State ex rel. Allee v. McCoy

Lore, C. J. The Court are a unit upon the practice as we conceive it to be now settled, and certainly in this case, in respect to mandamus. The practice indeed has been passed upon in New Castle County and in Sussex; and what ever fluctuations may have heretofore existed in respect to the practice in these writs, we consider as now ended. Upon the return of a rule granted on petition to show cause why a writ of mandamus shall not issue, objection may be made to the sufficiency of the record,—that on the face of the record, from the plaintiff’s own showing, he is not entitled to the issuance of a rule. No such objection has been made here, and it is not before us. On return of the rule, the respondents then have the right to come in if they see proper and to answer the rule and thus make up an issue upon which the Court can go into the hearing; or to decline to show cause and instead to insist on the alternative writ of mandamus. That has been ruled in three or four cases in the last three years. The alternative writ of mandamus is made returnable, in the discretion of the Court, to meet the exigencies of the public good and.the rights of parties interested. When the alternative writ is returned, then the respondents must file their answer. That makes up, as you will see, logically and properly an issue, and the petition and answer to the petition give us something to hear and try; and when the issue is thus made up upon the return and answer to the alternative writ, we hear the case. So that, under the proceedings as they now stand, we deem the petitioners entitled to the alternative writ, and the only question is, when shall that writ be returnable. Upon that question we will hear you if you have anything to say. After some discussion as to the time for further hearing of the — 481 — case the Court adjourned, until 2.30 P. M., having announced that they would in the meanwhile determine the question of time. On the reassembling of the Court, J. B. Penington, for the respondents who did not answer, called the attention of the Court to the fact that the Sheriff after making his return had withdrawn it from the office of the Prothonotary and added the paragraph in which he undertook without authority or direction of the Court to make himself a party. This second paragraph of the return Mr. Penington moved to strike out, contending that the alternative writ must follow the petition. Ward, for the petitioners. This is not an application by the Sheriff. His return is conclusive. Wolcott, for the respondents. That is true, but the application is made on behalf of other respondents in the case. The Sheriff seeks without leave of the Court by his return to correct a mistake which was made originally. This cannot be done; the only course open was an application on behalf of the Sheriff to permit the petitioners to amend their writ and petition and to make the Sheriff a party. Grubb, J. It will all come up again on the alternative writ, whether he can be properly included in the alternative writ as a respondent when he was not included in the rule to show cause or in the prayer in the petition. Therefore if he could not be put in the alternative writ, that part of his return would have to be disregarded, whether it is stricken out of his return or not. That question, of course, will have to come up on the alternative writ, and it- is a question which we should not now consider. Mr. Ward. The question would come up, I suppose, in a motion to quash the writ ? — 482 — Mr. Wolcott. We do not waive the right to make the objection. Lore, C. J. It is the Sheriff’s return, and as such we are bound to treat it. What the effect of it may be will be a matter hereafter. Mr. Ward. Then we will leave it. Lore, C. J. That is proper, we think. It is the Sheriff’s return; the effect of it you may discuss hereafter. Mr. Wolcott. That is all right; but we have not waived it. W. H. Hayes, for the petitioners. It has been suggested, and we have considered it, that in the fixing of the time of the return of this alternative writ there is another thing to be considered. That is the time at which the command shall be to the Board of Canvass, by the alternative writ, to meet. Then the day of the return or answer can be fixed with reference to that. There are two days to be fixed: the time at which the Board shall meet and the time at which the alternative writ shall be returned. Lore, C. J. The alternative writ commands them to meet and do a certain thing, or else to appear here on another day and show cause why they have not done it. The Court have considered this matter. It is a grave question ; one that requires very careful and considerate treatment by both sides, and the most thorough opportunity for the respondents to answer. But it is also a writ of remedy ; and if the statements in the petition be true, this is a public exigency and demands prompt action. We therefore make the order that this alternative writ be returnable on Tuesday morning next, November 24, at 10.30 o’clock; and that in the alternative writ the Board of Canvass be — 483 — directed to perform their duty on Monday, the twenty-third day of November, at 12 o’clock M. This Board is to meet on Monday and discharge its duty, or to appear, in obedience to the alternative writ, on Tuesday next, and show cause why they have not done so. H. H. Ward, for the petitioners, in the presence of the other counsel, asked advice of the Court as to service,—the method of service,—for the instruction of the Sheriff. Grubb, J. My recollection of the law of mandamus is that the alternative writ must be served. It is a command. If it is not served they of course could give that as a reason for not obeying it. . Mr. Ward. Yes, but they are in Court now. Cullen, J. It is an additional process. Lore, C. J. They are entitled to service, if they insist upon it. Mr. Ward. Would the proper method of serving the writ be by leaving a certified copy with each respondent ? Cullen, J. The rule as to service of process is well settled. In this case you may serve a copy, or state the subject matter; it is sufficient. Grubb, J. High on mandamus lays it down, and in some States it is held, that you must serve the original on one of them, the first, for instance, and serve a copy on the others. In other States it is different. We have never ruled on that matter, so far as I have ever discovered. Cullen, J. When you serve by copy, you must make a copy. — 484 — In other words, the service is by stating the substance of the writ in notifying the party. The common law practice prevails in this case. Mr. Jones. • Will you allow me to accept service for the gentlemen for whom I appeared this morning ? Cullen, J. Certainly. Lore, C. J. You had better file of record a statement that you appear for those parties. Put it in writing that you waive the issue and service of the writs so far as each of them is concerned and appear for these respective defendants. The special term was then adjourned until November 24,1896, at 10.30 A. M. On November 24, 1896, the Court having reassembled in Special Session, Jones, for the respondents who had answered the rule to show cause, presented the retúrn of the Sheriff as follows: “ Served personally by copies hereof being, left with the following :—Thomas H. Baxter, John W. Sheldrake, John L. Scot-ten, William H. Walker, William H. Greenwell, Samuel C,. Hughes, and Frank Tumlin, on the nineteenth day of November, A. D. 1896, and with Alexander J. Draper, Abel S. Faries and Thomas McCoy on the twentieth day of November, A. D. 1896, the service being accepted in writing by George M. Jones, attorney, for Erasmus D. Burton, John F. Bowen, Levi G. Sterner, Benjamin T. Conwell, Clarence Mason and Charles G. Macklin, and Samuel L. Shaw, Sheriff, on the nineteenth day of November, A. D. 1896. So says Samuel L. Shaw, Sheriff. Penington and Wolcott, for the other respondents, moved to — 485 — quash the return upon the ground that the Sheriff was an interested party and could not serve the writ. Ward, for the petitioners, contended that there was no legal exception to the Sheriff. It is not like a writ of summons, but it is one which only requires notice to the respondents to do a certain thing or show cause why it was not done. If in any manner they receive notice it is sufficient and they must obey the order. But if, for the sake of argument, the service were irregular, the objection cannot now be interposed, as, on the day when the writ was ordered, service was waived and appearance entered for the Sheriff and five other respondents, and there could be no reason why the Sheriff could not serve it upon the others. It further appears that others of the respondents have appeared by counsel. There is no denial that every one of them had full notice of the writ. Lore, C. J. We do not see just now, at the present stage of the case, any legal exception to this return. You must bear in mind, gentlemen, that you are all in Court. It appears from the return of this writ for every one of these parties. This is a proceeding taken after you have come into Court. It is not urged that you have not had notice, being in Court. We think the notice, so far as now appears, sufficient, and the motion to quash the return is denied. Penington, for some of the respondents, then moved to quash the alternative writ of mandamus for the following reasons: 1. The writ of mandamus was not directed to the proper persons in that it was directed to the persons alleged to be inspectors of the several Hundreds and election districts of Kent County and the Sheriff of Kent County; whereas it should have been to the Sheriff and other alleged members of the alleged Board of Canvass, commanding it, as such Board, to reconvene to perform the mandates of said writ. — 486 — 2. The alternative writ of mandamus does not follow the petition and the order of the Court in that a new party is made, to wit.: Samuel L. Shaw, Sheriff of Kent County, is joined as a corespondent without any authority therefor. 3. It does not appear from the petition or writ of mandamus that the certificates of election which were produced to the Sheriff and inspectors of the several Hundreds and election districts throughout the County, sitting as an alleged Board of Canvass on Thursday, the fifth day of November, A. D. 1896, as stated in said petition and writ of mandamus, were signed and properly authenticated by the inspectors and judges of the respective Hundreds or election districts, or by a majority thereof; nor that the said cer-. tificates had the votes received by each and every candidate voted for set out in words at length. 4. The averment that the certificate" of election for each hundred or election district was presented to the sheriff at the session of the alleged Board of Canvass did not set forth with sufficient particularity the papers purporting to be certificates of election in the several hundreds and election districts to show that they were such certificates from which the alleged Board of Canvass was bound to ascertain and to calculate the state of the election throughout the county. 5. It is alleged that the respondents had been legally elected or appointed inspectors of election for Kent County, whereas they could not have been so elected, becatise there is no law of this State authorizing the election of inspectors, and if they were appointed, it should have been set forth clearly and distinctly when and by whom they were respectively appointed. 6. George H. Murray is made a party relator, when it does not appear that he signed the petition for a rule or writ of mandamus, or has ever been made a party relator in any proper manner. Neither has he become a party by any proceedings before this Court. 7. The petition and writ of mandamus set forth and show that there was an election held in West Dover Hundred on Novem — 487 — ber 3d, A. D. 1896, but it does not show that the relators have resorted to the proper remedy to have the result of said election presented to the said alleged Board of Canvass, so that it could calculate and ascertain the state of the election in that Hundred in in said County. 8. It appears by the petition and said writ of mandamus that the papers purporting to be certificates of election were delivered to the Sheriff of Kent County, and that being so delivered, are no longer subject to the control of your respondents, and that said certificates being thus out of the possession of your respondents, and no order being made in the writ of mandamus commanding the Sheriff to deliver them to your respondents, they could have no certificate from which to ascertain the state of the election throughout the county and issue certificates of election as required by law and the- mandate of the said writ in that behalf. Upon the point that the petition was defective, referring particularly to the third and fourth grounds on which the motion was based, he contended that “it is a fundamental principle in the law of mandamus, that the act sought to be enforced must not only be lawful and proper in itself, but it also must be one that the defendant may properly do.” People, ex rel. Besse vs. The Village of Crotty, 93 Ill. 180. Ward, for the relators, contended that the Sheriff was not an essential party to the proceeding, though he might not be an improper party. Nevertheless, it was deemed proper, at the time of the return of the rule to show cause, to take certain steps in order to make him a pro forma party. The Sheriff is not an essential part of the Board. The law provides that he shall attend but it is within the contemplation of the statute that he may fail to do so and in his absence the Coroner is the presiding officer and he and the inspectors constitute the Board. But neither the Sheriff nor the Coroner nor the Prothonotary, who is made the presiding officer n the absence of the others, need attend if they do not choose to do so and in such case the Board of Inspectors may from their own — 488 — number choose a presiding officer. Hence, in contemplation of law the only absolutely essential parties to this proceeding are the inspectors of the county, the very members of the Board of Canvass who were originally made parties. And with this view every part of the statute is consistent. As well might it be insisted that the Coroner and the Prothonotary should be parties as that the Sheriff is necessarily one. Again this writ runs against these parties in their official capacity and at the election in question a Sheriff was chosen who must be commissioned by the Governor and until such commission is issued there was uncertainty whether the old Sheriff would be out of office and if so who would be commissioned as the new one. Such was the condition of affairs at the time the petition was granted, and it would be a serious question whether the new Sheriff, ex officio, would not be the presiding officer of the Board. State vs. County Judge of Marshall County, 7 Ia. 199. Though we all concurred in this view that the Sheriff was not a necessary party, as he had actually presided in the Board of Canvass, it was deemed proper that he should be joined here, in order to prevent any possible contention, such as was made in the case of Knight et al. vs. Ferris, 6 Houst. 322, that the Sheriff might not be willing and could not be compelled to perform his duty unless made a party. This was done, it is conceived, in such manner as to bring us within the reasoning of the Court of Errors and Appeals in the case last cited. Who is to object when a person considered by the Court to be a proper party comes into Court and makes himself such. It does not lie in the mouths of the respondents to object unless they can show injury and this could only be by establishing the fact that they have done their duty. Otherwise we are entitled to the remedy and they have not been injured by the Sheriff’s return. In answer to the criticisms made upon the frame of the allegations in the petition it is sufficient in averring the performance of a duty to follow the words of the statutes directing that duty and that is precisely what is done here. There is no denial that the — 489 — certificates were in due form but only that there is no sufficient averment that they were. But in the absence of any averment that they did not do their duty there is a presumption of law, upon which the relators had a right to rest, that these officers did do their duty. Another principle to be remembered is that official acts cannot be questioned in a collateral proceeding where persons who have joined in doing those acts are not parties. Here we have certificates to be signed by three persons of whom one only, the inspector was a party. Wolcott, in support of the motion, replied. Lore, C. J., delivered the opinion of the Court. The majority of the Court think that at this stage of the case? this motion to quash ought not to prevail. By that we do not mean to preclude you from bringing up any question when you come to the merits of the case that may be proper, so as to have the whole case fully and fairly before us.