concurring.
I dissented from the- views of the- majority of this court overruling the demurrer to the answer.' It was sought by the answer, or return, to raise the question as to whether or not the'nominations of the relators had been certified, or whether or not a-pioper-Certificate -thereof had been duly-filed with thmproper- officer...- Although the petitions for the writ allege the nomination of the relators by a convention representing the Democratic party, as candidates for election to the House of - Representatives to the - Second- Legislature for the legislative district- composed of the counties of Carbon and Natrona; and that-the nominations were duly certified in the manner required- by law; ’ the answer or return denies these facts; I-do not- think that these matters were properly in issue -in -this- proceeding. It seems- to me that it was ■ not necessary to allege that the relators were nominated at' all. The answers severally set up that' “the said- defendants allege that the name of- the said relator was' unlawfully -printed upon the official ballots in the said counties of Carbon and Natrona as a candidate -for the House of Representatives of said State for the district composed of said counties, in this, that no certificate of nomination has ever been made or filed in any public office'-presenting the name of said relator as a candidate or nominee for such office; and that the said defendants' allege -tha-t-no- votes were • cast-.for relator- for said office in either- of- said counties.in any other Way.or-manner than by placing a cross (X) opposite the name of- relator where the same -was printed on the official -ballots.” This allegation was probably made for the purpose of showing that no' elector voting for - either of the relators had written his name on the ■official ballot, which'is permitted by statute. Suppose this fact had been denied in the reply-and an -issue had been made' *94on this point. Can it be seriously contended that this court would have been compelled to direct*testimony to be taken thereon or have all the ballots in these counties inspected? I think not. There are some limits to judicial inquiry and some presumptions that are so conclusive as to preclude such inquiry.. In a proceeding like this, the inquiry should be directed to ascertain if the returns show that the relator has been elected. He has a right to have the votes cast for him returned, canvassed and counted as provided by law and in the manner prescribed by law. Each relator has shown himself entitled to this “clear legal right,” and it was so held by this court on demurrer to the petition. Our statute defining mandamus is as follows: “Mandamus is a writ issued in the name of the territory (State) to an inferior tribunal, a corporation, board or person commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.” Rev. Stat. Wyo., Sec. 3073. This court held that the legal and proper returns from Carbon County of the votes cast for relators were not canvassed by the State board of canvassers. This duty that the law enjoins upon such board and which results from their office, trust and station, should be performed, and the relators have' shown their clear legal right to its performance. The constitution has made each branch of the legislature the judges of elections, returns and qualifications of their members. The court can not invade this province. It can merely set in motion the machinery provided by law to ascertain who is entitled to the certificate of election. (Dissenting opinion of Finch and Andrews, Justices, in People ex rel. Sherwood v. State Board of Canvassers, 129 N. Y., 377.) The cases that announce a contrary opinion are based upon the ineligibility of the relator or upon the invalidity of the election at which he was elected, but neither of these questions are presented here. It is true that in the answer to one of the petitions it is alleged that relator Chapman was not a citizen of the' United States at the time of filing such answer and never was a citizen. This allegation is insufficient as this impediment might be removed before the time fixed for his qualification *95as a member of tbe House of Representatives. The constitutional provision applicable is that no person shall be a representative who is not a citizen of the United States. (Last clause of Section 2 of Art. Ill, Con. Wyo.) This objection was waived by counsel for respondents as the reply filed thereafter shows that such relator has become a citizen of the United States since the election and prior to the meeting of the legislature, by naturalization. All the cases cited bear upon the ineligibility of the relator or the invalidity of election and consequently have no application. The only questions are as to the fact of nomination and the sufficiency, of the certificate of nominations. If these questions could be raised in this proceeding, I doubt that they should be considered. The case of Price v. Lush, 24 Pac., 749 (Montana), was relied upon in a former argument, but in that case the effect of the pleadings alone were considered in a contest for the office of justice of the peace in a regular contest proceeding where the trial court had full jurisdiction to hear and determine the cause. If it could be followed out in the case at bar it would result in establishing the strictest rule of construction in every provision of our election law. Although our statute is a very faithful copy of the Australian ballot law, I see no reason for adopting the construction of the British courts, which appears to be most rigid.
I do not see why this law should be more strictly construed than any other statute, or why different rules of construction from those invariably followed by the courts-should be adopted in construing this statute. The rigid rule-of construction adopted in England, as shown in the opinion in Price v. Lush, supra, is monstrous.
No American case, with the exception of the Montana case, has gone so far as to establish the doctrine that the failure of the officers of a political nominating convention to properly certify the facts required to be certified by statute, would deprive such a candidate of the office to which he was elected. The provisions of the statute in this respect is to my mind for the guidance of the officer who prepares the official ballot. The list of candidates must be published, and this is the notice-*96to the electors at large of the nominations. While an .officer charged with the -duty of receiving, filing and preserving certificates-of nominations might not be compelled to place the names of the candidates not certified or .irregularly certified, upon the- official'.ballot, yet if he does-so, without objection, I think all inquiry-should end. there. . Any other, construction would operate to delude the unsuspecting voter, who has a right to assume, when he receives from , the election judges a ballot, purporting, to be an--official ballot, that it is official and properly made out by the public agents designated by law for that purpose:- -- Cases indeed might arise where an officer charged with this -duty has acted fraudulently or corruptly in placing names on an official ballot, which have no, right there, but the ccrartsare open for the redress of such wrongs. Certificates of nomination are open to inspection and heavy penalties are provided for the infringement of the law by the official who-is custodian- of these certificates and who prepares and directs the"printing of-.the official ballot. These are sufficient safeguards against fraud, ignorance or corruption on the part of the officers entrusted with these duties. If the law -isto be rigidly construed and all of its.provisions held mandatory relating, to the conduct of- the officers in preparing and distributing official ballots, many electors may be deprived of their votes without any fault or negligence on their part. (Dissenting opinions in People ex rel. Nichols v. Board of Canvassers, 129 N. Y., 433.) The record discloses that there were ten candidates only- for the office of representatives voted for in Carbon County, which with Natrona County is entitled to five representatives in the lower branch of the legislature, and it is fair to presume that these nominations were made five from "each of: the great political -parties, and that the electors could "exercise their choice from thesé two lists by voting their party or personal preferences,-unless they chose to write the name of some other person or-persons on the ballots. In choosing betwéen political nominations, therefore, the electors must have been restricted to these names on the printed official ballot. They had. the right to do so, and they ought not now to-have this right "questioned. : The names appearing *97on the two official ballots are challenged for the first time in this court, for aught we know to the contrary. In my judgment it is too late to make that objection now. The ordinary, rules of waiver of legal objections, if not seasonably interposed, ought to apply here. While no provision is made by our statute for the correction, or determination, of the validity of certificates of nomination, there is a provision for the correction of an error or omission in the publication of names or the description of candidates nominated for office, or in the printing of ballots. The proper district court or the judge thereof may direct the correction to be made on application therefor, or the mistakes may be corrected by-the clerk on his own motion. Secs. 108-9, Election Law.
In some States statutory provision is made for objecting to the certificates within a fixed period after they have been filed, but no such provision is incorporated in our law. Yet, it seems but reasonable that provisions having been made for public inspection of the nominating certificates, which must be filed a certain period before election, ample time is afforded for making objections to them or the action of the officer in accepting or rejecting them, prior to their printing and distribution. It appears to me that all such matters would be reached in the courts where the statute is silent. If no objection is made, before the printing of the ballots, and certainly if none is made before the election, I do not think it could be made after the election, and thus operate to defeat the will of the people as expressed at the ballot box.
Our election law was undoubtedly designed! to protect the elector from fraud, imposition, intimidation and debauchery; to make him absolutely free while exercising his choice for public servants. It was intended to secure honesty and freedom to the voter and to render ineffective his corruption. It was never intended to serve as a cloak for disfranchisement, and should nót be so construed as to render it possible for an official to ignorantly or designedly mislead or disfranchise any elector; if such was the intention it would have been better if the law had never been enacted. It could be no improvement on former statutes which have been invariably con*98strued in sucb manner as to arrive at tbe intent of the elector, to ascertain the will of a sovereign people, and to cause obedience to that mandate when ascertained.
I have read with much interest and profit the case of Bowers v. Smith, 20 S. W., 101 (Missouri); Allen v. Glynn, 29 Pacific, 670 (Colorado), and I believe that the reasoning of the majority of the courts in those cases fairly applied to this case will sustain me in my views.
I concur in the result.