At the general election of November 5, 1940, plaintiff was one of the candidates for governor. His name properly was on the ballot for state officers. The defendants are the state board of canvassers and the members of that board. This is an original proceeding in mandamus in which this court is asked to make an order commanding defendants to reject the ballots cast by absentee voters. The motion for the writ predicates the request for the order upon three grounds: (1) That the absentee-voter law, as construed, administered and applied by defendants, violates the fourteenth amendment to the constitution of the United States in that it extends to persons voting outside of the state rights and privileges that are not enjoyed by persons voting in the state, and deprives the electors of the state of the equal protection of the law. (2) That defendant is canvassing and counting ballots that have marks thereon other than those provided by the statute; ballots which were mailed on a day other than election day; ballots which were received separate and apart from the affidavits; ballots that have names written thereon, the imprint of seals thereon, that have not been marked by either black lead pencil or with ink; ballots where a' cross mark appears where the name of the candidate has not been printed; ballots where the cross mark has not been completed, and ballots that do not conform with the requirements of the statute. (3) That ballots have been received, canvassed and counted which were cast by persons who were not qualified electors of the state.
*851We shall discuss these grounds in the reverse order from which they are stated in the motion. Under our statute neither the state canvassing board nor any of its members has any authority to pass upon the question of whether the person who cast an absentee ballot was a qualified voter. That is determined by the county clerk of his county and the fact certified to the secretary of state. The determination of that question by plaintiff, or his personal representative, would bind no one. Hence, this ground for the motion could not form the basis for the order sought.
The second ground of the motion could not be determined by this court without evidence. To hear such evidence, and to determine the questions presented, would be tantamount to the hearing of an election contest. In this state such contests are not heard in a proceeding for mandamus. They are heard under statutes making special provisions therefor, or in some instances by a proceeding in quo warranto. Hence this ground of the motion forms no basis for the order sought.
The first ground alleged is predicated upon the other two. The absentee-ballot law, in some form, has been a part of the law of this state since 1864. It has been sustained as valid each time its validity has been attacked. The election of state officers is governed by state constitution and statutes and not by the federal constitution or by acts of congress. No reason is alleged in the motion for the writ as to why the absentee-voter law of this state is in violation of the fourteenth amendment to the constitution of the United States, except “as it has been construed, administered and applied.” This obviously refers to the second and third grounds of the motion, which, as we have seen, cannot be determined in a proceeding for mandamus. There is no allegation that the absentee-voters act deprives this plaintiff of equal protection of the law.
What has been said decides no question determinable in an appropriate proceeding or action to contest the election. We simply hold that grounds second and third of the motion for the writ cannot be determined in this proceeding. Ground one of the motion, insofar as it is dependent upon the other two, stands upon the same footing. Insofar as it stands alone it is simply a request for the court to determine the validity of a statute, with no allegation as to why it is invalid except the general statement that it extends to some persons privileges not enjoyed by others. This is insufficient. More than that, the statute has been held valid in cases previously *852decided by this court. One of those cases was between the same parties here involved and pertaining to this same election.
An analysis of our former decisions will disclose that they are not in conflict with what is here decided.
The result is the motion for the writ presents no question determinable in a proceeding in mandamus. The motion therefore is dismissed.