State ex rel. Hammerstein v. Williams

• Citation: 8 S.W. 415,95 Mo. 159
• Parties: The State ex rel. Hammerstein, Appellant, v. Williams, Recorder of Voters, et al
• Decision Date: 21 May 1888
• Court: Missouri Supreme Court

8 S.W. 415

95 Mo. 159

The State ex rel. Hammerstein, Appellant, v. Williams, Recorder of Voters, et al

Supreme Court of Missouri

May 21, 1888

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Berry & Richey for appellant.

(1) The statutes require that the votes shall be counted, and that the certificate of election shall be given in accordance with the returns. Scheme and Charter, art. 2, sec. 18; Session Acts, 1881, p. 55, secs. 21, 22; Session Acts, 1883, p. 46 sec. 26. (2) Difference in name is prima-facie evidence of difference in person, and words readily distinguishable in sound are not idem sonans. State v. Moore, 61 Mo 276, and cases cited; Long v. McDow, 87 Mo. 197; Robson v. Thomas, 55 Mo. 581, and cases cited; Flournoy v. Warden, 17 Mo. 435; Gitt v. Watson, 18 Mo. 274. (3) The duty imposed on these respondents is in the strictest sense a ministerial duty, as to which they have no official discretion whatever. Mayo v. Freeland, 10 Mo. 629; State ex rel. v. Harrison, 38 Mo. 541; State ex rel. v. Rodman, 43 Mo. 256; State ex rel. v. Steers, 44 Mo. 223; State ex rel. v. Bishop, 44 Mo. 229; State ex rel. v. Hays, 44 Mo. 230; State ex rel. v. Garesche, 3 Mo.App. 526; S. C., 65 Mo. 480. (4) The facts set forth in the petition and in the writ show that the defendants have failed and refused, and still refuse, to perform their duty as prescribed by law; and until ministerial officers have performed the exact duty imposed upon them by law, they must be considered in default. Clark v. McKenzie, 7 Bush (Ky.) 523; Bell v. Pike, 53 New Hamp. 473; People v. Taylor, 1 Abb. Pr. (N. S.) 200; Ellis v. Co. Com. 2 Gray, 370; State v. Gibbs, 13 Fla. 55; Light v. State, 14 Kansas, 489; High on Ext. Rem., sec. 60.

Hough, Overall & Judson for respondents.

In the case of State v. Foster, 38 Ohio St. 599, the court decided that, "Where votes for H. L. Morey are counted for Henry L. Morey, and it is not averred that H. L. and Henry L. are not the same person, mandamus will not issue to compel such votes to be counted for two persons." It is not averred in the writ here that there was more than one candidate for this office by the name of Ryan, nor that Mathew, Mattias, and M. Ryan are not the same person. The prerogative writ of mandamus was not instituted to do a wrong by means of a technicality, but was established to prevent a failure of justice. It is for this reason that, as decided in the case of State v. Foster, supra, it should not issue until the relator has made affidavit that the officers are about to certify for one person votes that were cast for another.

OPINION

Norton, C. J.

This is a proceeding by mandamus, in which it is alleged in the alternative writ that, at an election held in the city of St. Louis, the relator, Hammerstein, was a candidate for the office of member of the house of delegates; that at said election he received the highest number of votes cast for any one person at said election; that the returns of the judges and clerks of the election showed that he did receive the highest number of votes for the said office, as follows:

"For this relator four hundred and seventy-six votes, for Mathew Ryan three hundred and seventy-four votes, for Ehrman two hundred and fifty-four votes, for J. A. Lynch two hundred and thirteen votes, for M. Ryan sixty-eight votes, and for Mattias Ryan thirty-five votes; that the respondents were the duly qualified board of election canvassers; that, in fraud of the rights of this relator, the respondents were proceeding to count, and, unless prevented from so doing, would add the votes returned for M. Ryan, and Mattias Ryan, respectively, to the votes returned for Matthew Ryan and would certify, contrary to the returns, that Mathew Ryan had received four hundred and forty-seven votes, when the said returns showed that he had received but three hundred and seventy-four votes." The writ directs the respondents to count and certify the votes cast for Ryan as being cast for different persons, or show cause why it should not be done.

The respondents moved to quash for the following reasons: (1) The facts therein stated are not sufficient to authorize this court to compel the defendants to obey the commands of the writ. (2) It does not appear from the writ that M. Ryan, Mattias Ryan, and Mathew Ryan are not one and the same person. The motion was sustained and relator has appealed.

It needs no citation of authorities to establish the proposition...