I concur in the conclusions reached in this cause by a majority of the court, and, in the main, with the reasons assigned. In view, however, of the importance attached to the questions involved, I have thought it not improper to place on file my own views.
This is an application on the part of the relators to be discharged from what they allege to be an unlawful restraint on their liberty. They incorporate as a part of their petition a part of the record of the proceedings in the district court, which culminated in the commitment from which they seek to be discharged. The other part of the record has been filed by the counsel for the territory. The record as thus made up exhibits, substantially, the following state of facts: The relators, who were on and preceding • the fourth day of November, 1890, county commissioners for the county of Santa Fe, territory of New Mexico, were charged by law with the performance of certain duties. They are required to give notice of elections; to appoint for each precinct three persons of “discretion and good character” to act as judges; within six days after the election, public notice having been given, they are required to examine and count the votes polled for each candidate. I shall have occasion hereafter to note the. extent of the power conferred by the term “examine and count the vote.” They are also required to supply each precinct with a ballot- box, with lock and key; to forward within ten days to the secretary of the territory a “true extract of the votes polled.” The failure through “culpable neglect” to have poll books forwarded to the election precincts, or a failure to count the votes at a proper time, subjects them to a fine of not more than $25, nor less than $10. If they shall give false or fraudulent certificates, or malicously throw out any returns sufficiently legal, “or shall substitute false returns for true ones, or prevent the popular vote being had. or shall be guilty of such frauds,” they shall pay a fine of not exceeding $500, nor less than $200. They are to give to the person receiving the greatest number of votes a certificate of election. “Every commissioner who shall knowingly, ignorantly, or maliciously fail to comply with the duties imposed upon him by law and the provisions of this act, and who shall fail to count the votes at the time and place designated by law, or in any manner misrepresent the popular vote, or shall prevent or order the judges of election not to certify, or refuse to keep .open a poll book for the information of the public, at the courthouse, from the time the said poll book shall be delivereed to them until the day of examination of the same, and for the counting of the votes, or in any other manner shall prevent the obtaining of the legal vote of the people, or shall refuse to allow any candidate or citizen to examine the said poll book so placed for inspection, or shall give any false or fraudulent certificate, shall on conviction be fined in any sum not less than five hundred .dollars, nor more than one thousand dollars, and shall be imprisoned in the county jail for not less than six months, nor more than one year, and, further, he shall be forever disqualified from holding any office of profit or honor in this territory.” Compiled Laws, 1884, section 1205. It is also provided that the district judge may, on the presentation of any one who may desire to do so, make a summary investigation of the charge of misconduct on the part of the commissioner, and, if he shall find him guilty, he shall suspend him from office until final decision at the next term- of the district court. Section 1206, Compiled Laws.
Were it not for the disclosure made by the record in this cause, I should deem it unnecessary to say that the sole purpose of the legislature in the enactment of the statutes to which I have adverted was to secure a free, fair, and honest expression of the people at the polls. And aside from the discussion which has grown .out of this case, and confining ourselves alone to the provisions of the law, it seems to me that the sole purpose of the legislature in providing for a board of canvassers was to secure that end. Whatever is honestly and intelligently done by a commissioner under the law to secure a free, fair, honest, and full expression of the popular will is done in the line of his duty. Whatever is done either ‘ ‘knowingly, ignorantly, or maliciously,” to-prevent that end, is a willful, ignorant, or malicious violation of the law, and merits the condemnation of all good citizens, and the punishment prescribed by law. The absolute necessity for the preservation of the freedom of elections and the purity of the ballot if so apparent as to admit of no discussion. It would be an idle waste of time to undertake to demonstrate that, in a government like ours, the line that marks the distinction between law and lawlessness, government and anarchy, is drawn at the ballot box; and he who undertakes to obstruct a free expression of public sentiment at the polls is an enemy to society and a public criminal. Nor does it palliate the offense that the obstruction is interposed under the color of authority. The desperate revolutionist who by force of arms undertakes to prevent the expression of popular will through the ballot box may be a bolder man but he is none the more a criminal, than the man who under color of office seeks to do the same act. There is another-point equally well settled, though possibly not so well understood,- and.that is that in the discharge of the duty imposed upon the commissioners to “examine and count the votes” they act in.a purely ministerial capacity.
Whatever judicial function or discretion they may possess is exhausted in the selection of “discreet and honest judges of election.” The vote having been cast, they have nothing to do but to examine and count it. When the examination reaches the point of disclosing the fact that the vote under consideration was actually cast, it must be counted. Mr. Associate Justice Beistol, in the case of Bull v. Southwick, 2 N. M. 353, said: “As such board of canvassers, they assumed judicial power to pass upon the illegality of, and reject, votes, without any other ceremony than because parties and bystanders challenge them as illegal. In this way hundreds of votes were thrown out, and the result of the election thereby arbitrarily changed. This is but another illustration of what experience has long since demonstrated, which is that if such judicial powers should be conferred upon mere canvassing boards, to be exercised at the close of a hotly contested election, in the absence of the real parties interested, and almost always with the partisan advisers of such boards in the background, their sittings would be marked by the exercise of arbitrary power that would be more aggressive and odious than that of the ancient court of Star Chamber.” This case was heard and decided in 1882. It thus appears that, even prior to the passage of the act of the legislature to which I am about to refer, the doctrine that the county commissioners sitting as a board of canvassers were mere ministerial officers, clothed with no judicial discretion, was firmly settled by judicial construction in this territory. In order, however, to remove any doubt that might exist, and to put at rest any and all vexatious questions that might arise before such boards of canvassers, the legislature, at its twenty-eighth session, passed an act, the thirteenth section of which is as follows: “Sec. 13. That the board of county commissioners, sitting as a canvassing board for the purpose of canvassing the returns of any election hereafter held in this territory, shall not adjourn or become functus officio as a canvassing board until such board of commissioners shall have canvassed each and every return of election before them, and shall have declared the result from the face of such returns; and if any board of county commissioners, sitting as a canvassing board, shall fail, neglect, or refuse to canvass any return of any election before said board under any pretense that such return is irregular, or for any other pretense, it shall be lawful for any qualified voter to present his petition under oath to the judge of the district court having jurisdiction, at his chambers, briefly setting forth the facts and circumstances, and praying that such board of commissioners shall be required by a writ of mandamus, issuing out of such court, to count and certify such returns; and therefore it shall be the duty of the district judge to immediately issue, or cause to be issued, his alternative writ of mandamus, requiring such commissioners either to canvass such return, or returns, and to declare the result, or to appear in person forthwith before such court, and bring with them all of such returns; and, if such commissioners shall decline to canvass such return, or returns, they shall appear before said court in obedience to such writ, and take with them all of the returns, or papers purporting to be returns, before them; and thereupon the court shall forthwith proceed to examine said returns, and upon such examination may issue his peremptory writ commanding said board of commissioners to immediately canvass any or all of such returns, and to declare the result.” Sess. Laws, 1889, p. 321. This law went into effect February 28,1889. The section of the statute which I have quoted seems to me to be too plain to admit of construction. Let us analyze it, for a moment, in order to see if it contains any provision that can, by any possibility, be misunderstood. First. The board shall not adjourn until it has canvassed each and every return before it, and shall have declared the result. Second. If it shall fail, neglect, or refuse to canvass any return under any pretense that such return is irregular, or for any other pretense, any qualified voter may present his petition to the district judge, praying that such board may be required by writ of mandamus to count and certify such returns. What returns? Why, the returns that said board, under some pretense, have failed or refused to canvass. Third. The district judge is then required immediately to issue his alternative writ, requiring the board to either canvass such returns and declare the result, or to appear before him in person forthwith, and bring with them all such returns. The judge is to issue his mandamus immediately, and the commissioners are to appear forthwith. No provision is made for waiting for the regular term of the court. Fourth. If the commissioners decline to canvass such returns, they shall, in obedience to the writ, i. e., forthwith, appear before the judge, and bring with them — what? Bring with them what they, in their judgment, regard as the proper, legal, and regular returns? No. This is not what they are to be ordered to do, but to bring with them all the returns, “or papers purporting to be returns." Fifth. Having done this — having, in obedience to the writ, appeared in person before the judge, and having produced, not only all the returns, but each and every paper purporting to be a return, — their power, authority, and responsibility practically cease. For, sixth, immediately, on the production of such papers, the judge himself shall proceed to examine them; and his judgment, so far as the commissioners are concerned, is absolutely conclusive. For, seventh, the judge is required, as a result of his examination, to issue a peremptory writ commanding said board to canvass any or all of such returns, and declare the result. That is to say, the judge is required to examine all of the papers and to declare what are and what are not proper returns, and to direct the board to declare the result.
The express provision of this statute makes the judge quo ad hoc a revisory canvassing board, and nothing is left for the commissioners except to obey his mandate. Hence I repeat that whatever discretion, ministerial, judicial, or otherwise, vested in the commissioners as a board of canvassers ceases the moment they appear before the judge in response to the alternative writ. They are not merely his subordinates. They no longer constitute any part of the board, so far as relates to any question growing out of the validity or invalidity of the papers filed with them as returns, or as papers purporting to be returns. Any effort on their part thereafter to impress their views upon the result is not merely contempt of court, but a plain and culpable usurpation of authority. It is no answer to say that a mandate of a judge directing the board to canvass certain returns, thereby declaring the election of a particular candidate, is an unwarranted invasion of the legislative by the judicial branch of the government. This is not true in fact, and for three reasons. In the first place, the legislature is the sole judge of the election, qualification, and return of its own members. It may seat a member with or without a certificate of election. If it should appear to that body that a member having a certificate issued to him by the board of canvassers, as a result either of their own examination or that of the judge, was not in fact elected, it would be its duty to deny him the privileges of a member. In the second place, the relation of county commissioners is as foreign to the legislature as that of the judge. The district judge belongs to the judiciary, and the county commissioners to the executive, or administrative, branch of the government. Each, to a certain extent, is independent of the other, and the legislative branch is absolutely independent of both. In the third place, the legislative branch of the government, being independent of both the judiciary and administrative branches, has a perfect right to vest the power of canvassing the returns of an election in any officer it may choose, either executive or judicial, or to create an office especially clothed with that power. As we have seen, it has clothed certain administrative officers, to wit, county commissioners, with this power to be exercised in the first instance, and, following the usual line of remedial jurisdiction in other matters, it has vested in the judiciary a supervising or controlling power. Such being the law as I understand it, I shall endeavor to apply it to the facts in this case.
On the twelfth day of November, 1890, there was issued out of the district court, of the county of Santa Fe, a writ of mandamus, directed to the county commissioners, the relators in this case. This alternative writ, after reciting that it was issued on the petition of Benjamin M. Read, “a resident and qualified voter of said county,” proceeds to set out the charges, which are substantially as follows: That the board of commissioners had failed, neglected, and refused to canvass the returns from precincts numbered 1, 2, 16, and 8, and also that they had refused to canvass four votes cast for petitioner at precinct number 11. The writ concluded as follows: “Now, therefore, you are hereby required either to canvass such returns, including said certificate from precinct number 8, of said county, and also to canvass and count the said four votes polled in precinct number 11 of said county, which are marked ‘Not registered’ upon the poll books of said precinct, and declare the result, or to appear in person forthwith before said district court, and bring with you all of said returns, and all of the returns, or papers purporting to be returns, before you.” On the thirteenth day of the same month the respondents appeared and filed their answer, which, after setting out in detail the alleged irregularities which, in the opinion of the board, required them to reject and to refuse to canvass certain returns therein described, concludes as follows: “Your respondents, therefore, in obedience to the requirements of said alternative writ of mandamus, appear before your honor in person, as well as by their attorneys, N. B. Laughlin and Francis Downs, Esquires, and they present before your honor all such returns, or papers purporting to be returns, before you.” It is not pretended that the proceedings thus far were not in strict accord with the act of the legislature already quoted. On the issue thus joined, the cause was heard by the district judge, and a peremptory writ of mandamus awarded. To this ruling of the court respondents tendered a bill of exceptions, which was duly signed and sealed. On the same day that the alternative writ of mandamus was issued a petition was filed on the equity side of said court, by the said Benjamin M. Bead, and by Joseph B. Mayo, and Thomas B. Catron, against the'said commissioners, averring, substantially, that complainants were, at the election held on the fourth of said month, candidates for seats in the legislative assembly of said territory; that defendants constituted the board of canvassers, whose duty it was to canvass the votes polled at said election, in said county of Santa Fe; that said commissioners had assembled at the courthouse in said county, “but have failed, neglected, and refused to count a portion of the votes polled at said election for these complainants,” etc.; that said refusal would materially affect the result of said election, and would make it appear that persons other than complainants had been elected; that said commissioners were threatening to give certificates of election to other parties, etc. They asked that an injunction issue, restraining the commissioners from issuing certificates of election to others than complainants. An injunction was issued in accordance with the prayer of the bill. On the fifth of December, 1890, defendants answered. They admit that complainants were candidates at said election, but deny that they received a majority of the votes cast. They then set out what they deemed various irregularities in the returns of precincts 1, 2, 8, 11, and 16; that these returns were not in regular and perfect condition, etc.; that they met, and proceeded to canvass the returns; that, while so doing, “the complainants, well knowing the irregularities, fraud, and deceit appearing in some precincts, and the illegal and insufficient manner and condition of the pretended and alleged returns before said defendants as such canvassing board, and that the said pretended and alleged returns were so irregular and insufficient that the said board could not receive and count them, they (the complainants), in anticipation of their decision as such board of canvassers, filed a bill in chancery, and obtained an injunction, issued out of this honorable court, by which they were restrained „ and enjoined from making and completing the count .and canvass of all the votes cast in said election, according to the returns made to them as such board. And these defendants deny that the pretended returns made to them as a .canvassing board of precincts in said county numbered 1, 2, 8, 11, and 16, were in regular and perfect condition, but they aver and state to the court here that the alleged returns before them from precincts 1, 2, and 16 were irregular, and contrary to law, and the statutes in such case made and provided; and that the face of the returns from precinct 11 was regular, and was so counted, when reached by the board in the regular order. But there was never at any time any poll book, ballot box, or returns of any kind before these defendants, as a canvassing board or otherwise, from said precinct numbered 8 in said county; that there was not at any time evidence before them that an election had been held at precinct number eight on the 4th day of November, 1890,” etc. They deny that they had failed to count any votes “properly returned; ” deny that they threaten to give certificates to persons “who did not receive the greatest number of votes,” etc. They admit that “a certain paper purporting to be a certificate of election returns signed by four persons, two of whom signed as judges of election, and two as secretaries or clerks of election, in precinct numbered 8 in said county, was presented to the defendants while sitting as a board of canvassers by one of the complainants, Benjamin M. Bead, who was a candidate as aforesaid, and an interested party in the result of the canvass and count, and who was not authorized by law to act as messenger or custodian of the election returns; and they aver that the said purported certificate or paper is irregular in form, insufficient in law, does not contain a true and correct statement of the votes cast and polled at said precinct No. 8 on the 4th day of November, 1890, and that said alleged certificate, if canvassed^ and counted, would change the elections returns, and would have the effect of giving majorities to persons who were not elected by a majority of the votes cast at said election; that said alleged certificate gives majorities from four to eleven greater than the actual vote as it was cast, polled, and counted, and certified by the judges of' election, as these defendants are informed and believe.” They then allege on information and belief that said certificate was made at Santa Fe, and under the supervision of interested parties, etc., and by parties who never saw the original certificate made out and signed by the judges of election, if any such original certificate was ever so made out and signed. “That one of the persons who signed said paper as an election judge did so at the request of some person who came from Santa Fe, with the paper already filled out to be signed, and seven days after his official position as judge of election had expired.” The contradictory statements contained in this answer, of themselves convict the board of an attempt to suppress the popular vote and defeat, the will of the people; for while, in one part of the answer, they charge that there was not at any time evidence before them of any election at precinct number 8, they nevertheless admit in another portion of the answer that a paper purporting to be a return from said precinct, signed by two judges of election and two clerks, had been filed with them; but they allege that said “purported certificate” did not contain a true and correct statement of the votes polled at said precinct. How did they know that “purported certificate” did not contain a true statement of the votes polled, if they had never had before them any evidence that any such election had been had? Having answered, they demurred to the bill, setting out six causes of demurrer, substantially as follows: First, the court has no jurisdiction of the parties; second, because the court has no jurisdiction of the subject-matter in controversy; third, because the court has no jurisdiction of the subject-matters and the persons; fourth, the bill does npt state facts sufficient upon which to base an action; fifth, complainants have no common interest; sixth, that the bill is multifarious. This answer, in the nature of a demurrer, was filed on December 5, and on the same day a motion was filed to dissolve the injunction. On the seventeenth day of January, 1891, one of the complainants filed in the cause an affidavit reciting that defendants, in violation of the injunction, had on the fifth day of December, 1890, issued certificates, etc.; and thereupon a writ of attachment was issued. The parties were arrested, and on January 19 appeared and filed a motion to quash the attachment. The grounds of this motion were substantially as follows: First, the judge had no power in vacation to issue the attachment; second, because the judge had no power, jurisdiction, nor authority to institute proceedings for contempt; third, the judge had no power to issue an injunction to prevent the board of canvassers from issuing certificates; fourth, the judge had no power to issue an injunction, which was therefore void; fifth, because no order to show cause had preceded the writ of attachment; sixth, because the rules and regulations of the chancery court were not observed in the issuance of the writ of attachment. On the twentieth of January, an order was entered by the district judge reciting that upon a hearing of the parties, and upon the full consideration of the cause, he had found the parties guilty of four several acts of contempt, and imposing a fine of $50 upon them for each of the alleged acts of contempt. They were adjudged guilty of contempt, and an order of commitment was entered against them in the event that the fines were not promptly paid.
That we may have a proper conception of the relation sustained to each other by the two proceedings of mandamus and injunction, it may not be improper to note the order in which the several steps were taken. Both writs were applied for and issued on the same day, to wit, November 12, 1890. On the thirteenth of the same month defendants answered the alternative writ of mandamus, and on the eighteenth a preemptory writ was issued. On the fifth of December defendants filed their answer to the bill for injunction, and also moved to dissolve the same, and on the same day they proceeded, in direct violation of its terms, to issue certificates of election.
I shall not consume time in discussing the question as to the jurisdiction of the court to issue the writ of .mandamus. The act of February 28, 1889, confers the power in express terms. Not only so, but the facts in this case, in their minutest detail, bring it within the express terms of the statute. Every requirement of the statute, save one, was met. The complaint was made; the alternative writ was issued; the respondents appeared and produced the returns; the judge examined them; the peremptory writ was issued. At this point, however, obedience to law was abandoned. The respondents, the relators here, thinking, no doubt honestly, that they were better qualified to take care of the public interests than the legislature, determined to defy the law. It is trifling with the occasion to treat the conduct of these relators as a contempt of court. It was a contempt of law. It would be an unwarrantable reflection upon their intelligence to say that they did not understand their duty in the premises. It was not a matter of mistake. It would be a reflection on the voters of the county to suggest that three men too ignorant to understand the thirteenth section of the act of February 28, 1889, could be elected to the office of county commissioner. But, conceding the jurisdiction to issue the mandamus, it is insisted that the court had no authority to issue the injunction; that the act of 1889, imposing on the judge the duty of issuing the mandamus, is an implied denial of his authority to proceed by any other method; and the familiar doctrine that expressio unius est exelusio alterius is invoked to sustain this view. Opposed to this, however, is the equally familiar doctrine that, when power is conferred on a court to do any particular thing, there is, in the absence of express provision to the contrary, an implied grant of power to issue such process as may be necessary to. carry into execution the power conferred. This is especially true of courts of common law'and chancery jurisdiction; and section 1868 of the organic act provides that “the supreme court and district courts, respectively, of every territory, shall possess chancery, as well as common law, jurisdiction.”
But there is another reason that, to my mind, is conclusive of this question. It is well settled that the two processes, mandamus and injunction, are correlative in their character and operation. As a rule, whenever a court will interpose by mandamus to compel the performance of a duty, it' will exercise its restraining power to prevent a corresponding violation of duty. The supreme court of the United States has declared: “But it has been well settled that when a plain, official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who has sustained personal injury by such refusal may have a mandamus to compel its performance ; and, when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which an adequate compensation can not be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other.” Board of Liquidation et al v. McComb, 92 U. S. 541; High Extr. Rem., sec. 6. Even under the common law as it existed in England at a time when the writ of mandamus issued only as a prerogative writ, and before it became what it now is, — a writ of right, issuing 'ex debito justitiae, — it exercised a restraining, as well as a coercive, power. 5 Pet. 192. The injunction was purely ancillary to the mandamus. The relation which the former writ sustained to the latter was precisely that of an attachment sued out in aid of a common law action of debt. The purpose, and only purpose, was to preserve the statu quo pending the determination of the question raised by the proceeding by mandamus. There was, in fact, but one cause of action, and, in law, practically but one suit. If the petitioners were not entitled to an injunction, they were unquestionably not entitled to mandamus. The purpose of the mandamus was to compel the commissioners to do that which could be done only as a prerequisite to the issuance of a certificate of election. Under the law, they were first to canvass the vote and declare the result, and afterward to issue a certificate of election. To say that, while they might be compelled by mandamus to canvass the return, they could not be restrained from issuing a certificate, predicated upon a result reached in defiance of the mandamus, is to announce a solecism. In the view that I have taken of the matter, the proceeding by injunction was unnecessary. Pending the proceeding by mandamus, the board had no authority to issue a certificate of election. A peremptory writ of mandamus commanding the commissioners to canvass the votes cast at an election is, ex vi termini, a command to them to do nothing that will defeat the purposes of the writ. It was the duty of the board to obey the writ, not alone in its substance, but in its spirit. High Extr. Rem., sec. 566. Hence it follows that the issuance of the certificate pending the operation of the writ of mandamus was a violation of its terms, and warranted the imposition of a fine for contempt. Granting, however, that an injunction was unnecessary, it does not rest with the relators in this proceeding to say that the court was unnecessarily specific in its directions to them. If, in good faith, they had obeyed the mandamus, I am inclined to the opinion that they would have been entitled to their costs as to the injunction; but the effort to escape the penalty incurred by gross and willful violation of law, by showing that the proceedings of the court were irregular, or that its processes were unnecessarily specific, does not commend itself to the favorable consideration of the court.
It is further insisted, however, that the whole proceeding before the district judge was' void for the reasons — First, that the rival candidates for the legislature should have been remitted to their right of contest; and, second, because the interposition of the court was unwarranted interference on the part of the judicial with the legislative branch of the government. This proposition has been urged with commendable zeal, and with great ability. The learned counsel for the relators have exhibited great research in the production of authorities to sustain their views. They have insisted that, if the courts can interpose by mandamus or injunction to control elections, they may curtail, if not destroy, the powers vested in the other branches of the government; and numerous authorities have been cited to sustain this view. The case of relators does not raise this question. So far from being enjoined against the discharge of their duty, they were required by the mandamus to perform their duty. So far from the action of the judge being an infringement on the prerogatives of the legislature, he was himself acting under the mandate of an act of the legislature. I should not deem it necessary or proper, in view of the act of the -legislature I have already quoted, to discuss the question as to the authority of the court to interpose its mandamus, but for the earnestness with which the counsel for the relators have insisted that the action of the judge was a usurpation, and, therefore, void. I shall briefly review some of the authorities cited as sustaining the position of relators’ counsel.
In the case of Western Railroad Co. v. De Graff, 27 Minn. 1, it was sought to enjoin the governor of the state from the performance of certain duties imposed upon him by the legislature. It was held that this could not be done. It is true that the judge, in rendering the opinion of the court, states very broadly that under the constitution of that state the courts are powerless to interfere with the operations of any officer of the executive department, whether the action sought to be controlled was ministerial merely, or one involving the exercise of “discretion and judgment alone.” Whether the general principle stated be correct or otherwise, the facts in the case warranted the conclusion reached. No such authority was sought to be exercised in the case at bar. In the case of Walton v. Develing, 61 Ill. 201, the syllabus is as follows: “Where the law authorizes an election to be called in a township, to determine whether a majority are in favor of subscribing to the stock of a railroad company, when the election is called in pursuance of the requirements of the law, a court of equity has no power to restrain the officers from holding, or the people from voting at, such election. A writ of injunction issued in such case is void, and the officers and people are not bound to obey it, as the court has no jurisdiction.” In the case of Harris v. Schryock, 82 Ill. 119, it was said: “But, according to repeated decisions of this court, the power to hold an election is political, and not judicial; hence a court of equity has no power to restrain officers from the exercise of such powers.” In the same state, in the case of Dickey v. Reed, 78 Ill. 271, the court repeats the same doctrine, declaring that “elections belong to the political branch of the government, and are beyond the control of the judicial power. * * * And the political power of the state may organize municipal bodies, and put them into operation, by force of enactment, or by election of the people to be thus governed, and they can provide the modes of reviewing the returns of election to ascertain whether they are in accordance with the expressed will of the people, and, until the courts are empowered by the constitution or legislative enactment, they must refrain from interference.”
I have thus referred to what seemed to the counsel for relators as the most direct authorities in support of their position for the purpose of showing that they are not either directly or by implication assailed by the views that I have advanced. In the case at bar, the election had been held, the vote had been cast, and the alleged interference on the part of the judge was in the exercise of a duty imposed on him by the very authority that created the board of commissioners. In the language of the decision last quoted, he was empowered to act by “legislative enactment.” It was not, therefore, a case of interference on the part of the judiciary with the right of election-, but of open and avowed revolt on the part of the commissioners against the organized government of the territory. The true doctrine, under our form of government, is this: Every qualified voter has the right to cast his vote and have it counted. When the legislative power has appointed an election, and provided the proper officers for holding it and declaring the result, the courts have no power to interpose by way of preventing the exercise of such function. But no such officer has authority, under color of his office, to defeat the will of the people as expressed at the polls, and, if he undertakes to do so, it is the duty of the courts, on proper application, and within the rules prescribed by the legislature, to interfere by such remedial process as may be necessary to attain the proper remedy. In respect of their purely ministerial duties, election .officers are not beyond the control of the courts. Cooley Const. Lim. 621; High Extr. Rem., sec. 56.
A question was raised in the argument as to the right of the judge to enter the judgment complained of at chambers. The authority to do so- is conferred in such specific terms by section 1829 of the Compiled Laws that the mere reference to that section is regarded as sufficient answer to this objection. It was also insisted on the argument that under the provisions of section 665 of the Compiled Laws the judge had no authority to impose a fine in excess of $50 without a trial by jury. The several acts and omissions on the part of the relators constituted, in my opinion, but one offense. I think the mode adopted in fixing the amount of the fine was irregular, but it is an irregularity that can not be taken advantage of in this proceeding. But I do not agree with the learned counsel for the relators that the section referred to was intended to operate as a limitation upon the right of a judge to impose a fine for a contempt of court committed in a refusal to obey one of its mandates. On the contrary, I am satisfied that this statute relates alone to the preservation of order and decorum in the presence of the court.
I must say that, in the view I take of this' cause, the discussion has taken a much wider range than was pertinent to what I conceive to be the only issue involved. Section 13 of the act of February 28, 1889, unquestionably gives the district judge jurisdiction of the controversy out of which the proceedings for contempt arose. Section 2027 of the Compiled Laws of 1884 requires this court to forthwith remand the relators, if it should appear that they are detained in custody for any contempt, specially and plainly charged in the commitment, by some court, officer, or body having the authority to commit for the contempt so charged. All of this appears on the face of the petition, and I think, therefore, that the motion to dismiss the writ, and remand the relators, is well taken, and should be allowed.