State ex rel. Rice v. County Judge

"Woodward, J. By the statute of 1854-5, chap. 46, (Acts of 1855, 71), it was provided, that when the citizens — 198 — of any county desired a re-location of the county seat, the major part of the voters of the county may petition the county judge to order an election for that purpose, naming in their petition the place at which they desire it located. The election being held, and the returns made to the county judge, he is to take to his aid two justices of the peace, and they are to canvass the election, and declare the result. The- election in question in this case, was held under, and in pursuance of, this statute. The return of the defendant assigns twenty-seven causes why he has not obeyed the alternative writ — several of which may be classified as objections to the validity of the law relating to the re-location of county seats, and to the validity of the election which was held under it, and other causes ; but there are two or three to which we will refer particularly. First. That the defendant has already canvassed the votes as required by law, and declared the result; and that the board of canvassers no longer exists, and there is no law under which he can re-organize it. Second. That the poll-books, or abstracts, of the said three townships, were rejected because they were not in accordance with the requirements of the statute. Fifteenth. That the writ is directed to the wrong person. Sixteenth. That the defendant has no authority to call to his assistance other persons, and re-canvass the vote. Twentieth. That the writ requires the defendant to do a particular act in a particular way. Twenty-first. That it commands him to call others to his assistance, and requires them to do a judicial act in a particular way. Twenty-second. That the writ is directed to the county judge, and requires other persons, not now parties, to act. Twenty-fourth. That the writ does not show that the canvassers are legally bound to do the act required, nor that they have been requested and have .refused. — 199 — Without adverting specifically to each objection taken, we will point out the views entertained by us in relation to the proceeding. The writ is directed to the proper person — that is, the county judge. One conclusive reason against directing it to the two justices, with him, is that thay may have gone out of office before the writ issues. And again : they are not a board of such a nature, that no other can perform the duty. The county judge is the only permanent member, and he calls to his assistance such other two, being justices, as he sees fit. And for the same reason, they are not such a board that their dissolution rendeis it impracticable that the duty should be performed. If it has not been done, it may still be done, by a command to the judge to take to his assistance two proper persons. Another point is, that the duty to be performed is not a judicial one. It is ministerial. Neither is there, properly speaking, a discretion to be exercised. In respect to this, there is a wide-spread error among the civil officers, and among the people generally. It is not correct to suppose that a board of canvassers, such as the county board in the present instance, possesses the power or authority to judge of the validity of returns, or of votes. This duty, or power, belongs to that tribunal which is appointed by law for the ultimate trial of contested elections, or to a court before which the case may be brought' in any manner recognized by law. The canvassers are only to receive the returns and to count them, leaving all questions of their sufficiency, or validity, to another rribnnal. The People v. Cook, 4 Selden, 67, 89; Same v. Same, 14 Barb., 285; The People v. Van Slyck, 4 Cow., 297; Ex parte Heath, 3 Hill, 42; Bacon v. York Co. Com'rs, 26 Maine, 491; Opinion of Court, 25 Ib., 567; Brower v. O'Brien, 2 Carter, 423; The People v. Kilduff, 15 Ill., 392, and cases therein cited. It is true that extreme cases may be supposed, where the paper may not bear sufficient marks to be known as an — 200 — election return. Such a case stands by itself. The foregoing remarks, however, apply to the cases which usually occur, and where there is enough to show what it is intended to be, but where the paper only wants some of the ap pointed marks of authenticity, or of completen ess. Thus we might instance, that if the supposed returns are not signed by any one, they have not the evidence of being returns; but if they do not show that the officers were sworn, this goes to their sufficiency only. The canvassers must judge whether they are the returns from such a township, or such a county, but when known to be such, they are not to determine upon their sufficiency. This belongs to another tribunal, empowered to adjudge upon the legality of the case ultimately. In the present case, the canvassers rejected the returns from three townships, because they did not show that the elective officers were sworn. This was not within their province, and was an error. Even this court does not, in this case, determine upon the sufficiency of these returns ; it only decides that the canvassers should count them, leaving the other questions to such tribunal as may have cognizance of the case, in the event that the election should be contested, or otherwise tried. The proceeding under the writ of mandamus, does not, in all cases, determine the ultimate right. Thus, it has been applied, where it could determine but one step in the progress of inquiry, and when it could not finally settle the controversy, but it might still be necessary to resort to quo warranto, an injunction, or a contest of election under the statute. Ex parte Strong, 20 Pick., 496; Brower v. O’Brien, 2 Carter, 423; The People v. Kilduff, 15 Ill., 492. In the case of Strong, above cited, the court intimated that the party might be obliged to resort to a quo warranto/ and in Brower v. O’Brien, they say that the writ confers no right, but merely places the party in possession, so as to enable him to assert his right, which, in some cases, he could not otherwise do. And farther, there may possibly — 201 — be cases, in which this writ would not be applicable for any purpose, or in any degree. It has been remarked that the duty ox the canvassei’s, is ministerial in its nature ; and such it is in the main, but this is not true, universally. There are points in the range of their duty, where it partakes of the judicial — or, at least, of the discretionary — character. The People v. Cook, 14 Barb., 294. But so far as the present case bears upon them, they are ministerial. The next subject of examination, is the answer, that the duty had already been performed. Inasmuch as the canvassers have rejected the returns from three of the townships, which they should have counted, it is legally true, that the duty has not been discharged; and when the writ now commands, it is not, in a proper legal sense, to re-canvass, but to canvass, the returns of that election. It is to1 do that which was before their duty, but which they omitted. "What has been done, is as if it had not been done, and the judge is now commanded to proceed as if no former steps had been taken. To say that the judge is commanded to do a particular act in a particular way, is not a strictly correct use of Ian-' guage. He is commanded to do something which he has omitted to do, which is the very object of the writ. But even as the object is stated, it is not necessarily wrong; for the manner may be of the essence, and the mandate may be correct, if the manner is not a subject of discretion. To the first part of the twenty-fourth objection, we an-' swer, in view of what has been said, that the writ does show that the canvassers are legally bound to do the act' required. This duty is a result of the facts stated, and the law applied to them. The objections to the writ, presented in the answer, are so numerous, that it is impossible, within reasonable limits, to respond to them severally, and we would say, gen-' erally, that the answer is partly an answer to the information, and so far, requires no attention. A portion of the — 202 — objections go to matters which fell within the cognizance of the county judge, in ordering the election; and lie having acted, they do not remain subjects of examination ; and others are not pertinent to the present inquiry. Others,still, are not sufficient to invalidate the election, even though well founded as matters of fact. In a matter of public right, any citizen may be a relator in an application for a mandamus. The People v. Collins, 19 Wend., 56; Pike County v. The People, 11 Ill., 202; Napier v. Poe, 12 Georgia, 170. The.allegations of fraud and bribery in the election, do not come within the cognizance of the court, under this proceeding. These, and other objections, might be proper subjects of examination, in a subsequent proceeding adapted to test the legality and validity of the election, or the several steps leading to it, or of the law under which it was held. The present one, is only to arrive at the recult of the election which has been held. The remarks before made, cover those objections which have an important bearing on the present matter. But there remains to be noticed the objection, that the writ does not shew that the defendant was requested to do or perform the act, and that he has refused. It is stated that a demand must be made, and a refusal thereto. Tap. on Mand., 382; Chance v. Temple, 1 Iowa, 189. This is true as the general rule, and it is more especially true, where the proceeding has relation to private rights or interests, as will be observed by the subjects treated in Tap. on Mand., 8-1, 162, 163, marginal. But it is manifest that there are cases affecting public officers, or duties, wb ere the idea of a literal demand and refusal, does not have place, there being no one particularly empowered to demand, as it does not affect individual interests; but the law — the official duty — is in the place of it, and omission or neglect, is refusal. And especially is this true, when the respondent has done an act which he calls a performance, but which the law says is not such. — 203 — The refusal is not necessarily a literal one. Tapping says it must be either “ in direct terms, or by conduct from which a refusal can be conclusively implied.” (Tap., 283); and on 285, he says : “ it is not necessary that the word refuse, or any equivalent of it, should be used, but there should be enough, from the whole of the facts, to show to the court that, for some improper reason, compliance is withheld, and a distinct determination not to do what is required;” and instances are given in which acts have been construed to amount to a refusal. We cannot bring ourselves to think, that in a case of pnblic duty, like that at bar, in which the act to be done is well known, and would have been performed alreadyj if the party did not intend not to do it; and where it belongs to no one to request it, but it does belong to the defendant to do it, a formal demand or refusal is necessary. It is clear that duty makes the demand, and omission is the refusal. Another point remains. The court rendered judgment that a peremptory writ issue, but ordered that it be stayed, that the cause might be taken to this court. From this order, the complainant appealed. The matter is of no practical importance in the present cause, and does not call for a formal disposition ; but it may be remarked that no reason is perceived why the appeal, with a bond, as provided by law, would not stay the proceedings, as in other cases ; and in that case, the order wmuld be unnecessary, whilst without the bond, the order would be unavailing. The People v. Steele, 2 Barb., 554. The judgment of the district court, in awarding a peremptory mandanms, is affirmed, and a writ of procedendo will issue accordingly.