State ex rel. Stewart v. Marks

Cooper, J., delivered the opinion of the court. By the act of the Legislature of 1872, ch. 5, it is made the duty of the judges of election in each county in this Stale, in the case of the election of the State Senators and Representatives, -within ten days after the election, to cause one copy or set of the-election books or lists to be filed with the clerk of the circuit court, and another copy with the clerk of the county court of the county in which the election was held, and to furnish the sheriff of said county with a copy properly certified. In counties which singly elect a Representative, or two or more Representatives, the polls are to be compared at the courthouse in said counties, and the sheriff shall issue certificates of election to the persons receiving the largest number of votes cast at the election. In all senatorial and representative districts composed of more than one county, it is made the duty of the sheriff of each — 14 — county, within ten days after the election, to certify and forward to the Secretary of State “one copy or set of said books.” The Governor and Secretary of State are constituted a board of inspectors, whose duty it shall be to compare the vote for Senators and Representatives in the several senatorial and representative •districts, and declare the result. When the results of the election shall have been ascertained and announced, the Governor shall issue certificates of election to the persons receiving the largest number of votes in each district, which certificates shall be prima jade evidence of such election. The substance of this act is, that in counties which singly elect Representatives, the sheriff of that county is required to compare the polls and issue certificates of election to the persons receiving the largest number of votes cast in the county; and in districts composed of two or more counties, the Governor and Secretary of State are made a “board of inspectors” to compare the vote and declare the result, after which the Governor will issue certificates of election “to the persons receiving the largest number of votes cast in the district.” On the 17th of December, 1880, the mandamus. in this case was sued out in the name of the State on the relation of James G. Stewart against Albert S. Marks as Governor of the State, and C. N. Gibbs as Secretary of State, constituting the board of inspectors under the foregoing act, to show cause why a peremptory mandamus should not issue requiring them, as such .board, to discharge the duty imposed upon them — 15 — by law, and declare tbe result, and that the relator ■had received the largest number of votes cast at the recent election for Senators and Representatives in the representative district composed of the counties of Bradley and Polk. The petition is accompanied by certified copies of the return made by the sheriff of each of these counties to the Secretary of State, under the provisions of the act of 1872. The return of the sheriff of Bradley county shows that, for the Representative of the district composed of these two counties, M. T. Foute received in Bradley county 929 votes, and James G. ■Stewart 785 votes, giving a majority to Foute of 144 votes. The return of the sheriff of Polk county shows that for the same office J. G. Stewart received in that county 570 votes, and M. T. Foute 425 “legal votes” and one illegal vote, as appears from the certificate of the judges and inspectors and clerks holding the election in the second civil district of Polk county. If the “legal votes” are alone counted, the majority for Stewart will be 145 votes, being one vote in excess of Foute’s majority in Bradley county. In this view, the result of the election should be declared in favor of Stewart. If, however, the “one illegal vote” is counted for, Foute, the votes of the respective candidates in the district are exactly equal, and neither is entitled to have the result declared in his favor. To the mandamus nisi, Albert S. Marks and C. N. Gibbs file a joint answer. They admit that the first is the Governor and the other the Secretary of — 16 — the State, and, as such, compose the board of inspectors under the act of 1872. They admit, also, that the certified copies of the returns of Polk and Bradley counties are correct. They further admit that they refused, as a board, to declare the result of the election in the representative district composed of Polk and Bradley counlies in favor of the relator, because respondent Marks was of opinion, from the face of the returns, that the relator had a majority of one vote, while the respondent Gibbs was of opinion that the vote of each candidate was equal. The answer concludes thus: “ Bespondents are willing that the courts may settle the question.” The circuit court refused to grant a peremptory mandamus, and dismissed the petition. The relator appealed. By the act of 1868, ch. 67, secs. 6 and 7, the courts are authorized to set for trial, without reference to its relative position on the docket, any civil cause in which the State is a party in interest, “whether the State is directly a party to the same or interested * * in another way.” By the act' of 1871, ch. 125, it is made the duty of the courts of this State to advance upon their dockets causes which may at any time be pending therein, the decision of which shall directly involve questions concerning the public revenues, or questions concerning public officers as to their eligibility, qualifications or appointment, or their lawful functions. The object of these acts is to provide for the prompt disposition of all cases of a public nature in which the State may be directly or in — 17 — directly interested, or which involve the appointment, eligibility and functions of public officers. The State undoubtedly has an interest in the question, whether two of its counties, composing a representative district, shall be represented in the General Assembly, if, indeed, the relator be entitled to the certificate of election which he claims. In this view, we think the cause should be advanced, so that it may be heard and determined with the least delay consistent with its proper investigation on the merits. The cause has been fully argued on both sides, and we have also, in addition, had the opinion of his Honor, the Circuit Judge, and the opinion of the Governor and Secretary of State, all of which have been printed. The first objection made in argument to the relief sought is, that there is no evidence of any returns before the court upon which to base a decision. The argument is, that the petition and the exhibits attached thereto have performed their purpose after the alternative writ was granted, and cannot be noticed upon the hearing, and that the record does not show by a bill of exceptions that any evidence was in fact introduced. The jjower to issue the writ of mandamus, and the practice under the writ are, to some extent, regulated in this State by statute: Code, sec. 3567 et seq. Sec. 3570 provides: “On the return day of the alternative writ, or on such further day as the court may allow, the party on whom the writ has been served may show cause by a sworn answer, and issue may be be made thereon, and tried accordingly.” Sec. — 18 — 3572 is: “If the answer deny any material facts stated in the petition, the court may determine the issue upon evidence, or cause them to he submitted to a jury.” The first of the sections thus quoted was intended to do away with the common-law rule of the conclusiveness of the return, and provide for the making and trying of issues of fact arising upon the statements of the answer. The second of these sections recognizes the petition as a pleading, upon the denial of the averments of which by the answer issues might be raised and determined. If a respondent desires to take advantage of any defect in the application for a mandamus, he should do so in the first instance, since by making the return to the writ he thereby waives all defect of form. :So, all objections to the alternative writ should be made by a motion to quash, or some equivalent application or pleading. If the respondent answers by making a return as required by law, the relator is entitled to the benefit of all admissions contained in the return. And if the relator moves for a peremptory writ upon the pleadings, the effect of such motion is the same as a demurrer to the return for not stating facts sufficient to constitute a defense: High Ext. Rem., secs. 521, 523, 527. In the case before us the defendants have made return by a sworn answer. They have not raised any objection to the preliminary proceedings, nor to the form or substance of the alternative writ. They have answered to the merits, submitting the point of difficulty to the decision of the court. The relator — 19 — "has, ■ in effect, moved for the peremptory writ upon the “pleadings,” to nse Mr. High’s word; upon the petition and answer, if we resort to the language of the Code. The rights of the relator must turn either upon ‘the sufficiency of the facts stated in the petition and answer, and admitted or disclosed by the latter, or upon the facts of the return alone. In the former view, the admissions of the answer relate to the statements of the petition and the exhibits thereto. In the latter view*, the admissions must be taken by themselves. The defendants in their answer, after conceding their official character and that they constitute the board of inspectors under the act of 1872, say “they admit that the certified copies of the returns of Polk and Bradley counties are correct.” If this language is to be fairly construed by its own light, it plainly' means that the copies of the returns of Polk and Bradley ■counties, which were inquired by the act of 1872 to be certified to them as a board of inspectors, have ■been certified to them and are correct. In this view, it must be taken that the copy or set of the poll books required to be forwarded to them by the sheriff, had actually been received. If, however, the answer be taken in connection with the petition and exhibits, which was no doubt intended, then the certified copies of the sheriffs’ returns as exhibited with the petition, are admitted by the respondents to be correct. In that view, we have the réturns in the record upon which the defendants — 20 — ■undertook to act as a board of inspectors, conceding their genuineness, and only differing as to the con-, struction which they should put upon them. This difficulty the defendants, without raising any objection to the form or substance of the proceedings by mandamus, have, in the nature and almost in the form of an agreed case, submitted to the decisions of the courts. And non eonstat that the copy of the election books had not been returned also. These books were, not necessary to the decision of the point raised. The specific duty of the board of inspectors, under the act of 1872, is to compare the vote as certified and forwarded to the Secretary of State by the sheriff of each county in the district, and declare the result. This duty, involving simply the labor of counting the votes returned and determining who has received the highest number of votes, is strictly ministerial. The board, it is true, determine whether the papers received, purporting to be election returns, are in fact such returns, are genuine, intelligible, and authenticated as required by law, and to this extent its duties are quasi judicial. But it is universally conceded that such quasi judicial duties do not affect the purely ministerial character of simply counting the votes and declaring the result. All the authorities agree that such a board of inspectors or canvassers may, as- a general rule, be compelled to perform the ministerial duty by mandamus: High Ext. Rem., sec. 56 et seq. This court has so held: Saffrons v. Ericson, 3 Cold., 1. The authorities are, however, in conflict upon the point whether a mandamus will lie against the Gov — 21 — ernor of the State to compel him to discharge such a duty, although purely ministerial: High Ext. Rem., see. 119 et seq. It is not necessary for us in this case to critically examine the decisions with a view to settle the rule in this State, or whether the fact that the proceeding is against a board of which the Governor is a member, and not against the Governor individually, would make any difference, for the Governor, in his answer, declares his willingness to discharge the duty in question, and the Secretary of State submits to the decision of the court, and is, perhaps, not entitled to the immunity conceded by some of the cases to the Governor: Kendall v. United States, 12 Pet., 524; Marbury v. Madison, 1 Cranch, 49; State v. Lawrence, 3 Kan., 95. His Honor, the Circuit Judge, placed his decision, in dismissing the petition, upon the ground that it is made the duty of the sheriff, by the act of 1872, to certify and forward to the Secretary of State “ one copy or set of said books,” meaning the election books or list of voters required to be kept by law, and that the board of inspectors cannot be compelled to compare the vote and declare the result with nothing before them but the certificate of the sheriff of the contents of the certificate of the judges, inspectors and clerks holding the election. Ho such point is made by the answer of respondents. They as a board of inspectors, in their qiiasi judicial capacity, have determined that the returns are genuine, intelligible and authenticated as required by law, and, as we have seen, for aught that appears, a — 22 — copy or set of the election books was returned by the-sheriffs to the Secretary of State. Even if the facts be otherwise, and the defendants might have demanded a strict compliance with the law, they have not done-so, nor is any such question submitted to the court. It must, on that supposition, be presumed that they-were satisfied that a list of the names of the electors, for that is all the election books would show, was not necessary to enable them to discharge their ministerial duty. The Code, while providing for the.preservation of the poll books or lists of the names, of voters, and their deposit, duly authenticated, with the clerks of the circuit and county courts, makes, provision for the contingency of the parties failing to, perform these duties: Code, secs. 867-870. The result of the election is not made to depend upon a compliance with these directions. The Code, see. 887,. moreover, provides that no return, poll list or certificate shall be set aside or rejected for want of form, nor on account of its not being strictly in accordance-with the directions given, if the same can be clearly understood. This is a general provision, applicable to the re-, turns, poll lists and certificates required by law, and would equally apply to .the same documents, although made returnable, by a subsequent law, to different officers. It is said, as a matter of fact, that a literal compliance with the words of the act of 1872 has. never been pursued in practice, the sheriffs, instead of" a “copy or set of said books,” only certifying the result of the canvass of votes, as shown by the certificate23 of the judges of election and the election books. Without undertaking to say that a literal compliance with the law is not necessary to compel the board of inspectors to perform their duties if they choose to stand upon the letter of the law, the court must be content with any returns which they have not rejected for want of form or because not strictly in accordance with the directions given. Their decision upon these points is final in any proceeding against them to compel a discharge of their ministerial duties. This brings us to the consideration of the points •upon which the members of the board of inspectors differed, and which they “are willing that the courts may settle.” That point is whether the one vote shall be counted for the candidate in whose favor it was east, which is described in the sheriff’s return as “one illegal vote, as appears from the certificate of the judges and inspectors and clerks holding the election in the second civil district of Polk county.” Of course, no one would contend that an illegal vote ought to be counted. The argument, as put by the Secretary of State and by counsel, is that the board of inspectors cannot declare a vote illegal, neither can the sheriff, and that the judges of election have, by putting it on the list, counted the particular vote and thereby estopped themselves from declaring it illegal. It is said that after a ballot has been put in the box, and the name of the voter entered on the poll list, the ■ duty of the judges ís no longer judicial or discretionary. It is conceded, however, that by the — 24 — express provisions of the Code, sec. 862, the judges are required, in the case of a doubtful ticket or a ticket containing more names than the elector is entitled to vote, to “hold it void, cast it out, not number it in the tally list, nor retxirn it at all tb the sheriff.” They may adjudge the vote void and throw it out without further notice, but it is insisted they cannot “count and return a ballot as a vote received by a candidate and accompany it with a certificate that it is illegal.” “If it was illegal,” says the Secretary of State, “possibly they might have so held and adjudicated it at the time, but once having counted it, and certified on the poll list and tally sheets to the sheriff, they are estopped and concluded in the matter.” The board of inspectors having no power to try the legality of the vote, can only count the votes received, as shown by the return. It is clear that neither the sheriff nor the board of inspectors, whose duties in this regard are merely ministerial, can declare a vote illegal. That duty belongs to the judges of election. Provisions are made by law for the protection of the purity of the ballot-box : Code, 846 et seq. The right of the voter may be tested in advance, after which, if the decision be favorable, the vote is deposited in the ballot-box. When the election is finished the ballot-box is opened, and the names of the persons voted for read aloud from each ballot. Then follows the following provision : “ If there be two tickets rolled up together, or if any ticket contains the hames of more persons than the elector has a right to vote for, in either of these — 25 — ■oases such ticket shall not be numbered in taking the ballots, but shall be adjudged void ”: Code, sec. 862. The right of the judges to adjudge a vote illegal in the cases specified in this section, is beyond question. Whether they can go further and declare the illegality of a vote in any other case, after it has been deposited in the ballot-box, it is not now necessary to decide. The presumption of law is always in favor of the proper discharge of duty by an official charged with its performance. If there be any ground upon which a vote may be declared illegal by the judges of election, and they have so declared, the declaration is prima facie within the power. It seems to be thought, however, that the judges can only exercise their power, by throwing out the vote, saying nothing about their action in their certificate. The statute does not say that “ such ticket shall not be numbered in taking the ballots, but shall be adjudged void.” It does not say that the fact shall not be mentioned in the certificate of the judges, and it is obvious that if this be not done in a case where the ticket has been deposited in the box, and the elector’s name entered on the poll books, there would be a discrepancy in number between “the lists of the names of voters” and the votes as counted. The judges could not make the lists correspond in number with the votes by striking out one of the names, ’for they might not know the name of the guilty voter. Without undertaking to say that the judges might not take the course suggested, and simply cast out the vote, correcting the polling list if they can do so, we — 26 — do not think that after having adjudged a ticket illegal and void, their adjudication is rendered less effective-by stating the fact in their certificate. They have not counted the vote. They have counted and certified the legal votes, and certified also, as a fact, that one vote was received which they adjudge to be illegal. There is no inconsistency in the facts returned, nor anything in those facts which would authorize a ministerial officer to count a vote declared by the proper-officers illegal. The judgment must be reversed and a peremptory-mandamus issued.