State ex rel. Rice v. Smith

9 Iowa 334 | Iowa | 1859

WoodwARD, J

This same cause was before this court at the December term, A. D. 1858, (7 Iowa 158.) A peremptory writ of mandamus had been ordered by the District Court, and the defendant appealed. The judgment of that court was affirmed, and the writ issued accordingly.

In the return to the alternative writ, the county judge and canvassers had stated that they had rejected the returns from the townships of Le Grand, Marion and Green Castle, for insufficiency. It was held that they were not authorized to adjudge upon their sufficiency or validity, but, if they were returns, the canvassers must count them, and leave their sufficiency to be determined in some other proceeding; and that even this court could not adjudicate this question in that cause.

In the certificate of return to the peremptory writ', the county judge states, that in re-canvassing the returns of the election, in obedience to the peremptory writ, a majority of-the canvassers decided that the papers supposed to be returns from the three townships, were not returns, the two justices so holding, and he dissenting; and he sets forth the canvass made by them. In consequence of this decision, the returns from these three townships were not counted.

In this stage of the case, the relator moved for a writ of attachment against the county judge, and that the above certificate of return be set aside. This was set aside, and the writ of attachment was issued.

There is, strictly, no return to the peremptory writ. It is to be obeyed, and a certificate is made of what has been done. Tapp, on Man. 61, 389, 445, and 456; State v. Jones, 1 Ired. 414. A writ of attachment was issued running against the county judge, without naming him. A return of non est being made, an alias issued, and the same return was made, and a pluries was issued. The defendant then appeared by his counsel and moved that it be quashed, for the reason that the writs ran against the county judge and the returns to the former writ of attachment, and showed that the individual was absent from the county, and could therefore do no act as judge, (the former certificate having been made before the term of the court,) and that the county judge dejure or defacto, that is, the judge or his legal substitute, was always present in the county. The writ of attachment should run against Wm. C. Smith, who may be entitled as the county judge, but it should not issue against the officer’s name alone.

There was, however, occasion for such a writ. In the prior proceedings the returns'from the three townships had been treated as returns. They had been rejected for insufficiency only, and the command of the peremptory writ was that they should be counted. After this it did not lie in the power of the canvassers to say that they were not returns. The order of the peremptory writ extends to the justices as well as to the county judge, in its legal effect. If it were not so, they might defeat the object intended, and so it would be in this case. The judge with the justices, as canvassers, must do what is commanded by the writ. Therefore the writ of attachment should have issued against the justices as well as the judge. The county judge cannot control them and their actions, but this belongs to the District Court. The only discretion now left them is to compute the vote for their respective places. The judge having returned that he was willing to obey, cannot be made to suifer for disobedience; but he can still be caused to do the act.

The return of a copy of proceedings, made by the county clerk and showing a subsequent canvass, with the assistance of still other justices, cannot be regarded. It is not certified nor returned by the judge; and besides, the judge, with the two justices first called under the peremptory writ, or a majority of them, must be caused to obey the writ. They have been called, and they are not yet discharged. The appeal of the defendant is 'from the order setting aside the certificate of return, and granting the pluries writ of attachment, and from the refusal to set this aside. This writ should be set aside, but because it runs against the county judge alone, and against him in his official name. And such a writ must issue against Wm. 0. Smith, the county judge, and John Turner and Elias Wallahan, (who were the justices of the peace called to act as canvassers,) to all of whom the command of the peremptory writ extended, and they are to be dealt with according to law in such cases, until they obey the peremptory writ of mandamus.

The judgment of the District Court is therefore reversed, and a writ of procedendo will issue.