State ex rel. Metcalf v. Garesche

• Decision Date: 31 October 1877
• Citation: 65 Mo. 480
• Parties: THE STATE EX REL. METCALF v. GARESCHE ET AL., APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 480

THE STATE EX REL. METCALF

v.GARESCHE ET AL., APPELLANTS.

Supreme Court of Missouri.

October Term, 1877.

Appeal from St. Louis Court of Appeals.

Amos R. Taylor for appellants.

Under the issues presented, we submit:

1st. That if there had been an alteration of the return after it came to the clerk's office, yet the appellants in the discharge of their duty, could not hear evidence as to any alteration; and if the paper appeared to be a return, and the figures 292 were plainly and legibly written on the face of the poll-book, as the vote of Frost at the precinct, appellants had no discretion but to count the return as it appeared on the poll-book, and having done this, their duty, the court cannot compel them by mandamus to do otherwise. American Law of Elections, Sec. 82, p. 64, Sec. 331; State v. Steers, 44 Mo. 223; Morgan v. Quackenbush, 22 Barbour 77; Thompson v. Ewing, 1 Brewster 77; People v. Hilliard, 29 Ill. 420.

2nd. That appellants, as such board of canvassers, had no power to hear evidence and decide whether or not there had been an alteration. Constitution of Mo. Art. 6, Sec. 1; State ex rel. Drew v. McClin, Supreme Ct. Florida, 1876.

3rd. The court has no jurisdiction to hear evidence (other than what was before the canvassers,) and after investigating for itself, from evidence, command the board of canvassers to do the act. The vice of Judge Lindley's decision was, that while he conceded that appellants were guilty of no shortcoming in their duty, (for he properly held that appellants had no power to hear evidence of the alteration,) yet he held that the court could take up the investigation and make the inquiry for them, and, having ascertained for them the right, would issue the writ against them. In other words, to use his expression, would lend them a judicial eye. Now, neither this judicial eye nor any of its functions could be used by appellants, even if loaned by the court. State v. Dougherty, 45 Mo. 295; Barnes v. Gottschalk, St. Louis Court of Appeals, 1877, Mo. Appeal Rep., Vol. --; State v. Bailey, 7 Iowa 404; Ingerson v. Berry, 14 Ohio St. 315; Luce v. Mayhew, 13 Gray 83.

Henderson & Shields for respondent.

On the facts proved, we contend there is simply one issue, i. e.: Will mandamus lie to compel a ministerial officer to perform the duty devolved upon him by law, when he persists in violating the law on a plea of ignorance, or on a plea of not being able to find out what his duty is? In other words, can the court determine for him what his duty is, and compel him to perform that duty, when from lack of information, he, in good faith, refuses to perform it, or from corrupt and arbitrary motives he violates the law to the detriment of another's right? To state the question in its boldness, appellants contend that a false and fraudulent return, defeating the will of the people, and defrauding the relator of his rights, must be sanctioned by the courts of the country, because canvassers of the returns do not participate in the fraud actively or stand quietly by and see it done. The honesty of purpose in the canvassers and their plea of ignorance, was conceded by the relator, and he attempted to inform them of the facts by which their minds might be enlightened--by an appeal to a tribunal with undoubted authority to discover the truth by legal examination. These same ignorant canvassers then say that the court cannot inform them of the truth and compel them to do their duty, because without knowing the truth, they have exercised a discretion and decided the matter contrary to the facts, and the court cannot determine their duty for them, as that is their discretion. This is the aspect presented by this appeal.

We insist that the canvassers had no discretion but the plain, simple duty of casting up and certifying the returns as made. If they were not certain what the figures as returned were, perhaps the proper course was to take such steps as to force the relator to appeal to a court where that question could be investigated and determined, then being so determined, it was their plain duty to so certify. And the expression of Judge Lindley in his opinion, “as he (the ministerial officer,) has no judicial eye, the court, through the medium of testimony taken for that purpose, will enable him to see and advise him what to do,” is exceedingly apropos, though the counsel for the appellants seem to object to “this judicial eye” more than to anything else. We cite the following authorities: 1 Wag. Stat. 569; §§ 24, 25; State v. Wilson, 49 Mo. 146; State v. Howard Co. Ct., 41 Mo. 247; State v. Lafayette Co. Ct., Ib, 545; State v. Ralls Co. Ct., 45 Mo. 58; State v. Rodman, 43 Mo. 256; State v. Harrison, 38 Mo. 540; State v. The Treasurer, 43 Mo. 228; People v. Supervisors, 12 John. 414; Hull v. Supervisors, 19 John. 260; Ex Parte Koon. 1 Denio 644; People v. Dutchess & Columbia R. R., 58 N. Y. 152; Brightv. Supervisors, 18 John. 242; Page, Second Auditor v. Hardin, 8 B. Monroe 652; Smith v. Moore, 38 Conn. 105.

Hitchcock, Lubhe & Player for respondents.

1. When a peremptory writ of mandamus is sought against public officers, because of an alleged failure or refusal on their part to perform a specific duty enjoined on them by law, the only questions to be considered by the court, its jurisdiction being conceded, are:

( a.) Are the respondents charged by law with the specific legal duty alleged by the petitioner to exist?

( b.) Have the respondents in fact failed, refused or neglected, or do they still fail, refuse or neglect, for any reason, to fulfill such duty as by law prescribed?

( c.) Is it true that there is no other adequate specific legal remedy than a writ of mandamus for the enforcement of the specific legal duty in question?

( d.) Does it appear that the petitioner has such an interest in or such relation to the proper performance of the specific duty in question, as to entitle him to the aid of the court in thus enforcing its performance? High on Ext. Rem. §§ 32, 33, 60, 63; People v. Rives, 27 Ill. 242; People v. Hilliard, 29 Ill. 419; Light v. State, 14 Kansas, 492; Kisler v. Cameron, 39 Ind. 488.

If it shall appear to the court, whether from the facts set out in the writ and confessed, or not sufficiently denied or avoided in the return of the respondents, or from the state of facts disclosed by the evidence on a trial of the issues made by the return, or from both, that all these questions should be answered in the affirmative, then the peremptory writ should issue. It is absolutely immaterial whether the respondents did or did not know what was “the exact duty imposed on them by law.” The court is concerned only with the questions above stated, and upon its own affirmative answer to them, the writ follows ex debito justitiæ. Nothing can be a legal excuse or valid reason in behalf of the respondents, short of a state of facts which negatives some one of these conditions. “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'rs, 2 Gray 370; S. C., 30 How. Pr. 78; State v. Gibbs, 13 Fla. 55. Mandamus will lie to compel a correct canvass of election returns. Light v. State, 14 Kansas 489, 492.

2. It is the specific legal duty of the respondents here under the statute (1 Wag. Stat. p. 569, §§ 24, 25, 29,) to examine and cast up the votes given to each candidate, according to the returns of such votes transmitted to the clerk of the county court by the judges of election from the several election districts. The manifest intent of the statute is, that the clerk of the county court and the two justices who assist him, shall fulfill this duty by casting up--that is, by adding together--only such returns as were in fact made and certified to the county clerk by said judges respectively on the respective poll-books. The casting up, as for such returns, of any number or numbers other than those actually certified into the clerk's office from any election district, whether done willfully or by mistake, would be a failure to perform the specific ministerial duty imposed by law. High on Ext. Rem., § 60. Nor can this duty be changed by anything which may take place after the poll-books have become official returns by their delivery to the clerk of the county court. No alteration, whether made by fraud or by accident, of any number which was by said judges of election certified and delivered to the clerk as the vote given to any candidate--if made after the delivery of such poll-book to the clerk as an official return--can have any effect whatever, in contemplation of law, to change the number which it is the duty of the clerk and the justices who assist him to cast up.

3. The duty imposed by the statute on these respondents is in the strictest sense a ministerial duty, as to which they have no official discretion whatever. High, Ext. Rem. §§ 55, 60; State v. Steers, 44 Mo. 227; State v. Lawrence, 3 Kan. 95; Kisler v. Cameron, 39 Ind. 488; State v. Co. Judge Marshall Co., 7 Iowa 193. When the writ of mandamus is issued to a ministerial officer, the court necessarily ascertains the duty of the respondent, not only to act, but to act in a specific manner as to which he is allowed no discretion; and therefore it does command him, not only to act, but so to act as that the exact duty prescribed to him by law, and which the court has previously determined to be his duty, shall be fulfilled by him. Dunklin Co. v. District Co. Ct., 23 Mo. 454.

HOUGH, J.

This was an application at the relation of Lyne S. Metcalf for a mandamus to compel the defendants, Finney and Schultz, Justices of the County Court of St. Louis county, and the defendant, Garesche, clerk of said court, as canvassers of the returns of the election held on the 7th day of November, 1876, to count the returns of precinct No. 57 in St....