(concurring). I concur in the principles stated in the syllabus, and in the conclusion reached in the opinion prepared by Mr. Justice Bronson.
The petitioners ask for the issuance of a prerogatory -writ restraining the state canvassing board from canvassing the returns and announcing the result of the recall election held Oct. 28th, 1921. The solo ground alleged by the petitioners as a basis for the proceeding sought to be instituted by them is that the petitions, filed with the secretary of state asking for the recall of the three state officers in question, were insufficient. There is no charge, however, that the winning candidates were in any manner responsible for the acts complained of. It is not denied that the petitions were prima facie sufficient; but it is contended that, as a matter of fact, the petitions were not signed by a sufficient number of qualified petitioners.
In my opinion, there are at least two good reasons why the writ should be denied.
(1) It is undisputed that the recall election was called and held; ihat the election officers of the different election precincts in the state certified their returns to the respective county auditors; that in the different comities of the state the various boards created by law for that purpose met and canvassed the returns from the different election precincts; that the returns from the different counties were duly cer-*20íiflcd and transmitted to the secretary of state. All this, without any attempt on the part of the petitioners or anyone else to question the sufficiency of the petitions, or the validity of the election. The only thing that now remains to be done under the election laws is for the state canvassing board to meet, and publicly examine the statements and returns filed by the different county auditors, and make a statement of the whole number of votes given at the election for each of the three officers, and upon each of the different measures, voted upon at such election. The statute makes it the duty of the state canvassing" board to meet and canvass the result of an election. Comp. Laws, 1913,. § 1018. It seems too clear for argument that a court would not be justified in interfering with the action of this board. No case has been cited and none has been found where judicial power has been so exercised; while many cases hold that it may not be so exercised. See note in 50 L.R.A. (N.S.) 231 et seq.
(2) There is another reason why the writ should not issue. The petition in this case alleges that certain recall petitions were filed with the secretary of state; that pursuant thereto the secretary of state called a recall election; that such election was held with the result that the candidates opposing the officers sought to be recalled received a majority of the votes cast at the election. It is made the duty of the secretary of state, when recall petitions signed by a prescribed number of qualified electors are filed, to call an election. No specific provision is made as to how the sufficiency of the petition shall be ascertained. There can be no question, however, but the duty is imposed upon the secretary of state to determine, at least in the first instance whether the petitions are signed by the number of electors prescribed. In this case the secretary of state must have reached the conclusion that the petitions were signed by the required number of qualified electors for he called the election. State ex rel. Little v. Langlie, 5 N. D. 594-600, 32 L.R.A. 723, 67 N.W. 958. There is no contention that any objection was made before the secretary of state, or that his determination that the petitions were sufficient was in any manner assailed. There can, I think, be no question but that the determination of the secretary of state was at least prima faci6 correct, and some courts have ruled, under somewhat similar provisions, that the decision of the secretary of state has even greater effect. *21No attempt was made to question tlie correctness of tbe determination of the secretary of state until after the election had been held and returns made by the local election officers, and such returns canvassed by the county canvassing boards and certified to the secretary of state. All expense incident to the election has been incurred. Not only the relators but the officers whose terms of office were involved not only permitted this to be done, without any objection, but acquiesced and participated in the election. It would seem that the most elementary rules of common justice and common sense would preclude them from asserting at this time that the secretary of state had no legal right to •call the election; that his action in so doing and the election held were and are mere nullities, and that in the eyes of the law an election has not been had. And such, as I read the authorities, is the established law. See 9 R. C. L. pp. 1173, 1174.
It is well settled that a wholly different rule applies in considering the effect of noncompliance with the provisions of election laws where it is sought to set aside the result of an election from that which applies where the question of non-compliance is raised before the election is held. Ruling Case Law (9 R. C. L. p. 1173) says: “It is the duty of the courts to uphold the law by sustaining elections thereunder that have resulted in a full and fair expression of the public will, and from the current of authority the following may be stated as the approved rule: All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose; but after election, all should be held directory only, in support of the result, unless of a character to effect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election,.or that its omission shall render it void. Voters finding a ticket or the names of candidates on the official ballot are not required to determine whether they are entitled to a place thereon, but may safely rely on the action of the officers of the law, and on the presumption that they have performed their duty. And so an election in which the voters have fully, fairly, and honestly expressed their will is not invalid because the certificate of nomination of the successful candidate is defective through *22tbe omission of some detail. Nor is tbe title of tbe successful candidate affected by a subsequent decision bolding tbe law under wbicb the nominations were made invalid. . . . Where there is a neglect on tbe part of one to avail himself of a right given him by statute, be cannot, when tbe result of tbe election is announced and be finds himself defeated at tbe polls, ask tbe court to nullify tbe expressed will of tbe voters on tbe ground of tbe error or wrong of tbe county clerk, which be could by reasonable diligence have bad corrected. If no ante election objection to a nomination is made, tbe provisions of tbe statute are to be treated as directory.” This is in harmony with the rule announced by this court in State ex rel. Little v. Langlie, supra. That action involved tbe validity of an election for tbe removal of tbe county seat of Traill county. Tbe validity of tbe election was attacked upon tbe ground that tbe petition presented to tbe county commissioners asking for such election was not signed by a sufficient number of voters. In disposing of this contention, tbe court said,, among other things: “We do not think that, after an election has been held, and a sufficient vole has been cast in favor of a place to work a change of the county seat to such place, the question whether the petition had upon it the requisite number of names is open to judicial investigationTbe principle stated, and in fact, tbe very language used is directly applicable here.- There is no charge here that there was any fraud or irregularity in the conduct of tbe election itself, or that a fair and full expression of tbe public will was prevented by reason of anything that was done or omitted. Nor is there any charge that tbe winning candidates were in any manner responsible for tbe acts complained of with respect to tbe recall petitions. The- contention is merely that tbe petitions were not sufficient, and that tbe determination of tbe secretary of state that they were sufficient, is erroneous, and that tbe election should not have been called. For tbe reasons stated, I am satisfied that that question may not be raised, and is not one for judicial investigation, after an election has been held.