Smith v. Lawrence

Citations

• 2 S.D. 185
• 49 N.W. 7
• 1891 S.D. LEXIS 18

Syllabus

<p>1. When mandamus proceedings are instituted to redress a private wrong or enforce a private right, the party beneficially interested should be named as plaintiff.</p> <p>2. When a plaintiff in mandamus proceedings demands a greater relief than he is entitled to on the facts stated in his affidavit, he will not thereby be precluded from obtaining less relief, to which he is entitled under the facts stated.</p> <p>3. Under Section 1, c. 84, Laws 1890, a majority of the county commissioners in a county having five commissioners, duly taken to the assistance of the county auditor, constitutes with such auditor a legal board of canvassers, whether the county auditor is a candidate for office or not; such county auditor, however, acting only as clerk of said board in case he is a candidate for office. The provisions of Section 18 of said chapter are called into exercise only in case the county auditor is a candidate for office, and he has taken to his assistance a majority of the county commissioners in a county having three commissioners, or only two of the other officers named in Section 1, except so far as it defines his duties as clerk of the board.</p> <p>4. When returns are made by the proper officers of a precinct in a county to the county auditor, within the proper time, it is the duty of the county board of canvassers to canvass and abstract the vote of such precinct, and, when such board fails or neglects to count, canvass, and abstract the vote of such precinct, it fails to perforan a clear, plain, and specific duty imposed upon it by law, and mandamus is the proper proceeding to compel such board to perform its duty.</p> <p>5. The fact that a board of canvassers has filed its abstract of the votes cast in a county with the county auditor, and adjourned sine die, and that the county auditor has issued a certificate of election to the person appearing by such abstract to have the highest number of votes for the office of sheriff, is no ground for a refusal of