State ex rel. Broadhead v. Berg

• Decision Date: 31 October 1882
• Citation: 76 Mo. 136
• Parties: THE STATE ex rel. BROADHEAD v. BERG et al.
• Court: Missouri Supreme Court

76 Mo. 136

THE STATE ex rel. BROADHEAD

v.BERG et al.

Supreme Court of Missouri.

October Term, 1882.

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Mandamus.

PEREMPTORY WRIT AWARDED.

The information was filed and the alternative writ awarded November 13th, 1882, and the writ was served November 15th, 1882.

Overall & Judson for relator.

1. It is claimed in this case that the court has no jurisdiction, because the canvassers have performed their duty, and the matter has passed beyond their jurisdiction. But the facts are: That the canvassers had three days more within which to certify their abstract of votes to the Governor and Secretary of State; that all the officers who are required by law to sign the abstract had not signed it; that the canvassing itself was not completed--the board of canvassers having adjourned without completing the canvass, and without signing the abstract; that the abstract is still in the possession of the register of votes, he never having mailed it, or sent it to the Secretary of State. It would be strange, under these circumstances, if the court has lost all control over these ministerial officers. In determining the question of jurisdiction in a mandamus case, the first thing to be inquired into is whether there is any other remedy. Quo warranto would not lie, because there is no one in office, or claiming to exercise its functions, and, therefore, no inquiry could be made as to whether any one had usurped the office, and that is the question, and the only question, to be inquired into in such a proceeding. There could be no election contest by the tribunal constituted to try election contests, because there is no one in office, or claiming to hold the office, which the other party seeks to contest. It will not do to say that there will be another remedy, as soon as one or the other party gets his commission; the question is whether the party who has been wronged has a present remedy at the time of the institution of the proceeding. He is not bound to wait for justice, at the end of a tardy and expensive proceeding. St. Louis Co. v. Sparks, 10 Mo. 120; State v. Rodman, 43 Mo. 256; People v. Supervisors, 12 Barb. 221; Lewis v. Commissioners, 16 Kas. 102; s. c., 22 Am. Rep. 275; State v. Commissioners, 23 Kas. 264; Bisbee v. County Canvassers, 17 Fla. 9; Clark v. McKenzie, 7 Bush 523; Kisler v. Cameron, 39 Ind. 488; Moses on Mand., 90; Elisha Strong, Petitioner, 20 Pick. 484; Dew v. The Judges, 3 Hen. & M. 1; State v. County Judge, 7 Iowa 186; State v. County Judge, 7 Iowa 390. As to the nature and extent of the authority which may be exercised by the court in such cases, the doctrine is well settled in the two cases of State ex rel. Ford v. Trigg, 72 Mo. 365, and State ex rel. Metcalf v. Garesche, 65 Mo. 488.

2. The law, then is plain, and the facts are equally plain. The poll-books show that there were two districts, and that the 18th ward of the city of St. Louis was embraced in both of them. The vote in the Second District is given, the other district was the Ninth--by law there could be no other--the other votes are shown by the returns to have been given for Congress in that precinct from which the returns came, and in the same ward (the 18th), and if for Congress in the 18th ward they were given for the candidates in the Ninth District because the votes stated in the returns to have been given for Congress in the Second District excludes the idea that they could have been given for any other than the Ninth District.

3. But there is another fact equally conclusive in this case. The law is, and the court will take judicial notice of it as a matter of fact, that the Second Congressional District has no existence in the city of St. Louis; that neither the 15th ward nor the 18th ward of the city of St. Louis are in the Second Congressional District, but that they are in the Ninth District, and that a vote for Congress in either one of those wards is a vote for Congress in the Ninth District and none other, because no other Congressional district has an existence there. See Sess. Acts 1882, p. 3, §§ 3, 10 and 16 repealing the apportionment act of 1877. Sess. Acts 1877, p. 10. The act of 1882 abolished the Second District as it existed under the act of 1877. The legislature of Missouri might have provided for filling the vacancy in this district, but they did not. Congress might have made provision for it, but Congress failed to make any such provision. There was, therefore, no authority for holding an election to fill it.

Leverett Bell for respondents.

1. In passing upon an application for a mandamus to compel an officer to perform a ministerial duty, the court steps into the place of the officer, and in determining the extent of his duty in the premises, it is subject to the same legal limitations which govern the officer himself in the discharge of his official functions. The writ of mandamus neither creates nor confers power upon the officer to whom it is directed, but merely commands the exercise of powers already existing. High on Ex. Leg. Rem., § 32; Johnson v. Lucas, 11 Humph. 306; Luce v. Mayhew, 13 Gray 83, 85; State v. Garesche, 65 Mo. 480; Dunklin Co. v. Dist. Ct., 23 Mo. 454.

2. The register and justices of the peace who are required by law (Acts 1881, p. 55, § 21) “to examine and cast up the votes given to each candidate,” have no right to go behind the certified returns made by the judges and clerks of the election; any error in their certificate can only be corrected by the tribunal authorized by law to determine such election when contested. Their duties are only ministerial. Mayo v. Freeland, 10 Mo. 629; State v. Trigg, 72 Mo. 365; State v. Harrison, 38 Mo. 540; State v. Rodman, 43 Mo. 256; State v. Steers, 44 Mo. 223; State v.Garesche, 65 Mo. 480; Felt's case, 11 Abb. Pr. (N. S.) 203; Moore v. Jones, 76 N. C. 182; People v. Head, 25 Ill. 325; McCrary on Elections, § 82.

3. Under the rule above stated the defendants in this case had no right to look beyond the face of the returns received from precinct 189 to determine what votes were cast for candidates for office at said precinct. No knowledge could be conveyed to their minds except through the words and figures actually appearing on these returns. But the returns from precinct 189 do not show any votes cast for a representative of the Ninth Congressional District. Defendants have no right to insert the word “ninth” in these returns, nor have they the right to presume that certain votes there appearing for Congress ______ District, were in fact cast for a representative of the Ninth District; nor can they act upon any supposition or theory of their own as to the word “ninth” having been omitted by mistake. The law provides other remedies for the correction of such errors and omissions. To leave such matters to the speculations and guesses of canvassing officers would be subversive of the safeguards which the law has wisely thrown around the methods of conducting elections. The canvassing officer acts arithmetically, and must assume nothing. Moore v. Kessler, 59 Ind. 152; People v. Tisdale, 1 Doug. (Mich.) 59; Clark v. Board of Examiners, 126 Mass. 282; Opinions of the Justices, 64 Me. 596; People v. Cook, 8 N. Y. 67

4. In precinct 155 the return reads, “For Congress--S-- District.” In order to count this for relator, the canvassers would not only be obliged to fill a blank, but also to strike out a letter which upon its face indicates a district other than the ninth. The reasoning of the cases cited under point three, supra, applies with still greater force to the return from this precinct.

NORTON, J.

This is a proceeding by mandamus instituted by relator, a candidate for congress at the last general election, and he seeks in the information as amended by leave of court, to compel the respondents, as a board of canvassers charged with the duty of canvassing the returns of an election held in the city of St. Louis on the 7th day of November, 1882, to canvass and count the return of votes cast in precinct 155 in the Fifteenth ward of said city, and in precinct 189 in the Eighteenth ward of said city, which it is alleged they unlawfully refused to canvass and count.

There are but two questions presented by the return of respondents, and the reply thereto, and they are: 1st, Has this court, under the facts of the case, jurisdiction of respondents as a board of canvassers? 2nd, Was it the duty of respondents, in canvassing the election returns, to count the returns from said precincts 155 and 189, and if so, have they failed and refused to perform it? These questions will be considered in the order they are stated.

1. MANDAMUS TO COMPEL BOARD OF CANVASSERS TO COUNT ELECTION RETURNS.

That this court has jurisdiction by mandamus to compel ministerial officers to perform a duty enjoined upon them by law, which they refuse to perform, at the relation of a person having a right and direct interest in the matter, and for the enforcement of which right he has no other adequate remedy, we have no doubt. Our jurisdiction in the present case is, however, questioned on the distinct ground that the respondents as a board of canvassers had completed the canvass of the votes they were required to canvass and had finally adjourned, and that respondents Berg and Raum had made and certified an abstract of the returns of said election before any legal notice had been given them of the issuance of the alternative writ. The facts as to whether the canvass had been completed and as to whether said board of canvassers had finally adjourned before legal notification of the issuance of said writ, are disputed by relator, and a number of depositions containing evidence tending to establish as well as to disprove the said facts, have been produced before us. In the view we take of the question we deem it wholly unnecessary to determine whether the allegations as to the completion of the canvass and the final adjournment of the board are proved or disproved,...