Willeford v. State

| Ark. | May 15, 1884

Smith, J.

Pursuant to an order of the County Court, an election was held in Prairie County on the 15th of February 1883, to determine whether the county seat should be removed from Des Arc to Hazen. Returns were made to the Circuit Clerk, who is ex officio clerk of the County Court, and he called in two justices of the peace to assist him in canvassing the vote. Before the canvassers had performed their duties, a bill in equity was filed by'the citizens oí Des Arc and a temporary injunction was granted by the County Judge, restraining them from opening and counting the poll-books of the townships of Carlisle, Tyler and Belcher, and from counting more than 180 of the 265 votes that were cast in Hazen township. returns from Carlisle, Tyler and Belcher, retaining the bill, however, to inquire into the 85 alleged fraudulent votes in Hazen. So a peremptory mandamus was awarded against the clerk and justices to proceed with their duties under the law, as to the three townships whose returns had been irregularly transmitted to the clerk, but the writ was denied as to the returns from Hazen. From this judgment both the relators and the defendants have appealed.

It was alleged that the returns from the three townships first above named were transmitted to the clerk through persons who were not election officers; but there was no suggestion that the returns had been tampered with. It was also alleged that 85 illegal and fraudulent votes had been polled in Hazen. Pending this injunction suit, a petition was filed by certain citizens and tax-payers of the county, for a writ of mandamus to compel the clerk and his associates to proceed with the count of the votes of all the townships as returned to them, and to certify the result to the County Court to the end that it might be determined whether the proposition for removal had been carried or rejected. The clerk and justices responded that they had been enjoined, and set up the above mentioned frauds and irregularities. Before the cause came on for hearing, the Chancellor had dissolved the injuction against canvassing the

1. Mandamus : When proper remedy. Mandamus is an appropriate remedy where a public officer is called to perform a plain and specific public duty, positively required by law, calling for the use of no discretion, nor the exercise of official judgment. State ex rel. Ins. Co. v. Moore; 42 Ohio St.; Howard v. McDiarmid, 26 Ark., 100; McCrary on Elections, Sec. 331.

2. Can-v as sin g Boards: Their duties Now the duties of canvassing boards are purely ministerial. They are not invested with judicial functions and they have no discretionary power to go behind the returns for any purpose. McCrary on Elections, Secs. 81 to 85 and cases cited. Coates v. Patton, 41 Ark., 111.

3. Mann er o f COND UCTing Elections : ¡statute directory. It is true, Sec. 4 of the Act of March 2, 1875, for the locating and changing of county seats directs that the poll-books be couveyed to the clerk by one of the election officers to be designated by the judges of election. And there is a similar provision in the general election laws (Sec. 42 of Act of January 23, 1875). But statutes concerning the manner of conducting elections are directory, unless a non-compliance is expressly declared to be fatal to the validity of the election or will change or render doubtful the result. McCrary on ■ Elections Sec. 200.

4. Election of County Seat: Jurisdiction of chancery: Of County Appeal. Upon the cross-appeal of the relators: Chancery has ordinarily no jurisdiction of the merits of a contested election. McCrary on Elections, Secs. 220, 318, 340; Dickey v. Rudd, 78 Ill. 261" date_filed="1875-09-15" court="Ill." case_name="Dickey v. Reed">78 Ill. 261; Peek v. Weddell, 17 Ohio St., 271; Sanders v. Metcalf, 1 Tenn. Ch’y 419.

Oar constitution provides, however, that “ no county seat shall be established or changed without the consent of a majority of the qualified voters of the county.” Art XIII, Sec. 8. And the legislature has provided no mode for contesting a county seat election. Under such circumstances and to protect the rights of the majority intended to be secured to them by the fundamental law, it was held in, Boren v. Smith, 47 Ill., 482" date_filed="1868-06-15" court="Ill." case_name="Boren v. Smith">47 Ill., 482; and People v. Wurt 48 Id., 263, that a court of equity must take jurisdiction of a bill impeaching the election for illegality in holding it, or unfairness in the conduct of it. But the Reports will be searched in vain for a precedent where the court has interfered, collaterally and before the result has been declared, to restrain the officers of election from counting illegal votes.

By Section 28 of Art. VII, Constitution of 1874, exclusive original jurisdiction is vested in the County Court in all matters pertaining to the local concerns of the county. And the removal of a county seat is a matter of local concern. Blackburn ex parte, 5 Ark., 21; Russell v. Jacoway 33 Id., 191. We do not forget that in Maxey v. Mack, 30 Ark., 472, this court decided that the Board of Supervisors had no implied power to enquire into the regularity and fairness of such an election. But that election took place when the constitution of 1868 was in force. And under it, the jurisdiction, powers and even existence of the courts inferior to the Circuit Courts, depended upon the legislative will.

And the Act of May 23, 1874, providing the mode of changing the county seat of Clayton County, had purposely passed over the Board of Supervisors and had directed the returns to be made to the supervisors of the election for a constitutional convention.

The County Court has the authority then to determine in the first instance where the county seat is, and whether the conditions have arisen upon which a removal is required. This may incidentally involve the question, whether the vote has been fairly taken and the necessity, if fraud has supervened, to purge the polls. A revision of its action may then be had upon the appeal of any person aggrieved, to the Circuit Court. Constitution of 1874, Art. VII, Sec. 33; Act of Feb’y 20, 1883, Sec. 1; Varner v. Simmons, 33 Ark., 212.

s. injunctions with-diction mid It follows that the Prairie Circuit Court had no power to restrain by injunction a board of canvassers from canvassing the returns of the election; that the temporary injunction, having been awarded in a matter where the court could not under any circumstances, hear, determine and decree in reference to such matter, was void and could not legally operate on any one, nor could anybody be punished for disobeying it; and the response to the petition for mandamus disclosed no sufficient reason why the writ should not go.

The judgment below, in so far as it awards the peremptory writ to the canvassers to count the vote from Carlisle, Tyler and Belcher is affirmed, but in so far as it refused to compel them to count all the votes that were returned to them as cast at Hazen, it is- reversed. And the cause is remanded with directions to issue the writ.