Smith v. Lawrence
| Decision Date | 19 June 1891 |
| Citation | 2 S.D. 185,49 N.W. 7 |
| Parties | DANIEL M. SMITH, Plaintiff and Respondent, v. JAMES LAWRENCE, J. H. Maxwell, and Thomas Mateer, Defendants and Appellants. |
| Court | South Dakota Supreme Court |
Appeal from the Circuit Court, Sully County, SD
Modified and affirmed
D. M. Anderson
Crawford & DeLand, Pierre, SD
Attorneys for appellants.
Walter C. Fawcett and John F. Hughes
Attorneys for respondent.
Opinion filed June 19, 1891
On the 27th day of December, 1890, Daniel M. Smith, plaintiff and respondent, applied to the circuit court of the sixth circuit, sitting in vacation, for a peremptory writ of mandamus, to be directed to the defendants, commanding them to reconvene as a board of canvassers of Sully county, and to complete said board by calling to its assistance an-other county officer, as provided by law, and to proceed to count, canvass, and abstract all the votes cast in said county, including precinct No. 26. Notice of the application was duly served, with a copy of the affidavit on which the application was to be made annexed thereto. The affidavit is, in substance, as follows: That on the 4th day of November, 1890, a general election was held in the county of Sully, for the election of state and county officers and for members of congress; that at said election the respondent, Daniel M. Smith, and one Albert A. Faust were candidates for the office of sheriff of said Sully county; that there were in said county 28 precincts or polling places, from all of which returns were duly and regularly made prior to November 8, 1890,—one properly sealed up and forwarded to the county auditor of said county, and one deposited with the chairman of the board of county commissioners of said county, as provided by law; that upon said day the auditor of said county called to his assistance a majority of the board of county commissioners of said county who were not candidates for office at said election,—being the three persons named as defendants herein,—there being at that time five commissioners in said Sully county duly elected and qualified, and acting as such commissioners; that H. E. Kimmell was county auditor of said county, and was a candidate at said election for re-election to said office, and that he did not otherwise act in the canvass of the votes of said county than as clerk to said board of canvassers; that the defendants Lawrence, Maxwell, and Mateer immediately proceeded to canvass the vote of said county without calling to their assistance one of the officers of said county who was not a candidate for election to any office at said election, and without calling to their assistance any other person; that said Lawrence, Maxwell, and Mateer, as such board of canvassers, proceeded to count and canvass the votes as returned to said auditor for each of the election precincts of said county, with the exception of those returned from precinct No. 26 in said county, and that the result of said count and canvass was that said respondent, Daniel M. Smith, received 289 votes for the said office of sheriff, and said Albert A. Faust received for the same office 296 votes; that said canvassing board refused to count, consider, or canvass the votes returned from precinct No. 26; that the poll-book of said precinct No. 26 contained the names of every person voted for at said election, and that from said poll-book it appears that Daniel M. Smith, respondent, received 37 votes, and said Faust received 20 votes, as candidates for the office of sheriff of said county; that had said votes from precinct No. 26 been counted and canvassed by the said board, as by law required, the count and canvass should and would have shown that said Daniel M. Smith received as candidate for sheriff 326 votes, and said Faust 316 votes for the same office, thereby giving said Smith a majority of 10 votes over the said Faust, and had said board been fully organized, entitled said Smith to a certificate of his election as sheriff of said county; that said Smith was fully qualified to act as sheriff of said county, and that, although the defendants have often been requested, they have utterly failed and refused, and still do refuse, to do their duty as such county canvassers in the premises, and have ordered the county auditor of said county to issue a certificate of election to said Faust, showing him to be elected sheriff of said county, and which certificate has been issued to him by said auditor.
The proceedings were originally commenced in the name of the state, on the relation of Daniel M. Smith, but, on motion of the defendants, the name of the state was stricken out, and the case has since proceeded in the name of the plaintiff, Daniel M. Smith, who is the real party in interest, and is, we think, the proper party plaintiff. When the proceeding is to redress a private wrong, as was evidently the object of this proceeding, the party beneficially interested should be named as the plaintiff. Linden v. Alameda Co., 45 Cal. 7; Damrell v. San Joaquin, 40 Cal. 158; Hagerty v. Arnold, 13 Kan. 367. Counsel for the defendants filed a motion to dismiss the application on certain grounds therein stated, which being denied, the defendants interposed a demurrer to the application, upon substantially the same grounds as stated in the motion; the sixth ground of said demurrer being "that the affidavit presented for said peremptory writ of mandamus does not state facts sufficient to justify the court in granting said writ." The demurrer was overruled, and from the order overruling the demurrer an appeal was taken to this court, and is now pending. But as the sufficiency of the pleading is raised by the objection to the affidavit taken in this court, as well as by the demurrer, we will consider the sufficiency of the affidavit on this appeal from the judgment, reserving the question argued on appeal from the order, as to whether or not an appeal can be taken from an order overruling a demurrer to the affidavit in this class of cases, for future consideration.
Does the affidavit state facts sufficient to authorize a court to issue the writ? It is contended by counsel for appellants that the writ should not issue for the reason that the facts disclosed by the affidavit show that the board of canvassers was properly organized by the county auditor, performed its duties as such, and adjourned prior to the institution of this proceeding, and as a part of the relief demanded by the plaintiff is that the three canvassers, defendants herein, shall call to their assistance another county officer, as provided in Section 18, Chapter 84, Laws 1890, and which relief the court will not grant any relief in the premises.
While we agree with the counsel in their contention that the board of canvassers was legally and properly constituted, we do not agree with them in their conclusion that the court is precluded from issuing the writ because it cannot grant plain-tiff all the relief asked But we are of the opinion that, though plaintiff may have demanded greater relief than he is entitled to by law, the court may grant him the relief to which he is en-titled under the facts stated. State v. Crites (Ohio) 26 N.E. 1052; State v. Board, 36 Ohio St. 409; Ross v. Board, 42 Ohio St. 379. It appears from the affidavit that in Sully county there were five county commissioners duly elected and qualified, and that the auditor took to his assistance in canvassing the vote of said county a majority of said board. It also appears that the auditor was himself a candidate for re-election. This renders necessary the construction of Sections 1, 18, Chapter 84, Laws 1890. Section 1 of that Chapter provides:
"On or before the tenth day after the close of any election, or [as] soon thereafter as all the returns are received, the county clerk or auditor shall take to his assistance a majority of the county commissioners of the county, or the county treasurer, judge of the county court, and one county commissioner, none of which persons so called shall be candidates for office, unless there is not sufficient of said officers who are not such candidates, and shall proceed to open the returns from the various voting precincts in said county, and make abstracts of the votes in the following manner. ... "
And Section 18 provides:
"If the county auditor or county clerk, as the case may be, is a candidate for office, he shall take no part in the canvass, but shall act as a clerk of said board of canvassers for the county, and the two officers called to the assistance of the county clerk or auditor to make the county canvass shall call to their assistance one of the officers of said county, who is not a candidate, and, if there is none of said officers remaining who is not a candidate, then they shall call to their assistance a justice of the peace, and it shall thereupon be their duty to at once attend and make said canvass as hereinbefore provided."
Both sections seems to have been drawn upon the theory that no county has more than three commissioners. If such were the case, there would be no difficulty in construing the two sections together. But when there are five commissioners in a county, as there were in Sully county, a difficulty in construing the two sections at once arises. By Section 1 of that chapter the county auditor and a majority of the county commissioners, or the county auditor and the treasurer, judge of the county court, and one commissioner, constitute the board of canvassers. Now it is provided by Section 18 that when the auditor is a candidate the two called to his assistance shall call to their assistance one of the other officers designated in that section. It is contended by the counsel for the defendants that when a county has five commissioners, and a majority is taken to the assistance of the auditor, the three constitute a full board, as well in cases where the auditor is himself a candidate as when he is not, and that the three taken are not required...
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