State Ex Rel. Averill v. Baird

*365 COX, P. J. Proceeding by mandamus. At the hearing a peremptory writ was denied and the alternative writ quashed. Relator appealed. Relator and S. P. (Sid) Oates were candidates at the primary election August 5, 1924, for nomination on the Democratic Ticket for the office of County Treasurer of Pemiscot county. The Respondent Baird, clerk of the county court called to his assistance Respondents Juden and Bowen, members of the county court of Pemiscot county, and they together canvassed the returns, from which it appeared that on the vote at the primary, omitting absentee votes, relator received 1333 and Mr. Oats received 1332 votes. It appears from the evidence that in the ballots of the absentee voters there were two cast for Oats and none for relator. The statute was not followed in counting the absentee votes. The four disinterested persons were not appointed as required by section 4754, Revised Statutes 1919, to open and count the absentee votes, but those votes were opened and counted by the clerk and two judges of the county court, who also canvassed the other votes. They counted two of the absentee votes for Mr. Oats thus giving him 1334 votes or one more than relator received, and certified Oats as the nominee. The purpose of this action is to require that relator be certified as the nominee. The alternative writ commands the respondents to certify relator as the nominee or show cause for not doing so. The answer set up that there were two absentee'votes cast for Oats and that by adding those votes to the total of Mr. Oats, he had one vote more than relator. Prom the statement it will appear that if the two absentee votes were properly counted for Oats he was nominated. If these votes are discarded, relator was *366 nominated. Tliere is evidence in the record which indicates that one of the absentee votes was illegal, and if that be true and one absentee vote be counted for Oats, then the result between him and relator would be a tie, but those votes are not for our consideration in the determination of this case. Relator contends that since the provision of the statute for canvassing absentee votes was not followed, the respondent’s action in adding the absentee votes to the total votes cast for Mr. Oats was without authority of law and therefore void, and hence relator should have been certified as the nominee. It is well settled that in this proceeding the relator must stand or fall on the terms of the alternative writ. If the writ is made permanent, it must follow the alternative writ and command the same thing to be done that the respondents are required by the alternative writ to do or show cause for not doing. The equities between the parties cannot be adjudged and relief granted that does not conform to the alternative writ. [State ex rel. v. Bank of Conception, 174 Mo. App. 589, 163 S. W. 945; State ex rel. v. Q. O. & K. C. R. R. Co., 199 Mo. App. 668, 204 S. W. 584.] The only relief sought by relator is to compel the respondents to certify his nomination. If that cannot be done, he must fail. In order to secure that relief he must make a clear showing that he is entitled to it, for the writ of mandamus does not go as a matter of right but rests in the sound discretion of the court and unless the right sought to be enforced is clear and there is no other adequate remedy available to the relator, he must fail. [State ex rel. v. Stone, 269 Mo. 334, 343, 190 S. W. 862.; State ex rel. v. Bridge Co., 206 Mo. 74, 136, 103 S. W. 1052; State ex rel. v. Fort, 180 Mo. 97, 109, 79 S. W. 167; State ex rel. v. Lesueur, 136 Mo. 452, 459, 38 S. W. 325; In re Ashcraft, 193 Mo. App. 486, 186 S. W. 532.] *367 It is apparent that relator could not show himself clearly entitled to bé certified as the nominee without showing that a complete canvass of the votes legally cast had been made and that as a result of that canvass his nomination was clearly shown. This proceeding does not take the place of an election contest in which the legality of ballots and the qualifications of voters may be determined, but is limited to the sole question whether the returns show the nomination of relator. It is apparent .to us, as it evidently was to the trial court, that the facts in this record do not show the nomination of relator. The law provides for absentee voters casting their votes. When these are legally cast the voters and the candidates have the right to have these votes counted as cast and until that is done, there is not a complete canvass of the returns made. The respondents in this case did not follow the law in attempting to count the absentee votes. They undertook to count these votes themselves while the law requires that four disinterested persons be appointed to open and count these votes and certify to the county court the result of the count. [Sec. 4754, R. S. 1919.] These four disinterested persons perform a duty similar to that of the judges of an election precinct. Their authority may not go so far as judges of an election precinct but their duties are somewhat similar. This cause cannot be converted into one to canvass the absentee votes. Had relator sought to compel the appointment of the canvassers of the absentee votes to the end that a legal ascertainment of the result of the absentee votes could have been reached, and those votes added to the result of the canvass of the returns as to the other voters, we should have no hesitancy in holding that the writ should be made permanent. The appointment' of canvassers of the absentee votes was clearly a duty not performed and which could have been compelled in a mandamus proceeding for that purpose but it does not result that because the duty to appoint such canvassers was neglected, that relator thereby acquired *368 the right to compel the certification of the result with the absentee votes omitted. Since a- complete canvas of the votes has not been made, we see no reason why the county court of their own motion, without a judgment in mandamus, may not yet complete the canvass in the manner provided by law, and if a different result is reached, make a new certificate showing the true result. It was clearly the duty of the county court to proceed according to law with reference to the absentee votes. The mere fact that this duty was not performed within the time required by law does not make the duty any less obligatory. This is a duty that yet remains unperformed. [State ex rel. Rayburn v. Ringo, 42 Mo. App. 115; State v. Mackin, 51 Mo. App. 299, 303. The result reached by the trial court in the proceeding at bar is correct, and its judgment will be affirmed. Farrington and Bradley, JJ., concur.