3 Mo. App. 526 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This was an application for a mandamus to compel appellants, as canvassers of election returns, to issue to the relator a certificate of election as representative for Congress, in the Third Congressional District. An alternative writ issued, and was served upon defendant Garesché, clerk of the County Court of St. Louis County, and upon defendants Finney and Shultz, justices of the County Court.
The petition alleges that, at a general election in St. Louis County, held on November 7, 1876, relator and R. Graham Frost were candidates for Congress, in the district named; and that the poll-books of said election, duly returned to defendant Garesché, showed that relator received 8,097 votes, and Frost 8,072 ; that the poll-books of Precinct 57, when received by Garesché, on November 8th, showed, certified to relator, 318 votes, and, to Frost, 272 votes, and were so read and called off by Garesché, to many persons, on that day; that on November 9th this return was fraudulently altered by some person unknown to relator, the figure “7” being changed into a “'9,” so as
Defendants Shultz and Finney, in their joint return to the writ, deny all fraud and oppression, and knowledge of any alteration of the poll-book, and say that, as canvassers,
The separate answer of Garesché denies all charges of fraud and oppression; denies that he ever read off or called the number “ 272 ” from the poll-book as the vote for Frost in Precinct 57 ; admits that he investigated a public charge that the vote had been fraudulently altered from “ 272 ” to “ 292 ” on the poll-book of that precinct; and says that he stated, and still believes, that the change was made, as stated, in his office, and after he had footed up said returns from a tally-sheet in his office, in which he had counted the figures in question as “ 272 ; ” says that he was advised by counsel that he could not change the figures to “ 292 ” unless he knew of the fact of the alteration of his own knowledge, but that he should, if he believed from circumstances which have come to his knowledge since the alleged alteration that the “ 7 ” had been changed to a “ 9,” state on his return his belief in the alteration. He denies that he ever said that he would adopt the count of 292 except accompanied with this statement of his belief. He denies that he ever directed, or assented to, the making of a tally-sheet of the vote with these figures set down as 292.
The answer further alleges' that he has no personal or official knowlédge of any change in the figures ; that, from circumstantial evidence elicited by him, he believes the change was made as alleged; that it was not made by his
A motion for judgment on the return was overruled. The cause was then tried by the court, a jury being waived.
The evidence is extremely voluminous, and its perusal leaves no doubt upon the. mind that the poll-books as returned to the office of the county clerk at nine o’clock on November 8th, the morning after the election, showed the vote for Frost at Precinct 57 to be 272, and that for Met-calf, 318; and that afterwards the vote for Frost was changed to 292. Everybody who had any official connection with the poll-books was examined as a witness.
Garesché testified that he had examined the “ 9 ” in the poll-book with a magnifying-glass, and believed it was changed from a ‘ ‘ 7 ; ” that, on the day the poll-book was returned to his office, he had made various calculations which appeared on a tally-sheet introduced in evidence, made in his office from the poll-books, which were all correct if this figure was then written on that sheet “7,” and all wrong if it was written £ ‘ 9 ; ” that this tally-sheet was not seen by him again until November 13th, when he found it under a blotter on his desk, and was at once struck with the fact that, in the Frost vote in Precinct 57, the <£ 7” seemed changed to a ££ 9 ” by a pen which had been once used for red ink, and then dipped in black; that he then went over the calculations again, and found them all right if this figure was “7,” and all wi’ong if it was ££ 9 ; ” and he was then convinced that the tally-sheet and poll-book had both been changed.
Young, a deputy in Garesché’s office, swore that he had entered the figures “ 272,” and not ££ 292,” on this tally-sheet, on the day after election, from the numbers as called to him by Brewer, another deputy, and that Brewer, on that day, called out the numbers of Precinct 57 to the newspaper reporters from the poll-book.
Yogel, another deputy of Garesohé, testified to receiving the poll-books of Precinct No. 57 from the judges of election, on the morning after the election ; also that he verified Garesché’s calculations on the tally-sheet, on the evening of November 8th, and found them correct; also that the poll-books were in a room inside the county-clerk’s office, and accessible to persons interested in the election, till November '9th, when attention was called to the alleged change in the returns.
Houser, the publisher, and Bohle, the collector, of the Globe-Democrat, swore that Garesché, on November 8th, gave them the vote for Frost.at Precinct 57, from the poll-book itself, as “ 272 ” — a memorandum produced at the trial being made by Bohle at the time.
Benedict, reporter of the Republican, swore that he took the figures “ 272 ” from Brewer’s call in the clerk’s office, on the day after the election ; and a question arising at the newspaper office as to its correctness, he returned at once to verify the numbers, which he did from the tally-sheet, where he found them “ 272.” He swore that the “ 7 ” had been changed on the tally-sheet to a “ 9 ” since he looked at it on that day.
Kargau, reporter of the Anzeiger, and Todt, reporter of the Westliche Post, also swore that they took their figures from Brewer’s call from the poll-books and tally-sheets in the clerk’s office, on November 8th; Frost’s vote in Precinct 57 was then given as “ 272.”
Springmayer and Ahlbrandt, two judges of election at
Foster, United States deputy marshal, was in the room when the vote was counted by the judges of election; copied the vote on a poll-book blank, from the call of one of the judges, for Wenderly, the supervisor of election, and then on another blank for his own use. Frost’s vote was “ 272.”
Wenderly, United States supervisor, corroborated Foster, but had no recollection of the exact vote for Frost or Met-calf, except as derived from the book prepared for him by Foster.
Norris, a policeman on duty at the precinct, was present when the vote was counted and- called out; remembers distinctly the vote was, “ Metcalf, 318 ; Frost, 272.” A poll-book was made out by the officers of election at Precinct 57, and delivered to witness on the night of the election with the results written out; he took this to headquarters, according to orders, and it has been missing ever since the second day after election, though diligently sought for.
Allen, chief United States supervisor of elections for this district, made a return as supervisor, based on the return made by Wenderly to him. This return was, ‘ ‘ Metcalf, 318, and Frost, 272.” The testimony of this witness was excluded on the objection of defendants, as.the return was in the handwriting of Allen’s clerk.
For the respondents three witnesses were introduced.
McAlpine, one of the clerks pf election at Precinct 57, who had no recollection as to the vote for Frost, could not swear whether the “ 7 ” was changed to a “ 9 ” by him or not; all the figures in the poll-book were in his hand.
John M. Hennessey, one of the judges of election, was called, but had no recollection as to Frost’s actual vote. His testimony was wholly unimportant in chief. Examined by the court, he testified that, at the request of the other
O’Connell, another judge at Precinct 57, did not recollect the exact vote for Frost or any candidate; nor did he state whether the actual return made on the book was “ 272 ” or “ 292,” or what it was.
No other witnesses were introduced on either side. A copy of the poll-book and the original of the tally-sheet, spoken of by the witnesses, were then offered in evidence and admitted. On the tally-sheet the figure in “ 292 ” is manifestly a “7” converted afterwards into a “ 9” by a curl added with a pen to the horizontal stroke of the “ 7.”
Many instructions asked by defendants were refused, and instructions asked by relator were given; and a peremptory mandamus was issued, commanding respondents, as election canvassers, in examining and casting votes at Precinct 57 for representatives in Congress, to cast the vote as 272 for E. Graham Frost and 318 for Metcalf. From this decree defendants appeal.
That Garesché had good reason to believe that these figures were altered in his office after the poll-books came there, is indisputable ; that he did believe so is not disputed; that the fact was so, the testimony adduced in the Circuit Court, if human testimony has any value, plainly shows. But the fact remains that, though Garesché believed the figures were altered — recognized in himself, perhaps, a moral certainty of the fact — he did not, at the time of the service of this writ, know it with that knowledge which utterly removes all possibility of doubt. He had no appliances at his command for examining witnesses, taking testimony, and sifting the matter to the bottom. It must, after all, have been clear to him that, whilst all appearances pointed to a change m these figures since they came into his custody, a judicial inquiry might show that these appear
The clerk certainly cannot inquire into, and has nothing
That the clerk, as a canvasser of votes, is a mere ministerial officer and has no. judicial functions whatever, but must accept without question, and simply count, the returns, is settled law. The statute provides (Wag. Stat. 569, sec. 25) that the clerk of each County Court shall, within eight days after the close of each election, take to his assistance
Undoubtedly; but he must know what the returns are before he can cast them up ; and to this extent he must have discretion. He cannot go behind the returns, but he must know what are the returns that came to his office. He has nothing to do with fraudulent votes, nor with changes in the books before they are left with him; but between two books, both claiming to be the poll-books left in his custody, he must decide, if such a question arise. He cannot count as a return what he knows not to be a return, nor count as a figure what he knows to be no part of the return made to his office, but something that has been put in its place since the books came there.
In approving the bond of the sheriff as collector, the justices of the County Court act in a purely ministerial, and not at all in a judicial, capacity, and yet they have a discretion in examining the sufficiency of the security. It is their duty to hear evidence as to the sufficiencj^ of the bond; and a peremptory mandamus will issue to the County Court in the matter of the approval of such a bond. The State ex rel. v. Lafayette County, 41 Mo. 225.
A jury commissioner is a purely ministerial officer; yet he must decide on the sufficiency of an excuse offered to have a juror stricken off the list. And where the nature of the excuse and the duty of the officer are plainly defined by
The State ex rel. v. Dougherty, 45 Mo. 300, was a case in which a county treasurer made return to the alternative writ of mandamus, directing him to show cause why he should not make payment to the School Board, that he did not know how much of the fund remained in his hands. The court told him that it was his business to know — that he must inform himself at his peril; that the court would neither investigate the matter for him nor direct him to pay any specific sum; but that it would require him to pay over the actual balance in his hands, the'amount to be ascertained by himself. And the court warned him to see to it that he rendered an accurate return. Who can doubt that, if in that case the doubt and uncertainty had necessarily and inculpably arisen from the circumstances of the case, and the means of information were beyond the reach of the respondent, the court itself, before issuing the peremptory writ, would have furnished the respondent with the machinery of the law proper to set on foot an investigation, and arrive at a determination of the fact?
“ Mandamus does not lie to guide the discretion of inferior tribunals, but it is emphatically a writ requiring the tribunal or person to whom it is directed to do some particular act appertaining to their public duty, and which the relator has a legal right to have done.” Dunklin County v. District Court, 23 Mo. 454.
The act must be in its nature a ministerial, and not a judicial, act; and it must be quite plain that the act ought to be performed. This being so, the court, at the instance of one having a right to have the thing done, will compel the officer to do his duty. The court will not guide the discretion of a judicial officer. Nor will it ever interfere in a doubtful case, where there is room for discretion in the proper sense of the word; because, if discretion is to be
If, as is said in the case at bar, the poll-books as returned to the office of the county clerk showed that relator had a majority of legal votes for the office of rej>resentative in his district, it was the duty of the canvasser to certify that fact, and he had a right to the certificate. When required to show cause why they should not so certify, respondents answer that they do not know whether the poll-books as deposited in the clerk’s office showed a majority for relator or not; and the respondent, Garesché, who is by law the custodian of those books, says he believes they were altered in his office so as to give the majority to the opponent of relator ; that he has no personal knowledge of the fact, and was therefore about to certify to the face of the poll-books as they stood after the fraud had been committed. This fraudulent alteration, though made without any complicity or fault of his, was, according to the belief of respondent, avowed in his answer, perpetrated in his office,
We are referred to a case in Iowa which is claimed by counsel for appellants as decisive of the question that the Circuit Court has no such power as was exercised in the granting of this writ. We have looked at the case, and we do not think it has the force which appellants claim for it. It certainly does not decide that, as between a true and false return, the canvassers have no discretion to decide which is true. On the contrary, it concedes that they have this discretion; for that is precisely what the canvassers did
The case is The State ex rel. v. Bailey, Bounty Judge, etc., 7 Iowa, 393. An election was held for a county seat. The canvassers counted the vote for one precinct as forty-three. It was claimed by relator that this vote was altered from “fifty” to “forty,” and should have been’ counted “fifty-three.” The canvassers declared the result in favor of Forest City, and the county judge, the respondent, so entered of record, and declared Forest City the county seat. An alternative writ was issued against the county judge and others; what the prayer of the writ was does not appear. On the trial, evidence was introduced that the returns had been altered after they had been sealed up by the judge of election and directed by the board of canvassers. This evidence was objected to, on the ground that the court could not receive evidence that was not before the board of canvassers. A peremptory writ was awarded; and this order was reversed by the Supreme Court, on appeal.
The court says that any tribunal constituted for the trial of a contested election, when trying the ultimate question of right, may go behind the returns. “ On the other hand, the duty of canvassers is to receive the returns, count the votes, and either to declare the result or certify the numbers to another board of canvassers. So far their duty is ministerial, as it is often said to be in the books, and they have no discretion. But it is not always so. The case or the point may arise when they may exercise their judgment or opinion. Therefore'their duty is sometimes said to be not altogether ministerial. Ex parte Strong, 20 Peck, 444. Such we conceive to be the question on the word ‘ forty,’ whether it was ‘ forty ’ or ‘ fifty.’ Here they must exercise
Now, certainly, this case is not parallel with the one before us. And it has not been contended by counsel for relator in this case that, had the respondents, the canvassers, acted — examined the votes and made the return — he ■would have been entitled to the writ, or that he could then have taken testimony in a proceeding of this nature, as to whether or not the figures which had been counted and returned as “ 292,” were not “ 272 ” in fact.
The court then uses the following language: “If the District Court, or this one, were acting Upon the final question which town were chosen — if it could, under this proceeding, pronounce conclusively between them — if it did not have to act upon and through the canvassers, it could properly hear testimony showing the alteration in the record. And in truth we cannot say it was error to receive it, because it was nugatory. The court cannot command the canvassers to regard the word as ‘ fifty,’ for it depends upon opinion, upon evidence; upon opinion whether it is 1 fifty ’ or ‘ forty ’ upon the face of the paper, and upon evidence whether it has been changed. If the court may control the canvassers upon this, then the order for the peremptory writ is not sufficient. They are ordered to count all the votes. But they say they have counted all. They should be directed to count fifty-three in favor of New Hampton from Deerfield. Nothing less than this will reach the point. But this the court cannot do, for it would be controlling their discretion, and perhaps commanding them to act against their convictions.”
The precise force of this language cannot be determined without a fuller understanding of all the facts of the case, and of the peculiarities of the Iowa law for the election of county seats, than I have been able to gather from the opinion. But it is quite clear that, whilst the court says —
To say that to command the clerk to treat the return in the case before us as “ 272 ” may perhaps be commanding him to act against his convictions, in the face, of his answer stating his belief that “ 272 ” was the return that he received from the clerk of election, would be absurd. But this, considered in itself, is not, perhaps, a valid objection to submitting an issue of fact, in a mandamus proceeding, to a tribunal authorized to try the fact; because it may be said that no one is permitted to be wiser than the law; and when a fact has been found by a competent tribunal, it must in all cases be recognized as a fact by all who are called upon to deal with it. Where there can be a reasonable doubt, however, and there is therefore room for the exercise of discretion, it is undoubtedly the province of the clerk to determine which is the true return, and the courts will not then interfere, unless the clerk refuses to act.
Where the duty of a ministerial officer is plain, the court will, at the instance of any one who has a right to have that duty performed, command him to do it. If there is grave doubt as to the right or power of the officer, against whom the writ is asked, to perform the alleged duty, the writ will
We have given to the matter that careful consideration which the importance of the principles involved seems to demand, and as we see no error in the action of the Circuit Court in taking testimony as to the alleged change in the return after it was received by the clerk of the County Court, the return to which the canvassers must certify is that which the clerk of the County Court is shown to have received.
The judgment of the Circuit Court is affirmed.