O'Ferrall v. Colby

• Decision Date: 01 January 1858
• Citation: 2 Minn. 180
• Parties: IGNATIUS F. O'FERRALL vs. CHARLES M. COLBY; AND O. B. BRYANT vs. THE SAME.
• Court: Minnesota Supreme Court

Page 180

2 Minn. 180

IGNATIUS F. O'FERRALL vs. CHARLES M. COLBY; AND O. B. BRYANT vs. THE SAME.

Supreme Court of Minnesota.

Applications for writs of mandamus.

Points and authorities for the petitioner.

1. The supreme court has original jurisdiction to issue the writ. Const. art. 6, § 2; Rev. Stat. 286, § 5.

2. The writ of mandamus is the proper remedy. 3 Black. Com. 110; Jacob's Law Dic. vol. 4, 223; People v. Steele, 2 Barb. 418.

3. The clerk of the board of county supervisors is the mere minister of the law. It is made his duty to issue a certificate to the person having the highest number of votes as appears from the returns, and he has no judgment or discretion in the premises. Rev. Stat. 50, § 33; id. 63; People v. Sup'vsrs of Chenango Co. 8 N. Y. 317; Rev. Stat. N. Y. (4th Ed.) vol. 1, 351; 4 Cow. 297; Rev. Stat. (Ind.) 264; 2 Carter, (Ind.) 423.

4. The clerk, in this instance, has usurped the constitutional authority given to each house of the legislature, of adjudging upon election returns and of the eligibility of its members. His duty is to furnish the applicant with his credentials, or the evidence prima facie to assert his claim before the proper tribunal. It determines nothing in regard to his election or eligibility. Brower v. O'Brien, 2 Carter, (Ind.) 423.

5. That certificates have been issued in confessed violation of law, cannot affect the right of the petitioners to have them issued in accordance with the law. An act nugatory and unlawful is no excuse for the non-performance of a duty imposed by law. People v. Sup'vsrs of Chenango Co. 8 N. Y. 317.

Points and authorities for respondent:

A mandamus will not be issued unless the party against whom it is sought has refused to perform his duty. 3 Ad. & E. 217; id. 477; 4 Nev. & M. 871. The duties of the board of canvassers are not merely ministerial; and their discretion cannot be controlled or revised. Rev. Stat. 50, § 33; id. 52, § 43; id. 53, § 49; Sess. Laws, 1856, 10; 6 Texas, 457. A mere ministerial act performed cannot be reviewed or revised by mandamus. To entitle a party to a writ of mandamus, he must show a present legal obligation or duty on the part of the person to whom it is to be directed to do the act sought to be done, and that he has yet a legal power or right to perform. 12 Barb. 217; 6 Tex. 457; 15 Barb. 607. There is no present obligation upon the part of the defendant to issue second certificates of election, and he has no legal right or power to do so. Mandamus does not lie to admit a person to an office in which there is another under prima facie title, by color of right; quo warranto is the proper remedy. 3 Johns. Cas. 79; 7 Geo. 473; 10 Miss. 117. Mandamus will not lie where there is another remedy. 6 Hill, 244; 2 Hill, 45; 7 Ohio St. 450; Rev. Stat. 423, § 5. The applicant has another "plain, speedy, and adequate" remedy. Const. art. 4, § 3. If any writ should be allowed, it should be an alternative.

McMahon & Jones, and Brisbin & Bigelow, for petitioner.

D. S. Norton, for respondent.

EMMETT, C. J.

These were separate motions for peremptory writs of mandamus, to compel the defendant, as the clerk of the board of supervisors of Fillmore county, to give to the plaintiffs certificates of their election to the state senate from said county. The applications were made, in the first instance, to Justice Flandrau, who directed the motions to be made at the present term, upon notice to the defendant. They both depend upon the same facts, and were argued and submitted together. The moving papers show that at the general election held on the 12th day of October, A. D. 1858, two senators were to be elected from the county of Fillmore. That the plaintiffs, O'Ferrall and Bryant, and H. W. Holley and R. Wells, were respectively candidates for the office of state senator, and were the only persons for whom votes were cast at said election for said office. That the returns of said election, from each of the several election precincts of said county, were duly made to the defendant, as the clerk of the board of supervisors of said county. That after the receipt of all of the returns from the several election precincts, the defendant, in his official capacity as clerk of the said board of supervisors, and within the time prescribed by law, taking to his assistance two justices of the peace of said county, proceeded to open said returns and make abstracts of the votes, and that by said returns the plaintiffs respectively had a greater number of votes for said office than either of the other persons voted for. But that the defendant, as such clerk, refused to include, in his estimate of the votes, the returns received from the town of Chatfield, a legally constituted election precinct of said county, although the same were duly received by him, and opened in the presence of said justices of the peace; and refused to give to the plaintiffs, respectively, certificates of their election to said office; and that the defendant still has in his possession, and under his control, all the election returns from said county, by which he is still enabled to give certificates of election to each of the persons having the highest number of votes.

The affidavit of the defendant, in opposition to these motions, does not deny any of these facts, nor, indeed, any material fact alleged in the papers read on the part of the plaintiffs. He admits that he is now, and ever since said election has been clerk of the board of supervisors of Fillmore county, and that, as such clerk, he received the returns of said election from all of the precincts in said county. He alleges that on the 25th day of October, A. D. 1858, he called to his assistance two justices of the peace of said county, and proceeded to open the returns of said election, and to make abstracts of the votes therein contained. That they opened all of said returns, and then and there made an abstract of all the legal votes; a true copy of which abstract is attached to the moving papers. He then avers that it became his duty to give certificates of election to the several persons who appeared, by such abstracts, to have the highest number of votes, and that, accordingly, he did immediately give to the said H. W. Holley, and the said R. Wells, each a certificate of election to the office of state senator for said county of Fillmore, they having the highest number of votes, as appeared by said abstract. And in conclusion, he denies that the plaintiffs were duly elected at said election. He does not, however, deny that he refused to include, in the estimate of votes cast at said election, the returns of the election held in the Chatfield precinct; nor that the plaintiffs had, respectively, the greatest number of votes, by the returns made and received from established precincts; nor that he refused to give them certificates of election; nor that all of said returns are still in his possession as such clerk, and under his control. He confines himself strictly to a denial of conclusions of law.

The abstract referred to shows that the said Holley received 987 votes, and that the said Wells received 994 votes, and that the plaintiff O'Ferrall received 900 votes, and the plaintiff Bryant 901 votes, all for state senator. The returns from Chatfield, as certified to by the defendant in his official capacity, show that, at the election held in that precinct, Holley received 89 votes, Wells 85 votes, the plaintiff O'Ferrall 206 votes, and the plaintiff Bryant 191 votes, for state senator. Had the votes in the returns from the Chatfield precinct been included in the estimate, the number for each candidate would have corresponded with the number which the plaintiffs claim each to have received, and the plaintiffs would then have been entitled to certificates of election as the persons having the greatest number of votes for senator. But the returns from the Chatfield precinct were not included in the abstract, and the defendant, refusing to consider any votes not estimated in making out the abstract, gave certificates of election to the said Holley and Wells. Whether he had any discretion in the premises is the material question for consideration.

The genuineness of the returns from the Chatfield precinct is not denied, nor does it appear in the case, why they were not included in the estimate of votes; but we infer from the arguments of counsel, and the denial by the defendant that the plaintiffs were duly elected, and his averment that all the legal votes cast at said election were canvassed, that these returns were excluded because, in the opinion of the board of canvassers, they contained illegal votes. We hold, however, that neither the board of canvassers, nor the clerk of the board of supervisors, has anything to do with the question as to whether any returns received by said clerk from established precincts contain illegal votes. The statute has provided for the election of judges to superintend the voting at each precinct, whose sworn duty it is to guard the polls against illegal voting. The right to challenge votes is given to all. The voter, if challenged, must take the oath prescribed, and after that even, the judges of election may refuse to receive his vote, if they are satisfied from other evidence that he is not a legal voter. After the polls are closed, the judges of election must publicly canvass the votes received, and...