Speaker herein is not the State, since the servant of the State, the respondent Speaker, by his act of disobedience does not represent or stand for the State. 38 C.J., 659; McCauley v. Brooks, 16 Cal. 11; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432. (5) The Speaker cannot go back of the certified returns in opening and publishing the returns and declaring the result therein disclosed. State ex rel. Atty. Gen. v. Vail, 53 Mo. 111; State ex rel. Atty. Gen. Ewing v. Townsley, 56 Mo. 111; Sheridan v. St. Louis, 183 Mo. 33; Mayo v. Freeland, 10 Mo. 630; State ex rel. v. Trigg, 72 Mo. 365; State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L.R.A. 796; Drew v. State Canvassing Board, 16 Fla. 17; State of Mississippi v. Board of Supervisors of Coahoma County, 91 Miss. 582, 44 So. 831, 16 L.R.A. 1066; State ex rel. v. Board of El. Commrs., 36 Wis. 498; State ex rel. Husting v. Board of Canvassers, 159 Wis. 216, 150 N.W. 542; People ex rel. v. White, 88 Colo. 229, 294 P. 535. (6) The allegation in respondent's return that a contest for the office of Governor is pending before the General Assembly is a mere conclusion of the pleader as to the legal effect of the James T. Blair, Jr., petition and the various reports to, and resolutions adopted by, the General Assembly. These proceedings on their face show that no election contest is pending (a) because an election contest is an adversary proceeding and (b) because some person must be declared elected before there can be an election contest.
In conformity with the ordinary rule that mandamus lies to enforce the performance of a ministerial act as distinguished from a judicial or discretionary one, the courts have generally held that where the act of the canvassing board or election board in rejecting or counting ballots is ministerial, mandamus is available to compel or control such act. Accordingly, in Lehman v. Pettingell, 39 Colo. 258, 89 Pac. 48, upon the authority of Kindel v. Le Bert, 23 Colo. 385, 48 Pac. 641 (See, also, People ex rel. v. White, 88 Colo. 229, 294 Pac. 535), we held that the duties of the county board of canvassers in counting and certifying the result of the vote as certified to them by the precinct judges and clerks of election, were purely ministerial acts and by mandamus compelled certification of the vote by the county board in accordance with the certificate of the precinct officers. However, where the questioned action of such boards is deemed to involve judgment or discretion, it is equally certain the board's determination is conclusive so far as mandamus as a method of review is concerned, and the writ will not lie. Leary v. Jones, 51 Colo. 185, 116 Pac. 130; Orman v. People ex rel., 18 Colo. App. 302, 71 Pac. 430. Thus, while a court in a mandamus proceeding may compel action, it cannot direct an election or canvassing board how it shall act where discretion with respect to the function involved reposes in it; otherwise, as is said in the opinion in Orman v. People, supra (page 309), by mandamus "The judiciary c
225 votes for Harper added to the 209 received by Moore gives a total of 434 votes, 12 less than the total of 446 voting in the precinct. If the number certified, 299, for Harper be added to the 209 for Moore the total exceeds by 62 the total number of votes cast in precinct 64. Independently of the testimony of the clerks and judges, we think the record discloses a clear case of a clerical mistake in the certificate which the judges and clerks, when they were notified of the error by the respondent, had a right to correct and should have corrected under authority of section 260, chapter 59, '35 C.S.A., supra. The three Colorado cases upon which counsel for plaintiff in error principally relies are People ex rel. v. Tool, 35 Colo. 225, 86 Pac. 224; People ex rel. v. White, 88 Colo. 229, 294 Pac. 535; Leary v. Jones, 51 Colo. 185, 116 Pac. 130. These cases involve situations materially differing from that in the case at bar and are not controlling. From an order of the district court in a case other than the one before us, which is attached to the record and bill of exceptions, and from the statement of relator in her brief that the poll book, introduced in evidence as an exhibit, had been changed as to the number of votes cast for Harper from 299 to 225, we gather that the city clerk, as relator in another mandamus suit directed against the said judges and clerks of precinct 64 as respondents, procured the clerical error to be corrected.