Wallace, C. J., concurring: The petition of Romualdo Pacheco, praying that a writ of mandamus issue against the respondent, Secretary of State, sets forth that at an election for Representative in Congress from the Fourth Congressional District, held on the 7th day of November. last, the petitioner and P. D. Wigginton were the only candidates for that office, and that the petitioner received nineteen thousand one hundred and four (19,104) votes, and Wigginton nineteen thousand one hundred and three (19,103) votes, and no more, the actual majority of the petitioner in the district being one vote.
He further alleges that in the County of Monterey, which is included in the said Fourth Congressional District, the petitioner received 1,208 votes, and the said Wigginton 986 votes, and no more; and that at the voting precinct of San Lorenzo, which is in said County of Monterey, the petitioner received 51 votes, and the said Wigginton- 27 votes, and no more.
It is also set forth in the petition that on the 15th day of November, 1876, John Markley, at the time being County Clerk of the said County of Monterey, delivered to the respondent Thomas Beck, Secretary of State of the State of California, an abstract designated by said County Clerk "Abstract of statement of vote of Monterey County, California, polled at the election held November 7th, A. D. 1876, relating to votes for persons for Representatives to Congress,” by which abstract it was made to appear, and did distinctly appear, that the said Wigginton received in the County of Monterey nine hundred and eighty-six (986) votes, and no more, and at the voting precinct of San Lorenzo twenty-seven (27) votes, and no more. (a)
The petitioner further alleges that under these circumstances, and on the 28th day of December, 1876, he demanded of said respondent that, as Secretary of State, he should compare and estimate the votes so given in the Fourth Congressional District, and in such comparison and estimate should accept and act upon the said abstract of the 15th day of November, 1866, but that the respondent refuses to comply with the demand of the petition in that behalf.
[9]If these, and only these facts had been set forth in the petition the right of the petitioner to the specific relief he seeks could scarcely have been questioned in any quarter.
The statute declares (Code Civ. Proc. sec. 1085) that the writ of mandamus may be issued to any person “ to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station,” and an examination of the provisions of the Political Code will show that it was the duty of the respondent to compare and estimate the vote of the Fourth Congressional District, and in so doing to consider the abstract of November 15th, 1876, as a basis of such comparison and estimate. The abstract was in all respects an official paper, prepared and forwarded to the Secretary, in pursuance of the express commands of the statute, and was founded upon the record of the Board of Supervisors, then being in the custody of Markley, the County Clerk, by whom, as has been seen, and under whose official seal, as being such Clerk, it was duly certified and forwarded. The record of the Board of Supervisors of Monterey County, upon which the abstract was founded, is a record provided for by law, and the County Clerk of that county is its appointed custodian and keeper. The entries made by the Clerk in the proper book, setting forth, or purporting to set forth, the proceedings of the Board of Supervisors in canvassing election returns, whether amounting to a record in the sense of the common law or not, are declared by the statute to constitute a record, and are intended to be a perpetual memorial and testimony of the proceedings of the Board.
It is the duty of the Board to meet at its usual place of meeting on the first Monday after the election for the purpose of counting the returns (Political Code, sec. 1278); and they must then and there proceed to make the required canvass, (sec. 1280) and publicly declare the result (sec. 1281). The Clerk must thereupon enter upon the records a statement of the declared result, (sec. 1282) and “ as soon as the statement of the vote of his county at such election is made out and entered on the records of the Board of Supervisors, the Clerk must make a certified abstract of so much thereof as relates to the vote given for persons for ¡Representatives to Congress ” (sec. 1844) ; [10]and “ must seal up such abstract, indorse it ‘ Congressional election returns,’ and without delay transmit it by mail to the Secretary of State ” (sec. 1345) ; and it thereupon becomes the duty of the Secretary of State “ to compare and estimate the votes given for such Representatives, and certify to the Governor the person having the highest number of votes in each Congressional District as duly elected ” (sec. 1346).
I repeat, therefore, that had the petition set forth only the fact that in making the estimate and comparison of the vote cast in the County of Monterey for the office of Representative in Congress from the Fourth Congressional District, the Secretary of State refused to consider the abstract of November 15th as the basis of such estimate and comparison, the writ of mandamus must have issued to compel him to perform that duty. It was observed by Chief Justice Marshall in Marbury v. Madison, (1 Cranch, 137) that the propriety or impropriety of issuing the writ is determined “ by the nature of the thing to be done.” If the duty to be performed is ministerial—if it be peremptory or mandatory in its nature—if the officer to whom its performance has been intrusted is not vested with discretion concerning the act to be done, and if the petitioner has a direct interest in its performance, a writ of mandamus will lie. This may be stated as the general result of the authorities on the subject, and, tested by this rule, I think it must be conceded that, had the return of November 15th been the only one before the Secretary, it could not have been said that he was invested with discretion to put it aside, or disregard it in making the estimate and comparison required by the statute at his hands.
2. But the “ certified abstract ” of November 15th, though constituting the only return by the County Clerk of Monterey County authorized or contemplated by the statutes already referred to, is not the only communication claimed to be official had by that officer with the Secretary of State concerning the election held in Monterey County November last for a Representative in Congress from the Fourth Congressional District, for on the fourth day of December following, the Clerk forwarded to the Secretary of State a certificate signed by him as Clerk, and with his seal of office attached thereto, in which cer[11]tificate he details the order of business pursued by the Board of Supervisors of Monterey County in canvassing the vote. In this last named certificate it is set forth that Mr. Blakenship, a member of the Board, its Chairman pro tern., opened the several envelopes containing the tally-lists, and handed them one after another to Mr. Gordon, also a member of the Board, to count, and that the latter gentleman thereupon read aloud the votes received by such candidate as shown on the tally-list, and thereupon such vote was noted in pencil by the Clerk in the form of a tabulated statement; and that two other gentlemen, Messrs. Scott and Carter, were also present, keeping an account of so much of the vote so read aloud by Mr. Gordon as related to Representatives in Congress. After the entire vote of the county had thus been gone over upon the tally-lists, as read by Mr. Gordon, the Board directed the Clerk to “ foot up the vote as the same appeared on the tabulated statement kept by said Clerk”; and after this had been done the Board adjourned sine die. The certificate proceeds to state, that at the time of the adjournment the tabulated statement, in pencil, which had been kept by the Clerk in the presence of the Board, exhibited the vote of Wigginton at the Precinct of San Lorenzo as being twenty-nine, and his vote in the entire County of Monterey as being nine hundred and eighty-eight. The certificate then further proceeds to state, that about one hour after the adjournment of the Board, and before the tabulated pencil statement of the Clerk had been transcribed into its record book, Mr. St. John, another member of the Board, stated to the Clerk that he thought a mistake had occurred in counting the vote for Representative in Congress, and that according to the count kept by Scott and Carter, Wigginton had received in Monterey County only nine hundred and eighty-six votes. St. John and the Clerk then looked over the statement kept by the latter, but at that time discovered no mistake in it, and in this condition of things the Clerk then “ wrote up the minutes and transcribed the statement made in pencil to the minute-book.” On the next morning, however, it was discovered by the Clerk and others, upon reference to the tally-list from the Precinct of San Lorenzo, that Wigginton had received at that precinct only
By this abstract, based upon the mere personal recollection of the Clerk, as to the state of the record as it existed between the evening of the 13th and the morning of the 14th of November, it appeared that Wigginton had received as many as twenty-nine (29) votes at San Lorenzo Precinct, and nine hundred and eighty-eight (988) votes in the County of Monterey, (c)
The effect, if any, in point of law, to be attributed to this last mentioned certificate, bearing date December 8th, is the precise question in controversy here. Upon this point the allegation of the petition is as follows :
“ But that, although the regular statement and return made by said Clerk on the 15th day of November, 1876, and delivered to said, respondent on the 17th day of the same month, was true and correct, made in the form prescribed by law, and actually represented the vote cast in said county for your petitioner, and said Wigginton as candidates for Congress, yet said respondent now threatens to make, and publicly declares that he will make up his estimate of the vote cast in said county for this petitioner and said P. D. Wigginton in part from said pretended and false return made on the 8th day of December, 1876.”
[13]The demurrer to the petition which we are now considering admits this allegation to be true, and we are therefore led to inquire of the authority of the Secretary to substitute the certificate of December 8th for the certified abstract of November 15th.
- The “ certified abstract ” is admittedly official in its character; it was prepared and forwarded by the Clerk, in time, manner, and form as required by the statute. It was based upon the record, or what purported to be the record of the Board. It was an abstract of an official entry made by the Clerk in the book of records of the Board, and was based upon the written memorial preserved in and forming part of the archives of the County of Monterey, prepared and kept by a public officer, acting under the sanction of his official oath, and authorized by law to perform those functions; and these archives are intended to serve as evidence of what was said and done by the Board at the time and upon the subject to which théy refer. Unless they can be relied upon for that purpose, they are of no value for any purpose, and had as well remained unwritten. It is indeed difficult to see why the statute has so industriously and in such detail provided for their preparation and custody, if they are to be by mere suggestion impeached, and a statement, extra-official in its character, substituted in their stead. For there can be no doubt that the certificate of December 8th, though signed by the person who is the Clerk of Monterey County, and attested by his seal of office, is extra-official.
Certainly there is no law, statutory or otherwise, which is supposed to authorize the making of such a certificate as that by the Clerk, and there is none that authorizes the Secretary of State to receive it or file it, much less to consider it and set it up against the certified abstract forwarded to him pursuant to the statute.
The so-called certificate of December 8th, being extra-official, has, therefore, no sanctity; its value is precisely that of the certificate or written statement of any other respectable gentleman, who, professing to be personally cognizant of what had transpired when the canvass was made by the Board, might have addressed a letter to the Secretary of State, assuming to detail events as he remembered them to have happened.
[14]Upon this view there can he no question made before the Secretary, nor before us, as to what in this case constitutes the record of the Board of Supervisors, remaining in the hands of its Clerk. The argument which denies to the Clerk the power to alter or amend the records in his possession becomes merely abstract, since (the certificate of the 8th of December being out of the case) there is nothing to show that he, in point of fact, assumed to do so.
Upon quo warranto, or upon information in the nature of quo warranto, upon a contest had pursuant to the provisions of the statute of the State, or before the House of Representatives of the United States, under its constitutional power to judge of the election and qualifications of its members, this and kindred questions may be examined and correctly determined, for there would be jurisdiction to entertain the inquiry, and, what is of much importance in ascertaining the fact, the power to summon' witnesses and enforce the production of testimony, upon notice given to the parties in interest, who might appear in person and by counsel.
But how is the Secretary of State to entertain such an inquiry ? What statute authorizes him to hold pleas in such a matter ? Where is his authority to cite the parties in interest, or the procedure to compel the attendance of witnesses—indeed any, the slightest means afforded him to conduct an investigation such as that here attempted ? There is none, and he must determine the question, if at all, only as it is here contended that he may in his discretion determine it, upon an extra-official certificate, given ex parte, without the sanction of an oath, official, or of any other character, and without the authority to summon the parties in interest for any purpose, even to hear judgment.
Without now pursuing the argument further, I have arrived at the conclusions:
1st. That the only return from the County of Monterey rightfully before the Secretary of State is the certified abstract of November 15th.
2nd. That in estimating and comparing the vote given in said County of Monterey for Representative in Congress from the
[15]Fourth Congressional District, the Secretary must proceed only upon that abstract.
And that the demurrer to the petition be overruled.
(a) This abstract is as follows:
“Abstract of statement of vote of Monterey County, California, polled at the election held November 7th, A. D. 1876, relating to votes for persons for Representative to Congress. (Political Code, sections 1344 and 1345.)
ELECTION PRECINCTS. REPRESENTATIVl GRESS P. D. Wigginton. SS TO CON-R. Pacheco. Blanco...................... 53 12 Castroville .................. 93 119 Cholame .................... 24 12 Chualar. .................... 30 19 Gonzales.................... 70 39 Monterey ................... 68 250 Natividad................... 42 16 Pajaro ...................... 79 67 Peach Tree.................. 19 28 Salinas, No. 1................ 198 204 Salinas, No. 2................ 113 ' 156 San Antonio................. 26 54 San Lorenzo................. 27 51 Santa Rita.................. 39 24 Slack’s Canyon............... 20 13 Soledad..................... 17 25 Soledad Station .............. 23 31 Sur ....................... 5 13 Toro ....................... 34 67 Tularcitos ................... 6 8 Total................... 986 1,208
“State of California, )
County of Monterey,)
“I, John Markley, County Clerk of said county, do hereby certify the foregoing to be a full, true, and correct abstract of [16]the statement of the vote of said county, polled at the election held November 7th, A. D. 1876, so far as the same relates to the vote given for persons for Bepresentatives to Congress, as said statement appears entered in the records of the proceedings of the Board of Supervisors of said county now in my custody.
“ [seal.] Witness my hand and official seal this 15th day of November, a. d. 1876. John" Mabkley, Clerk.
“(Endorsed) Beturns of election for Bepresentative to Congress, Monterey County. Filed the 17th day of November, A. D. 1876. Thomas Beck, Secretary of State.
“ By W. A. Beck, Deputy.”
(5) The following is the certificate of December 4th, 1876 :
“I, John Marldey, County Clerk of Monterey County, and ex-officio Clerk of the Board of Supervisors of said county, do hereby certify as follows, to wit: That on the 13th day of November, 1876, the Board of Supervisors of said county met at their usual place of meeting, in the office of the County Clerk of said county, to canvass the vote polled in said county on the 7th day of November, A. D. 1876. That there were present at said meeting Supervisors Edwin St. John, S. B. Gordon, and A. J. Blankenship. The Board organized "by electing Mr. Blankenship Chairman pro tem. of said meeting. The Board proceeded to canvass the vote, Mr. Blankenship opening the large envelopes containing a copy of the Great Begister, poll list, and tally list, and handing to Mr. Gordon the tally list. Mr. Gordon read out the vote received by each person, and as said vote was read out by Mr. Gordon, the Clerk or his deputy took down the same with a lead pencil in a. tabulated statement prepared" for that purpose. At the same time John B. Scott, County Auditor, and L. P. Carter kept an account of so much of said vote as related to member of Congress, as the same was read out by Mr. Gordon.
“ After the Board had opened all the envelopes and counted all the votes as per the tally list therein contained, they directed the Clerk to foot up the foot as the same appeared on the tabulated statement kept by said Clerk. After footing up the same [17]and ascertaining the result of the vote on county officers, after passing an order declaring the county officers receiving the highest number of votes for the office which they had been voted duly elected, directing the Clerk to issue the proper certificates to them, the Board adjourned sine die. At the time the Board adjourned as aforesaid, the vote stood on the tabulated statement kept by the said Clerk at San Lorenzo Precinct, P. D. Wigginton 29, and for the said P. D. Wigginton in the county, 988. That about one hour after the adjournment of said Board, and before the pencil minutes and tabulated statement kept by the Clerk had been transcribed to the minutes of said Board, Mr. St. John, a member of said Board, returned to the office and stated to me that he thought a mistake had been made in the vote for Congressman, that Mr. Scott and Mr. Carter only had 986 votes for Mr. Wigginton. We looked over the figures which I had made and found that they had been added correctly. I then gave to Mr. St. John a copy of my figures of the vote for Congressman, and suggested to him that he compare the same with the figures of the vote, as the same had been kept by Mr. Scott, and said that he would in that way find out where or in which precinct the difference was, and if there was a mistake we would correct it in the morning. After supper that night I wrote up the minutes and transcribed the statement made in pencil to the minute book. On the morning of November 14th, Mr. J. W. Leigh and myself were in the Clerk’s office. Mr. St. John came in and stated to me that the difference in the figures was in San Lorenzo Precinct." I got the tally list from San Lorenzo Precinct, and Mr. St. John, Mr. Leigh, and myself examined the same. We found that Mr. Wigginton had only received 27 votes, whereas the tabulated statements and the minutes as they stood then had allotted to Mr. Wigginton 29 votes in said precinct. The tally list was in all respects regular. The 27 was in marks, in figures twice, and written twice. We all three felt fully convinced that Mr. Wigginton had received at the precinct only 27 votes, and the Clerk had made a mistake in putting down 29. I then and there changed the vote as entered on the minutes from 29 to 27, and the total vote from 988 to 986, and thereafter, and on the same [18]
“ [seal.] County Clerk Monterey County.
“ (Endorsed) Filed December 4th, 1876.
“ Thomas Beck, Secretary of State.
“ By Wm. A. Beck, Deputy.”
(c) The following is a copy of the certificate of December 8th, 1876:
“ Monday, November 13th, 1876.
“ At 10 o’clock A. M., the Board of Supervisors of Monterey County met at their usual place of meeting, for the purpose of canvassing the returns heretofore filed in the County Clerk of said county’s office, from the several precincts in said county, of the presidential election held on the 7th day of November, 1876. Present—Supervisors Edwin St. John, J. A. Blankenship and S. B. Gordon and the Clerk.
“ On motion, Mr. Blankenship was appointed Chairman of said Board pro tern.
“ It appearing to the Board that the returns from each and every precinct in this county have been received by the said County Clerk, said Board proceeded to canvass said returns in public, and as directed by law. In the following tabulated statement the [19]first column on the left shows the office to be filled, which each person was voted for; the second column shows the names of the persons voted for. Each column from the third to the twenty-second inclusive, shows the number of votes given in the precincts named at the top of the respective columns to each person voted for; the last column, or that on the extreme right, shows the total number of votes given in the county for such person:
“ precincts.
“And the Board having canvassed the returns, and being fully advised in the premises, it is declared that the following-named persons having received the highest number of votes given in the county, or in the Supervisorial District, for the office for which the same is appended, said persons are declared elected to said office, and the County Clerk is directed to make out and deliver to each of such persons a certificate of election in due form.
“ The Board adjourned sine die.
“ Attest: J ohn Markley, Clerk.”
“ State of California, ) County of Monterey, j
“ I, J ohn Markley, County Clerk of said Monterey County, and ex-officio Clerk of the Board of Supervisors of said county, do hereby certify that the said Board adjourned about 5 p. M., Monday, ¡November 13th, 1876. That at the time of their said adjournment the minutes were in pencil; that thereafter, and the same day, I transcribed said minutes to the minute-book of the said Board, and that the foregoing is a full, true, and correct copy of said minutes transcribed as aforesaid to said book, and as the same stood on the night of the 13th and the morning [20]of the 14th of November, A. D. 1876, as the same related to the canvass of the votes polled in said county November 7th, 1876. And I do further certify that the foregoing is a full, true, and correct copy of said minutes as they stand on the minute-book of said Board at this time, with the following exception, that the name of 1 J. A. Blankenship,’ Chairman pro tem, appears on said minutes, and that in the tabulated statement the vote in San Lorenzo Precinct, allotted to Mr. Wigginton, had been changed from 29 to 27, and the vote in the column of totals, or the extreme column to the right, has been changed from 988 to 986. That as the same now stands on said minute-book to-day, Mr. Wigginton has allotted to him only 27 votes in San Lorenzo Precinct, and allotted to him only 986 votes in the County of Monterey, for member of Congress.
“Witness my hand and seal of the County Court of said County of Monterey, this 8th day of December, A. D. 1876.
“[seal.] John Maekley, Clerk as aforesaid.
“ (Endorsed) Filed in the office of Secretary of State, this 11th day of December,- A. D. 1876.
“Thomas Beck, Secretary of State.
“ By Wm. A. Beck, Deputy.”