State ex rel. Minehan v. Thompson

On Petition for Rehearing.

Goss, J.

It is urged on rehearing that, because written exceptions were not taken and filed to the findings of fact and conclusions of law, the same are conclusive, and the court cannot examine a stipulated record, embodied in a settled statement of the case, in which specifications of error of fact and of law challenge both the conclusions and the findings. Such may have been the common law, but we construe the statutes as abrogating any necessity for taking and filing exceptions in findings in appeals such as this. Section 7053, Rev. Codes 1905, defines an exception as “an objection upon a matter of law to a decision made either before or after judgment by a court in an action or proceeding.” This definition confines an exception to “an objection upon a matter of law,” and manifestly an objection that a finding is not in accord with or supported by the facts disclosed by the evidence cannot amount to an exception. Under the statutory definition of an exception, there cannot be such a thing, in a legal sense, as an exception to a finding of fact, on the ground that it is contrary to the evidence; and this alone is sufficient to show that no exceptions to findings of fact can be taken or are necessary. Por example, § 992 of the New York Code of Civil Procedure was in such respect nearly in the language of § 7053, Rev. Codes 1905. And it was held that the *299effect of said § 992 was to obviate the necessity of excepting to findings in order to review tbe evidence upon which the findings were based. But § 993 of the New York Code further provided that when the assignment of error was that the finding had no evidence to support it, then it was a ruling upon a question of law, and it was necessary that there be an exception to raise such question of law; but exceptions were not necessary where there was some evidence to support the findings, and where the error assigned was that the finding was against the weight of the evidence. Meade v. Smith, 28 Hun, 639; Hill v. White, 46 App. Div. 360, 61 N. Y. Supp. 515; Porter v. Smith, 35 Hun, 118, affirmed in 107 N. Y. 531, 14 N. E. 446; Bullock v. Bemis, 3 N. Y. Supp. 390; Mooney v. Fagan, 4 N. Y. Supp. 21; Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516. But this distinction has not been brought into the practice in this state, as we have no section parallel to § 993, creating such distinction. An exception cannot, and need not, be taken to a finding.

Then again, under § 7053, “the exception must be taken at the time the decision is made, except as provided in § 7054,” which reads: “The verdict of the jury, the final decision in an action or proceeding, . . . are deemed to have been excepted to, and the same may be reviewed both as to questions of law and the sufficiency of the evidence upon motion for new trial or upon appeal, as fully as if exception thereto had been expressly taken.” Bnder § 6717 the word “verdict” in § 7054 must include “not only the verdict of a jury, but also the findings upon the facts of a judge or of a referee appointed to determine the issues in a cause.” And again, under § 7040, findings and conclusions amount to a decision. It reads: “In giving the decision the facts found and the conclusions must be stated separately; judgment upon the decision must be entered accordingly.” So that under the express terms of § 7054, whether the word “verdict” be considered as including findings, the decision mentioned in § 7054 is the findings under § 7040. Exceptions are unnecessary, and, by the terms of the statute, the sufficiency of the evidence may be reviewed “upon appeal as fully as if exception thereto had been expressly taken.” We find §§ 7053-7054 coming to us from territorial times, and still remaining the statute of South Dakota as well as of this state. Eo.r South Dakota’s interpretation in line with the foregoing, see Smith v. Commercial Nat. Bank, 7 S. D. 465, 64 *300N. W. 529; Lone Tree Ditch Co. v. Rapid City Electric & Gaslight Co. 16 S. D. 451, 93 N. W. 650; Kelly v. Wheeler, 22 S. D. 611, 110 N. W. 995; State ex rel. Koontz v. Brown, 25 S. D. 74, 125 N. W. 294. Companion sections to those of our Code involved are quoted and discussed in these cases. It is plain, therefore, that under our statute an exception can be taken only to errors of law, and then only with respect, to matters not mentioned in § 7054, wherein findings and other orders are by statute deemed excepted to. The only condition precedent to. review the sufficiency of the evidence to justify the findings is that a. statement shall be settled, embodying all the evidence, and contain “a specification of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision,” as required in §.■ 7058.

Section 7226, prescribing the powers and duties of the supreme court on appeal, is in strict harmony with the foregoing provisions. It provides that upon appeal from a judgment the supreme court may review any intermediate order or determination of the court below “which involves the merits and necessarily affects the judgment, . . . whether the same is excepted to or not;” also errors apparent on the judgment roll itself may be reviewed without exception or a statement of the ease; “any question of fact or law, decided upon trials by the court or by a referee, and appearing upon the record properly excepted to in a case in which an exception is necessary, may be reviewed by the supreme court, whether a motion for a new trial was or was not made in the court below,”, but excluding jury trials from such review. The appellate court is thus explicitly empowered to review the sufficiency of the evidence to justify findings of fact in cases tried by the court and without a motion for a new trial. There is no necessity for an exception to secure such review, as no exception is provided for, and, strictly speaking, none can be taken to the findings; and this fact is recognized by § 7226 in the language: “Properly excepted to in a case in which an exception is necessary;” stating plainly that an exception is not necessary in certain cases.

Respondent urges that § 7226 was adopted from the Wisconsin statutes, and cites many Wisconsin authorities that findings of fact and conclusions of law cannot be reviewed without exceptions. A comparison of the Wisconsin statute, § ,2870 of Sanborn’s and Berryman’s *301Anno. Stats., enacted in its present form in 1860, witb our statute, discloses no similarity, but on the contrary that the Wisconsin statute in express terms requires an exception to findings. It reads: “In any trial by the court an exception taken at the trial may be settled as in trials by jury under the preceding section, and either party may except to any findings of fact or conclusions of law in the decision of the court by filing written exceptions with the clerk at any time before the expiration of ten days after service upon him of a written notice of the entry of judgment thereon. All such exceptions may be incorporated in the bill of exceptions which may be thereafter settled.” The Wisconsin holdings are none of them in point on our practice under § 1226.

[Respondent claims that the finding as to the number of votes cast for and against county division is plead by defendant’s answer to have been 1,006 for and 811 against, and that by defendant’s answer he has admitted that 1,817 votes were all the votes cast on said proposition in said county at said election. It is true the answer contains the allegation that “out of 3,600 voters voting at said general election, 1,006 votes were cast in favor of the county of Stevenson, and 811 votes were cast against the proposed change; and that upon the question of the proposed changes to be effected in the boundaries, of the county of McLean there were 2,700 votes cast; out of which the proposed change for the formation of Stevenson county received 1,006 votes in favor of the formation thereof.” This is said in connection with the defense plead, in effect that granting that a majority of the votes cast upon the Stevenson county proposition were cast for the creation of that county, no county division could be had without a majority of all votes east on all county division propositions favoring the creation of Stevenson county; in which event about 1,800 votes would have had to have been cast for Stevenson county to create it, inasmuch as at the same election the creation of Sheridan county was voted upon. When this paragraph of the answer is considered with the alleged defense in connection with which it is plead, it cannot be said to constitute an admission that 1,817 votes were all that were cast in said county. Especially is this true when we find in the answer the following allegation: “Defendant, further answering, alleges that the entire vote on the question of county division was never returned to or canvassed by the county board of canvassers of McLean county; that although in each of the precincts of *302Butte, Douglas, Roseglen, Whitaker, Shell Creek, and Turtle Lake,, of the county of McLean, votes were cast on the said question of county division, no return from said precincts of said vote was made to the board of county canvassers, and the aggregate number of electors wlm voted in said precincts at the said election was 354.” This expressly negatives any inference respondent would have drawn to the contrary from the pleadings.

On the trial it was stipulated “that all the requirements of the-election law were fully complied with other than as set forth in these stipulated facts.” Among the stipulated facts we find it is stipulated that no returns on this county division proposition “were ever made to' the board of county canvassers” from the six precincts in question, in which 354 electors voted at said election. Upon this respondent contends-that the presumption that “a duty imposed by law has been regularly and duly performed,” aided by said stipulation, should compel us to-conclude that notwithstanding the stipulated facts as to the returns from these six precincts, all county division ballots cast on this division have been canvassed and returned, and the presumption should be that no ballots were cast in these six precincts upon county division. To reach this conclusion we must ignore stipulated facts that no returns were made from these precincts, and assume to the contrary that returns were made and were counted. The answer pleads exactly whaf was subsequently stipulated at the trial in this respect; and the stipulation must be taken not only as proof of the facts stipulated, but as a judicial admission made in the course of a trial of the truth of the paragraph of the answer pleading such facts. Certainly a mere presumption of fact, arising from a presumption of duty performed, is overthrown by proof inconsistent with the application of any such presumption.

Respondent labors heavily with the burden of proof. He states that “it is of course elemental that in the first instance the party having the affirmative must assume the burden of proof to establish the essential allegations of his pleadings, that is, to present to the court the facts entitling him to recover.” This we agree has the support of reason and authority. He next asserts: “The vital, essential fact necessary for the relator to establish was that the canvassing board ascertained and determined the result, and that the result showed a majority in favor of division.” We agree with this assertion. So far we are on common *303ground. We differ only as to tbe method of proof under such assumed burden. Tbe result that tbe canvassing board was to ascertain and determine was tbe number of votes cast throughout tbe county on tbe county division proposition, not tbe result of tbe election, as that is a deduction to be drawn from tbe facts to be ascertained from tbe return and abstract of votes of tbe canvassing board. State ex rel. Sunderall v. McKenzie, 10 N. D. 132, at page 137, 86 N. W. 231. With tbe burden of proof concededly upon relator to establish tbe facts from which tbe conclusion that county division regularly carried at said election must be drawn, be introduces proof claimed by him to be prima facie proof as to returns from and tbe vote cast in all of tbe fifty-one precincts in said county; and then stipulates that the proof so offered really covers but forty-five of tbe precincts of said county, thereby destroying tbe prima facie force of tbe documentary proof as to tbe whole county; but be singularly still maintains, notwithstanding bis stipulation and contrary to tbe facts so stipulated, be has made proof as to tbe vote of tbe entire county on such question. Again, apparently realizing that a prima facie case has been made as to only a portion of tbe county vote, be asks us to indulge in a presumption based upon tbe presumed regularity of official conduct that tbe entire county vote is presumed to have been canvassed; to indulge in which presumption we must ignore tbe above stipulated facts which show no canvass was or could be made of tbe entire county vote. Under tbe facts established conclusively by bis own stipulation, neither tbe respondent, nor this court, nor any member thereof, can say that this county division proposition received a majority vote favoring it.

With due deference to tbe opinions of tbe dissenting member of this court, Justice Burke, bis conclusions must ignore such stipulated facts when be agrees with tbe contention of respondent concerning and contrary to admitted facts, and is ready to find that this county has been constitutionally created, when tbe parties stipulate that but less than seven-eighths of tbe number of precincts in tbe county have been canvassed, and no proof is offered as to how tbe 354 voting electors in such omitted precincts voted on this question.

And this leads to a word upon tbe assertion of counsel for respondent, and tbe two dissenting justices of this court, that in deciding this case we have overruled much of tbe established precedent of this state. *304The so-called special concurring opinion of the chief justice is placed solely upon the holding in the Meyers Case, in which he joined; and he here intimates doubt as to the correctness of that decision by his statement : “I am by no means certain that I should now concur in the holding in that case, if the same questions were being considered in the first instance.” The writer will term his concurring opinion as a dissent. Attention is called also to the following statement contained therein: “While it is not stated in the opinion of Judge Goss that other cases should be overruled, it seems to me that it in fact, if concurred in by a majority of the court, would overrule numerous well-considered authorities, including State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706; State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231; State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360; and State ex rel. Johnson v. Ely, 23 N. D. 619, 137 N. W. 834, and perhaps others. If it is the intention to overrule these authorities, I think it should be so stated in the opinion, and thereby prevent the confusion which necessarily follows whenever an opinion is in effect overruled without so stating.” The bar would infer from this perhaps an intent •on the part of the writer, and possibly a majority of the court, either to intentionally overrule these cases cited, without expressly so stating, or that the cases cited are unintentionally overruled because the holdings were not examined or considered. Notwithstanding the statement of the chief justice, we here desire to state that these cases have all been considered and discussed in conference, and to the'knowledge of the chief justice, long before he filed his opinion. But he has the right to state his belief that these cases are in effect overruled. We .therefore will examine them to show the error of the statement, and to prevent the majority opinion from misleading the bar as it has apparently confounded the chief justice.

State ex rel. Davis v. Willis, 19 N. D. 209, 124 N. W. 706, alleged in the dissents to be overruled, is cited in the main opinion in support of our holding. In that case the abstract of votes involved was a complete one, covering all precincts in the county, instead of being, as here, but a partial abstract of the county vote. And said abstract was sought to be impeached in mandamus proceedings, the moving papers of which charged that the county board of canvassers compiled the abstract from unofficial documents or improper precinct returns. The fact that the *305opinion is based upon tbe proposition that the basis for the abstract may be considered to determine its validity is in effect a precedent for our holding, instead of antagonistic thereto. But that decision was placed upon the grounds that, conceding the official returns were not used, there was no showing that the result of a recanvass from official returns would be different; and in fact it was conceded that the abstract, from whatever compiled, was correct; and, further, that it had been already adjudicated as correct in the prior case of State ex rel. McCue v. Blaisdell, 18 N. D. 31, 119 N. W. 360, as the following from the last page of the opinion plainly states: “Being a citizen and.taxpayer of Ward county he (relator) was constructively a party to the certiorari proceeding, and had the right to be heard and [with the right] to have any question pertinent to the issues litigated in that proceeding adjudicated. He remained silent while the attorney general, acting as his representative, admitted the correctness of the result shown by the abstract of the vote of the county commissioners; and only when it has been decided that such result, if correct, establishes the status of Mountraille county as an existing county of North Dakota, does he attempt to bring a proceeding that can be maintained only upon a showing that the result is the reverse of what the representative of the public interest has admitted it to he. This point once litigated the public interest requires that it should be at rest.” Nothing in that decision can conflict with our holding here.

State ex rel. McCue v. Blaisdell, supra, above referred to, also claimed by the dissent to be overruled by our holding, was a mandamus proceeding wherein the propriety- of the remedy was not involved, nor was there in issue a single question of fact. That opinion was written by the present chief justice. It discloses that the question for determination was whether an affirmative majority vote of all electors in the county voting upon county division was sufficient to constitutionally authorize county division. One side claimed such a majority was all that was necessary, while the opponents of division asserted that a majority of all electors voting on any proposition'before the electors at such election was necessary before division was constitutionally carried. The decision of this point decided that case. There was no question of fact raised; it was conceded that a majority of those voting on county division favored the division, but that such majority would not amount to a ma*306jority of all electors voting at such election. Tbe dissents say we bave overruled this case. In tbe main opinion, we expressly state- that we do not pass upon that question. This is but another illustration of tbe inaccuracy of sucb assertions. It is difficult to see any reason for such statement in tbe dissents.

Another case we are charged with overruling is State ex rel. Johnson, v. Ely, 23 N. D. 619, 137 N. W. 834. That case decided a county-seat controversy between Bowbells and Lignite. It is cited in our main opinion as authority on one phase of our holding. It too was a mandamus proceeding, arising out of the action of a county canvassing board in casting out and refusing to include in their official canvass of a county-seat .election several precincts in which the voting places therein, where the election was held, were considerably distant from the established voting places previously located by the board of county commissioners. This is in no wise a parallel question to any here involved. It was there held that the county canvassing board might take judicial notice of the locality of the designated voting places, and when the returns clearly indicated that an election was held at a point distant from.such designated place, the board was justified in declining to canvass such returns; and, further, that the trial court properly “inquired into the facts, and finding that on a contest of the election there would be no justification for changing the certificate, declined to issue the writ,” inasmuch as the writ of mandamus is not a writ of right. This holding is authority for the consideration of testimony in this case to determine whether judicial discretion shall be exercised in favor or against the creation of the new county, and that to receive testimony for such purposes in a mandamus case does not constitute, as Justice Burke avers it does, a contest of an election. And, again, we find the statement in the special- concurring opinion of the chief justice at variance with the facts, when he says we have overruled this case. And it is significant that the opinion in State ex rel. Johnson v. Ely, referred to, also written by the chief justice, has been filed during the time this case at bar has been before this court for consideration, and since it was argued and submitted fully on the merits.

Again, State ex rel. Sunderall v. McKenzie, 10 N. D. 132, 86 N. W. 231, is likewise said to be overruled by our holding. The question involved in that case is stated in the opinion to be: “Briefly stated the *307question, and the sole question in this case, is whether the statements of election, or the tally sheets found in the poll books, govern the canvassing board in the performance of their duties. If the board could only consider the statements of election, then their canvass was both regular and correct and the judgment of the district court in this case was erroneous. If, on the other hand, the tally lists constituted a part of the returns, and were properly before the board as furnishing a basis for their canvass, then there was a legal duty resting upon the board to consider them. . . . What constituted the returns is the important question in this case,” and the holding is thus summarized: “The purpose in furnishing the tally sheets was, without doubt, merely to provide a convenient place for noting the votes, for the purpose of computation as they were canvassed. That canvass, as we have seen, is required to be made by the inspector and judges, and the result announced publicly, and then committed to the written statement of the election. This statement and the poll book are .the only documents constituting the returns,' and the canvass by the county canvassing board is plainly confined thereto.” Notice that the opinion expressly states that the canvass was regular and correct, and hence presumptively made upon returns from all of the precincts in the county. In the case at bar the attorneys stipulated facts which show that six precincts out of fifty-one in the county must have been omitted from the canvass, because no returns from said precincts were made, and hence could not have been before the canvassing board. And, as stated in the main opinion, opposite these six precincts, identified by name, are blanks upon the so-called abstract of votes by precincts, which instrument on its face shows its incompleteness, and that it is but the partial return of the vote on this question in that county, to supplement which as to facts the parties stipulated that 351 voters voted in such omitted precincts at said election, and no return from six precincts has been made. The case before us is in no wise parallel in facts or in law to State ex rel. Sunder all v. McKenzie, supra, and is not in any particular overruled by our holding. In fact, our construction of the facts in the McKenzie Case seems the same as that adopted by Justice Burke in writing the opinion in the recent Billings County division case, Pederson v. Billings County, 23 N. D. 547, 137 N. W. 484, decision of which has been filed since this case has been under consideration before this court. We have carefully examined all *308of the other cases mentioned in the dissent of Justice Burke, and we fail to see how anything contáined in any of them is overruled. Instead, the syllabus of State ex rel. Little v. Langlie, 5 N. D. 591, 32 L.R.A. 723, 67 N. W. 958, reads: “Mandamus to compel the county officers to hold their offices at the county seat is the proper remedy to determine whether the county seat has been legally changed.” Whereas, if the principles applying to a county division election are analogous to those applying to a county-seat election, that case is authority against Justice Burke’s conclusions, that to determine in mandamus the fact of whether the election has carried by the required majority is to contest an election by mandamus. It would seem that this case supports our conclusions, instead of his.

He also charges us with overruling State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. An examination of page 383 shows this to be unfounded. That case is followed and furnishes precedent for our holding, in so far as it touches upon matters analogous to those here involved. That was an application for the exercise of the original jurisdiction of the supreme court by a writ of mandamus. The remedy was challenged. The court says: “The only question left relates to the remedy. The relator, having received the appointment and- having qualified, is in a position analogous to one who holds a certificate of election and has qualified. This prima facie title gives him the right to the office pending any investigation as to the ultimate title; the defendant not being as to him even a de facto officer, but holding the office without so much as a color of title. That it is proper to try in mandamus proceedings all questions relating to the prima facie title is not open to debate in this state, since our decision in State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025,” another case said to be overruled. Turning to the report of State ex rel. Butler v. Callahan, at page 492 of the state reports, we read: “In our judgment the better rule is that in cases like this nothing can be tried except such questions as affect the prima facie title of the relator,” and the court properly refused in a mandamus proceeding to investigate the respondent’s qualifications to hold the office where concededly the relator held an admittedly valid certificate of election to office, and had duly qualified for that office. Such legal and valid certificate constituted title to the office, and valid title to the office could not be overthrown in mandamus, as *309sucb is tbe purpose of office contest. But here, for State ex rel. Butler v. Callahan and State ex rel. Moore v. Archibald to be applicable, it would be necessary to concede tbat tbe abstract of votes by precincts was regularly issued upon returns from all precincts in tbe county, instead of a part of them only, tbat it might constitute a prima facie return as to tbe entire county. If sucb were tbe facts before us, we would agree on this point with Justice Burke’s contention. Tbe trouble with bis views is tbat be gives undue prominence to an uncertain statement contained in a summary of tbe board as to tbe county vote, and begs tbe whole issue involved when be does so, and refuses to consider tbe fact tbat the abstract by precincts is incomplete on its face, and tbat it is stipulated by counsel, without objection thereto, and an uncontroverted fact in tbe record, tbat tbe piece of proof be would adopt as prima facie proof of tbe whole election is but proof as to a portion of tbe precincts of tbe county, and is impeached by facts appearing upon its face and facts stipulated in tbe record based upon allegations of tbe answer. An examination of tbe other cases cited in bis dissent discloses tbat none of them are applicable to tbe facts before us, and therefore none of them are overruled.

In said dissent be also takes tbe peculiar position tbat because this mandamus proceeding is brought against a public officer, in tbe name of tbe state, on relation of an individual, and purporting to be in behalf of many citizens interested, that an answer denying tbe facts alleged by relator, and supplemented with matters purely of defense to tbe writ, must by some mysterious process of reasoning be considered as a. contest brought by tbe answering defendant against tbe relator instituting tbe suit; and because tbe party defendant could not contest in bis-own name, be should not be permitted to defend a mandamus proceeding, because to defend would be to contest. This seems queer doctrine-The fact must be admitted tbat no contest is created by the answer. A denial of tbe necessary averments of complaint cannot constitute the commencement of an action, proceeding, or contest. Tbe issue of fact merely is thus joined, and relator put upon bis proof, whereupon be offers an alleged prima facie conclusive piece of evidence, tbe abstract. Tbe court examines it, following State ex rel. Moore v. Archibald, and State ex rel. Butler v. Callahan, to ascertain by whom it was issued, upon what it was issued, and to determine in fact and law its legal *310force as proof of the count of the ballots cast at that county-wide election, and discovers that this document is incomplete on its face, whereupon counsel stipulate facts reducing it to but prima facie proof as to but a portion of the vote of the county; and then, after all this, counsel for relator and the dissenting justice of this court aver that, to so examine and consider and give proper force to the evidence, documentary and stipulated, is to contest an election in mandamus. Further comment is needless.

This review of the case, after the filing of the petition for rehearing, is made that counsel filing it may feel that all matters presented by it have been considered. The importance of the litigation demands full explanation of our reasons for the holding; and the charges, to our minds ungrounded and made without consideration, that we have overruled particular and established precedent with or without consideration, justifies our review of the authorities to establish the contrary, that we may “thereby prevent the confusion which necessarily follows whenever an opinion is in effect overruled without so stating,” quoting from the special concurring opinion of the chief justice.

On petition for rehearing, respondent questions the propriety of the dismissal of this action, contending in line with the suggestion contained in the opinion of the chief justice that the case should be remanded for further proof. To do so would be the equivalent of assuming that the result of the election could be established by competent proof at this late date. The authorities announce the rule that the result of an election may be established by other evidence than the returns, ballots, and election records, where from any cause such record evidence becomes incompetent or unavailable as evidence. 5 Enc. Ev. 69. But this general rule must be subject to some qualification as to time. McCrary, Elections, § 477, quoting Archer v. Allen, 1 Bart. Elect. Cas. 169. It cannot now be seriously contended that the ballots used in this election are still admissible .as evidence. The sixty-day period prescribed by statute, during which they must have been kept, and when so kept were primary evidence, elapsed four years ago, and with the termination of that period ended their evidentiary value. “When ballots are still in existence and have been kept as required by law” they are admissible. Cooley, Const. Lim. p. 625; McCrary, Elections, § 480. “But the right to have recourse to the ballots presupposes that they *311have been kept as required by law; that the guards thrown around them have been preserved, and that they still exist in the same integrity as when cast.” Mechera, Pub. Oil. § 229. Manifestly all election records in the various precincts, even if in existence, must be of but questionable value and of doubtful importance, even though verified by the testimony of the precinct officers themselves, as such time has elapsed that there is no means of verifying or challenging the truth of any such records as would have existed had they been offered within the period during which the ballots themselves could have been admissible. And what is true as to these records applies to the oral testimony of any election officials. To receive such evidence at this time, after two intervening elections, the necessity for which arises because of the dereliction of duty in making returns of said matter at the time of election, and while the statutory safeguards from which to verify or impeach the returns were in existence, must at the best leave any result, declared upon such evidence, still surrounded with uncertainty. The result of this election might actually turn upon the testimony of the election officers of a single precinct concerning so important a matter as the creation of a new county, and with the witness testifying with full knowledge of the number of votes necessary to defeat or create such result. To hold such testimony admissible would be in effect to permit the witness to cast not his own vote alone, but the vote of the precinct on such question. And this, too, when we find the importance of an election upon such a question to be greater than the ordinary election, as is emphasized by the existence of a constitutional provision upon county division elections while the ordinary election- matter is not there touched upon. To receive testimony of this class as proof at this time would, we believe, be contrary to the spirit, if not the letter, of our election laws, the primary purpose of which is to so prescribe, the manner of ascertaining the'result of an election and so surround with safeguards the canvass of such result, with time limits to insure promptness, as to insure the determination of the election result with practically absolute certainty; and all to the purpose that the expression of popular will shall not depend upon even the canvass or oath of one individual election officer. It is thus manifest that the election laws themselves, probably from the experience had emphasizing their necessity, are framed against the possibility of fraud, thereby recognizing that without such safeguards frauds may be *312perpetrated in tbe thwarting of the public will as ascertained by the ballot box. With this in mind the following comment from Oakes v. Finlay, 5 Ariz. 390, 53 Pac. 173, at page 176, would be particularly applicable to proof taken at this time concerning an election held over four years ago: “It is deemed unwise to lay down any rule by which the certainty and accuracy of an election may be jeopardized by the reliance upon any proof affecting such results that is not of the most clear and conclusive character. The temptation to actual fraud and corruption on the part of the candidates and their political supporters is never so gneat as when it is known precisely how many votes it will take to-change the result. And men who are willing to sell their votes before-election will quite as readily sell their testimony afterwards, especially as the means of detecting perjury and falsehood are not always at hand until after the wrong sought to be accomplished by it has become successful and the honest will of the people has been thwarted.” Consult also Stafford v. Sheppard, 57 W. Va. 84, 50 S. E. 1016; Anderson v. Likens, 104 Ky. 699, 47 S. W. 867; Savage v. Umphries, — Tex. Civ. App. —, 118 S. W. 893, at page, 903; Weakley v. Wolf, 148 Ind. 208, 47 N. E. 466; 50 Cyc. 420. And, besides, respondent has had ample opportunity to offer testimony on trial had the same been available; and the attempted perpetuation by respondent of any such testimony is contrary to the theory upon which he has tried this proceeding. He has contended that the abstract in question was prima facie proof of the entire election, and relied upon the same as the only proof necessary to establish the entire vote cast at such election. We can see no-reason for remanding this case for further proceedings, notwithstanding-that in the opinion of the chief justice to do so would be “the manifestly equitable and just disposition of this proceeding, which I suggest.”

The petition for rehearing is denied, and we adhere to our decision-