State ex rel. Clark v. Smith

• Decision Date: 27 May 1891
• Parties: The State ex rel. Clark v. Smith, Clerk of the County Court
• Court: Missouri Supreme Court

16 S.W. 503

104 Mo. 661

The State ex rel. Clark v. Smith, Clerk of the County Court

Supreme Court of Missouri

May 27, 1891

Peremptory writ denied.

W Cloud and Adiel Sherwood for relator.

(1) The duties of the county clerk are ministerial and not judicial. He has no duty, except to certify the number of votes cast for each candidate for each office, as the result of a sum in simple addition, with no power to pass upon the legality of returns, or to judge of their sufficiency. McCrary, Election Laws, sec. 84; State v. Cavers, 22 Iowa 343; Attorney General v. Barstow, 4 Wis. 749; Bull v Southwick, 2 N. M. 321; Mayo v. Freeland, 10 Mo. 629; State ex rel. v. Harrison, 38 Mo. 540; O'Ferrell v. Colby, 2 Minn. 184; Brown v O'Bryan, 2 Carter (Ind.) 423; State ex rel. v. Steers, 44 Mo. 220; State ex rel. v. Vail, 53 Mo. 112; State ex rel. v. Judge, 7 Iowa, 199. (2) The plea that a commission has been issued to Sturgis is matter in abatement and not matter in bar. So also is the attempted plea in paragraph number ten of the return, alleging that a notice of contest has been served. All these matters in abatement are waived by the several pleas to the merits. People v. Silver, 45 Ill. 224. (3) Mandamus is the proper remedy, though it did not determine the ultimate right involved as where quo warranto, or other proceedings, must afterwards be instituted to secure the fruits of the victory in mandamus. State ex rel. v. Judge, 7 Iowa, 200; Ex parte Strong, 20 Pick. 495; People ex rel. v. Akin, 17 Ill. 169; Brown v. O'Bryan, 2 Ind. 430. (4) It is a feeble answer to relator's demand for peremptory writ to say that he has a remedy in quo warranto or by contest. Before relator can be deprived of his writ upon such a plea, it must be definitely ascertained that the other remedies proposed are adequate, specific and appropriate, and afford relief upon the very subject-matter of the controversy, and give the particular right which the law accords upon the statement of facts in the petition for mandamus. Etheridge v. Hall, 7 Porter (Ala.) 54; In re Trustees of Williamsburgh, 1 Barb. 34; Fremont v. Crippen, 10 Cal. 211; Babcock v. Goodrich, 47 Cal. 488; State v. Wright, 10 Nev. 167. More than this, the remedy must be one which can be enforced against respondent, and not against third persons. Williams v. Clayton, 21 P. 398. (5) The fact that the certificate of election has been given to Sturgis does not affect the result. Such an act is on a par with the judgment of a court without jurisdiction. The question is, was the act lawfully done? State v. Court of Appeals, 97 Mo. 331; Attorney General v. Barstow, 4 Wis. 725; People ex rel. v. Rives, 27 Ill. 242. (6) The certificate to exhibit "C" is the best evidence of the number of votes cast. It was the last and most solemn act of the judges. It was done deliberately and advisedly and at the conclusion of their labors.

George Hubbert and M. E. Benton for respondent.

(1) There is no reason for invoking the exercise of mandamus by this court. Relator's remedy in the circuit court by a contest proceeding is ample. State v. Buskirk, 43 Mo. 111; McElhaney v. Stewart, 32 Mo. 379; State v. Green, 1 Mo.App. 226; Hunter v. Chandler, 45 Mo. 352; People v. Supervisors, 12 Barb. 217; McCrary on Elections, sec. 322; State ex rel. Broadhead v. Trigg, 76 Mo. 186; Bowen v. Hixon, 45 Mo. 340. (2) "It is well settled that, in issuing a commission, the governor acts in a political or executive capacity, and he alone can judge whether the power should be exercised or not, and the courts can neither control nor interfere with him in the exercise of this right." Opinion of supreme court to Gov., 58 Mo. 369, 372; State ex rel. v. Governor, 39 Mo. 388; Hawkins v. Governor, 33 Am. Dec. 346. (3) Mandamus will not lie in a case involving the title to an office, when that office is already filled by a person holding by color of right. And in this case, though Sturgis had not, at its commencement, entered on the discharge of the duties of the office, yet, having been commissioned and qualified, nothing remained to be done except to await the mere lapse of time; and before a decision is reached in this court he will be the officer de facto as well as de jure. St. Louis County Court v. Sparks, 10 Mo. 117; State ex rel. v. Rodman, 43 Mo. 256; People v. Olds, 58 Am. Dec. 398. (4) Respondent submits that, by considering the whole of the so-called poll books, inclusive of the Thurman book properly understood, the election of Sturgis by three majority is clear. The ambiguity, patent upon the Thurman book, had necessarily to be cleared by inspection and the exercise of common sense, before the true vote there certified for Sturgis could be determined, or counted, or certified. That the canvassing officers are not cut off from the use of their eyes in such matters, is apparent from what has been held by this court. State, etc., v. Metcalf, 65 Mo. 480; State, etc., v. Steers, 44 Mo. 223. The Dayton book with its apparent majority of forty-eight for Clark should be excluded from the count, and this requires a denial of a peremptory writ, whatever may be said of other questions. State, etc., v. Steers, 44 Mo. 223. And it was only from such certificate, and not anything back of it in the poll books or tally sheets, that the canvassers could lawfully ascertain the number of votes given for any person for office. State ex rel. v. Berg, 76 Mo. 136; State ex rel. v. Garesche, 65 Mo. 480; State ex rel. v. Trigg, 72 Mo. 365. And returns, void on their face, should be rejected, even by the ministerial canvassers of election returns. State v. State Canvassers, 36 Wis. 498; Lawrence Co. v. Schmaulhausen, 123 Ill. 321. Where the general rule, confining the functions of election canvassers to purely ministerial acts, was held in its strongest phase it is conceded that they might "probably judge whether the returns are in due form." People v. Head, 25 Ill. 328. (6) But there being a doubt of relator's election the peremptory writ should be denied. People v. Davis, 93 Ill. 133; People v. Johnson, 100 Ill. 537; Martin v. Martin, 27 Mo. 225. (7) The alternative writ is not sufficient to support a judgment or peremptory writ, in that it does not show previous "demand" by the relator upon the respondent for the performance of the alleged duty. Orville v. Supervisors, 37 Cal. 354; Condit v. Austin, 25 Ind. 422; State v. Davis, 17 Minn. 429; State v. Lebra, 7 Rich. 234; Cort v. Elliott, 28 Neb. 293. And this objection to the sufficiency of the writ may be taken any time, at or after the making of the return to it. Board of Trustees v. People, 12 Ill. 248.

Macfarlane, J. Sherwood, C. J., dissents. Black, J., is also of the opinion that the writ should be denied for the further reason, that the return and the exhibits filed therewith show that a proper canvass of the vote of the county would not change the result of the election as certified by respondent.

OPINION

IN BANC.

Mandamus.

Macfarlane J.

The return of respondent to the alternative writ, after special denials of the statements thereof in regard to the result of the election for which relator was a candidate, his refusal to certify the result of the election, and that he falsified the same; and, after giving a detailed statement of the manner in which he had performed his duties as clerk, in canvassing the vote, made the following special plea in bar to the writ:

"On the twenty-fifth day of November, 1890, the relator, R. F. Clark, gave and delivered to the said John F. Sturgis notice of contest of his said election to said office, specifying the grounds upon which the said Clark, as contestant, intends to rely, raising objections to the vote in Sturgis' favor in all the voting precincts, and making objection to the qualification of divers voters at said election, and giving the names of such voters and stating the objections therein. Which said notice was served fifteen days before the May term, 1891, of the circuit court of said Newton county at which said election will be contested. The contest so begun by the relator herein is still pending, the writ in this cause, to-wit, the alternative writ of mandamus, was issued by this court upon relator's petition therefor on the twenty-sixth day of November, 1890, and was served on defendant on the twenty-eighth day of November, 1890."

The return further showed that on the sixth day of November, 1890, respondent completed the canvass of the vote of said county, and before the issuance of the writ herein had certified the result thereof to the secretary of state, and on the fourteenth day of November, 1890, the said Sturgis had been duly commissioned by the governor as prosecuting attorney of said county.

The remedy by mandamus will only be allowed against a public officer in case the one claiming its benefits shows himself to be directly interested in the performance of the thing demanded, and that he has no other adequate, specific and effective remedy at law by which he may obtain the result sought. The ultimate result sought to be accomplished by relator, under this proceeding, was to determine, as between himself and Sturgis, which was, on the face of the returns of the judges and clerks of the various voting precincts, elected to the office of prosecuting attorney of the county. The writ shows, and the return admits, that relator has such a direct interest in the proper canvass of the vote by the county clerk, as authorizes him to invoke this remedy and a peremptory writ should issue unless the facts pleaded in the return constitute a bar thereto.

The motion of relator for a peremptory writ, notwithstanding the return of respondent, operates in the nature of a demurrer to the return, and admits the truth of every affirmative allegation...