(dissenting).
At the outset it may be proper to observe that if the contestants had in due time requested appropriate relief under our election laws the real issues would have been placed in proper perspective and action could have been taken which might have obviated the undoubted irregularities which have occurred in this election contest. It is regrettable that neither party asked this court for an order to show cause under Minn. St. 203.38 why errors and omissions should not have been corrected in the various counties where they claimed such a correction would operate in their favor. But it is not surprising that in an unprecedented election, where the difference in the vote is *2741/100th of one percent, the parties did not choose the wisest and best course. If a timely request had been made by invoking the provisions of § 203.38, this court would probably not have been placed in the position where we can differ in our legal views only at the risk of seeming partisanship.1 Nevertheless, the writer, with due respect for the opinion expressed by the majority, is constrained to state certain legal views to the contrary.
It does not seem to me that from an examination of § 204.30 there can be found authority either express or implied which will permit a county canvassing board, once it has completed its work and certified its return to the secretary of state, to later reconvene and amend its certification. To briefly paraphrase § 204.30, it may be said that it provides that “in conducting the canvass of votes * * * as provided by law” the board may by a four-fifths vote determine that an obvious error in counting and recording the vote for a particular office has been made by the judges in a particular precinct. The statute provides that the board shall refuse to count the returns of that precinct for that office and “they shall order an inspection of the ballots and the returns of the precinct.” The purpose of the inspection of the ballots and returns is to correct “the obvious error, which error shall be specified by written resolution of the board.” The statute then goes on to provide the mechanics of the inspection and the duties of the canvassing board in connection therewith. § 204.30, subds. 1 to 6, inclusive. All this must be done while the board is “conducting the canvass of votes.”
The statute just referred to must be read in connection with § 204.29, subds. 3 and 4, which are here relevant.2 Subd. 3, which relates to *275the duties of the canvassing board after a general election, provides that it shall meet at the auditor’s office within 10 days after the general election and “publicly” canvass the returns. It further provides that the board shall complete the canvass “without unnecessary delay” and that it shall “forthwith” make and file its report. Subd. 4, which relates to the report of the canvassing board of the results of statewide offices, requires that the report shall be certified under the official seal of the auditor and enclosed in an envelope directed to the secretary of *276state. The envelope shall show the auditor’s name and official address with the words “Election Returns” endorsed thereon. The statute requires that two copies of the report be forwarded “by different mails within five days of each other.” In the event the secretary of state fails to receive the report within 20 days after the election he is required to notify the auditor of that fact, who is then required to transmit “another copy thereof to the secretary by special messenger deputed by him.”
It seems to me that a reasonable interpretation of these statutes requires a construction that the canvassing board shall act promptly; they shall publicly canvass the returns, complete their work without “unnecessary delay,” and “forthwith” make their report to the secretary of state. That the legislature has provided a procedure which protects the integrity of the certifications and that there should be finality to the action of the board is indicated by the language of the statute. Moreover, it seems from the plain language of the statute that the prompt and complete canvass is to be made in the course of one canvassing proceeding. If obvious errors appear while the canvass is being conducted, they may be corrected in the manner provided by § 204.30. Where, however, the work of the canvassing board has been completed and the return has been made to the secretary of state as provided by law, there is no provision in the statute save that set forth in § 203.38 for the board to reconvene at a later date and revise or correct the official return. The law contemplates that when the canvassing board has undertaken its work it is required to continue to completion. Or, as expressed by the language of this court in Clark v. Buchanan, 2 Minn. 298 at 300 (346 at 348), “that their duties shall be entirely completed at the time they first assemble, without adjournment, except, perhaps, in case of absolute necessity, for a brief space of time. But ordinarily, even this would be unnecessary and improper.” No language may be found in the statute which would permit the interpretation that the canvassing board may make a tentative return. The return must be official and final, subject only to the condition that errors and omissions may be corrected pursuant to order of court as provided by § 203.38(d). The notion that county canvassing boards may be permitted to make returns to the secretary of *277state which are subject to later correction is repugnant to the policy of the law, which requires that in the public interest prompt official returns be made.
There is no quarrel with the contention that all of the votes should be counted. As I understand the majority interpretation of § 204.30, however, it appears that a new procedure is now established. A selective recount may now be secured in certain counties by grace of the voluntary act of canvassing boards. In other. counties where the accuracy of the vote may be equally suspect the boards may arbitrarily deny a recount. The majority seems to justify this procedure on the theory that since the amended returns from the 12 precincts in question are accurate they should be included in the compilations which the state canvassing board considers. This conclusion apparently assumes that the official returns from the remaining 3,773 precincts are also accurate and that the canvassing board has before it the correct total vote. The inherent error of this assumption is apparent when it is considered that in the compilation of more than one and one-quarter million votes it is expected that errors will occur. In certain precincts errors will favor one candidate; in others they will favor the other candidate. It requires no statistical data to safely assert that these errors which occur at random throughout the 3,785 precincts of the state, to a large extent, tend to cancel each other out. Thus on a statewide level, by the inevitable process of self-correction, the margin of error tends to narrow and ordinarily the total statewide results are considered to be sufficiently accurate to provide a fair basis for action by the canvassing board. However, where selective recounts are permitted to upset the established practice, one candidate may be benefited to the prejudice of the other. The legislature never intended to permit a postelection procedure which would disturb the lawfully established practice of considering only the original official returns.
It should be an elementary principle of construction of election laws that they should not be given an interpretation which will invite abuse. The language of this court in Clark v. Buchanan, supra, is particularly appropriate. That case, which was decided prior to enactment of law providing for review as set forth in § 203.38, involved an application for a writ of mandamus to the board of county com*278missioners of the County of Ramsey requiring them as a board of canvassers of election returns to recanvass the votes for the office of county treasurer. We there said (2 Minn. 301 [349]):
• “* * * The admission of such a right [to reconvene] on their part would involve the most serious and dangerous consequences. There would seem to be no limit as to time, or as to the number of times, that they might re-assemble, and review any real or fancied errors in their canvass of the votes, and in making the abstract. It is easy to perceive that such a course would be fraught with the most serious inconveniences and evils, and nothing save express statutory authority would justify it. The statute has granted no such authority, even by implication.”3
It is accordingly my view that all of the amended returns from the 12 precincts should be rejected. I cannot agree that the statute may permit a party to prevail in an election by grace of the belated action of the county canvassing board, voluntarily taken after its official return has been made. The most charitable observation of such a construction is that it permits the party with the most active and persuasive partisans to prematurely gain the advantage of a selective recount.
For the foregoing reasons I respectfully dissent.
Frank T. Gallagher, Justice (dissenting). I concur in the dissent of Mr. Justice Murphy. Mr. Justice Thomas Gallagher and Mr. Justice Martin A. Nelson, having been members of the state canvassing board, took no part in the consideration or decision of this case.It is true that, as the majority opinion indicates, Lt. Gov. Karl F. Rolvaag’s attorney has requested relief under Minn. St. 203.38, but because that petition came after the state canvassing board had met there can be little quarrel with the majority conclusion that the petition was not timely presented.
Minn. St. 204.29, subds. 3 and 4, provide:
“Subd. 3. The canvassing board shall meet at the auditor’s office within ten days after the general election, take the oath of office, and publicly canvass the returns of the general election made to the county auditor. The *275board shall complete the canvass without unnecessary delay, and it shall forthwith make the following report and file the same with the county auditor:
“(a) A statement of the number of persons who voted at the election in each precinct in the county and the total number of persons who voted at the election in the county; and the number of white, pink, and canary ballots counted in each precinct in the county, and the total number of white, pink, and canary ballots counted in the county;
“(b) A statement of the names of all candidates for state offices, representatives and senators in the legislature, representatives and senators in congress, judges of the district court, and county offices; and the number of votes received by each in each precinct and in the whole county;
“(c) A statement of the total number of votes counted for and against any proposed change of county lines or county seat; and
“(d) A statement of the number of votes counted for and against any constitutional amendment or other proposition in any precinct, and the total number of votes counted therefor in the county.
“In case of a tie, the canvassing board shall determine the results by lot Upon completion of the canvass, the board shall declare the person receiving the highest number of votes for each county office duly elected thereto; and when the county constitutes or contains a senatorial or representative district in the legislature, it shall declare the person receiving the highest number of votes for each office in the legislature duly elected.
“Subd. 4. Two copies of each of the statements required in this section shall be made and certified under the official seal of the auditor; each enclosed in an envelope directed to the secretary of state, with the auditor’s name and official address and the words, ‘Election Returns,’ endorsed thereon, and forwarded by different mails within five days of each other. If neither copy is received by the secretary of state within 20 days after the election, he shall immediately notify the auditor of that fact, and the auditor shall transmit another copy thereof to the secretary by special messenger deputed by him.”
See, also, Annotation, 168 A. L. R. 855, 856, 859; 29 C. J. S., Elections, § 239; 18 Am. Jur., Elections, § 256; Bowen v. Hixon, 45 Mo. 340.