State ex rel. Jamison v. Lesueur

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: State ex rel. Jamison v. Lesueur, 126 Mo. 413, 29 S. W. 278 (Mo. 1895)
• Decision Date: 21 January 1895
• Parties: The State ex rel. Jamison v. Lesueur et al

29 S.W. 278

126 Mo. 413

The State ex rel. Jamison v. Lesueur et al

Supreme Court of Missouri, Second Division

January 21, 1895

Peremptory writ denied.

""R. H. Field, L. C. Slavens and ""C. E. Small for relator.

(1) The remedy of a proceeding to contest the election of Bremermann is not an adequate remedy for the relief sought, nor such as to defeat the writ of ""mandamus in this case. ""State v. Peacock, 15 Neb. 443; ""Clark v. McKenzie, 7 Bush, 523; ""Roemer v. Canvassers 70 Mich. 30; ""In re Sloan, 25 P. 935; ""Belknap v. Board, 94 Mich. 517; Wood on Mandamus 114; Merrill on Mandamus, secs. 51 to 54; ""Smith v. Lawrence, 2 South Dakota, 185. (2) It is well settled that canvassing officers perform simply ministerial duties, and may be compelled, by ""mandamus, to assemble and perform any particular duty which they have neglected to perform, and, unless the statute expressly provides that they can not perform those duties, except within a specified time the provision as to the time in which they are to do the act is simply directory. ""State ex rel. v. Garesche, 65 Mo. 480; ""State ex rel. v. Trigg, 72 Mo. 365; ""State v. Ringo, 42 Mo.App. 115; ""St. Louis v. Sparks, 10 Mo. 117; ""State ex rel. v. Berg, 76 Mo. 136. (3) The fact that some of the justices of the peace have gone out of office is immaterial; they may still act as members of the board, or the recorder may call others to his assistance. ""Lawrence v. Smith, 2 South Dakota, 187; Merrill on Mandamus, sec. 185; Paine on Elections, sec. 923; ""Clark v. McKenzie, 7 Bush (Ky.), 524; ""People v. Schiellien, 95 N.Y. 125. (4) But there is abundant authority for the proposition that a regular certificate of election is no bar to ""mandamus. Clark v. McKenzie, 7 Bush (Ky.), 523; ""Roemer v. Canvassers, 90 Mich. 30; ""Smith v. Lawrence, 2 South Dakota, 185; ""In re Sloan, 25 P. 935, and cases cited.

""Elijah Robinson and ""Isaac H. Kinley for respondents.

(1) The record shows that relator sued out his writ in the first instance in the circuit court of Jackson county before a judge of his own choosing and was there defeated after a full hearing. He is now trying to appeal through a second ""mandamus; this he can not do. ""Williams v. Judge, 27 Mo. 227; ""State v. Stewart, 32 Mo. 483. (2) ""Mandamus is not the proper remedy to try the right to an office the title to which is in dispute, either in a direct or in a collateral proceeding. ""State v. Taaffe, 25 Mo.App. 567. (3) ""Mandamus is not the proper remedy to determine, either directly or indirectly, the title to public office. ""State ex rel. v. May, 106 Mo. 508; 6 Am. and Eng. Encyclopedia of Law, pp. 383, 384, and note 1, on page 384. (4) The duties of the canvassing board are ministerial and not judicial, and to require of them the performance of what is asked in the writ is to require of them the performance of a judicial duty. The duties are ministerial and not judicial. ""Mayo v. Freeland, 10 Mo. 392; ""State ex rel. v. Harrison, 38 Mo. 510; ""State ex rel. v. Steers, 44 Mo. 220; ""State ex rel. v. Vail, 53 Mo. 112; McCrary on Elections, sec. 84.

OPINION

Mandamus.

PER CURIAM.

-- This is a proceeding by mandamus in which it is claimed by the relator that, at the election held November 6, 1894 he was elected to the office of prosecuting attorney of Jackson county, as shown by the returns of the judges and clerks of the election, by a majority of three hundred and twenty votes over his competitor, one Bremermann, to whom was issued by the proper authority, but in fraud of relator's rights, the certificate of election.

Relator avers that, after the returns of the election in Kansas City had been delivered to the recorder of voters of said city, Owsley, the defendant herein, as required by law, the figures in the returns from seven precincts were forged or altered so far as they related to prosecuting attorney so as to change the majority of three hundred and twenty for relator, to a majority of sixty for Bremermann.

Under the law the election returns from the city were deposited with the recorder of voters, and the returns from the precincts outside of the city with the county clerk. The recorder is required, with the assistance of two justices of the peace, to cast up the vote of the city within eight days, and the county clerk, with like assistance, to cast up the vote outside the city and in the county within five days after the election.

The county clerk transmitted the abstract of votes for prosecuting attorney to Lesueur, secretary of state, on the twenty-first day of November, 1894, but no commission has yet been issued to Bremermann,...