On Rehearing.
Burke, J.Respondent has filed a petition for rehearing, complaining principally of certain statement of fact contained in the opinion. He complains especially of the statement that the tally sheets upon county division were physically attached to the official certificate by the precinct officers. We have gone over the testimony again very carefully, and still' believe the statements made by us warranted by the evidence. Only two of the poll books were attached to the statement of the case, although about ten were received in evidence. In one of those two the tally sheet-is attached to the certificate by means of gummed strips of paper. The other was merely folded *554between the leaves of the official certificate, but bears plain marks of having been attached to the certificate by means of a patented metallic fastener. Throughout the testimony it is stated that the other poll books were in the same general condition as those introduced. Two witnesses testified that they had examined the returns in the county auditor’s office upon November 10th after election, and stated that “these certified statements from the precincts (naming those in dispute) were then with the county auditor.” They intimate that some of the certificates were upon the unofficial sheets, but were in envelops addressed to the county auditor. A member of the county canvassing-board'testified that some of the certificates upon county division were “written right in the book . . . some were attached, and some were not, and some were pinned on. The ones that were pinned on we considered part of the canvass, we assumed that it was part of the official canvass.”
On the other hand the witness McGregor, the only auditor, gives the testimony relied upon by respondent. His testimony is mostly narrated in the statement of the case, and it is hard to tell just what he means in much of his testimony, on account of referring- to various returns held in his hands, but not so identified that he can now say which he meant. As an example of his testimony, we quote: “Ex. 1 is the only official return sent in by the precinct officers. Ex. 2 was in the poll'book, Ex. 1, when I received it. Ex. 1, with the loose sheet, Ex. 2, folded in it, was all the canvassing board had before-it.” Now ex. 1 and 2 are before us, and the ones that show the same to have been fastened together as before stated. At the trial below, two of the precinct officers testified that they had fastened the two exhibits together and"'delivered them in that condition to the county officer. Again in Stecker precinct we find the following narration: “(Witness produces the poll book from Stecker.) Ex. 3 is the official return in my office . . . is precisely similar to Ex. 1, differing only as to number of votes. ... In Ex. 3 (not attached but folded and between the leaves) there was found Ex. 4, which is same as Ex. 2.” Ex. 3 and 4 are not before this court, therefore their exact condition is a matter of conjecture. From anything the witness states, the tally list might have been fastened to the returns by the precinct officials and removed by someone later, as was the case with Ex. 2.
*555However, as we view the matter, it' is not so material how the precinct officers attached the tally sheet to the return. Whether they made a certificate upon the unofficial, returns and mailed the same to the county auditor, or placed the crudo tally sheets prepared by themnolves in between the leaves of the certificate of election and mailed or delivered the same to the county auditor, they — in any event — intended to make it a part of the return to the county canvassing board, showing those figures. We believe the canvassing board was justified in counting the same, in the absence of any showing of fraud or mistake. The case of State ex rel. Sunderall v. McKenzie, supra, was based upon a very different-state of facts. In that case the precinct officers had made a certificate showing the vote for superintendent of schools in the precinct. This certificate was forwarded to the county canvassing board, and counted by them. Upon an inspection of the tally lists in the front of the poll book from that precinct, it appeared that thé precinct officers had made a mistake in the count, or rather had overlooked the women’s vote entirely, and that the said certificate was not correct. One of the candidates sought by mandamus to compel the county canvassing board to reject the certificate and go back to the tally lists for the correct vote. This court held that the county canvassing board was bound by the certificate until overturned by contest. In this case the tally lists are not introduced to contradict the certificate of the precinct officers at all. They are part of the certificate of such precinct officers, prepared by them and sent in as such to the county canvassing board.
. The motion for rehearing is denied.