Mayo v. Freeland

Citation10 Mo. 629
PartiesMAYO v. FREELAND.
Decision Date31 July 1847
CourtMissouri Supreme Court
ERROR TO PLATTE CIRCUIT COURT.

STRINGFELLOW, LEONARD & BAY, for Plaintiff. 1. In an election for clerk, it is the duty of the clerk of the County Court, and not of presiding justice, taking to his assistance two justices of the peace, or of the County Court, to examine, and cast up the votes, determine who is elected, and grant a certificate of the fact. Rev. Stat., title Elections, § 21; title Clerks, § 8.2. In determining who is elected, the canvassers are not concluded by the abstract of votes furnished by the poll judges, but in the case of a variance between the abstract of the poll-book, as to the number of votes given to a candidate, they must be governed by the poll-book. Rev. Stat., title Elections, §§ 13, 20, 21. 3. Although the canvassers ought to examine the votes publicly in the court-house, after public notice, by proclamation at the court-house door, this fact need not be inserted in their certificate of the result, nor would the omission to give public notice annul the certificate. 4. It was the duty of the presiding justice of the County Court, to grant the appellant a certificate of his election, upon the certificate of the canvassers, that he had a plurality of the votes given, and it was not competent for him to look behind the canvassers' certificate and determine for himself the result of the election.

WILSON & REES, for Defendant. 1. That unless the plaintiff moved the court to set aside the judgment and grant a new trial, or in arrest of jndgment, this court will take it for granted, that the said plaintiff acquiesced in the rendition thereof. 2. That the poll-books never were legally cast up by the justice. See the reason given by the court below. Transcript, p. 14. If so, the justice was right in making the certificate the basis of calculation. Elections, §§ 20, 449, Rev. St. of 1845. 3. A writ of error will not lie in this case. Mandamus is the proper remedy, if any, from this court. See 1 Mo. R. 191, Astor v. Chambers; also Miller & Irvine v. Richardson, 1 Mo. R. 310; these cases decide that there must be a judgment to authorize an appeal or writ of error, a mere order will not do. See also for this, 1 Bibb, 497; 2 Bacon, 452; Coke, 288; 3 Blacks. 109; 2 Pirtle's Digest, 79. 4. Mandamus will not lie where there is any other remedy. In this case the only remedy was by contesting the election under the provisions of the statute before the County Court. See Rev. Stat. 202, § 8. 5. The writ of mandamus was not the proper remedy in this case, where the office sought is held under color of right by a third person. Quo warranto is, if any. See People v. Corporation of New York, 3 Johns. Cases, 79; King v Clark, 1 East, 38; Angell & Ames on Corporations, 565; King v. Mayor of Colchester, 2 Durn. & East; see also, St. Louis County Court v. John Sparks, 10 Mo. R. 117, and 8 Pick. R. 47.

NAPTON, J.

This was a petition for a mandamus, upon the defendant in error, who was the presiding justice of the County Court of Platte county, to compel the said justice to give the petitioner a certificate of his election to the office of clerk of the County Court. The return to the conditional mandamus stated, that by the certificate of the judges and clerks of the election, at the various precincts in Platte county, the petitioner and one Daniel P. Lewis had each 590 votes, and one Peyton R. Waggoner received 559 votes; that in accordance with these returns, the defendant in error, reported the vote to the County Court as a tie, between said petitioner and said Lewis, whereupon the County Court selected said Lewis as their clerk. The justice also admitted, that by casting up the votes, as they appeared on the poll books, said petitioner had 593, and said Lewis 591 votes, but he considered himself unauthorized to go behind the certificate of the judges and clerks of the election. Upon this state of facts the peremptory mandamus was refused.

The phraseology of our act concerning Elections is not very explicit in relation to the powers of the canvassers, in going behind the certificates of the judges and clerks. The 13th section of the act directs that the judges and clerks shall take an oath for the faithful performance of their respective duties, and the clerk sare required faithfully to record the names of all the voters, and distinctly carry out in lines and columns the name of the person for whom each voter votes. The 20th section directs the judges and clerks to certify under their hands the number of votes given to each candidate, and to transmit the same, together with one of the poll-books, by one of their clerks, to the clerk of the County Court. The 21st section then authorizes the clerk of the County Court and two...

To continue reading

Request your trial
23 cases
  • State ex rel. Donnell v. Osborn, 37524.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1941
    ...Metcalf v. Garesche, 65 Mo. 480; State ex rel. Atty. Gen. v. Steers, 44 Mo. 223; State ex rel. Ford v. Trigg, 72 Mo. 366; Mayo v. Freeland, 10 Mo. 629; State ex rel. Davisson v. Bolte, 151 Mo. 372; State ex rel. Broadhead v. Berg, 76 Mo. 144; Barnes v. Gottschalk, 3 Mo. App. 122; State ex r......
  • State ex rel. Donnell v. Osburn
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1941
    ......Metcalf v. Garesche, 65 Mo. 480; State ex rel. Atty. Gen. v. Steers, 44 Mo. 223;. State ex rel. Ford v. Trigg, 72 Mo. 366; Mayo v. Freeland, 10 Mo. 629; State ex rel. Davisson v. Bolte, 151 Mo. 372; State ex rel. Broadhead v. Berg, 76 Mo. 144; Barnes v. Gottschalk, ......
  • State, ex rel. Benton v. Elder
    • United States
    • Supreme Court of Nebraska
    • January 14, 1891
    ...... 783; Ex parte Heath, 3 Hill 42; Brower v. O'Brien, 2 Ind. 423; People v. Hilliard, 29. Ill. 413; State v. Jones, 19 Ind. 356; Mayo v. Freeland, 10 Mo. 629; People v. Kilduff, 15. Ill. 492; O'Ferrall v. Colby, 2 Minn. 180;. People v. Van Cleve, 1 Mich. 362; People v. ......
  • State v. Elder
    • United States
    • Supreme Court of Nebraska
    • January 14, 1891
    ...Ed.) 783; Ex parte Heath, 3 Hill, 42;Brower v. O'Brien, 2 Ind. 423;People v. Hilliard, 29 Ill. 413;State v. Jones, 19 Ind. 357;Mayo v. Freeland, 10 Mo. 629;People v. Kilduff, 15 Ill. 492;O'Ferrall v. Colby, 2 Minn. 180, (Gil. 148;)People v. Van Cleve, 1 Mich. 363;People v. Van Slyck, 4 Cow.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT