dissent"> BIOKLEY and ZINN, Justices

(dissenting).

We agree with the state canvassing board as to the definition of the word “returns.”

Section 41-102, Comp. St. 1929, defines “returns” as follows: “The word ‘returns’ shall be construed to mean the certificate of the judges and clerks of election or counting judges and clerks showing the number of ballots cast for each candidate or, for and against each constitutional amendment or other question.”

It is suggested that this definition is not controlling, because the first sentence of the foregoing section dealing with definitions says, “as used in this act, unless the context requires otherwise,” and that the context indicates that “returns” may be something different from the certificates of the judges and clerks of election mentioned in the statutory definition of returns. This suggestion proceeds principally from the claimed significance of the concluding paragraph of section 41-356, which declares: “The returns and certificates sent to the secretary of state shall be considered to be public documents subject to inspection during ofiice hours by candidates and by the chairman of the state central committee of each of the dominant political parties or his accredited representative, and the same may be copied upon request of such candidates or chairmen or any of them by photostatic process or otherwise.”

Hence it is argued that returns embrace something else besides certificates, and indicates a use of the word “returns” as contradistinguished from certificates. This suggestion and argument is interesting, but loses its force upon further examination of the statute. Section 41-350 provides: “When the county canvassing boards shall have completed the canvass of the returns and ascertained the result, it shall issue election certificates to all county officers and to members of the legislature elected from such county only, and shall declare the result as to all questions affecting such county only, and shall immediately certify to the state canvassing board the number of votes cast for all other candidates and questions, respectively, and immediately deliver to the county chairman of each of the dominant political parties in the county a certificate showing the total number of votes cast for each candidate at such election.”

The second paragraph of section 41-356 provides: “Said state canvassing board shall at said time and place also canvass and declare the result of the election for judicial district officers and members of the legislature chosen by the electors of more than one county, from the certificates transmitted to said board by the several county canvassing boards showing the number of votes received by each candidate and issue proper certificates of election.”

It is apparent that this is one of the certificates from which the state canvassing board may canvass and declare the result of an election, but it is merely a different kind of certificate which emanates from an authority which is differently constituted from the authority which issues the certificates mentioned in the statutory definition of “returns,” supra. So, after all, returns are limited to certificates.

It is as though the last paragraph of section 41-356 read: “The ‘certificate’ of the judges and clerks of election or counting judges and clerks showing the number of ballots cast for each candidate or for and against each constitutional amendment or other question,” and “The certificates transmitted to said board (state canvassing board) by the several county canvassing boards showing the number of votes received by each candidate,” shall be considered to be public documents subject to inspection, etc. See section 41-357 and section 41-358, which preserve the distinction between the two kinds of certificates.

It is to be presumed that the Legislature, in enacting the statutory definition of returns, was not unfamiliar with the fact that there had been a conflict of opinions in the courts and among lawwriters as to what election papers were embraced within the word “returns,” and it is to be further presumed that the Legislature'intended that the canvassing boards should not be left in doubt as to the significance of the word “returns.” This con-1 sideration lends force to the idea of conclusiveness of the statutory definition.

We are in accord with the views expressed by our associates that the canvassing board has power to test the genuineness and accuracy of the certificates as “returns” by looking to the poll lists and tally sheets for the purpose of discovering and causing to be corrected “any discrepancy, omission, or error.” If these election papers, which in our view are not embraced within the word “returns,” as defined by the Legislature, may be looked to for the purposes aforesaid, we are forced to the conclusion that the registration lists, which are public documents of no less dignity and not less informative than the poll lists and tally sheets, may also be looked to for the purpose of testing the integrity and correctness of the “returns.” We entertain the same view as to all public documents pertaining to elections which are required by law to be filed with the secretary of state or the canvassing board.

We have stated the matter mildly when asserting that the registration lists are of no less dignity and not less informative than the poll lists and tally sheets.

The fundamental importance of the registration lists in the scheme of holding elections under our system is easily demonstrated.

The Constitution, which is the direct expression of the will of the people, manifests a solicitude for the purity of elections and the protection of the elective franchise. Article 7, § 1, declares: “The legislature shall have the power to require the registration of the qualified electors as a requisite for, voting. * * * The legislature shall enact such laws as will secure the secrecy of the ballot, the purity of elections and guard against the abuse of elective franchise. Not more than two members of the board of registration and not more than two judges of election shall belong to the same political party at the time of their appointment.”

It appears to us that this language of the Constitution makers stresses the importance of registration, and that it also stresses the importance of the registration boards being constituted upon a bipartisan basis, and that it is indicated that the boards of registration and the judges of election are all election officers. The Legislature seized upon the power thus reposed in them and enacted an elaborate election code, the reading of which at once presents the legislative view that the requirement of registration is of paramount importance in effectuating the constitutional admonition to provide for the purity of elections, and to guard against the abuse of the elective franchise it is provided that a copy of the registration lists, as finally made up, shall be filed with the secretary of state, who is a member of the state canvassing board, fourteen days before an on-coming election.

Abundant opportunity is provided for registration and for purging the lists and for corrections and amendments with the aid of the courts. But there comes a time fifteen days before the on-coming election when the lists are closed and become final, and, as required by law, are to be marked “Final” registration lists. One of such “final” lists is sent with the other election supplies to the judge of election in each precinct or voting district authorized to receive the same. It becomes then the most important working tool of the precinct election oincers, for it is said in the statute that: “No person shall vote at any general election unless registered as herein provided; and no ballot of any unregistered person shall be counted or canvassed.” Oomp. St. 1929, § 41-209.

It is also provided that: “When an elector presents himself at the polls to vote one of the judges of election shall announce his name in an audible tone of voice and it shall be ascertained whether such elector is registered, and if so * * * one of the judges of election shall deliver to the elector an official ballot.” Comp. St. 1929, § 41-312.

Upon the conclusion of the counting and tallying of the votes and certifying the same, the ballot box, pollbook, “and the ‘Final’ registration book shall be immediately returned to the county clerk, * * * and the other poll book or books shall be immediately placed in the mailing tube and mailed to the secretary of state” (Comp. St. 1929, § 41-343); a copy of the “Final” registration book being already on file in the office of the secretary of state.

The provisions for registration require, not only that the names of the qualified voters shall be displayed therein, but the total number of qualified voters in the precinct or election district who have registered must be also stated. Another provision’ of the statute is that the judges of election, in making their •return (certificates), shall state not only the number of votes which each candidate has received, but the total number who voted at the election. Comp. St. 1929, § 41-338. Another section sets forth the form of the certificate, and provides for a statement that “and that the number of electors who so voted is -■” Comp. St. 1929, § 41-319. We think the state canvassing board could properly refer to the registration lists to ascertain whether the total number of votes east in a given precinct was in excess of the number certified . by the registration board as being qualified to vote and for such other purposes as may enable the board to test the truth of the “returns.”

Whether the discrepáncy appearing in the case at bar might lead the canvassing board to the conclusion that the return was fraudulent and thereby impeached, is a question not now before us, because the state canvassing board has not pursued a canvass in the manner otherwise than looking to the returns as defined in the statute.

In the prevailing opinion, the majority comment upon the decision of Mr. Justice Brewer, later a distinguished member of the United States Supreme Court, in the case of State v. Stevens, 23 Kan. 456, 33 Am. Rep. 175, and say that, because in that case considered by the distinguished justice there were only 800 legal votes as against 2,900 votes cast, thereby that case was an extreme case. Percentage is not the criterion. Whether a fraud amounted to 300 per cent, or 15 per cent, cannot be determinative of the issue. Fraud of one-tenth of 1 per cent, may be sufficient to change the result of the election.

When the election officials who are charged with the solemn responsibility of effectuating the constitutional mandate to secure the secrecy of the ballot, the purity of the election, and guarding against the abuse of the elective franchise willfully permit 1616 illegal ballots to be placed in the ballot box, and thereafter count and canvass such ballots contrary to the express mandate of the law, this alone destroys the integrity of their official acts. If the election officials betray their trust in one instance, their certificate becomes valueless.

Section 574 of McCrary on Elections (4th Ed.) is illustrative of the idea we advance: “Fraud in the conduct of an election may be committed by one or more of the officers thereof, or by other persons. If committed by persons not officers, it may be either with or without the knowledge or connivance of such officers. There is a difference between a fraud committed by officers or with their knowledge and connivance, and a fraud committed by other persons, in this: the former is ordinarily fatal to the return, while the latter is not fatal, unless it appear that it has changed or rendered doubtful the result. If an officer of the election is detected in a willful and deliberate fraud upon the ballot-box, the better opinion is that this will destroy the integrity of his official acts, even though the fraud discovered is not of itself sufficient to affect the result. The reason of this rule is that an officer who betrays his trust in one instance is shown to be capable of the infamy of defrauding the electors, and his certificate is, therefore, good for nothing. If, for example, an election officer, having charge of a ballot box prior to or during the canvass, is caught in the act of abstracting certain ballots and substituting others, although the number shown to have been abstracted be not sufficient to affect the result, yet no confidence can be placed in the contents of a ballot-box which has been in his custody. We repeat, therefore, the opinion expressed in the former chapter, that a willful and deliberate fraud on the part of such an officer being clearly proven should destroy all confidence in his official acts, irrespective of the question whether the fraud discovered is of itself sufficient to change the result. The party taking anything by an election conducted by such an officer must prove his vote by evidence other than the return.”

After all, the determination of the result by the state canvassing board is not final as to the rights of the parties or the public, and the issuance and delivery of a certificate of election by the canvassing board merely determines who shall have the laboring oar in establishing the right to the office.

The suggestion in the last sentence of the quotation from McCrary, supra, confirms this view.

Without going into detail or attempting the citation of authority, it is our view that the state canvassing board may consult all of the election papers which the law requires to be filed in the office of the secretary of state, who is one of the members of the state canvassing board, for the purpose of determining whether or not the board will canvass what purports to be a true return, but which is challenged as being a false return.

We think that a board of such dignity as the state canvassing board may take notice of facts which are of common and universal knowledge, and at least of its own records pertaining to the subject-matter of elections. This may be so, although the board acts ordinarily in a ministerial or quasi judicial ca-' pacity. It would seem that the power to canvass returns would embrace the quasi judicial power of determining the integrity of the purported returns.

For instance, it is provided by law that elections shall be held at a certain time. If precinct election officers in their return (certificate) should recite the holding of an election upon a day other than that upon which an election could be held, and the certificate speaks the truth as to the day upon which it was held, we apprehend that the state canvassing board could ignore such returns. To do this they would have to resort to the Constitution or laws in order to determine the time when elections are to be lawfully held.

The law requires that certificates of nomination shall be made by the officers of the party conventions. If the nomination of J. A. Jones was made and certified to the secretary as candidate for auditor, and in some manner or other through a mistake of the printer, or a mistake of the officials, on a part of the ballots the name was placed thereon as J. A. Jonas, and the election officers certified that J. A. Jonas received a certain number of votes, we think the state canvassing board could consult the certificates of nominations on file in the office of the secretary of state to ascertain whether as a fact there was a J. A. Jonas wb,o had been nominated for the office in question, and thus entitled to have his name placed upon the ballot. We apprehend that, if it were found that there was no J. A. Jonas nominated or certified, the state canvassing board would not assume to count votes, certified by the election officials as having been cast for Jonas, for Jones. It might result in such an uncertainty that the canvassing boad would have to disregard such returns.

The foregoing are presented merely as illustrations.

The state canvassing board is a tribunal set up by the people in their Constitution, charged with the duty to “canvass and declare the result of the election.” There is no constitutional restriction upon the scope of their inquiry into the truth of the returns. To “canvass” means to “examine.”

It is our opinion that the state board of canvassers, a tribunal established by the Constitution, not as individuals, but consisting of two of the highest officials in the executive branch of the government, and the Chief Justice of the Supreme Court, an official learned' in the law, while acting in most instances in a ministerial capacity, yet is endowed with quasi judicial powers at least to the extent of determining the genuineness of the returns which it is required to canvass. It seems to us that a false return is no return at all. It seems to be conceded that, if the return (certificate) is irregular on its face, or the signatures thereto are forged, or those who purport to have executed it are without authority to. do so, the state canvassing board would be authorized to refuse to recognize such purported returns because of their spurious character.

We do not believe that the state canvassing board is limited in its inquiry as to the genuineness of the returns to matters of mere form, but they can look to the substance, and if, without being required to determine a controverted fact, they may discover from election papers which apparently the law has placed within their reach and perhaps within the scope of papers on file with them that the certificate does not speak the truth, and is plainly false and fraudulent, the board could refuse to canvass such purported return.

To say, as the prevailing opinion apparently does, that the state canvassing board and the courts are “confronted with a disgraceful situation” with respect to the conduct of an election, and that they cannot do anything about it, even to the extent of looking at the registration books, the constitutional and legislative yardstick by which the right to vote, right to receive votes, right to count votes, right to canvass votes, right to return votes, is a doctrine in which we cannot acquiesce.

We express no opinion as to what the state canvassing hoard ought to do if such examination showed the returns to he false, and therefore not returns at all, because the canvassing board never reached the point of forming an opinion on this subject. In their view, they were restricted to an examination of the returns as defined by the statute, viz., certificates of the precinct election officers. The prevailing opinion indicates that they may now look to pollbooks and tally sheets also. It seems too bad to say that they may not also examine the registration lists which are the foundation of the whole structure of elections.

It is to be regretted that record evidence of a situation admittedly so flagrant and disgraceful as to arouse the indignation of the authors of the prevailing opinion to the extent of suggestion of criminal prosecution of the guilty parties is withheld from the canvassing board, so that we may not know whether such evidence would register with its quasi judicial conscience sufficiently to impeach the returns, or at all.

We cannot concur in the result because the pronouncement in the prevailing opinion that the canvassing board shall examine the poll lists and tally sheets, in our opinion, requires that the writ be made absolute to the extent of commanding the board to include the poll lists and tally sheets in the canvass of the returns as contended for by the informant.

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