State ex rel. Bartley v. Fletcher

• Decision Date: 31 January 1867
• Citation: 39 Mo. 388
• Parties: STATE ex rel. GEORGE BARTLEY, Petitioner, v. THOMAS C. FLETCHER, GOVERNOR, &c., Respondent.
• Court: Missouri Supreme Court

39 Mo. 388

STATE ex rel. GEORGE BARTLEY, Petitioner,

v.THOMAS C. FLETCHER, GOVERNOR, &c., Respondent.

Supreme Court of Missouri.

January Term, 1867.

Petition for Mandamus.

Sheley and Boulware, for petitioner.

I. This court has full power and authority to compel the Governor to do a mere ministerial act--State ex rel. Whiteman et al. v. Governor, 5 Ohio, 534; Bonner v. State ex rel. Pitts, 7 Ga. 473; Pacific R. R. v. Governor, 23 Mo. 353; Marbury v. Madison, 1 Cranch, 49; Cotton v. Ellis, 7 Jones (N. C.) 545.

It is admitted that this court has no power to compel the executive to do a political act; but one purely ministerial is subject to the control of this court. It is not the grade of the officer sought to be controlled by the court, but the relief sought, or, more properly, the character of the action sought to be controlled. This court cannot by mandamus compel the Circuit Court to enter up a particular judgment, but by mandamus a Circuit Court can be compelled to enter up a judgment--or, in other words, to act in any given case. It is true, the executive is co-ordinate with, and to some extent independent of, the judiciary, but not so high that it may not be reached by the judiciary.

In the case Pacific R. R. v. Governor, Judge Scott, whose argument goes to show that he believed the power existed in this court to compel the Governor by mandamus to do a mere ministerial act, after reasoning at length, he declines giving judgment because the question was waived.

In the case of Marbury v. Madison, C. J. Marshall's argument goos to show that the power existed to compel the delivery of the commission by Secretary Madison, but declines doing so for the want of jurisdiction in the court to issue the writ. He evidently establishes the doctrine that the President could be compelled by mandamus to do a mere ministerial act.

In case of State, &c., v. Governor, 5 Ohio, the Supreme Court, after reviewing the whole doctrine, unanimously decide that they have the power to compel the Governor by mandamus to do a ministerial act; and Chase, the then Governor, seems to admit the power.

The Attorney General, in the case of Kendall v. United States, 12 Pet. 600, admits that a mandamus will reach the President. It is true this is not authority, but coming from so eminent a lawyer it ought to have some weight. Upon a review of all the authorities, we are fully persuaded that the weight of authority is with us. In this country we have not adopted the maxim that “the King can do no wrong;” but if the courts refuse to control the executive by mandamus, especially in ministerial acts, we had better at once adopt the English maxim, and be content with whatever an executive may do.

II. The Governor is bound under the law to commission such persons justices of the County Court as were certified to him by the clerk to have been elected, and had no right to go behind the certificate; neither can this court upon proceeding by mandamus go behind the certificate of election--R. C. 1855, p. 556, § 6; Mayo v. Freeland, 10 Mo. 629; The People v. Head, 25 Ills. 325; People v. Hilliard, 29 Ills. 413. The section of the statute making it the duty of the clerk of the County Court to certify to the Governor the names of the persons elected justices of the County Court as well as the term of service, and it is made the imperative duty of the Governor to commission. He has no right to change or alter the return; it must stand just as it came from the hands of the clerk.

In granting a commission, the Governor acts in a mere ministerial capacity. If the Governor can go behind the certificate and look into election returns as found in the office of the Secretary of State and pass upon the validity of such returns, then he assumes judicial functions, and at once, so far as that act is concerned, becomes a part of the judiciary, thus blending the executive and judicial departments of the State.

The law nowhere requires the Governor to go to the office of the Secretary of State to learn who have been elected and what terms they are to serve. It makes it his imperative duty upon the reception of the certificate to proceed to commission. The language of the statute is, “shall thereupon commission all such persons,” &c., not may thereupon commission, &c. There is no discretion; his hands are tied, and why? The Constitution has wisely withheld from the Governor all judicial power, and the Legislature could not confer it upon him; therefore they say “shall thereupon,” leaving the whole question as to the right to hold the office open, to be determined by the proper tribunal, and by the proper writ. This doctrine is fully sustained in the case of The People, &c., v. Kilduff, 15 Ills. 500.

In a proceeding by mandamus, the court cannot go behind the certificate of the canvassers and determine who may have been legally elected to the office. “That certificate afforded prima facie evidence that the relator was legally elected, and entitled him to the office till that canvass should be set aside by a proceeding to be instituted by the defeated candidate in the courts of justice and under the forms of law”--25 Ills. 327.

“The decision of the canvassers (in this State, the clerk and two justices of the peace) was conclusive in every form in which the question could arise, except that of a direct proceeding by quo warranto to try the right”--The People v. Vail, 20 Wend. 14. In Lamb et al. v. Lynd et al., 44 Pa. 338, the Supreme Court of that State held that the select council could not refuse to perform a duty enjoined by law because a portion of the common council held their office by fraud, and say “officially they must treat as right what they have no authority to correct.” The law gives the Governor no power to correct the return, and he must treat it as right--People v. Head, 25 Ills. 325; The People, &c. v. Hilliard, 29 Ills. 420.

If these authorities be law, this court on this writ cannot go behind the certificate to ascertain whether the petitioner was or was not legally elected to office, or even to ascertain whether there was any election at all, but must decide the case upon the certificate. It is admitted that a judgment in his favor in this proceeding will not establish the right of the petitioner to the office; that question is still open, and can only be determined upon a contest or quo warranto. A judgment will only furnish him with the insignia of the office, and nothing more.Attorney General, for respondent.

Authorities--Gulick v. New, 14 Ind. 93; Patterson v. Miller et al., 2 Metc. (Ky.) 493; § 3, art. 2, Const. of Mo. R. C. 1865, p. 24; §§ 4 & 5, art. 2, Id., p. 25; § 18, art. 2, Id., p. 27; R. C. 1865, §§ 7, 8, 9, 11 & 12 of “An act to provide for the registration of voters,” p. 904; § 1 of Supplemental Act, p. 910; R. C. 1865, §§ 25 & 26, p. 63; § 25, art. 5, of the Const.

WAGNER, Judge, delivered the opinion of the court.

A mandamus is prayed for against the Governor of this State to compel him to issue a commission to the relator as one of the justices of the County Court within and for the county of Callaway. The petitioner avers that the relator was, at the general election held under and by virtue of the provisions of the Constitution and laws of this State, on the Tuesday next after the first Monday in November, A. D. 1866, elected one of the justices of the County Court within and for Callaway county; that on the 9th day of the said month of November, he and the other persons elected cast lots for the terms for which they should hold respectively; that Michael G. Bright drew the term of two years; that George Bartley, the relator, drew the term of four years, leaving the term of six years to Thomas J. Ferguson, the other person elect. The petition further states, that on the 9th day of November, 1866, William Wilson, clerk of the County Court within and for said county, certified to the Governor that Michael G. Bright, George Bartley and Thomas J. Ferguson were duly elected to the offices of justices of the County Court of Callaway county on the 6th day of November, 1866, and that they had cast lots, and Bright had drawn the term of two years, George Bartley the term of four years, and Ferguson the term of six years; which certificate was received by the Governor, and by him returned with an endorsement thereon that he refused to issue the commission to the relator. He also states that he by his agent demanded of the Governor his commission as such justice of the County Court, and that the Governor refused to deliver the same; and that he did, within fifteen days next preceding the day of election, subscribe and take the constitutional oath known as the “oath of loyalty,” and within that time caused the same to be filed in the clerk's office of the County Court of said county.

The Attorney General demurs to the petition, and alleges as grounds of objection, that it does not appear by the allegations of the petition that a registration was had in the county of Callaway as required by law; that the petition does not aver that the relator received the votes of the highest number of the qualified voters for justice of the County Court; that it is not alleged that those voting were qualified voters under the Constitution and laws of this State; that it is not stated in the petition, that those voting for the relator had been ascertained and determined to be qualified voters, under the Constitution of laws of the State by the board of appeals provided for by law, providing for the registration of voters or otherwise; that it is not shown by the petition that the relator is eligible to the office of justice of the County Court of Callaway county; that it is not alleged in the petition that the relator is not disqualified from holding the said office of County Court justice by reason of any of the provisions contained in the third section of the second article of the Constitution of this State; that this court has no authority or jurisdiction...