State ex rel. Stewart v. Marks

Fbeemaisí, J.,

delivered the following dissenting opinion:

The petition for mandamus in this case states that petitioner was a candidate at the late November election for joint Representative of the counties of Polk and Bradley in the General Assembly of the State. He claims that as the result of that election, he received a majority of one vote of all the votes cast, and was therefore elected. As evidence of this fact, he refers to the returns of the sheriffs of said counties, now on file in the office of the Secretary of State, transcripts of which he files and makes part of his petition. These transcripts or copies of the sheriffs’’ returns from those counties are presented by petitioner as the sole evidence of his election and the basis on *27 wbicb the action of the court is invoked in bis favor. Erom this evidence he assumes that it appears he has received the legal majority of the votes, and then, that the Governor and Secretary of State have failed and refused to perform the duty assigned them by law, to issue him a certificate of his election, which by the act of 28th of March, 1872, is made prima facie evidence of such election. Based on these allegations of fact, the petitioner prays for a writ of mandamus -to compel these officers, as a board of inspectors, to discharge the duties imposed on them, to declare him elected, and issue to him a certificate of such election, or show cause why they so refuse.

This is the case made by petitioner in his petition.

The respondents acknowledged service of the alternative writ of mandamus issued on the above petition,, and without raising any objection to the jurisdiction of the circuit court, filed an answer, which is substantially as follows:

They admit the character in which they are sued, and that as such they are constituted by law the “ board of inspectors,” to declare the result of the-election in this case, under the act of 1872.

They then say, “they admit that the certified copies-of the returns of Polk and Bradley counties are correct,” and that they did and still refuse to declare the relator, Stewart, elected, and for that reason the certificate had been denied when demanded. This action of the board was caused by the fact that Governor Marks was of the opinion that, from the’ face of' the certificate, Stewart had a majority of one vote, and *28 was, therefore, entitled to the certificate, while Mr. Secretary Gibbs was of the opinion that the vote of each candidate was equal, and, therefore, neither was •elected or entitled to a certificate of the fact, and so no certificate was issued.

The answer then closed by the statement that “respondents are willing that the courts may settle this question.-”

This is the case made by respondents, on which, the circuit judge, the Hon. Frank Reid, held the relator not entitled to the relief sought, and, therefore, dismissed the petition, from which there is an appeal in error to this court.

The judgment of the court, as found in the record, states that the cause was heard upon the petition, writ, answer, and argument of counsel, and upon consideration thereof, the court adjudged, as he did, the relator not entitled to the relief sought.

On this judgment, based on these facts, that is, the .statements of the petition, writ and answer, error is assigned, and we are called on to review and reverse the action of his Honor in this case. In other words, we are called on to adjudge, whether, on the facts before this board of inspectors, as shown by the record before us, or the case on which they have acted in refusing to issue to the relator a certificate of his ■election, they have violated his legal rights, failed to perform the duty imposed upon them by law, and therefore should be compelled by mandamus to do what they have failed and refused to do, and of which the relator now complains.

*29 We take this to be a fair statement of the legal question presented for our decision, to the solution of which we now direct our attention.

We think this statement of the question before us is involved in the nature and principle that underlies the remedy resorted to, that is, a mandamus. The principle on which this remedy is properly applied is thus given by this court: “ Whenever a statute gives power to or imposes an obligation upon a particular person to do some act or duty, and provides no specific remedy on non-performance, a mandamus will lie.” It will, therefore, be observed that it is one of the remedies resorted to when the person desires to be placed in possession of a right illegally and unjustly withheld from him. It does not award damages ,as a compensation for an injury, but it seeks to give the thing itself — the withholding of which constitutes the injury complained of: Mobile & Ohio Railroad Co. v. Wisdom, 5 Heis., 155. Opinion by Nicholson, C. J., citing Tapping & Moses on Mandamus.

The principle thus announced involves three elements: first, a right in the applicant; second, a legal duty imposed upon the defendant, and, third, a failure or refusal, on his part, to perform the duty thus imposed.

It follows that a party seeking the benefit of this remedy must assume, as the basis of his application, the existence of the elements we have thus stated, to-wit: a right in himself, a duty imposed, and a failure or refusal on the part of the one having the duty to perform to do that which he ought by law *30 to do, a proper state of facts being presented to bim demanding sucli action.

The question in this case is whether the relator, on the facts found in this record, has shown his right, the duty on the part of respondents, and a failure or refusal on their part to perform that duty.

"We need scarcely add the well-known qualification of the rule, that the duty to be performed must in general, if hot in all cases, be of a ministerial, and not of a judicial character.

We may assume as a necessary predicate for the action of a court under our system, in every case, that the party seeking such action must allege in his pleading a state of facts from which the relief sought would follow, and then must prove such allegations as he makes by competent and sufficient testimony. The question is, has this been done in this case? If so, then'the proper relief must be given; if not, then it cannot be demanded.

By the act of 1872, oh. 5, sees. 1 to 4, the duties ■of judges of elections, sheriffs and inspectors are prescribed as follows:

1st. It shall be the duty of the judges of elections in each county in this State, in case of the election of Senators and Representatives, within ten days after said election, to cause one copy or set of said “polls, books or lists to be filed with the clerk of the circuit court, and another with the clerk of the county court of the county in which the election was held, and also to furnish the sheriff of said county with a copy properly certified.”

*31 By sec. 2: In counties which singly elect a Representative, and in those which singly elect two or more Representatives, the polls shall be compared at the court-house in said counties; and in all Senatorial ■and Representative districts, it shall be the duty of the sheriff of each county, within ten days after said election, to certify and forward to the Secretary of State ■one copy or set of said books.

By sec. 3: The Governor and Secretary of State are hereby 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 of this State, and declare the result and then, by the 4th section, when the result of such election shall have been ascertained and announced, the Governor shall issue certificates of election to the persons receiving the largest number of votes in said district, which certificate shall be prima facie evidence of such election; and the sheriffs of the several counties singly electing one or more Representatives shall •issue certificates of election to the persons receiving the largest number of votes cast at said election.

It is seen from the reading of this statute, that it cannot be clearly understood without reference to other statutes; for, what is meant by causing “one copy or set of said books or lists to be filed,” as required by the first section, is not explained by the language used — nor the language “and also to’ furnish the sheriff of said county with a copy properly certified.” By section 859 of the Code, it is provided, as one ■of the regulations governing the conduct of elections, *32 that “ when the officer receives the ballot, he shall call the name of the voter, in a distinct voice, and the clerks of the election shall take down, on separate lists or books, the names of any person voting,, and shall attest the correctness of them under their-hands.

By sec. 861: When the election is finished, the-returning officer is to open the box and read aloud the names of the persons which shall appear in each ballot,, and the clerks at the same time shall number the ballots, each clerk separately; and then, by sec. 871, it is provided, “ The officer or person holding the election, within ten days after the election, shall, at the request of any person elected to serve in the General Assembly, or other person in his behalf, cause fair copies of the list of votes, and of the number of ballots for each candidate, to be made out and delivered to the person requesting the same, or to his order, which list and numbers shall be signed by the returning officer.”

By sec. 869, it is provided said books, lists, or copies of them, certified by the clerk having custody of them, shall be records and be received as evidence in any case arising out of said election, subject to be impeached, however, by other evidence — a previous section having provided for their deposit, or copies of them, with the clerks of the circuit and county courts.

From these provisions; we see that the law contemplated a list of the voters and also the number of the ballots for each candidate should be thus preserved, as records, in the proper place of deposit, and *33 these constitute what is known as the poll books or lists, which are referred to in the act of 1872, which we have quoted. Now, I take it, the plain meaning of all this is, that the inspectors, who are to compare the votes, ascertain the result and give the candidate a certificate of his election, are to have copies of these documents forwarded to them, and with these copies before them, duly authenticated, they are to perform the duty assigned them. If this is not the meaning and purpose of the statutes cited, then the English language cannot convey the meaning of a Legislature. In fact, I. do not understand the majority opinion to controvert this view of the requirements of law of our State.

■ It is said in argument that these requirements have been habitually disregarded, but this can make no difference to us as a court in ascertaining what the law is. It only furnishes an urgent reason why the law should be enforced by the courts, that it may bo respected in the future. Violations of law or failure to comply with its demands, cannot abrogate it.

The requirement of the statute being, that “in all Senatorial and Representative districts, it shall be the duty of the sheriff of each county, within ten days after said election, to certify and forward to the Secretary of State one eopy of said books, which, as I construe the law, includes poll book or list, as well as the state of the vote for the respective candidates voted for; and in a previous section it is provided, copies of all these shall be furnished to the sheriff in order that he may comply with the requirements cited.

*34 When these copies, duly certified, are received by tbe Secretary, it is tbe duty of tbe Governor and Secretary to compare tbe vote, ascertain and declare tbe result, and then issue the certificate of election to the parties shown to be entitled, but on no other evidence can this be done, except as required above.

There are other provisions of law which authorize sending for the returns in case of failure of the sheriff, which, I think, furnish abundant means to enable the inspectors to perform the duty assigned them. In fact, if no specific provision existed, it would probably be equally their duty to procure them, in order that they might perform an important official duty imposed on them by law.

But in addition to this, by section 871 of the Code, on demand of a party interested, it is made the duty of the sheriffs to furnish duly certified copies of the list of votes, and the number of ballots for each candidate; so that the relator had it in his power to supply the proper legal evidence of his election, and on this to base his demand for the certificate authorized to be issued, if he was legally entitled to it.

It is argued that it would be inconvenient to send the poll books or lists and returns, and thus comply with the law. Such an argument may well be made to the Legislature on the question of a change of the law, but has no forc'd when presented to a court sworn to enforce and carry out the mandate of the law-making power, whose duty it is, not to make, but construe the law.

It is said there could be no need for the poll *35 books or list of votes. That is not for us or anyone else to say. It is enough the Legislature has so commanded; it is the law, and should be obeyed. We must assume there was a reason for the requirement.

We can well see how this requirment may serve as an important check on mistake or fraud on the part of judges and clerks of election. The list of voters, numbered as required by the statute, will show precisely the number of votes cast. If any discrepancy should appear between the number of votes cast and the number reported as received by any candidate, this furnishes the ready means of detection.

Suppose, for instance, the poll boobs show only one thousand votes cast in the county, but the returns of the number of votes given to two candidates should show that one had received seven hundred votes and his opponent say eight hundred and fifty, thus giving him six hundred and fifty more votes than were voted. Suppose, in looking over and comparing the returns, it should be found that in two precincts this candidate is credited with having received three hundred and twenty-five in each more than the lists showed had voted. The fraud or mistake would at once be detected', and the duty of the inspectors would be clear to discard the excessive votes thus detected, and give the certificate of election to the other candidate receiving the eight hundred votes. Such cases might well occur and may well have been guarded against by the Legislature. Without such a check the returning officers may, by mistake or fraud, elect any *36 candidate, and the officers whose duty it is to declare the result have no means of correcting the error or detecting the fraud. These are not the times to relax our vigilance or, by construction, to lessen the safeguards thrown around the safety and purity of the ballot-box.

Whether the reasons given for the law are sound or not, it is enough for mo to know it is so written,, and then my duty is plain to enforce it — a duty which I cannot hesitate to perform.

That it was contemplated that this comparison should be made between the poll list and the number of votes reported in favor of each candidate, is evident by the requirement that this list shall be sent to the sheriffs, and then, in the case before us, he shall send a duly certified copy of it to the Secretary of State. No other conceivable reason can be given why the lists of votes should be sent at all. If they are only to compare the number of votes received, then they only needed the statement of the votes given for each candidate, and their work was one simply of addition and subtraction.

We now look at the transcripts from the Secretary of State’s office, made part of the petition, and admitted to be correct, to see whether they furnish the legal basis on which these inspectors were called on to act, and upon which they could have rightfully performed the assumed duty of issuing a certificate of election to the relator. If not, we take it, other things out of the way, it follows he has not been wronged; or, if wronged, the inspectors have not done *37 that wrong. In fact, if, without this 4 evidence, as required by law, they had issued such certificate, they would have but added another instance to the neglects and failures, in disregard of the law, which the learned counsel in argument tells us has been the practice since the passage of the act of 1872.

The documents referred to are substantially as follows :

The sheriff of Polk county certifies that at an election, held on the 2d of November, 1880, for electors for President and Vice President, for Governor, members of Congress, State Senator for the sixth senatorial district, and joint Representative for the counties of Polk and Bradley, the following is a correct report of said votes polled, as appears from the certificates from the judges and inspectors of the several civil districts of said counties, to-wit:

The Democratic electors for Hancock and English, headed by John L. T. Sneed, received 653 votes each. He then gives the number of votes received by the Republican ticket, headed by George Maney, and so on with the other candidates until he reaches the case of joint Representative. He says, as to this, James G. Stewart received for joint Representative of Polk and Bradley, 570; W. T. Foute received for joint Representative of Polk and Bradley, 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. •Signed by J. C. Hannah, sheriff of Polk county.

The returns made by the sheriff of Bradley are *38 nearer a compliance with the law, that is, he sends a copy of the returns, showing the number of votes, given for each candidate, tabulated so as to enable the-inspectors to sum up the result, so far as the enumeration is concerned, and he certifies this to be “the full official vote of said county, as shown by the official returns from all the districts of said county, now on file at the office of clerk of the circuit and county courts.” But it is not a copy as required by law.

But there is no copy of the poll books, or list of' votes cast, as required, nor could the inspectors by any possibility perform the duties assigned them by law from these documents. Their first duty is to. “ compare the votes.” What was there to compare this return with? So far as the actual numbers of' votes cast is concerned, there was nothing by which a comparison in this respect could be instituted. There must be the other document required by the statute, that is, the poll book or list of voters, and then the number of votes cast could be ascertained, and then this be compared with the number stated or shown to have been received by each candidate, and thus it would be seen whether the two corresponded on comparison of the number of votes shown by each. Until these copies were before them, they were not authorized to declare the result, for such is the imperative language of the statute. When it was done,, then the next step was to add the number of votes for each candidate, see the result, and see which had the majority, and then issue the certificate to the-party having the largest number of votes.

*39 If these inspectors could issue a certificate without the poll books or lists as required by law, they can do so on any evidence they may choose arbitrarily to adopt. They could, as I think, as well have been called upon to issue a certificate on the statement of the vote as found in the newspapers as on the statement found in the record from Polk county. It does not purport to be a copy either of the “poll book or lists,” or of the returns, but only shows what the sheriff says they contain, or the result he has reached from the returns made to him. It may be correct, but the inspectors have no means of verifying its correctness. They have no legal evidence on which they are authorized to act. How could the inspectors, from this, “compare the votes”? No law, of which we have any knowledge, authorizes them to act on such a certified statement from a sheriff.

He also certifies that Eoute received 425 legal votes and one illegal vote, as appears from the certificate of the judges, inspectors and clerks holding the election in the second civil district of Polk county.

By what authority his statement of the fact that this illegal vote appears to have been received is made evidence to anybody, we are unable to conceive, and have had no rule of law, statute, or otherwise, referred to, nor' do we know of any by which such a statement serves to substantiate the fact thus stated. Until this is done, it must be held no more than the statement of any other unauthorized party, and of no legal validity whatever.

But it is said the “inspectors have in their answer *40 admitted the correctness of the certified copies of the returns,” They have admitted, in the language before quoted, “that the certified copies of the returns of Polk and Bradley are correct.” This can only be their opinion; . they had no means of testing its correctness. But we cannot see that this affects the question before us. Admit they are correct, either as copies or that they state the result of the vote correctly, still they could not admit that these copies furnished the legal basis on which they either could or ought to have acted; or, if they concede, did so admit, the papers themselves show the contrary. They are correct in any sense you can conceive, and give them all the force such concession may involve, and then they are worthless as the basis of the action sought to be compelled by this proceeding. Concede that the inspectors had undertaken to act on these documents, and had disagreed as to what that action should be, and therefore refused to issue a certificate, and it only amounts to this, that they proposed to act without authority of and in violation of law, and failed to agree upon what should be done. This is all that can be predicated of their statement — no more, no less. Suppose they had answered that they had a statement from the chairman of the county court of Polk county before them, which they believed was a correct one, as to the number of votes cast for each candidate at the election, and also of the fact that there was one illegal vote stated to have been given, and on this statement one believed a certificate should have been given to the relator, and the other not, *41 ■would it not be conceded at once that they ought not to have issued a certificate on this, however correct they may have deemed it? Why? Simply because it is not what the law authorized or required them to act on; and if they had acted on this evidence, they would have acted in violation of the law under which they were alone authorized to act at all. If this be true, what element of legal difference can there be between one unauthorized statement and another — one made by a chairman of a county court, and one made by a sheriff? We are unable to see any difference, and think each is equally worthless as the basis for official action. To have acted on this return by the sheriff, would have been illegal action ; to refuse or fail to act on it, can be no legal wrong to the relator or any one else, and if so, then he presents to this court no case of legal wrong done him, consequently is entitled to no legal remedy. In fact, to enforce action on these facts by the inspectors, would be to compel them, by the judgment of this court, to violate instead of perform a legal duty. The writ of mandamus, under the principles cited above, lies only to enforce the performance of a legal duty. On these documents no legal duty arose, and on the case made by the relator himself none could have been performed; therefore, no such action can legally be compelled. A mandate to violate the law would be an anomaly in the action of any court— one that we think no court can rightfully make or properly enforce.

It is argued that it may be inferred that the poll *42 lists or books were in the Secretary’s office, and before the inspectors. We need but say, that the petition and transcripts made exhibits fairly rebut this,*for, if such documents had been there, they would-have certainly been produced. In the next place, it was conceded in argument frankly by the learned' counsel that these documents were not on file, and that the practice had never been to file them.

But admit this inference, the case is not helped.. The more important document is a certified copy of' the return of votes cast for each candidate. The only evidence tendered, and, by fair implication, the-only evidence in existence of this, is the transcripts exhibited with the petition. These, as we have shown,, do not purport to be copies of the poll books or returns, but only the sheriff’s statement of result of his inspection of them, which may or may not be correct. But for the purposes of the inspectors, this statement is of no more validity than the report taken from a newspaper. When any law can be shown in our State which makes such a statement equivalent to a certified copy of a record, then I shall promptly yield the point, but not till then, and opine that no such law will ever be found. I may add, that the logic which goes on the idea that a state of facts may exist because not shown, and makes the absence of proof the basis of adjudication, is not and cannot be sound. The ease made by the relator is what we are called on to adjudge, not one that may by possibility exist.. That case as made is based on the transcripts made-exhibits to the petition. On that case I base my- *43 judgment — not on wliat may possibly exist, but which does not appear in the records.

For these reasons, I think the circuit judge properly refused to grant the relief sought and dismised the petition. The right to the action of the court to enforce the issuance of the certificate, not only does-not appear from the case made by complainants, but, on the contrary, the issuance of such a certificate would have been illegal and improper; therefore, the respondents have not failed or refused to perform a legal duty imposed on them, and the basis of the complaint of the relator fails, and he is not entitled to the remedy sought.

The fact that the respondents have given a wrong reason for their action, or a reason that was insufficient, does not change the result. The question is, not what were their views as to the action to be taken by them, but what was their legal duty. If this did not exist, it makes no difference whether they failed to issue the certificate for one cause or another-The real question is, ought they to have issued it at all for any reason on the documents before them? I think no one could seriously maintain, with the law before him, that they ought; and if not, then they cannot be compelled to do what by law they were-forbidden to have done.

It may be said the respondents have not specifically interposed as á defense the fact of the insufficiency of the returns. This is true. They have-simply admitted the facts, as stated and shown by the relator, given the point of difference between them *44 ■selves, and then submitted the whole case to the judgment of the court. This leaves us to adjudge upon the case made in the record, whether they have failed to perform a legal duty, for that is the affirmative •ground on which the relator stands. In support of his claim, he tenders the evidence himself of his right in the form of these certified transcripts from the Secretary of State’s office, and' this is the sole evidence presented by him. If it is insufficient, then his case is not made out on his own showing, and he must fail of the relief sought by him.

In conclusion, I think proper to add, that the failure of the relator to have the proper evidence or documents before the inspectors on which he could have legally demanded the action of the inspectors, is the result of his own laches. By sec. 871 of the Code, before cited,- he had the right to demand copies ■of the lists of votes, and the number of ballots for each candidate, certified by the returning officer, and he could have presented these documents, required by law, and had such action as was proper upon them, •and thus had the legal evidence of his right before the court. This, possibly, he may do yet; but until it is done, and the action of the board invoked on a legal state of facts, they cannot be compelled to action on that which the law does not authorize, but, by prescribing certain evidence, has fairly forbidden action on any other. For these reasons I think the .judgment of the circuit court should be affirmed.

It is proper to say, that on the main question, -about which the Governor and Secretary of State dif *45 fered, if the proper evidence had been before them on ■which they could have acted, I should agree with the-conclusion reached by my brother Cooper, on the principle that every presumption is in favor of the regularity of the action of a public officer, where by law he has the power to act at all, and error must be. shown, but cannot be presumed or inferred.