State ex rel. Bland v. Rodman

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: State ex rel. Bland v. Rodman, 43 Mo. 256 (Mo. 1869)
• Decision Date: 31 January 1869
• Parties: THE STATE ex rel. CHARLES C. BLAND, Petitioner, v. FRANCIS RODMAN, Secretary of State, Respondent.

43 Mo. 256

THE STATE ex rel. CHARLES C. BLAND, Petitioner,

v.FRANCIS RODMAN, Secretary of State, Respondent.

Supreme Court of Missouri.

January Term, 1869.

Petition for Mandamus.

Miller, and Ewing & Smith, for relator.

I. The only issue made by the pleadings in this case is, “Did the secretary of State, in the presence of the governor, open the returns and cast up the votes given for all the candidates for the office of judge of the eighteenth judicial circuit, and certify to the governor the name of the candidate receiving the highest number of votes for said office of judge of the said eighteenth judicial circuit at said general election?”

II. The abstract of the returns of the votes in the eighteenth judicial circuit, cast up by the respondent as certified by him, and his oral testimony, settle the fact that in his count he omitted to open and cast up the vote of Oregon and Shannon counties, although the abstract thereof was in the office of secretary of State at the very time the official casting up was made.

III. The secretary of State has not opened the returns as required by law. (Gen Stat. 1865, p. 64, § 32.)

IV. The secretary has omitted to perform a plain statutory duty, entirely ministerial in its character, and in such case mandamus is the remedy. (38 Mo. 540; 41 Mo. 32, 38.)

V. The evidence in this case shows no good cause (nor does the return) on the part of the respondent for not casting up the returns from all the counties in said eighteenth judicial circuit; and for this reason a peremptory writ of mandamus must issue, in conformity to the prayer of the petitioner. (35 Mo. 198.)

VI. The view of this case entertained and relied on by respondent recognizes in that functionary the concentration of all the powers of the registration officers, and the courts in contested election cases, with an absolute power to declare any man elected for any office, in defiance of the popular will, lawfully expressed, and the laws of the State.

VII. The respondent's return does not admit that he did not cast up all the returns from the eighteenth judicial circuit, but avers that he did his duty. But the argument of the attorney-general is predicated upon the idea that the respondent omitted a public duty, but that it is now too late to compel its performance. The return and argument proceed upon entirely different grounds of defense. The case must be decided on the respondent's return, and not upon that of the attorney-general. This case must stand upon the petition, the return, answer, and proof. The proof is conclusive that the return is false. The respondent might have asked and perhaps obtained leave of court to amend his return, but he failed to do so. (10 Iowa, 65.) Electing to stand on his answer, admitted by himself to be false, will the court not compel him to do his duty? (See, generally, Moses on Mand. 210-22; 7 Iowa, 390; Marberry v. Madison, 1 Cr. 137.)

H. B. Johnson, attorney-general, for respondent.

I. Mandamus will not lie where the party has any other remedy. In this case his remedy is by quo warranto, or by contested election.

II. A mandamus cannot be issued to restore to a party an office, or a title to an office, when the office is already filled by a person holding by a color of right. (10 Mo. 117; Moses on Mand. 150.)

III. Courts will not grant a writ of mandamus when it would be fruitless to finally avail the party. (Moses on Mand. 58, 88, 89, 123; People v. Tremain, 29 Barb. 96; Howard v. Gage, 6 Mass. 462; Collins, Sec. of State, v. The State, 8 Ind. 345; Woodbury, Pet'r, v. County Commissioners, 35 Maine, 345; The People ex rel. Woodworth v. Burrows, 27 Barb. 89; The People v. Supervisors Greene County, 12 Barb. 217; Tapping on Mand. 67; 24 Barb. 166; 19 Md. 374; 20 Md. 461; Ingerson v. Berry, 14 Ohio St. 321.)

IV. The governor having commissioned another, who is now in possession of the office, a mandamus would be fruitless. A mandamus will not lie against the governor, and petitioner could not take the office without a commission. (State ex rel. Attorney-General v. James M. Poole, 41 Mo. 32; State ex rel. Attorney-General v. John S. Morrison, 41 Mo. 238.)

V. Petitions for writs of mandamus are addressed to the judicial discretion of the court. (40 Maine, 306; 7 Cush. 227.)

VI. A mandamus will not be granted to compel one power to perform an act which can only be performed by two.

WAGNER, Judge, delivered the opinion of the court.

The relator sets forth in his petition, in substance, that, being legally qualified, he was a candidate at the last general election for the office of circuit judge in the eighteenth judicial circuit, and as such received the highest number of qualified votes cast in said circuit for that office; that the respondent, as secretary of State, refused, and still refuses, to count up the votes given for him, as prescribed by law, and that he is remediless; and therefore prays this court to issue a peremptory writ of mandamus to compel that officer to act.

The respondent, in his answer, denies that the relator in said election received a majority of the qualified votes; and further says that on the 23d day of December, 1868, in presence of the governor, he proceeded to open, and did open, and cast up the votes given for the candidates for the office of judge of the said eighteenth judicial circuit, and ascertained and determined that Elijah Perry received the highest number of legally qualified votes in the counties composing the said circuit; and that respondent afterward, on the 12th day of ...