Clark v. McKenzie
| Decision Date | 01 February 1870 |
| Citation | 70 Ky. 523 |
| Parties | Clark v. McKenzie, & c. |
| Court | Kentucky Court of Appeals |
APPEAL FROM CHRISTIAN CIRCUIT COURT.
J. I LANDES, FELAND & EVANS, E. P. CAMPBELL, H. R. LITTELL, For Appellant,
11 B Mon. 154, Justices of Clarke Co. v. The P. W. and K. R Turnpike Co.
18 B Monroe, 852, Anderson County Court v. Stone & Son.
13 B. Monroe, 515, Newcum v. Kirtley.
29 Illinois, 414, People ex rel. Fuller v. Hilliard.
22 Barb. 72, Morgan v. Quackenbush.
14 Ohio State, 322, Ingerson v. Berry.
| 14 Barb. 259. | 1 Stanton, 433. |
2 Metcalfe, 497, Patterson v. Miller.
4 Dana, 466, Jeffrey's heirs v. Collis.
3 B. Monroe, 346, Evans v. Davis.
4 B. Monroe, 18, Graham, & c. v. Lynn.
2 Carter (Indiana) 423, Brower v. O'Brien.
3 Hill, 42, Ex parte Heath.
4 Selden, 80, People v. Cook.
2 Cal. 135, Gorham v. Campbell.
7 Clarke (Iowa) 186, State v. County Judge.
7 Clarke (Iowa) 390, State v. Bailey.
1 Metcalfe, 543, Batman v. Megowan.
8 B. Monroe, 648, Page v. Hardin.
3 J. J. Marshall, 406, Taylor v. Commonwealth.
5 Dana, 549, Johnson v. Gresham.
6 Dana, 188, Harrison v. Woodruff.
3 Blackstone's Commentaries, page 110.
3 Metcalfe, 499, Hammar v. City of Covington.
4 Metcalfe, 236, Applegate v. Applegate.
3 Bush, 231,Lindsey v. Auditor.
1 Bush, 202, Cox, & c. v. Kash.
1 Cranch, 137, Marberry v. Madison.
2 Gray, 270, Ellis v. County Commissioners.
| 3 Burr, 1421. | 8 Mod. 344. |
Revised Statutes, 1 Stanton, section 2, page 436.
Revised Statutes, 1 Stanton, section 5, page 432.
Civil Code, sections 529, 526, 523, 18.
Session Acts, 1869-70, page 138.
Con. of Ky., sec. 24, art. 8; sec. 17, art. 4; sec. 20, art. 2.
Revised Statutes, chapter 36, articles 3, 5, 7.
J. P. RITTER & BROTHER, MCPHERSON & CHAMPLIN, PHELPS & SON, PETREE & FAULKNER, JOHN RODMAN, For Appellees,
18 B. Monroe, 426, Goheen v. Myers.
13 B. Monroe, 517, Newcum v. Kirtley.
| 12 Peters, 524. | 13 Peters, 279. |
| 10 Pickering, 244. | 18 Wendell, 79. |
| 13 B. Monroe, 517. | 1 Duvall, 40. |
| 3 J. J. Marshall, 406. | 1 Metcalfe, 539. |
| 1 Wendell, 318. | 6 Wharton, 476. |
2 Metcalfe, 65, Maddox, & c. v. Graham & Knox.
| 2 Selwyn's Nisi Prius, 1062. | Act of March 21, 1870. |
2 Metcalfe, 497, Patterson v. Miller.
Bouvier's Law Dictionary, " Mandamus, " 2.
Constitution of Kentucky, secs. 25, 26, art. 8.
Revised Statutes, 2 Stanton, 436.
Revised Statutes, 1 Stanton, 443, 444.
Tapping on Mandamus, side-page 18.
At the August election, 1870, Albert H. Clark and James O. Ellis were rival candidates for the office of judge of the Christian County Court. On the day designated by law for that purpose, W. W. McKenzie, the then county judge, and E. M. Buckner, the county court clerk for said county, organized as an examining board for the purpose of comparing the polls. Upon examination it was found that one of the pages of the poll-book of Hamby's election precinct was unattached to the remainder of the book, and was not signed by the clerk as required by the statute. The same was rejected by the examiners, and the votes thereon recorded were not counted. It is admitted that upon the page so rejected the names of thirty-four voters were recorded, twenty-nine of whom voted for Clark and five for Ellis. If these votes were properly rejected, it results that Ellis received one thousand nine hundred and forty-five votes and Clark one thousand nine hundred and twenty-three. Upon the other hand, if they were improperly rejected, Ellis received one thousand nine hundred and fifty votes and Clark one thousand nine hundred and fifty-two. In consequence, however, of the rejection by the examiners of said unattached and unsigned page, the certificate of election was given to Ellis.
Clark at once filed his petition in the Christian Circuit Court, and gave notice to the officers composing the examining board that he would apply for a writ of mandamus to compel them to count all the votes polled at Hamby's precinct, and to issue to him a certificate of his election to the office of county judge for said county.
His petition was dismissed and the mandamus refused; and this action of the circuit court is now before us for revision.
The duties of the examiners are merely mechanical or mathematical. They may possibly judge as to whether or not the returns of the election are in proper form and legally attested; but after that they must compute the votes cast for the several candidates, and issue certificates of election in accordance with the result. They must give " written certificates of election over their signatures of those who have received the highest number of votes for any office exclusively within the gift of the voters of the county; one copy of the certificate to be retained in the clerk's office, another delivered to the persons elected, and the other forwarded to the secretary of state at Frankfort. (Section 2, article 5, chapter 32, Revised Statutes.)
Such duties are purely ministerial, and the officers composing the examining board can be compelled by mandamus to perform them. In case the board refuses to issue the certificate of election to the person receiving the highest number of votes for a county office, and relief by mandamus is withheld, the party aggreived can have no remedy whatever. Possibly he might contest the election of the person to whom the certificate was improperly issued and recover the office. But the person receiving the highest number of votes is entitled to the certificate of election, and this can not be awarded him by a contesting board. This certificate has an intrinsic value. It is the evidence of the election of the person holding it to the office claimed. As it can not rightfully be withheld from the person receiving the highest number of votes, and as the law provides no other remedy by which it can be obtained, the circuit courts must have the power in all cases in which it is improperly refused to reach the officers composing the delinquent board by writ of mandamus. (Batman v. Megowan, 1 Met. 540.) Nor do we regard it an available objection that the board has already acted in the matter, as in this case. Inferior judicial tribunals can not be controlled in their action by mandamus. They can be compelled to act; but, having discretion in all judicial questions, they must in such be allowed to determine how they shall act. It is not so, however, with ministerial officers. Until they have performed the exact duty imposed upon them by law they must be considered as in default; and in a case like this it would be a legal anomaly to allow the examining board to rely upon the fact that they had issued the certificate of election to a party who had not received the largest number of votes, contrary to an express provision of the law, as a sufficient reason why they should not be compelled to perform an imperative duty. (People ex rel. Fuller v. Hilliard et al., 29 Illinois.)
The chapter of the Revised Statutes regulating elections provides that the judges of the election shall see that the voters' names are properly recorded in the poll-books attend to the proper summing up of the votes, certify the poll-books over their signatures, and deliver the same, inclosed in an envelope sealed by them before they separate, to the sheriff. All these duties were strictly complied with by the judges of the election at Hamby's precinct. The poll-book furnished by the clerk would not contain the names of all the persons offering to vote, in consequence of which fact the clerk prepared...
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