Clark v. Buchanan

• Decision Date: 01 January 1858
• Citation: 2 Minn. 346
• Parties: LUTHER E. CLARK vs. ALEX. BUCHANAN et al.
• Court: Minnesota Supreme Court

Page 346

2 Minn. 346

LUTHER E. CLARK vs. ALEX. BUCHANAN et al.

Supreme Court of Minnesota.

The writ of mandamus will not lie to require an act to be done, which it would not be lawful for the person to do without it.

This was an application for a writ of mandamus to the board of county commissioners of the county of Ramsey, and to Buchanan, the clerk of the board, requiring them, as the board of canvassers of election returns, to recanvass the returns of votes for the office of county treasurer, and to issue a certificate of election to Clark.

ATWATER, J.

The defendants, by way of answer to the complaint of the applicant in this case, set up various matters, and allege, among other things, "that after the canvass made as stated in the petition herein, the board of canvassers organized as stated in said petition, adjourned sine die, and became dissolved," &c.

This statement must be taken as admitted by the applicant, and the question which is thereupon first suggested for the consideration of the court is, whether a writ of mandamus can properly issue to the defendants, or any of them, requiring performance of the act asked for in the petition or complaint. Section 4, ch. 83, Rev. Stat., provides that a writ of mandamus "may be issued to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station," &c. The complaint alleges in substance, that the defendants acted as the board of canvassers for Ramsey county, of the October election in 1858, and states that they neglected and refused to abstract or notice the vote cast for the plaintiff for the office of county treasurer, &c., and prays that they may now be required to abstract said votes, and the clerk be required to issue his certificate of election to the office of county treasurer, to the plaintiff.

We think the complaint upon demurrer could not have been held good, as there is no allegation that the board of county canvassers was in existence at the time the complaint was framed, or that it was in their power to perform the act required. The complaint does not set forth a cause of action against the defendants individually or personally, but attempts to do so in their official capacity as a "board of canvassers." It is essential, therefore, for the plaintiff to show in the first instance that such a board exists, for the act which he requires them to perform, must be performed, if at all, in their official capacity as a board of canvassers, and not as individuals. And not only that, but it should state that it is in their power and their duty to do the act required; and by the statute above quoted, and the case made by the complaint, the writ must issue, if at all, to the board, or at least to the defendants, as a board of county canvassers, requiring them to perform the act prayed for in their official capacity, as such board of canvassers. It is clearly necessary, therefore, for the plaintiff to show affirmatively that such a board exists; otherwise there can be no foundation for the issuing of the writ, whatever may be the grievances of which the plaintiff may justly complain.

The defendants, in their answer, have directly denied the existence of the board, and claim that after the canvass of votes at the time stated in the complaint, the board adjourned sine die, and became dissolved. Whether, therefore, by demurrer or answer, the question of the existence of the board is properly before the court, as a question of law only, as in this application all facts stated in the pleadings must be admitted, or else the case disposed of as...