People ex rel. Bruce v. Dunne

• Decision Date: 19 April 1913
• Citation: 258 Ill. 441,101 N.E. 560
• Parties: PEOPLE ex rel. BRUCE v. DUNNE, Governor, et al; PEOPLE ex rel. FELTS v. DUNNE
• Court: Illinois Supreme Court

258 Ill. 441

101 N.E. 560

PEOPLE ex rel. BRUCE

v.DUNNE, Governor, et al;

PEOPLE ex rel. FELTS

v.DUNNE

Supreme Court of Illinois.

April 19, 1913.

Petition for a peremptory writ of mandamus by the People, on the relation of George R. Bruce, petitioner, against Edward F. Dunne, as Governor, etc., and by the People, on the relation of James H. Felts, petitioner, against the same defendants. Writs denied.John E. Hogan, of Taylorville, W. S. Cantrell, of Benton, and George B. Gillespie, of Springfield (Gillespie & Fitzgerald, of Springfield, of counsel), for petitioners.

P. J. Lucey, Atty. Gen., and Lester H. Strawn, of Ottawa, and Frank F. Noleman and June C. Smith, both of Centralia, for defendants George A. Miller and R. D. Kirkpatrick.

CARTWRIGHT, J.

By leave of court granted at the December term, 1912, George R. Bruce filed his petition for a peremptory writ of mandamus directed to Charles S. Deneen, Governor, CorneliusJ. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General. The petition alleged that at the general election held in the Twenty-Third senatorial district in November, 1912, the petitioner was a candidate for the office of representative in the General Assembly; that the canvassing board for Cook county outside of the city of Chicago and town of Cicero, and the canvassing board for said city and town, severally canvassed the returns of said election and certified the result to the county clerk; that the county clerk prepared abstracts of the votes, showing that Joseph Strauss received 9,997 1/2 votes, the petitioner, George R. Bruce, 10,925, George A. Miller 10,778, Carl Bloomberg 9,172 1/2, J. C. Scovern 274, Christian M. Madsen 13,699, and Emil N. Zolla 17,285, and an abstract, properly certified, was forwarded to the Secretary of State; that notwithstanding the petitioner was one of the three who received the highest number of votes, as shown by said abstract, said Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. Deneen, Governor, refused to declare the petitioner elected, and said Charles S. Deneen, Governor, refused to make proclamation that the petitioner had been duly elected a representative in the General Assembly. The prayer was for the writ, directed to Charles S. Deneen, Governor, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General, commanding them forthwith to correctly and properly canvass the abstract of votes as returned to them and to declare the petitioner elected to said office, and to cause proclamation of the result to be made and to issue a certificate of election to the petitioner.

By like leave a petition for a peremptory writ of mandamus was filed by James H. Felts against the same defendants, alleging that he was a candidate in the Fiftieth senatorial district, at the same election, for the office of representative in the General Assembly; that the canvassing boards of the counties composing the district canvassed the returns, and the county clerk in each county prepared an abstract of the votes cast and forwarded the same to Cornelius J. Doyle, Secretary of State; that the total votes received by the candidates, as shown by the abstracts, were as follows: George W. Crawford 17,551, the petitioner, James H. Felts, 16,281, R. D. Kirkpatrick 16,143 1/2, and Charles Curran 17,525; that notwithstanding the petitioner was one of the three who received the highest number of votes, as shown by the abstracts, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. Deneen, Governor, refused to declare the petitioner elected, and that Charles S. Deneen, Governor, refused to make proclamation that the petitioner had been elected or to certify to his election. The prayer was of the same character as that of George R. Bruce.

Writs were issued, returnable on the first day of the succeeding February term. Before the return day of the writs, the terms of office of the defendants had expired, and the petitioners were permitted to amend the titles of their suits so as to prosecute in the name of the people, on relation of the said petitioners, respectively, and to amend their petitions by substituting for the original defendants their successors in office, Edward F. Dunne, Governor, Harry Woods, Secretary of State, James J. Brady, Auditor, William Ryan, Jr., Treasurer, and P. J. Lucey, Attorney General. The prayers were also amended so as to ask the court to require the Governor to make proclamation that the relators were duly elected and to issue certificates of election to them, instead of commanding all of the defendants to perform such acts. The defendants, who were substituted, appeared and answered the petition in each case, admitting the averments contained therein, except as to William H. Stead, Attorney General, who, the answers averred, refused to take part in the proceedings. The answers averred that the Secretary of State, Auditor, and Treasurer met as a canvassing board in the presence of the Governor, and, objection being made to the returns, heard evidence as to their correctness, and found that the returns as received were erroneous, and while the returns showed the relators elected they were not correct, and therefore they refused to make proclamation that the relators had been duly elected. They further set forth in their answers their election to the offices of Governor, Secretary of State, Auditor, Treasurer, and Attorney General, and submitted to the court whether the writs asked for should issue. George A. Miller and R. D. Kirkpatrick presented motions to be admitted as defendants, from which it appeared that certificates of election had been issued to them by Gov. Deneen, and counsel for the relators in each case, in the statement of the case, say that certificates of election were so issued to George A. Miller and R. D. Kirkpatrick, and that the state canvassing board went back of the abstracts of the votes and attempted to correct errors in the work of the judges of election and the county canvassing boards. The Election Law provides that one of the lists of voters, with the certificate of the judges of election written thereon, and one of the tally papers, footed up, shall be directed to the Secretary of State, and mailed to him, to be kept for one year. The canvassing board accepted the lists of voters and tally papers in preference to the abstracts. The cases were submitted on the petitions and answers. The questions in the two cases and the arguments of counsel in each being identical, they were heard and have been considered together.

The points which are made in the briefs and argued by counsel for the relators are that the duties of the state canvassing board are purely ministerial; that a writ of mandamus may issue against the Governor to compel the performanceof such duties; that the state canvassing board had no right to look back of the abstracts of votes and the certificates of the county canvassing boards, but should have accepted them and declared the result accordingly, and that the state canvassing board is a permanent body, and the act sought to be compelled is one which does not require a reassembling of the board. The brief of the Attorney General for the defendants makes the following points, followed by an argument in support of them: That the state canvassing board can act only upon the certified statements of the county canvassers, and has no authority to procure corrected returns or go behind the returns or receive testimony either to sustain or invalidate them; that the duties of the canvassing board are purely ministerial, and mandamus will lie to compel the board to issue a certificate to the person having the greatest number of votes, as shown by the returns; that, while the writ cannot issue to control the head of an executive department in the discharge of a duty involving judgment and discretion, mandamus may issue where the duty is merely ministerial; and that the writ will issue against the Governor and other executive officers when they have submitted to the jurisdiction of the court.

[1] It will therefore be seen that there is entire agreement between the counsel for the relators and the Attorney General, representing the defendants, concerning the questions of law involved; and, there being no controversy or difference of opinion between them respecting the law and the duty of the state canvassing board, there does not seem to be any necessity for calling into exercise the power of the court to coerce the defendants to do what they admit to be their duty under the law. The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty which one charged with the duty has refused to perform. The writ can only be issued to compel a party to act when it was his duty to act without it. It confers upon the party against whom it may be issued no new authority, and from its very nature can confer none. People v. Gilmer, 5 Gilman, 242;City of Ottawa v. People, 48 Ill. 233;People v. Cline, 63 Ill. 394. If it is the duty of the defendants to do the acts sought to be coerced by the writ, such acts would not be any more valid or legal if done under the command of the court. The office of the writ is to compel action by the unwilling. There must be a refusal to perform the act; and, if a personal right is involved, a refusal must follow a demand. The writ will not issue to compel the doing of an act which the person sought to be coerced admits on the record he is willing to do without coercion. People v. Dulaney, 96 Ill. 503.

[2] There is another inquiry that must be made and answered before we can determine whether the writs should...