State ex rel. Bell v. Harrison

• Decision Date: 31 October 1866
• Citation: 38 Mo. 540
• Parties: STATE OF MISSOURI ex rel. JOHN B. BELL, Petitioner v. SAMUEL HARRISON, Respondent.
• Court: Missouri Supreme Court

38 Mo. 540

STATE OF MISSOURI ex rel. JOHN B. BELL, Petitioner

v.SAMUEL HARRISON, Respondent.

Supreme Court of Missouri.

October Term, 1866.

Mandamus to Clerk of Washington County Court.

Van Allen, for petitioner.

The petitioner shows that he filed the oath of loyalty required of all candidates--§ 8, art. 2, Const. Mo., R. C. 26.

The petition further shows that he was a candidate for the office of circuit clerk of Washington county, Mo., at the general election held November 6, 1866; and that on the 8th day of November, 1866, Samuel Harrison, clerk of the County Court, with the assistance of Jonas Anthony and Michael Maloney, two justices of the peace of said county, examined and cast up the votes given to each candidate, as required to do by § 25, ch. 2, tit. 2, R. C. 1865, p. 63.

The petition further shows that the said clerk and his assistants cast up a large majority of votes in favor of the petitioner, nevertheless he refuses to give to the petitioner a certificate of election as required to do by § 25 aforesaid.

By § 52, ch. 2, tit. 2, R. C. 1865, p. 66, it is provided that no election of any county officer shall be contested unless legal notice in writing be given, &c., to the opposite party within twenty days after the vote shall be officially counted. See also Castello v. St. Louis Co. Ct., 28 Mo. 259.

The petition in this case shows that the votes were officially counted by the clerk on the 8th day of November, 1866. With that count this petitioner is entirely satisfied, and has no desire to contest it.

As soon as the clerk with his assistants had officially counted the votes on the 8th day of November, he dismissed his assistants, the candidates and spectators left, and there remained but one duty for the clerk to perform, and that was to deliver to your petitioner, in accordance with such official count, a certificate of his election as circuit clerk of Washington county, Missouri. The clerk of the County Court having refused to perform that duty, your petitioner asks this court to compel him by mandamus.

The duty of giving a certificate of election is a simple clerical act, and this petitioner having no other remedy he is entitled to the aid of this court by its process of mandamus--33 Mo. 293; 35 Mo. 198; 7 Johns. (N. Y.) 549.

The clerk having officially counted the votes on the 8th day of November, he cannot after that day change that count. To allow him to do so would, in effect, nullifiy the provisions of § 26, ch. 2, tit. 2, R. C. 1865, by which he is required to compare the returns publicly, &c., giving proclamation at the court-house door--§ 26, ch. 2, tit. 2, R. C. 63.

If the clerk may change the count which he made publicly on the 8th, in the presence of your petitioner and others, he can then, at any time privately, deprive a candidate, legally qualified and elected, of his right to appeal, as a candidate is not supposed to know what acts an officer performs in privacy, or his reasons therefor; and therefore, in his notice of appeal to the Circuit Court, he cannot state the grounds of error committed by the clerk of the County Court in his recount made privately and without the legal assistance which the law requires in § 25, ch. 2, tit. 2.

The granting of the certificate of election does not determine the ultimate right to the office; it is only a prima facie right to qualify and hold until after the twenty days: then, if no other candidate gives him a legal notice of appeal, his right to the office is absolute.

Knox & Smith, for respondent.

WAGNER, Judge, delivered the opinion of the court.

The petitioner prays a mandamus in this court to compel the respondent, who is county clerk of Washington county, to grant him a certificate of election as clerk of the Circuit Court of said county. He alleges in his petition that at the general election held in the county of Washington on the 6th day of November, 1866, he was a candidate for the office of circuit clerk of said county, and that within fifteen days previous to the election he subscribed and filed the oath of loyalty required by the Constitution, and that after such election, to-wit, on the 8th day of November, the respondent as county clerk of said county, with the assistance of two justices of the peace, publicly and in the presence of several citizens and candidates in the court-house, in the town of Potosi in said county, did examine and cast up the votes which had been given for the several candidates at the said preceding general election; and that the respondent, as clerk, and his assistants, did find and cast up five hundred and sixteen votes that had been cast for and given to the petitioner for the office of clerk of the...