and it has adjourned sine die, and therefore it cannot be reconvened, and required to count and canvass this vote. We cannot agree with counsel in their contention. As is well stated in Johnston v. State, 27 N. E. Rep. 422, (decided in Indiana the present year:) "The duties of election officers, when prescribed by statute, as in this instance, are imperative, and performance may be coerced by the writ of mandamus. Nor can the election officers evade their duties by adjourning without taking the action required by law." The court then quotes from Attorney General v. Board, 64 Mich. 607, 31 N. W. Rep. 539, with approbation, the following from the opinion of that court, in speaking of the duty of canvassers: Until they [the canvassers] have done so, [canvassed all the precincts, ] they have no right to dissolve their meeting. They can only get out of their office by completing their work. It would be worse than absurd to allow a board of canvassers to defeat the popular will and destroy an election by neglecting to do what the law requires them to do." In Lewis v. Commissioners, 16 Kan. 102, a case very similar to the one at bar, Mr. Justice BREWER, speaking for the court, says: "It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by neglecting to canvass any." In the case at bar the board of canvassers had a clear and well-defined ministerial duty to perform. It was required to canvass and make an abstract of the votes from all the precincts in that county, not a part of them, and, until it has performed this duty, it has failed to do what the law requires of it, and the court below had full power and authority to direct, by its mandate, the board to perform this duty, regardless of the facts that a certificate had been issued to another, and the board had adjourned. Coll v. City Board, (Mich.) 47 N. W. Rep. 227; State v. County Judge of Marshall Co., 7 Iowa, 186; State v. Bailey, Id. 390; Ellis v. County Commissioners, 2 Gray, 370; State v. Dinsmore, 5 Neb. 145; State v. Wilson, 24 Neb. 139, 38 N. W. Rep. 31; Morgan v. Board, 24 Kan. 71; In re Strong, 20 Pick. 484; Clark v. Board, 126 Mass. 282; Johnston v. State,

(Ind.) 27 N. E. Rep. 422; Kisler v. Cameron, 39 İnd. 488; Moore v. Kessler, 59 Ind. 152; State v. Gibbs, 13 Fla. 55; People v. Scheilling, 95 N. Y. 124; State v. Peacock, 15 Neb. 442, 19 N. W. Rep. 685; People v. Nordheim, 99 Ill. 563; Haggerty v. Arnold, 13 Kan. 367; Brower v. O'Brian, 2 Ind. 423.

It is further contended by the appellants that a mandamus should not issue in this case, for the reason that plaintiff has a plain, speedy and adequate remedy by contest and quo warranto proceedings. But we are of the opinion that such is not the

case.

The remedy by contesting the election of Faust under the statute was not available at the time this proceeding was instituted, as it does not appear that notice of such contest had been given within the 20 days after the canvass, as required by the provisions of the law governing contest proceedings. Bowler v. Eisenhood, (S. Dak.) 48 N. W. 136. But, even if this were not so, that remedy would not be adequate to accomplish the result sought to be accomplished in this case, -the proper canvass of the returns of the votes, and the filing of the proper abstract in the office of the auditor, upon which the proper certificate should issue. Mandamus is the only proceeding that can give plaintiff the desired remedy, and place him in the position with reference to the office of sheriff that he is entitled to by law; and that is the person shown by the abstract of the votes of said election to be elected to the office of sheriff of Sully county, and entitled to the certificate of election; and the law relating to contesting elections specifically provides that the "act shall not be construed to affect any of the remedies or rights of action or proceedings provided for in the Code of Civil Proceedure." Section 1499, Comp. Laws. Proceeding by quo warranto is neither adequate, plain, or speedy, and the remedy sought here could not, in any event, be obtained under that proceeding. If a proper and legal canvass of the returns by the officers whose duty it is to make such canvass will show that plaintiff is the elected sheriff of said Sully county, why should he be compelled to institute other proceedings than those necessary to compel the canvassing board to perform its duty, and make the proper canvass and abstract

which will show that he is so elected, and prima facie entitled to the office? True, mandamus may not give him the office. Other proceedings may be necessary to oust the incumbent, and place the plaintiff in the office, but that affords no reason why the defendants should not be compelled to perform the duties imposed on them in the premises.

But a further and more conclusive reason why plaintiff could not have instituted proceedings in quo warranto is that, when these proceedings were instituted, Faust was not an incumbent of the office, and quo warranto proceedings could not then have been commenced against them.

Again, it is contended that plaintiff has been guilty of laches in not sooner instituting proceedings to compel this board to do its duty in the premises. But there is no merit to this contention, as applied to this case. The returns and abstract of the votes are within the control of the county, and when that is the case, it cannot be said that the proceeding has gone beyond the jurisdiction of the board. It is alleged that the board of canvassers adjourned November 8th, and the notice of these proceedings was served December 3d,-only about 25 days. certainly not an unreasonable delay. We are of the opinion, therefore, that the affidavit states facts sufficient to entitle the respondent to the issuance of the writ, and that the court properly overruled the demurrer.

This brings us to the merits of the case. The defendants on the demurrer being overruled made answer or return to the affidavit, admitting substantially all the facts alleged, but setting up, in substance, that two ballot-boxes were returned from precinct No. 26. That it appeared from the face of certain papers in the auditor's office that in said precinct certain soldiers from the regular army of the government of the United States voted. That the votes of said soldiers were placed in one ballot-box and the votes of civilians were placed in another and different box. That it did not appear from the boxes or papers which box contained the soldiers' votes and which contained the votes of civilians. That it further appeared that the votes of said soldiers were entered in the pretended poll-books

promiscuously with the votes of civilians, and that the canvassing board concluded and determined on full investigation that the pretended ballot-boxes and books purporting to come from said predinct No. 26 were unofficial and uncertain, and not returns at all, and that there were no certain official returns from said precinct, and it did not therefore canvass the same. It is further stated in the answer or return to said affidavit that, upon the completion of said canvass by said board, said Albert A. Faust was duly declared elected sheriff of said county, and the various other officers were declared elected to their respective offices, and the board thereupon adjourned sine die. That a certificate of election was duly issued to said Faust, as sheriff of said county, by the county auditor, and that he has qualified and entered upon his duties as sheriff of said Sully county, and is now performing the duties of said 'office. That Thomas Mateer, who was a county commissioner, and a member of said canvassing board, ceased to be a county commissioner on the first Monday of January, A. D. 1891, his term of office having expired at that time. At the commencement of the trial all the facts stated in the affidavit and answer, except as to the returns from precinct No. 26, were stipulated to be as stated. During the trial one Porter, a witness on the part of the plaintiff, was asked the following question: "Was or wasn't this book [referring to poll-book] used by the board in the canvass of Sully county?" This was objected to by counsel for the defendants, and, their objection having been overruled, they have made the ruling of the court the ground for the seventh assignment of error. The answer was: "The book is the return used." We think the court ruled correctly in permitting the question to be answered. The witness had stated that he was deputy county auditor of Sully county, and that the poll-book was returned from precinct No. 26,-brought there by one of the judges of election of that precinct,-and that the book had been kept in his safe, as register of deeds, with the other pollbooks placed in his safe for safe keeping. He had also stated that this poll-book was on file in the auditor's office as the return from precinct No. 26. Another witness, Mr. Jordan, was

asked in reference to this poll-book: "I will ask you to state what that book is?" "Objected to by counsel for the defendants, on the ground that the witness is wholly incompetent to testify concerning the book, as there has been no showing that the witness had any knowledge concerning this book." Exhibit A. The objection was overruled and the witness allowed to answer the question, which he did by stating that "this book is the book presented to the canvassing board by the county auditor on Nov. 8, 1890, in Sully county." This is made the ground of the eighth assignment of error. We think the court ruled correctly in overruling the objection. The witness is asked as to a fact, not an opinion. We do not understand the rule to be that a witness must show that he is qualified by possessing proper knowledge to state a fact. His knowledge or means of knowledge is a subject for cross-examination. The witness had, however, in this case, stated that he was deputy treasurer of the county; that he remembered when the county canvass took place, and, inferentially, at least, that he was present at the canvass; and, when asked to state exactly what he saw done with this book, he stated: The boxes were first opened, the boxes of the precincts,—and envelopes brought out,"-that he was an interested party, and took this book, and saw that it was a legal return. This, we think, with the other testimony he had given. was sufficient to show that he had knowledge of the book, and his evidence in regard to it was properly admitted. The poll-book was then offered in evidence, and objected to by defendants on the ground that it was not identified as the return from precinct No. 26, and that the proper foundation had not been laid for its introduction. We are of the opinion, however, that there had been sufficient proof as to its being the return from that precinct to entitle it to be admitted in evidence. But, if this was not so, the plaintiff had set out fully the facts relating to this return from precinct No. 26, and the return itself, so far as it affected the office of sheriff, and these facts were not denied in the answer, and were therefore admitted; hence there was no issue in regard to the facts that a return had been duly made within the proper time, and by the proper officers. And no issue was