State ex rel. Bisbee v. Inspectors of Election at Precinct No. 4

Relator alleged that the respondents were inspectors of election at Precinct No. 4, in Madison county, at an election held for Representative in Congress, at which votes were cast for the relator, and that respondents had neglected to make due return of the votes cast at that precinct, and prayed that they he required to make a return to the County Clerk as required by statute. Respondents made answer to an alternative writ that they had made and signed duplicate returns of the votes cast in due form, and had forwarded the same to be delivered to the County Clerk by one of their number, and that on the road the said returns were stolen from the messenger an'd have not been recovered, and they or either of them have no knowledge or information as to whether the said returns aTe now in existence or where they may be found. They further say they havé no memoranda of the vote cast for the candidates for the several offices voted for, and do not remember the said vote, and know of no means whereby they can correctly make a certificate or return of such votes. Held'by the Court, that a peremptory mandamus would be fruitless and will not be granted under these circumstances. It was further intimated by the court, that as it appeared that the certificates or returns had been made and forwarded by fheir messenger, and to this extent they had complied with the requirements of the law, although the certificate had been lost or destroyed, and so had failed to reach the Cleric’s office, it was doubtful whether they could now be required to make other returns or certificates, even if they had the means of knowing the actual vote cast for the several candidates. No issue was taken upon the answer or plea, and at the January term, 1879, the relator dismissed the proceedings.