the Board of Supervisors erroneously-allotted to him twenty-nine votes at that precinct, and nine hundred and eighty-eight votes in the county; that the result, as declared by the *28Board, was duly and properly transcribed into their minute book and signed by the Clerk; that the Clerk, having discovered the mistake made by the Board, altered the record so as to make it conform to the actual vote cast, which was different from that declared by the Board in the particular referred to; that after the alteration, the Chairman of the Board signed the record as altered; that thereupon the Clerk made a certified abstract from the record as altered and transmitted it to the Secretary of State; but subsequently transmitted to him a written statement setting forth substantially the foregoing facts, which we assume to be true. On these facts the petitioner asks for a peremptory writ of mandate to compel the Secretary of State to count the vote, not as it was declared by the Board of Supervisors, but as shown by the altered record, which was changed in a material part without the authority of law. It is perhaps unnecessary for us to decide to what extent, if at all, or in .what cases, if any, the Secretary of State may question the validity of a certified abstract, which, on its face, is in due form of law. That he may inquire into the fact whether the certificate is genuine and signed by the proper officer, no one, I presume, will deny; and it would appear to be equally clear, that though the certificate is in due form, he may inquire whether it is founded upon a record which, though originally valid, and made up and signed in due form, was afterward altered in material parts without authority of law. But whatever may be the extent of his discretion, if any, in that class of cases, I think this is not a proper case for mandamus on the. facts disclosed by the petition. It is a prerogative writ, and does not issue ex debito justicies. If it affirmatively appears that the act to be performed will work an injustice, or contravene good morals, or result in a public or private wrong, the Court will decline to issue the writ. If, for example, it had appeared on the face of this petition that Wigginton secured a majority of votes in Monterey County, and that the result was truly declared by the Board of Supervisors, but the Clerk and Chairman of the Board had fraudulently combined to make up a false record, which on its face showed a majority for the petitioner, and that the Clerk had made a certified abstract in due form founded on the false and fraudulent *29record, which the Secretary of State refused to act upon on being informed of the fraud, it will scarcely be claimed that in such a case the Court would compel him by mandamus to consummate the fraud.
The same result would follow if it appeared that the true record had been altered in a material part, without the authority of law, through mistake or inadvertence, so as to make it speak a falsehood. In such a case, the answer to an application for a mandamus would be that the writ is intended to prevent a failure of justice, and cannot be used to perpetuate a wrong, or to compel the performance of an act, the result of which would contravene public policy, or violate good morals. In this State, the policy of the law, as expressed in the statute, is to confide to the Board of Supervisors the exclusive authority to canvass the election returns of a county and declare the result, and its action in the premises, when in due form and free from fraud, is absolutely conclusive on all persons whomsoever, except in the case of a contested election. We are asked, in this case, to compel the Secretary of State, by a peremptory writ, to estimate and count the vote in accordance with a certificate of the Clerk, which, as appears on the face of the petition, states a result not only not -declared by the Board, but essentially different from that which was declared, and which was duly transcribed into the record. To award the writ under these circumstances would be to contravene the plain policy of the law, which confides to the Board the exclusive authority to declare the result of an election, and which has not intrusted to the Clerk any supervisory power over the Board in correcting its mistakes or otherwise. Nor is it material to inquire whether the Board, in fact, committed the mistake imputed to it, and whether the record, as changed by the Clerk, states the true result of the election. Having no authority to declare the result, or to correct any mistakes of the Board, the attempt of the Clerk to do so was simply a nullity; and to award the writ as prayed for would be virtually to decide that the result, as declared by the Clerk, was valid and obligatory, notwithstanding' the statute explicitly provides that the authority to canvass the returns and declare the result is confided exclusively to the Board. If a *30practice of that kind were tolerated, it would necessarily involve an inquiry whether the result as declared by the Board, or that declared by the Clerk, was the true result of the election ; and that, too, though it is conceded on all sides that the Clerk has no authority in the premises. In determining whether the writ ought to issue, it is our duty to uphold the plain policy of the law, which provides that the result, as declared by the Board, shall be absolutely conclusive, except in the case of a contested election. To issuejhe writ as prayed for would be to contravene this policy by compelling the Secretary of State to accept and act upon a certificate of the Clerk which does not state the result as declared by the Board, but a different result declared by the Clerk. For these reasons, I "am of opinion that the writ should be denied.
After the foregoing opinions had been delivered, and on the 16th day of April, 1877, the respondent, Beck, filed an answer to the petition, in which he admitted that before the 28th day of January, 1876, he had received the official returns of the vote cast for Representative in Congress from the Fourth Congressional District, but denied, on information and belief, that all the returns received by him were official and correct; denied, on information and belief based upon the true election returns received from all the counties in the district, that Pacheco received the highest number of votes, or "that he received a ,majority of one vote; admitted that about the 17th of November, 1876, he received from John Markley a paper purporting to be a certified copy of the official vote of Monterey County, cast for Representative in Congress; denied, on information and belief, that said paper contained a true and correct return of the votes cast for said Representative in said county; alleged that the total number of votes represented in said paper to have been cast for Pacheco was one thousand two hundred and eight, and for Wigginton was nine hundred and eighty-six; alleged, on information and belief, that the true number of votes cast for Wigginton was nine hundred and eighty-eight; denied that he ever admitted the return of votes cast in Monterey County made to him by Markley on the 17th day of November, 1876, *31were the only correct returns; alleged, on information and belief, that the return made by Markley on the 8th day of December, 1876, contained a true and correct statement of the votes cast for Pacheco and Wigginton; denied that said last named return did not form a part of the record of the Board of Supervisors; denied that the number of votes cast in the San Lorenzo Precinct was, for Pacheco fifty-one, and for Wigginton twenty-seven; alleged, on information and belief, that the true number of votes cast in said precinct was, for Pacheco fifty-one, and for Wigginton twenty-nine, and that the Board of Supervisors had declared such to be the result; denied, on information and belief, that Wigginton only received nineteen thousand one hundred and three votes, and alleged that he received nineteen thousand one hundred and five votes; alleged that the return made by Markley on the 17th of November, 1876, was false, fraudulent, and manufactured; alleged that when the Board of Supervisors met to canvass the vote that they ascertained and declared that Pacheco had received 51 votes in the San Lorenzo Precinct, and that Wigginton had received 29 votes, and had received in the county 988 votes, and that this declaration was immediately entered in the records of the Board of Supervisors, and that in making the return of November 17th, Markley acted without power or authority and in violation of the statute, and said return was false, fraudulent, and manufactured. The answer also raised an issue as to an alleged demand made by Pacheco on the respondent to proceed and count the vote upon the return made on the 17th of November, and certify the result to the Governor. The petitioner moved for judgment on the pleadings, and on said motion the following opinion was delivered :
By the Court, Wallace, C. J.:Upon all questions sought to be raised by the answer, (that of due demand having been abandoned at the argument) the views heretofore expressed by us conclude the respondent.
Let a peremptory writ of mandamus issue in accordance with the prayer of the petition.