People ex rel. Brewster v. Kilduff

Scates, J. In pursuance of the second section of the sixth article of the constitution, the legislature passed an act regulating elections, in which it was provided (Act of 1849, p. 74, § 15), “ that no ballot shall be received or counted, unless the same is written or printed upon white paper, without any marks or figures thereon, intended to distinguish one ballot from another.” By subsequent sections, the judges and clerks of election are required to keep tally lists, and lists of voters, and after the voting is closed, to canvass the ballots, and the “judges or board of election shall make out a certificate under their hands, stating the number of votes each candidate received,” &c., and “ said certificate, together with one of the lists of voters, and one of the tally papers,” &c., shall be kept and returned by one of the judges of election, to the proper persons or officers. The officers who receive these returns, in a certain sense, constitute also a board of election canvassers. But where no contest is_ entered, they can only declare the result shown by the certificates. But they do not sit to pass upon the qualifications of votes or the reception of the ballots; nor whether, in malting up the result of the poll, ballots should or should not be counted. These questions legitimately arise before this second or any subsequent election board, in cases of contested elections, when they may hear and determine these prior questions. An application of these provisions to the question at issue, in relation to the election of mayor of the city of Peru will, it seems to me, remove all difficulty in this case, if, indeed, any could be raised upon the face of this record. On the first Monday of April, 1854, the election was held between Brewster and Kilduff as candidates for the mayoralty. The best and most correct idea I can convey, without attaching a specimen ballot paper, is, that Brewster’s friends adopted white paper, and Kilduff’s supporters adopted whiter paper. The majority of the judges of election counted these ballots, and certified the result accordingly; one refusing for the reason of the blue lines ruled on the paper by the manufacturer, and the blnish ground tinge of the paper. These- original ballots, by some means, found their way into the hands of Kilduff, the acting mayor, and he, with the aldermen holding over, canvassed the ballots as judges of election, and not the certificates of the judges who had declared the result at each poll, and deeming the color a violation of the law, excluded them from the count, and so changed the result, and declared himself and others thereby elected. The record does not show any contest of the election, or notice to Brewster and others, or any trial, other than this voluntary assumption of the powers and duties of the judges of the polls. This constitutes the ground of error upon which all their proceedings are based. Sitting as a board of election returns, to declare the result from the returns of the judges of election, who are the returning officers, they assume the powers and duties of the returning officers themselves; and instead of canvassing the returns, they canvass the polls and ballots, and declare the result of their own return. This they might do, if they constitute the proper tribunal, in case a contest had been entered. But nothing of the sort is shown. We are of opinion that the ballots were upon white paper, within the meaning of the statute, and should have been counted; and that the ruled lines were not marks placed upon the ballots for the purpose of distinguishing them, but this paper was accidentally used, and the ballots were received without objection; and their rejection afterwards on that ground would be a fraud upon the voters. That counting them Brewster is admitted to have been elected. He has been duly qualified, and assumed the office, and entered upon the duties of mayor. This he may do ; the legality of the election, and the rights, powers, and duties of the office, do not depend upon the fact of the declaration of the board of election. That declaration is proper, and is the usual practice, but withholding it, or neglecting causelessly or illegally to make it, will not prevent the installation in, and investment with, the office. The authority, rights, and powers of such offices are derived from the election, and not from the returns, which are the usual prescribed evidences of it. The corporation seal has been demanded and refused; and we are informed by the information, that Kilduff had it on the 15th day of June. The return denies all custody or control since the 1st day of July, and further insists, that Brewster is not entitled to a remedy by mandamus in such a case. This is the only remaining question of importance to be noticed. The general rule is admitted, that mandamus is not the proper remedy to try the title to an office, but the rule has its exceptions. Tapping on Mandamus, 26,27. For it will lie for offices of a public nature concerning the administration of justice, or any public necessary work for the public weal; and though it is said in the absence of any specific legal remedy, Tapp, on Mand. 173,174, yet the same author lays it down, (p. 165,166,) that the court will grant the writ for the office of mayor, although there has been a void election; or, though there may be a mayor de facto, though not de jure; and the court may exercise some discretion according to the circumstances. So if a mere colorable title so set up under a void election or a holding defacto, will not afford a ground for denying a writ to proceed to an election of mayor; neither should, in this case, a groundless assumption of an election of defendant, and a pretended exercise of the office de facto, to which Brewster is clearly shown to have been elected, prevent us from awarding the writ, because it is pretended that the title to the office is involved. A quo warranto is the proper writ to try the question of title to the office. This writ is not asked for that purpose. It is asked, to deliver to the mayor elect and qualified, the seal, the insignia of office. And to defeat the application, and prevent the issuing of the writ for this purpose, this groundless, colorless claim, is set up to the office itself; and the party’s pretended intrusion into, or retention of it, is sought to create such a doubt of the true title, or controversy about the title, as to justify the withholding of the writ, and sending the informant to his quo warranto. To the extent necessary to determine upon his right to make this information, and ask to have the delivery of the seal, we have looked into the legality of this election, and so determined upon the color of the adverse pretension. Of the right to the writ to deliver up the seal to the mayor and clerk of the corporation, we can have no doubt. Tapping says, “the court of King’s Bench is in the constant habit of granting a mandamus to command municipal and parish officers, magistrates, &c., on the determination of their official duties, to deliver up the ensigns of their offices,” p. 94. “ So it lies to command an ex-officer, as a mayor, or his deputy, to deliver to the present mayor the common seal, books, papers, muniments, records, insignia, mace, and chest keys, being the property of the corporation.” Ib. p. 94. See The King v. Buller et al. 8 East, R. 389; 3 Black. Com. 110; 6 Bacon, Ab. Mand. D. p. 439 top, ed. 1846; The King v. Ingram, 1 W. Black. R. 50; King v. Wildman, 2 Strange, 879; Borough of Calne, 2 Strange, R. 948. The return does not traverse or answer the possession of the seal in June. It is not sufficient to avoid the writ, to return that he had no control or possession in July, unless he shows how he has parted with that control and become divested of the possession, which, by his silence, he admits was in him in June. Every intendment, is made against returns which do not answer the important facts. Tapp, on Mand. 349, 350, et seq. For any thing shown by the return he has the control of the seal, and ought to surrender it to the informants. Therefore a peremptory mandamus awarded. Peremptory mandamus aivarded.