Arberry v. Beavers

• Decision Date: 01 January 1851
• Citation: 6 Tex. 457
• Parties: ARBERRY v. BEAVERS AND OTHERS.
• Court: Texas Supreme Court

6 Tex. 457

ARBERRY

v.BEAVERS AND OTHERS.

Supreme Court of Texas.

1851.

The process of mandamus in modern practice is regarded as an action by the party on whose relation it is granted to enforce a private right where the law affords no other adequate means of redress. It lies to compel public officers and courts of inferior jurisdiction to do those acts which clearly appertain to their duty. If the act be merely ministerial mandamus lies to compel its performance; if it be judicial, or in other words if there be a question of judgment or discretion whether the act should be done or not, mandamus lies to compel the exercise of that judgment or discretion, but not to inform or control it. (Note 81.)

Where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to discretion or judgment, the act is simply ministerial; but where the act to be done involves the exercise of discretion or judgment, it is either judicial or of the nature of a judicial act.

Where a special statute required the chief justice of a certain county to order an election for a seat of justice, and prescribed that the election should be held and the returns made in accordance with the laws of the State regulating elections: Held, That the statute conferred upon the chief justice a personal trust distinct from his ordinary official duties; that in receiving and estimating the returns he did not act in a merely ministerial capacity, and that a mandamus would not lie to compel him to receive and estimate certain returns which he had rejected. (Note 82)

Where a special tribunal is created whose proceedings are not according to the course of the common law, and whoss proceedings are not subject to revision in any of the ordinary modes provided by law, the same power which created the tribunal may annul its acts; may confer the suthority upon another tribunal; may provide for revising its decisions; and, in a word, may provide ample means and measure of redress.

An officer or tribunal invested with authority as to an act requiring the exercise of discretion or judgment might be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law, and in such a case a mandamus would lie if there was no other adequate remedy provided by law.

This case is distinguishable from the case of The Commissioners of the General Land Office v. Smith. (5 Tex. R.)

A mandamus is an extraordinary remedy, to be resorted to only when the party has no other adequate means of redress afforded him by law. And to entitle a party to this remedy he must show a clear legal right in himself and a corresponding obligation on the part of the officer, for if the right or the obligation be doubtful the court will not interfere by this process.

Greater certainty of pleading is required in a petition for a mandamus than in ordinary cases; the petition must set forth every essential fact, and the omission of the public officer to interpose those matters of defense which he might have interposed will not authorize the issue of the writ.

Appeal from Cass. This was a proceeding by mandamus to compel the appellant Arberry, who was chief justice of the county of Cass, to receive and count certain returns of votes given in an election held for the purpose of electing a seat of justice of Cass county.

The appellees alleged in their petition “that they are citizens of the county of Cass;” that in obedience to “An act to provide for the election of the seat of justice of Cass county,” approved December 27, 1849, Robert Arberry, chief justice of said county, ordered an election to be held at the several precincts thereof by the qualified electors of the county on the first Monday in March, 1850, for the purpose of electing a seat of justice of said county; that the election was then duly held, and the returns thereof made, in accordance with the laws of said State regulating elections, to the chief justice, who was required by law to open the returns, estimate the result, and record the state of the polls at each precinct in a book to be kept by him for that purpose; that said election returns were made to the proper officer within the time prescribed by law; that said chief justice refused to receive the returns from and to count the votes given at “Cherokee Precinct, Beat No. 6, which precinct gave for Linden 29 votes, for Jefferson none; that he refused to receive the returns from and count the votes given at Charles Amis's Precinct, Beat No. 7, which precinct gave for Jefferson 12 votes, for Linden 12 votes.” The petition proceeded to make in substance the same averments respecting four other precincts. It further alleged that the said chief justice counted the votes given at two precincts only other than the before mentioned, one of which gave for Linden 17 votes, and for Jefferson 89 votes, and the other gave for Linden 46 votes, and for Jefferson none; that the chief justice refused to receive and open the six returns first mentioned, to estimate the result, and to record the state of the polls, as the law required; but that he opened the returns of but the two precincts last mentioned, and that he estimated the result of the election in said two precincts, and pronounced Jefferson elected by a majority of 26 votes, when it was his duty to proclaim the place elected which received a majority of all the votes polled in the county, and when in truth Linden received a majority of all the votes polled by about 45 votes; that the action of the chief justice was illegal, and has deprived the complainants (two names excepted) of their elective franchise in said election and the right to have their votes counted in estimating the result, concluding with a prayer that the defendant be cited to appear and show cause why a peremptory mandamus should not issue, commanding him to open all said election returns, to estimate the result from all the returns, and record the state of the polls of each precinct in a book to be by him kept for that purpose, &c.

The defendant answered, excepting to the jurisdiction of the court, and averring under oath that he had “received and counted all the votes given for the county seat of Cass county that were returned according to law.”

The plaintiffs excepted to the legal sufficiency of the answer. The exceptions to the jurisdiction of the court were overruled. The case was submitted to the judgment of the court on the petition and answer. The court decided that the answer was insufficient and showed no cause why the writ should not issue, and gave judgment directing a peremptory mandamus to issue in accordance with the prayer of the petition. The defendant appealed.

E. G. Benners, for appellant.

I. The act of December 27, 1849, to provide for the permanent location of the seat of justice of Cass county authorized and required the chief justice of said county to hold an election for the county site. This act constituted him the judge and conferred upon him authority to decide upon the election and declare the result. The act did not confer authority upon any tribunal to revise or correct his decision. His decision was therefore final, and from which there was no appeal. He was left to exercise his own judgment, and his decision was conclusive. (Baker et al. v. Chisholm, 3 Tex. R.)

II. The District Court erred in taking jurisdiction of the case and awarding the writ of mandamus. This process lies to compel courts of inferior jurisdiction to do what appertains to their duty. If the chief justice had refused to hold the election, then the mandamus would lie to compel him so to do. It would lie, then, to compel him to discharge a duty enjoined by law, but not to instruct him in the manner it should be performed. The manner of discharging his duty was discretionary and to be exercised in accordance with his own judgment. Mandamus is not the process to revise or correct an error if he had acted erroneously. The error could only be revised on appeal, if the right of appeal existed, and it is contended it did not. (See Rice et al. v. The Commissioners of Highways of Middlesex, 13 Pick. R., 225.) The answer of appellant shows he had held the election and decided the result, and the authorities referred to are conclusive that he alone had the right to exercise his own judgment in declaring the result. He declared that by counting the legal votes polled Jefferson was elected. This decision could not be controverted.

J. C. Everett, also for appellant.

I. It is a settled principle that a mandamus will not lie against an officer directing him how to act and what particular to do in a matter wherein he has a discretion. Neither will it lie against one who has already done an act requiring him to undo it.

It is, however, a proper remedy to compel an inferior court to adjudicate upon a subject-matter within its jurisdiction when it neglects or refuses to do so; but when it has adjudicated, the mandamus will not lie for the purpose of revising or correcting its decisions. (See County Court of Warren v. Daniel, 2 Ky. R., 513.)

II. The action and decision of said chief justice as to the result of said election was final, and said District Court had no jurisdiction or control over the subject-matter or over the said chief justice in the premises; for the authority conferred upon the said chief justice by said statute was special and restricted to one express object. (See Acts of 1850, p. 19.) No mode is provided for revising his decision, either by said statute which conferred the authority or by any general law. His exercise of the authority conferred was definite and final. This principle was settled by this court in a case that was sent up from DeWitt county, founded upon a similar statute providing for the election of the location of the seat of justice for that county. (Baker et al. v. Chis...