State v. Smith
Decision Date | 27 May 1891 |
Parties | STATE ex rel. CLARK v. SMITH, Clerk County Court. |
Court | Missouri Supreme Court |
In bank.
Petition for mandamus by R. F. Clark to compel P. R. Smith, clerk of the county court, to issue to him a certificate of election to the office of prosecuting attorney. The petition was previously denied, (15 S. W. Rep. 614,) and the decision now rendered is on relator's motion for rehearing. Const. Mo. art. 8. § 3, provides that, in all cases of contested elections, the ballots may be recounted. Rev. St. § 4710, provides that the court trying such contest shall determine it in a summary manner, without any formal pleading, at the first term that shall be held 15 days after the official counting of the votes. One John Sturgis had received a certificate of election, and was exercising the office. It was claimed by relator that the service of notice of contest upon the other candidate did not render the action pending.
W. Cloud and Adiel Sherwood, for relator. George Hubbert and M. E. Benton, for respondent.
The return of respondent to the alternative writ, after special denials of the statements thereof in regard to the result of the election for which relator was a candidate; his refusal to certify the result of the election, and that he falsified the same; and after giving a detailed statement of the manner in which he had performed his duties, as clerk, in canvassing the vote, — made the following special plea in bar to the writ: The return further showed that on the 6th day of November, 1890, respondent completed the canvass of the vote of said county, and before the issuance of the writ herein had certified the result thereof to the secretary of state; and on the 14th day of November, 1890, the said Sturgis had been duly commissioned by the governor as prosecuting attorney of said county. The remedy by mandamus will only be allowed against a public officer in case the one claiming its benefits shows himself to be directly interested in the performance of the thing demanded, and that he has no other adequate, specific, and effective remedy at law by which he may obtain the result sought. The ultimate result sought to be accomplished by relator, under this proceeding, was to determine, as between himself and Sturgis, which was, on the face of the returns of the judges and clerks of the various voting precincts, elected to the office of prosecuting attorney of the county. The writ shows, and the return admits, that relator has such a direct interest in the proper canvass of the vote by the county clerk as authorizes him to invoke this remedy, and a peremptory writ...
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