Myers v. Chalmers

Campbell, C. J., delivered the opinion of the court. This is a petition by the appellee for a mandamus to compel the appellant to count for him 1,472 votes cast for him in Tate County at the election held therein for a representative in the Congress of the United States, on the 7th of November, 1882, and to declare him elected. The first petition was filed before the count was made, and from the apprehension that the votes mentioned would not be counted for the petitioner. They were not so counted, but were counted for another, and the appellant declared Manning to have been elected, and, thereupon, the Governor commissioned him. An amended petition was filed, and presented these facts, and such proceedings were had as resulted in a judgment of the Circuit Court as prayed in the petition, from which an appeal was taken. That mandamus is the appropriate means to compel an officer charged with the duty to declare the result of an election is beyond dispute. That the office is such that the courts have nothing to do with a trial of the right to it, is not an objection to the exercise of their power to compel the performance of duty by an officer with respect to the election. The only difference in the cases is as to the circumstances under which the courts should interpose and the relief they will afford. McCrary on Elect., sect. 338, says : “ We gather from all the authorities the following rules : — “1. If the officers of election refuse or fail to act, mandamus will lie to compel them to discharge their duties as required by statute; but in such cases the writ will not, as a general rule, command such officers to certify that any par ticular person has been elected. “2. If there are two or more persons claiming the office, the writ will never issue to require such officers to declare either one elected, but only to command them to execute the duties and exercise the functions conferred upon them by law. — 786 — “ 3. If it clearly appears that a particular person has received the majority of the votes cast, and that no question is made upon this point, perhaps mandamus may issue to compel such officers to certify the election of that person by name, although this is substantially the same thing as to order them to certify the result according to law, and, therefore, the latter form will always be found to be the best.” In sect. 337 this author says : “A few cases may be found in which the writ of mandamus has issued to the proper certifying or returning officer, commanding him to certify the election of a particular person by name ; but this is believed to be an improper, or at least an improvident, use of the writ. It should be issued, if at all, simply to compel a return or certification of the result, as shown by the proper returns ; but the court issuing the writ should not assume to determine, and in advance, who, by such returns, is entitled to the office. As we have heretofore observed, the proper use of the writ is to compel but not control action by the returning officers. If the person actually elected is not returned and certified to be elected, his remedy is plain, and it is desirable that all questions connected with counting the votes and declaring the result should in the first instance remain with the officers of election.” It is clear that where a ministerial officer refuses or fails to act in the performance of his duty as to the result of an election, he may be compelled to do so, and a number of cases hold that where he has acted, but wrongly, he will be compelled to act over and rightly. Of these are Florida, ex rel. Bisbee, v. State Canvassers, 17 Fla. 29 ; Fuller v. Hilliard, 29 Ill. 413 ; Clark v. McKenzie, 7 Bush, 523 ; O’Ferrall v. Colby, 2 Minn. 180 ; The State, ex rel. Price, v. Lawrence, 3 Kan. 94. The Secretary of State has no duty to perform as to elections except to “ sum up the whole number of votes given for each candidate, and to ascertain the person or persons having the greatest number of votes for each office, and shall declare such person or persons to be duly elected, and thereupon all persons chosen to any office at such election shall be commissioned by — 787 — the Governor.” Code 1880, sect. 141. The Secretary of State, as to this duty, is- a merely ministerial officer, and is amenable to the courts as such, and may be proceeded against by mandamus. ' It is a fundamental principle never to grant the writ of mandamus where, if issued, it would prove unavailing. High on Extr. Rem., sect. 14. In this case the Secretary of State, having declared Manning to be duly elected, and the Governor having commissioned him upon such declaration, we adopt the language of the Supreme Court of Missouri in the similar case of Bland v. Rodman, 48 Mo. 256, and say: “The case has passed beyond any control of this court, and the only redress the relator has, if he considers himself aggrieved, is by a legal contest made in pursuance of law.” In that case the writ was denied because the Secretary of State had certified to the Governor the result of the election, and the Governor, acting on that, had commissioned another than the relator. In The People, ex rel. Thompson, v. Mover, 50 Ill. 100, man-damns was denied because another than the relator had been declared elected, and had been commissioned; and so in Sherburne v. Horn, 45 Mich. 160. The distinction between cases in which the final act of investing the person declared elected with the evidence of his election, has been done, and those in which it has not, is fully illustrated in the cases of Florida, ex rel. Bisbee, v. Board of County Canvassers, 17 Fla. 9, and the Same v. Inspectors of Election, Id. 21, and Same v. Board of State Canvassers, Id. 29, and Same v. Drew, Governor, Id. 67. In the first of these cases, the Board of Canvassers of Alachua County was compelled to return the votes cast. In the second the inspectors of a precinct were commanded to make certain returns. In the third the Board of State Canvassers was required to reassemble, and recount the votes, and give a certificate of election to Bisbee, who then demanded of the Governor a commission, in accordance with this certificate. — 788 — The Governor refused his demand on the ground that he had on the former declaration of the result of the election issued a commission to another in accordance with it. Bisbee applied for mandamus to compel the Governor to give him a commission, but the court refused it. In The State v. Governor, 1 Dutch. (25 N. J.) 331, the writ was refused when asked to require the Governor to issue a commission in opposition to the declaration of the result of the election as made to him bj the officers charged with the duty of declaring the result, although it appeared that the decision of the board declaring the result was contrary to the truth of the case. In The State v. Fletcher, Governor, 39 Mo. 388, the court refused to issue mandamus to require the Governor to issue a commission, and to this effect are many other cases. In O’ Hara v. Powell, 80 N. C. 103, in which one who had been a candidate for representative in Congress, sought mandamus to compel the persons comjDosing the Board of County Canvassers of Edgecombe County to reassemble and make a new and full recount, so as to include certain votes.omitted in their former count, the court, having assumed, from the time elapsed, that the State canvassers had acted on the returns made to them, and declared the result, and that the commissions had issued to those declared to have been elected, said: “The case has therefore proceeded so far that no judicial order in this action can change or affect the result.” It could only result, the court further said, “in making two inconsistent determinations, and perhaps, a third mandamus become necessary to compel the issuing of a second commission for the same office. In the election of a member of the General Assembly or a representative in Congress, contesting claims to a seat must be tried before the body to which the certificate of election or commission accredits the person holding it, and the decision there made is final and irreversible.” That court, after showing that no aetion it could take could disturb the person who had been commissioned as a representative in — 789 — Congress, or assist the petitioner in his contest before the House, l-efused to do' the useless act of issuing the Avrit of mandamus, and dismissed the petition for it. The court conceded the propriety and utility of the Avrit “while the political machinery is in motion and the result undetermined,’-’ but as the matter was ended by the final act of the State officials in accrediting one as a representative in the House of Representatives, it Avas remitted to that House to deal with, and dispose of, all questions involved in the controversy. These cases rest upon sound principles, as Ave believe, and command our approval. A commission issued by the Governor is irrevocable. He cannot revoke it, except in case of his appointee removable at his pleasure. Marbury v. Madison, 1 Cranch, 137. Ewing v. Thompson, 43 Pa. St. 372. It must stand until vacated and annulled by a body which has the right to investigate the facts of the election, and decide who is entitled to the office. The statute requires the Secretary to suni up the votes cast, as shoAvn by the returns made to him, and to declare the result to the Governor, Avho commissions. The Secretary of State is not required to issue any certificate or paper to the person elected. He simply declares the result, and the Governor furnishes the credentials Avhich accredit the person declared by the Secretary to have been elected. This constitutes the credentials spoken of by the act of Congress, which directs the making up of a roll of the members of the House. U. S. Rev. Stats., sect. 31. If Ave Avere to require the Secretary of State to make another declaration of the result of the election, it would be nugatory. It would not constitute the required credentials. If Ave were to command the Secretary to issue a certificate of any sort to the petitioner, we would require Avhat no law requires of him in reference to the electiou. If Ave assume that the Governor would deem it his duty to regard a new declaration of the result of the election, enforced from the Secretary of State by the court, nothing still would be effected, because the Governor has no — 790 — power to recall or vacate the commission heretofore issued. If we should declare that commission illegal and void, we would transcend our legitimate functions, and present the unseemly spectacle of a condemnation of the official act of the chief executive of the State in the performance of the duty imposed on him by the Constitution and law of the State, with the clerk of the House of Representatives of Congress primarily, and the House ultimately to sit in judgment on the act of this court in pronouncing the commission void. If the Governor should issue another commission there would be two persons armed with credentials, under the great seal of Mississippi, suitors for recognition as the rightful claimants of an office which only one can hold. The court will not do a vain thing. It will not act where it cannot adjudicate. It will not pronounce judgment to be disregarded. It may deal with subordinate ministerial officers, and compel them to perform duty, where its power is invoked under circumstances that enable it to render effective relief, but it has nothing to do with the contest between the petitioner and Manning in the present attitude of their controversy. Judgment reversed, and petition dismissed. Chalmers, J., took no part in this decision.