5 S.C.L. 264 | S.C. | 1812
In this case, I shall take no notice of the facts which have been brought to the view of the-court, as to the file, gality of the votes given, and the conduet of the managers. I feel no inclination to extend the cognizance of this court, and am of opinion that we have no power to interfere in the present contest, I would remark here, that throughout the argument, the persons who decided this question, are spoken of as managers of an election. It is true, that they acted in that capacity in receiving the votes; but when the question of the right to the office was to be tried, they acted as a court for the purpose, says the act, of hearing and determining, oyer and terminer, the matter in dispute, and of course were vested with judicial powers ; and being so vested without an appeal, their decision is final and conclusive. In all the Variety of cases, which have been quoted from English authorities, it will be observed, that there was no other tribunal to which the contending parties could resort, but to the Court of King’s Bench. But here, the legislature have expressly provided a tribunal, by which the right of these persons could be decided. Had they not done so, we should have taken into consideration their conduct as managers. It was urged that this court should do so, because the court and managers were the same persons. This argument may, with propriety, be urged to the legislature, that it was not proper to make the managers judges of the correctness of their own conduct ; but it can weigh nothing with me. The case relied on from Bay’s Reports of the commissioners of the tobacco inspection, bears no analogy, in my mind, to the present case ; because the power given, was a ministerial one, and a rule of conduct was prescribed by the act. In all such cases, the Court of Sessions will
The motion in this case, is to reverse the decision of the Court of General Sessions, for the District of Darlington, by which a peremptory mandamus was ordered to issue to the de. fendants, as managers of an election for sheriff of the said district, commanding them to certify to the governor of the State, the due election of the prosecutor, Nathan Hanks, to fill the office of sheriff of the said district, pursuant to a late act of the legislature of this State.
An application was made, by way of suggestion, to the District Court, for a conditional mandamus; or, in the alternative, to certify as required by the prosecutor, or shew cause to the contrary. The cause shown was deemed insufficient, and the conditional mandamus issued. The service of this mandamus was accepted by the defendants. The supposal of the writ, states, that the office of sheriff of Darlington district being vacant, and the defendants being appointed managers to conduct an election of an officer to supply the vacancy, according to law, held an election for that purpose, the result of which was, that the prosecutor, Hanks, was duly elected, and was declared so to be, by a majority of forty-seven votes.
The writ was returnable to the Court of General Sessions, then sitting in Darlington district, on the Friday next, after the teste thereof; viz. the third Monday in March, 1812. The defendants appeared, and made a return to this effect: That the office being vacant, as stated in the writ, the defendants were appointed managers of an election to fill the vacancy, pursuant to the directions from the executive, and agreeably to law. That three of' them only, were present when the votes were counted. That the prosecutor was not declared duly elected, nor considered so to be. That a scrutiny was demanded by John M’Ra, a candidate for the office, and that upon a full hearing upon the scrutiny, it did not appear that the prosecutor had a majority of legal votes. And that in duty
To sundry facts and circumstances, set forth in the supposal of the writ, tending to charge the defendants with partiality and mis. conduct as managers, they reply in detail; and enter into particular vindication of their conduct and characters ; and close, by submitting the following facts and legal questions, viz.:
They allege, that Peter Edwards was appointed, together with George Bruee, to manage the election held at Darlington Court House ; and that the election at that place was conduced by George Bruce alone; which was not according to the directions of the legislature. They further allege, that only three of the six mana: gers appointed, met at the place appointed for counting the votes, and declaring the election. And they submit, whether the election ought not to be considered void, as it was not managed by all the managers appointed to manage the same, conjunctively, but by some of them in. the absence of the others, and without their assistance or concurrence. They also submit, whether they can legally be compelled to make.any other decision, than that which they did make ; or to decide by any other judgment than their own, however incorrect it may seem to be; as in quality of managers, they exercised a judicial discretion, and did not act in a mere ministerial capacity. It was objected, and argued in the District Court, that the return ought to be quashed for inconsistency; because, after setting forth the proceedings of the defendants, as managers, and stating facts and reasons in justification of their conduct as such the return goes on to state other facts and reasons, to shew that the defendants could not legally act as managers in the premises, and were incompetent to hold and declare the election,
Part of the return was quashed for inconsistency; and that which was not quashed being adjudged insufficient, a peremptory mandamus was ordered'to issue. From this decision of the Dis. trict Court, the defendants entered an appeal, which is the subject of the present motion. To form a correct opinion, respecting the propriety and sufficiency of the return, and the legality of the deci. sion of the District Court, it will be necessary to attend to the act of assembly, passed in the year 1808, authorizing the election of sheriffs of the several District Courts by the resolution of the legislature, appointing the managers of elections for members of the legislature passed in December, 1809.
The act of 1808, declares that in case any vacancy shall hap
The resolutions of the legislature, appointing managers of the elections for members of the Senate, and House of Representatives, of this Stale, who were managers of the elections for sheriffs, •at the time when the election in question was ,directed to be held, passed.in December, 1809. By the resolution relating to Darling-ton district, it appears that George Bruce, an.d Peter Edwards, were appointed to manage the election at Darlington Court House; WiHiain Brantlett, and Moses Waters, to manage at Elijah Hut-son’s ; and Daniel Dubose, and George Huggins, to manage at Enos James’.
This resolution directs, that one manager for each place of election shall meet at Darlington Court House, to count over the votes, and declare the election. From these premises I proceed to en-quire, 1. Whether the proper legal remedy in a case like the present,'is by a writ of mandamus; and if it is, 2. Whether, under the circumstances of this case, the prosecutor is entitled to the benefit of it. This last enquiry will involve the question, whether the return to the writ,-ought to be deemed sufficient; and whether, although it may be, in some respects, defective, a .peremptory mandamus ought to issue.
1. A mandamus is a criminal‘process, relative to civil rights. In
In all cases, where there is a specific, legal right, there ought to be a specific, legal remedy ; and I believe it may be safely asserted, as a general proposition, that where there is, with us, such a right, there is also a corresponding remedy. It is an established maxim of law, that where there is a specific, legal right, and no other spe-. cijic, legal and operative remedy, a mandamus is a proper remedy, upon reasons of justice and public policy, to preserve order and good government. Where any one has been unlawfully Jcept out, or dispossessed, of an office, to which he is entitled, it lies to admit, or to restore him. 4 Burr. 2044. 3 Burr. 1266. 1 Black. Rep. 547.
It is always incumbent upon him, who claims the benefit of this process, to shew, 1. That he has a specific, legal right; and, 2, That he has no other specific, legal remedy.
It must be admitted, that the office of sheriff is of considerable importance to the public: and it materially concerns the administration of justice, and the peace and good order of civil society. It is interesting to the public, that an officer of such consideration, [if he has a right U the office, and is unlawfully kept out of it, should be admitted to fill it; and if he has been unjustly and illegally removed from it, that he should be restored to it, as speedily as possible. It is-also an important right, which the individual, who is injured, may legally insist upon, and which ought fa be secured to him ; the office being one of profit as well as trust.
It is said to be discretionary in the Court, to grant or refuse a mandamus; but a discretion, regulated by the rules and principles of law, must be understood ; and not an arbitrary and capricious discretion. Therefore, every citizen must be legally entitled to the aid of this process, who can shew, clearly, to the satisfaction of the court, that he has such a right, as the law ought to protect and
If then, in this case, it should be admitted that the prosecutor is ■entitled to fill the office of sheriff; if the defendants ought to have certified that he was duly elected to that office, and that they improperly and illegally withhold their certificate, by means of which his commission is refused, and another person has been commissioned in his stead 5 and if he has no other legal remedy, whereby he can obtain adequate relief, it seems, beyond all doubt, that he is entitled to this writ of mandamus. Whether the prosecutor has made out such a case, as entitles him to the writ upon these principles, or not, will be the subject of enquiry in the sequel. Meanwhile, it is necessary to notice, and answer the objection of the defendants, that conceding the point, as to the right of the prosecutor to the certificate he claims, and that tlye defendants unjustly withhold it, yet that he has another specific* legal remedy, and, therefore, he cannot be entitled to a mandamus. A quo warranto, it is pretended, is the proper remedy in a case of this kind.
In this country, the people being the fountain of power and jurisdiction, as the crown is said to be in England, if any person or cor* poration, take upon them to exercise any office or jurisdiction without being legally authorized so to do, the Court of General Sessions, possessing the powers of the Court of King’s Bench, in England, will punish them for such usurpations ; and to that end, it is said will require them to show by what authority they claim to exercise any particular office or jurisdiction. The old method of doing this, was by quo warranto, which has been changed to an information in nature of a quo warranto. The statute 9 Ann. c: 20, P. L. app : No. 1 p. 21. extends and facilitates this remedy, in relation to usurpations of, and intrusions into, or unlawfully holding of, the offices and franchises mentioned in the act, that is, corporation franchises and offices. 2 Just. 282. 9 Coke. 28. 6 Com. Dig. 162. 2 Str. 1213. 1 Str. 621. 299. 4 Black. Com. 2 Just. 496. 2 Hawk. P. C. Bull. N. P. 210. 1 Burr. 573.
It is easy to see, that this remedy cannot be properly applied in the present case; first', because the office of sheriff is not a corporate'office, or franchise; secondly, because if it has been filled by the governor, in consequence of the certificate of the managers, that the election was void, it has been lawfully filled ; and the incumbent is not an usurper, or unlawful intruder; and thirdly because although the present incumbent may have intruded himself unlawfully into the office, and although he may he ousted from it by
The principal object of a quo warranto, is to ascertain disputed facts, and dispossesses the person who has unlawful possession. In this case, there is no necessity for ousting the person appointed ad interim. Besides, it may well,be doubted, whether consistently with the third article of our constitution, this mode of criminal prosecution can be legally used, except in qui tarn prosecutions,- where the informer is interested in recovering the penalty,' and which partake of the nature of civil actions. 4 Bl. Com. 303. Bac. Abr. “ Quitam.''
It appears to me, that a palpable and gross violation of public duty, by persons appointed to execute an office or trust, relating to’ the public, or the unlawful exercise o'f public functions, are offen-ces punishable by indictment; and that proceedings, by way of information, or by quo warranto, are unnecessary, as well as unconstitutional.
Another objection of the defendants, to the proceedings- by mandamus, is, that the office of manager of an election, cannot be' imposed by law on any one; that he who undertakes to act in such an office, does it voluntarily, and in discharging the duties thereof,acts gratuitously; and, therefore, it is inferred, that be cannot be compelled to act otherwise than seems to him right and proper.This objection is not well founded in reason, or the principles of law. If the office was one which did not concern the public, the' argument might be good but the office of managers of elections,is one which deeply affects the interests of society, and if any one-will accept the office, and undertake to act in it, which he is not! compelled to do, he must take care to act according to law,, and according to his best ability and knowledge. If he will not do so^ the Courts of General Sessions have the power, and it is the duty of those courts, to coerce him, and compel obedience to the law.
But it is again objected by the defendants, that in the exercise of the duties and powers of managers, they acted judicially as well as ministerially ; and that they had a discretion, which cannot be examined and controlled by any other tribunal; unless it be to punish them for their misconduct; and, therefore, a mandamus does not lie.
If the decisions of the managers, in the course of the election, and in conducting the scrutiny in question, were in the exercise of authorities purely judieial, and it appeared that they had Jcept
But the authority of managers is not purely judicial. Their discretion is limited, by legal restraints ; and being inferior magistrates of a mixed character, even though they should confine them, selves within the bounds of their jurisdiction ; yet they must be subject to the visitatorial jusisdiction of the Court of General Sessions, to regulate and correct them in the exercise of their discretionary power. 10 East, 403. 7 East, 92. If they act from un. due motives, or gross error, or misconception of the subject, it seems unquestionable that the Court of General Sessions may lawfully interpose, to prevent a failure of justice, and defect of police ; to vindicate the rights of the community,, and promote the public welfare.
2. Having disposed of the objections to the mode of proceeding, adopted .on the part of the prosecutor, it remains to consider tho merits of his claim, and the sufficiency of the defence, which has been made in opposition to it.
To authorize the interposition of the Court of General Sessions, by way of mandamus, it ought to appear to the satisfaction of the court, that there is a specific legal right, as well as the want of a specific, legal remedy. The party, claiming the aid of this process, must show a title; at any rate, a good color of title. Bull. N. P. 199. 1 Str. 536. It must be prima facie, a good legal title, and notan abstract moral right. Where the right plaintiff appears, a mandamus generally goes upon the first motion, to admit him who has the right. The writ concludes with commanding obedience, or cause to be shewn to the contrary. Bull. N. P. 201.
If the return, upon the face of it, is insufficient, the court will grant a peremptory mandamus, and if that is not obeyed, an attachment for contempt. Esp. Dig. 686. If the return, upon the face of it be good, but the matter of it be false, an action upon the case lies for the party injured, against the persons making such false return ; and the return may be joint or several. The writ shall be taken reddendo singula singulis.
If the matter concern the public government, and no particular person be so interested as to maintain an action, the court will grant an information, or indictment, against the persons making the false return. Salk. 374. Bull. N. P. 202. If the return be
The prosecutor in this case, having shewn a prima facie legal title to the certificate claimed from the defendants, if no return had been made, or if the return upon the face of it, appeared manifestly insufficient, it was certainly right to grant a peremptory mandamus, to compel the defendants to do the act required of them, which it would appear to be their duty to do. But it seems to me, the return upon the face of it, is substantially sufficient, though the matter of it may be, for ought I know, false.
If the return is substantially sufficient, upon the face of it, the court ought not to have granted a peremptory mandamus, until the return was falsified in a civil action, or criminal prosecution, wherein the disputed facts had been tried and ascertained by a jury. Doug. 157. The return is clear and express, that the prosecutor was not duly ejected ; and the facts are stated from which this conclusion is drawn. Some of’these facts have been controverted, by the prosecutor; but they cannot be legally decided on, but by a jury. 3 Burr. 1265. 1 Wils. 266.
Before the mandamus was granted, it ought to have appeared that there had been a default. N. P. 199.
From the return, it does not appear that there was any default, which can be construed to give any right or title to the prosecutor; without prejudging questions of fact, which are properly triable by a jury.
The court will never presume that a public officer has not done his duty. There is no proof that the managers have been wanting-in integrity ; that they have violated their oaths. If they have acted ignorantly, mistaken their duty, and made a false or inconsistent return, yet, if the right of the plaintiff is still doubtful, the court ought not to grant a peremptory mandamus. 2 Esp. Dig. 665. But it has beeu said, the return is inconsistent, and the greater part of it was quashed for that cause ; and the rest of the return being insufficient on the face of it, the court did right in granting a peremptory mandamus. To this, I answer, that if the return could be considered so inconsistent, as to justify the court in quashing it, yet I think it would have been more advisable to have afforded the defendants an opportunity of amending it; especially as they acted under the obligation of an oath, in a public capacity, and cannot be supposed well versed in matters of this sort, wherein
The rOTirn is clear and distinct", in stating that the prosecutor was not duly elected, by a plurality of legal votes, nor considered to be so; and that the election upon a scrutiny, was declared to be void. The inconsistency is not. found in the general result, or conclusion from the facts set forth ; the return only shews that there was an inconsistency in the conduct of the managers, in first doing) as lawful and right, what they afterwards return to be illegal and void. This, surely, does not impeach the return ; for it was their duty to state facts ; and it is not improbable, that after having done, what they conceived at the time, to be authorized and proper, they became doubtful of. the propriety and correctness of what they had done, or were satisfied that it wus wrong. In either case they-have acted properly in stating the facts, and submitting the questions of law arising from them, to the court. And as there is no good ground for questioning their integrity, I am of opinion their return is entitled to great indulgence. The, greatest inconsistency they have committed, was, in my opinion,.in certifying at all, for reasons
There is nothing in the objection, that only three of the six managers met to count over the votes, since one manager from each place of election did meet; and tho resolution appointing the managers, directs that it should be so.
It is a general rule, that where the legislature expressly requires a joint execution of a power; or wherever a power is given to several persons to do any particular act, they must all concur in the execution of it; unless it should be attended with manifest iucon. venieuce to obtain it. 3 T. R. 592, I do not know how far an agument ab inconvenicati, ought to have weight in suc^a case as this; because many acts, to be done by managers, require the exercise of judicial discretion ; and all acts of judgment ought to be done together. The persons authorized to do the act, must counsel and advise, deliberate, and concur. The act to be done by them, must be done uno flatu, and proceed from their united judgment, 1 Burr. 136. 2 Black. Rep. 1017. 3 T. R. 39. 8. East. 319. 2 East. 244. 13 Vin. Abr. 421. 2 Just. 38Q. Co. Lit. 112, b. 113, a. 4 Burr. 2241. 3 T. R. 199. 1 Bay, 348. On this ground, I think the election at Darlington Court House was illegal, and void; and that the proceedings upon the scrutiny were void also. Also, that the defendants were not competent to certify to the governor at all, as managers, without the concurrence of Peter Edwards, who was appointed jointly with them, to manage the elections for Darlington district, and certify in favor of the persons having the greatest number of votes for sheriff.
The managers are certainly empowered, by the wording of the
There is nothing I can find, in any of the acts of the legislature, or in the. resolutions, respecting the appointment of managers of elections, to authorize a majority of them to act, and determine in cases of election for members of the legislature, or of sheriff. It would bo wise, perhaps; in the'legislature, to provide against the inconveniences which'may result from the obstinacy of a joint manager, or from accident; but,, until they do so, I am bound to take the law as I find it, and am clear that I have no power, if 1 had the inclination, to alter or amend it. If the managers who conducted the scrutiny, were authorized to do so, there is an end of the question, as to the right of the prosecutor to a certificated The person who demanded the' scrutiny, had a right lo do so ; and ho certificate could be given until the scrutiny was lawfully decided» It has not yot been lawfully decided ; and, therefore, no certificate can yet be given.
Upon'the whole, my opinion is, that as it must at least be doubtful and uncertain, whether the defendants are authorized and legally bound, to certify to the governor, that Nathan Hanks, the prosecutor, “ has had the greatest number of votes, and has been duly electedI” sheriff of Darlington district, they cannot legally be compelled so to certify; and, consequently, that the decision of the Court of General Sessions, directing a peremptory mandamus to issue, was erroneous, and ought to be reversed.
This case comes up, by way of appeal from the Circuit-Court, held at Darlington, by Judge Nott, in March, 1812, who thought proper to order a mandamus to issue to the commissioners, commanding them to return Nathan Hanks as duly elected sheriff of said district; as it was alleged he had a plurality of votes.
1. I am of opinion that the Court of General Sessions has a general superintending power over all subordinate jurisdictions, and all officers of every denomination, created by act of Assembly, and wherever they omit or refuse to do their duty, may compel them by this writ to perform it.
2. I am. also of opinion, that the act authorizing the election of sheriffs, gives the managers of those elections the same powers, and requires them to conduct themselves in the same manner as the
That the resolution of the legislature of 1810, immediately preceding the election in question, authorizes George Bruce and Peter Edwards, to hold the election for sheriff of Darlington district, at Darlington Court House ; William Branllet and Moses Waters, to hold the election at the house of Elijah Hutson; and Daniel Du-bose and George Huggins, to hold at the house of Enos James’. Thus three distinct places, for holding the said election for district sheriff, were appointed, at three different places in the district, to be held by two managers at each place of election, And one from each place was appointed to meet at the Court House, on the Thursday after, and count the votes, and declare the election. And for the greater certainty, the governor issued -his commission, or writ of election, to each set of commissioners, requiring them to hold the said election pursuant to the resolution aforesaid. So far, then, with regard to the powers of the commissioners to hold and conduct the said election.
It was admitted on the arguments on all hands, that only one manager, Mr. Bruce, attended at Darlington Court House, and received the votes on both days of the election ; and that the other manager, Mr. Edwards, did not attend. I am very clearly of opinion, therefore, that there was no election at Darlington Court House ;' for Mr. Bruce had no authority to hold it by himself. No such power was given him by the legislative resolves, or the governor’s commission, or writ, in pursuance of them. The law is well settled upon this point, that wherever a power is given to A. B. and C. jointly, they must all join in the act. It cannot be exercised by a less number than the whole, unless some special provision is made, that the act may be performed by any one or more of- them.
The Campbell Town ware-house case, 1 Bay, 350. is strong in
I therefore conclude, by observing that it is apparent, that Mr. Bruce had no authority to hold the election at Darlington Court House alone ; and that he had not, no 'one can deny. Then it must follow, that one third of the district of-Darlington, did not vote at all, or at least, the proportion of it, whose votes were to be taken at the Court House, consequently, it cannot be said that either of the candidates had a majority of the votes of the district; or that either of them was duly elected ; for one third of the votes of the district were lost, by the non attendance of Mr. Edwards, the other manager. It was a void election, and a new one ought to have been ordered, if any power was given by the act for that purpose. But I do not see auy provision in the act, for ordering such new election. Probably it was an event not foreseen, when the act passed ; or, if foreseen, not provided for.
Upon the whole, without going further into this case, I am against directing the mandamus, to compel the managers to return a man, who does not appear to have a majority of the legal votes of the district.
In commenting upon the several grounds made in this case, I am sorry to observe, that although some of the points argued in the court below, and now again moved before this court, have been long ago decided, both in the English tribunals of justice, and in our own courts, they are again brought into view, as if they were recent, and had never been determined. Surely, after a principle has been repeatedly adjudged, to reverse a revival of it, must argue a weakness of the parties’ cause, who again brings it into discussion before this court; or shows that he is willing to speculate upon the chance of finding a difference of opinion, on the bench, whenever there has been a change of judges. Wherever a point has been decided by tho judges, at nisiprius, or where in this court they have
The act of assembly of 1721, and which is still in force, prescribes in the second clause, that writs for the future elections of members of assembly, shall be issued out by the governor and council, and shall be directed to the church-wardens of the several parishes ; or, in case there should be wanting church-wardens in any parish, then to such other proper persons, as the governor, &c. shall nominate, &c. every one of whom are empowered to execute, &c.
It appears then, by this act, that the governor had an authority given him, to appoint one or more church-wardens to hold an election, and in case of there being none, then that he should appoint other persons, every one of whom was empowered to execute the duty committed to them. By what authority then, I would ask, could the governor bind the manager^ to act jointly, when this law authorizes each of them so appointed by him to act separately. It may be said, that the resolves- of the house appoints each place of election, (Resolves of 1809,) for Darlington, the district under dis. cussion ; but a resolve cannot contravene a law. But neither does the expression of the resolve limit the power delegated to them jointly, but interpreting it by the act, which must be our guide, then every one of them so appointed and commissioned, might have held the election. This election, therefore, although held by one manager alone, is consistent with the act of assembly of 1721, under which the members of assembly are1 elected; and as the election was a legal one, then by the showing of the managers themselves, who acknowledged that if the votes taken by Bruce, were to be counted, Hanks was duly elected. On this point, I am therefore of opinion, that the motion must be discharged.
With respect to the 7tb ground, as there is no provision made by any law, how the managers shall conduct themselves, after they have received the ballots at the several places of election, we must refer to, and be guided by the resolve, however different, the expressions may-be as to different districts and parishes; for we find the general term of “ the managers,” made use of forty times. The word “jointly,” once expressed, as to “Richland” aod in three places “ one manager from each place of election to meet, &c.” and whatever doubts might have arisen, on the generality of the expressions above referred to, there can be no doubt at all with respect to this particular district, as the resolve respecting it declares “ that one manager from each place of election shall meet, &c.” Upon
Motion granted.
