Opinion of the Court-Truitt, J.

thing that is sold every day and is constantly going out of the store and being replaced by other goods, but the fixtures are not a part of the trade or business; they are not sold in the ordinary trade as goods. They remain from year to year. The merchant could not dispose of them as long as he remains in business. It is true that shelving, counters, drawers, tables and many other things are necessary in order to conduct the business of the retail merchant, and so are delivery wagons in the larger towns to deliver goods, and clerks to sell the goods, and so is a house or room in which to keep them, but the clerks are not part of the goods, wares or merchandise, and though the business cannot be conducted without a house or place to keep and display the goods, the house or the room where they are sold is not a part of the goods, wares and merchandise.

In Kolander v. Dunn, 95 Minn. 422, 104 N. W. 371, 483, it was held that, "Under chap. 291, p. 357, Laws 1899, the sale of the stock of merchandise was presumed to be fraudulent and void, but that act has no application to the sale of fixtures." In Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067, it is held that, "As used in the Massachu setts statute prohibiting sales in bulk except when made in the ordinary course of trade, the phrase 'stock of merchandise' is applicable only to the articles which the seller keeps for sale in the ordinary course of his business, and is not applicable to a storekeeper's fixtures."

In Lee v. Gillen & Boney, 90 Neb. 730, 134 N. W. 278, it was held that, "Section 6048, Ann. St. 1909, commonly called the 'Bulk Sales Law,' relates only to merchandise kept for sale in the ordinary course of trade and in the regular and usual prosecution of' business, and does not apply to fixtures or a manufacturer's stock of raw materials used by himself, and not kept or offered for sale in the ordinary course of trade."

It is suggested that to make the law apply to fixtures as well as to the goods would strengthen the retail merchant's credit. Perhaps it would, and it might also strengthen his credit to make it include all his other personal property, or

Idaho, Vol. 26-29

Points Decided.

his store building, if he owned it, or his farm, but that is beyond the scope and reasonable purpose of the law, which is not primarily to strengthen the retailer's credit but to make him pay his honest debts.

A very peculiar feature of this case is that the complaint does not charge that the goods, wares or merchandise were sold to respondent Buhl, but in effect claims that he should pay for them because he bought the fixtures, and this theory of the case would make the goods, wares and merchandise a part of the fixtures instead of the fixtures being a part of the goods. We hardly think this is permissible.

Having thus decided that the points relied on by appellant to reverse the judgment against it are not well taken, we hold, therefore, with the lower court that said complaint does not state a cause of action against respondent Buhl. The judgment must be affirmed, with costs in favor of respondent.

Sullivan, C. J., concurs.

(November 2, 1914.)

JOHN DAVIES et al., Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF NEZ PERCE COUNTY, De

fendants.

[143 Pac. 945.]

WRIT OF MANDATE-COUNTY BOARD OF CANVASSERS-SPECIAL ELECTIONCANVASS OF ELECTION RETURNS-STATUTORY CONSTRUCTION-OPENING OF BALLOT-BOX.

1.

Where the county board of canvassers rejects certain returns from certain precincts on account of informality, ambiguity or uncertainty, under the provisions of sec. 448, Rev. Codes, the returns rejected must be delivered by the board to the sheriff of the county, who must proceed at once to summon and call together the judges of election of such precinct and inform them that the return made by them has been rejected, and it is made the duty of such judges to meet publicly at the place where the election was held in such precinct and at once proceed to put said returns in due form and certify the same, and for the purpose of so doing they may have

Argument for Petitioners.

the ballot-box brought in and opened in their presence and the contents thereof inspected, and when such returns have been duly corrected, they must be delivered into the hands of the sheriff.

2. Sec. 442, Rev. Codes, provides what must be done by the judges of election after the canvass of the votes, and further provides that the poll-box and ballots must be kept with the seal unbroken for at least eight months, unless the same is required as evidence in a court of law in any case arising under the election laws of the state, and then only when the judge having the ballot-box in charge is served with a subpoena to produce the same.

3. Held, that the provisions of said section are applicable when the returns are properly made and are not returned to the judges for correction. In that case the ballot-box must not be opened except as directed in said section; but where returns have been rejected, as provided by statute, and returned to the judges of election for correction, they may, under the provisions of sec. 448, open the ballot box for the purpose of correcting the returns.

4. Held, that the provisions of secs. 442 and 448 must be construed together in order to ascertain and carry out the true intention of the legislature.

5. Mandamus will lie in a proper case to compel action on the part of a canvassing board, but it will not direct what the result of their action must be.

Original application in this court for a writ of mandate to compel the county commissioners as a board of canvassers of election returns to reassemble and announce the result of the election in a different manner and to a different effect from that which they had already announced and entered of record such announcement. Writ denied.

E. O'Neill, P. E. Stookey and F. L. Ulen, for Petitioners.

When it is shown, as in our petition alleged, that the board has not performed the duty imposed upon them by law, of canvassing the legal returns, to wit, those which must be returned under the provisions of sec. 339, Rev. Codes, they have not performed their duty and the court has jurisdiction to compel them to recanvass and perform their duty, and they have no right to canvass changed returns. (State ex rel. Rice v. Marshall County Judge, 7 Iowa, 186; State ex rel. Romig v. Wilson, 24 Neb. 139, 38 N. W. 31; State ex rel. Will

Argument for Respondents.

ard v. Stearns, 11 Neb. 104, 7 N. W. 743; People ex rel. McCauley v. Brooks, 16 Cal. 11; State v. Pigott, 97 Miss. 599, 54 So. 257, Ann. Cas. 1912C, 1254; State ex rel. Whittemore v. Peacock, 15 Neb. 442, 19 N. W. 685; Welty v. McFadden, 46 Neb. 668, 65 N. W. 800.)

"A board authorized to issue the writ of mandamus may compel the board of canvassers to discharge their duties by canvassing the lawful returns, leaving all questions as to the validity of the returns for election to the proper tribunal." (State v. Van Camp, 36 Neb. 9, 91, 54 N. W. 113.)

C. L. McDonald, D. E. Hodge, G. W. Tannahill and M. S. Johnson, for Respondents.

It is a well-settled principle of law that the courts will not, by mandamus, direct an inferior tribunal to act in a certain way. (Board of Commissioners v. Mayhew, 5 Ida. 572, 51 Pac. 411; Connolly v. Woods, 13 Ida. 591, 92 Pac. 573.)

This court has also held that the board of commissioners has jurisdiction to send the returns back to the judges for correction. (Lansdon v. State Board of Canvassers, 18 Ida. 596, 111 Pac. 133.)

"Courts of equity have no inherent power to try contested elections." (Toncray v. Budge, 14 Ida. 621, 95 Pac. 26; 15 Cyc. 397; Nims v. Gilmore, 17 Ida. 609, 107 Pac. 79.)

In this case the petition shows that the board of canvassers has performed the very act sought to be commanded by the writ, but the result obtained by such performance is what has displeased the petitioners, and not the failure to perform, and mandamus cannot lie to afford them any relief. (State v. Carney, 3 Kan. 88; Sharpless v. Buckles, 65 Kan. 838, 70 Pac. 886; Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129, 19 L. R. A. 157; State ex rel. Harmon v. Hammel (Ala.), 11 So. 892; Bach v. Spencer, 24 Ky. Law Rep. 354, 68 S. W. 442; People ex rel. Wilson v. Mattinger, 212 Ill. 530, 72 N. E. 906; Booe v. Kenner, 105 Ky. 517, 20 Ky. Law Rep. 1343, 49 S. W. 330; State ex rel. Ingerson v. Berry, 14 Ohio St. 315; Roberts v. Marshall, 33 Okl. 716, 127 Pac. 703; Mad

Opinion of the Court-Sullivan, C. J.

den v. Moore, 228 Pa. 503, 77 Atl. 821; Orman v. People ex rel. Cooper, 18 Colo. App. 302, 71 Pac. 430; 26 Cyc. 277.)

"The writ will not issue where quo warranto or a statutory writ of contest or other proceedings at law affords a specific adequate remedy." (Wright v. Kelley, 4 Ida. 624, 43 Pac. 565; Jolly v. Woodward, 4 Ida. 496, 42 Pac. 512; Pyke v. Steunenberg, 5 Ida. 614, 51 Pac. 614; Blomquist v. Board of Commrs., 25 Ida. 284, 137 Pac. 174; Chemung Min. Co. v. Morgan, 11 Ida. 232, 81 Pac. 384.)

SULLIVAN, C. J.-This is an application for a writ of mandate to compel the board of county commissioners as a board of canvassers of the election returns of a special election held on May 27, 1914, in Nez Perce county, to reassemble and announce and enter of record the result of said election as claimed by plaintiffs. A demurrer to the petition has been submitted by the defendants.

The petition clearly shows that said board has canvassed the returns of said election; but it is contended that the returns canvassed by the board and the result announced therefrom are not correct returns nor the correct result.

It appears that said board has acted in said matter and in acting rejected some of the returns on account of informality, ambiguity or uncertainty, and placed them in the hands. of the sheriff under the provisions of sec. 448, Rev. Codes, and he returned them to the proper precinct election officers for correction, and such election officers proceeded to correct such returns and for that purpose they opened the ballot-box as they were clearly authorized to do by the provisions of said. sec. 448. But it is contended that the election officers had no authority to open such boxes under the provisions of sec. 442, Rev. Codes.

We concede that, but they were not acting under the provisions of that section, but were acting under the provisions of sec. 448, which gave them authority to open the ballot-box in correcting the returns.

The provisions of sec. 442, as amended by Laws of 1913, p. 379, apply when the returns are properly made out and