I am compelled to dissent from the judgment of .the Court in these cases, and shall briefly state my reasons.
In the State Ex Relatione E. C. Lartigue and M. C. Maloney vs. W. A. Nerland, (April Term, 1873,) it was held that the election, under the Act of February 12, 1873, was not determined according to law, because the protest of the contestants had not been transmitted to and heard by the Board of State Canvassers. I did not concur in that conclusion, but as it was the judgment of the Court I regard myself bound by it. In my view, the judgment in the case now before us is in direct contradiction, not only of the grounds on which the result in that case rested, but of the judgment itself. There it was held that the election was not complete, because it had not been passed upon by the Board of State Canvassers in accordance with the general election law; here it is held that, notwithstanding its refusal to act upon the return of the Board of County Canvassers, the action of the last named Board is final and conclusive.
Looking to the views of the majority of the Court, as expressed in the opinion in Lartigue & Maloney vs. Nerland, it cannot be disputed that the order for the mandamus was granted because the election was considered without finality or validity until its result was declared by the Board of State Canvassers. It is of no consequence on what ground, whether of supposed want of jurisdiction or otherwise, the said Board declined to render its judgment, for if, according to the opinion of the Court in the case referred to, the action of the Board was necessary to a final determination of the election, until obtained the election was not determined.
It is (as I regard it) no sufficient answer, that an election is not to be defeated because of the refusal of the Board of State Canvassers to execute the duties enjoined upon it by the Legislature. If the action of that Board (as was certainly held in Lartigue & Maloney vs. Nerland) was necessary to the determination of the election, it could have been enforced by the very writ now claimed here, and it would have been the appropriate remedy, to compel, on the part of the Board, the performance of a duty which the opinion in the same case says was required of it by law.