I respectfully dissent from the judgment. When this case was submitted on demurrer to the petition, I said: “ As at present advised, I am not prepared to admit that the 1 abstract ’ of the County Clerk is conclusively binding upon the Secretary of State as evidence of the contents of the record of the Board of Supervisors; or (in case of a denial on his part that it is a correct transcript) that the Court would compel him by mandamus —a writ in the nature of a prerogative writ—to proceed on a false or pretended transcript, or on a copy of a simulated record.”
The case has now been submitted on motion for judgment, notwithstanding an answer which denies that the “ abstract ” is correct, and avers that the record has been altered, without authority, in the very particular on which the petition for the writ is based. I cannot assent to the order granting this motion, because such order involves a decision by this Court that the writ of mandate (which should never issue when the Court, in the exercise of a legal discretion, can see that positive injustice may be done) may be resorted to for the purpose of compelling the Secretary of State to proceed on a forged or on a pretended copy of the real record.
The “ certified abstract ” mentioned in sec. 1344 of the Political Code, and which the Clerk of the Board is required to transmit to the Secretary of State, is hot, and does not purport to be, the primary evidence of the “ declaration ” of the Supervisors in regard to votes cast in the county. In this respect it differs from the original “ return,” signed by the Judges of Election, and which, from the nature of the case, is the only evidence to which the Supervisors can refer in order to ascertain the votes cast at the precinct.
The certified “ abstract ” only purports to be a copy of a portion of the record of the Board of Supervisors. Like the certified copy of a registered deed, it is prima facie evidence; but, in my opinion, it does not control the Secretary in the particulars wherein it departs from the record.
It has been suggested, on the one hand, that the alteration by the Clerk made the record accord with the Judges’ return from *33the disputed precinct; and has been asserted, on the other, that the return, as well as the record, was altered. This inquiry, however, cannot be material. If the Clerk’s certificate is conclusive where the alteration in the record is such as makes it what it should have been if the Supervisors had correctly declared the result, it is equally conclusive upon the Secretary, if he shall change the record, when the result has' been properly declared and recorded.
For convenience, the several County Clerks are directed to send to the Secretary of State a copy of the record, instead of the record itself. But, in view of the duties—simply clerical— imposed on the County Clerk, it may well be said that, in contemplation of law, the estimate of the Secretary is based on the records of the Supervisors. To make the return of the Clerk evidence—not to be contradicted—of the declaration of the Board, is to recognize in that officer, whose duties are those of a mere scribe, the power of canvassing the votes and declaring the result of an election in his county.
It has been urged that the duty of the Clerk is simply to make an abstract of the record as the record reads when the abstract is made, and that the Secretary of State must accept such abstract as correctly setting forth the record. If this were so, the Clerk would be precluded—even in case of a fraudulent or felonious alteration of the record after it had been signed both by the Clerk and Chairman of the Board—from certifying to the alteration, or to a transcript of the record as it was or should be in truth and fact, or from refusing to certify on the ground that there was no existing record. Yet it is manifest that such fraudulent or felonious alteration would constitute no portion of the record. Could mandamus be resorted to as a means of compelling the Secretary of State to act upon a copy of the record as it was after it had thus been fraudulently and feloniously altered?
Nor could it be claimed, in case of such fraudulent alteration after the signing, that the Chairman .and Clerk had adopted the matter fraudulently inserted, by permitting their names to remain on the book; their signatures would have been appended to the real record—that is, the record before the alteration— and they would not be authorized to remove them. In such *34case, if the record could be read as it was before the over-writing, that would be the record. (People v. Granice, 50 Cal. 447.) If a portion of the original matter were entirely erased, in every action or proceeding before a Court, the original matter could be proved by oral testimony, and the record would be read as it stood before the erasure. It may be that the Clerk, in making the statutory certificate, would not be authorized to supply the original matter from his memory, but he certainly should reject the words inserted without authority, because those words would constitute no part of the record.
If the record had never been signed by the Chairman and Clerk, it would have been none the less a record. (People v. Eureka Lake Water. Company, 48 Cal. 143.)
It has been said, however, that although the failure to sign does not invalidate the record, yet when they are affixed, the signatures conclusively establish the verity of the minutes so signed; that all variations or changes in the writing previously made, like the oral conversations which may precede a written contract, are merged in the writing actually signed. But when it is admitted that there is a record before or without the signatures, the effect claimed to be produced (if it is produced) by the signing, to wit, the preclusion from any inquiry as to what was the record before the signing, can be produced only by the signatures of both the officers: since the statute directs the Chairman as well as the Clerk to sign.
As has been shown, an alteration in the minutes, made after both have signed, would not necessarily constitute any part of the record. The theory, therefore, of those asserting the conclusive effect of the signatures must be that the attestation of the Clerk and Chairman conclusively proves the record as it stands when the signatures are subscribed. But this conclusive effect, if produced at all, is created by the signatures of both, and the benefit of the supposed conclusive presumption can no more be claimed for matter inserted after one has signed, than for matter inserted after both have signed. As to such matter, he who signed before its insertion has never certified to its correctness in such manner as to create the conclusive presumption.
It may be said that it would be a vain act for the Clerk again *35to sign after the change, and that the very making of the change itself should be construed to be a renewal of the signature. In the case of a private agreement, and for ordinary purposes—the alteration being made with the assent of all parties—this would be true.
But it must be remembered that the really important question here (if it can be reached) is—what was the “ declaration ” of the Supervisors in respect to the vote ? The claim of counsel for petitioner is that the Secretary of State is .estopped from ascertaining that declaration by reason of the presence of the names of the chairman and clerk: in other words, it is claimed that respondent and this Court—by reason of a technical rule deriving its force from the conclusive presumption created by the signatures—are prohibited from inquiring in respect to the declaration of the Board as recorded by the Clerk in the discharge of his proper clerical function, and must accept as absolutely correct a record of the Clerk’s own judgment as an assumed canvasser.
When a party appeals to such a rule of estoppel he may very properly be required to bring his case clearly within the rule.
As the case is now presented, it must be assumed that the averments of the answer are true. What, then, is the record ?
It would seem the answer must be that it consists of the original entries in the minute-book—that which stood there when the task of entering the statement, which the statute requires the Clerk to enter “as soon as the result is declared,” was completed.
It would perhaps be difficult in some cases to determine when the record was completed. Having written a statement, the Clerk would be competent at the same sitting, and probably within a reasonable time afterward, to correct an error or to amend an imperfect statement, so as to make it accord with the actual declaration of the Board, and a court would not seize upon a merely temporary suspension from his labor and hold such to be a final cessation. Perhaps no definite period of time could be fixed which would of itself establish that the work was finished, but all changes must be made by the Clerk while his clerical task of entering the declaration of the Board is in fieri.
*36I cannot believe that when his task of entering the declaration of the Board.had been finished, and after the lapse of time, however inconsiderable, the Clerk can initiate an independent inquiry, not in respect to what the Supervisors declared when they canvassed the vote, but avowedly in respect to what they ought to have declared, and then alter the minutes which contain the real declaration, so that they shall accord with his own notions of a correct declaration of the vote. After such alteration the writing would not constitute a record of the proceedings of the Board, but of the judgment of the Clerk. The Clerk has no power to transmit to the Secretary any other paper than a copy of the proceedings of the Board. The statute does not make the Clerk a canvasser. He is the mere scribe, whose office is performed when he makes record of the determination of the Board and transmits a copy of such record to the Secretary of State. If the allegations of the answer are correct, the Clerk did not confine himself to his proper duties, but assumed to discharge those imposed by law upon the Board of Supervisors, and that, too, after they had performed those duties—thus arrogating the power to reverse the decision of the proper canvassing officers.
Mr. Justice Cbockett did not express an opinion.