People ex rel. Akin v. Matteson

Catón, J. The statute referred to in the agreed case, and under which the election was held, provides for the election of “Police Magistrates.” This court, in the case of Welsh on habeas corpus, decided that that law was passed under that provision of the constitution which authorized the legislature to provide for the election of justices of the peace; so that, although the law designates them under the generic term of magistrates, yet the strict constitutional name of the officer is “justice of the peace.” This term is not used in the ordinance ordering the election, but that follows the statute; and so do the- ten votes given for Stickney and the two others, to whom commissions were issued, while over three thousand votes were given for the relators for “ police justices;” and- we are asked by them and the executive to decide whether those votes should be counted for the relators, for the office to- be filled at that election. Upon this point we cannot for a moment doubt.

In election contests, as in other cases, the question to be determined depends upon facts to be ascertained; and here we are simply called upon to determine, from the evidence before us, the simple fact of the intention of the voters who cast their votes. Did they intend to vote for the relators, to fill the offices for which this election was ordered? No rational mind can doubt upon this simple question of fact, as to the purposes for which these votes were cast. That is so palpable, that we shall not attempt its discussion. And yet the law is well settled that the court must be governed by the facts thus found, although there may have been some technical omission or informality in the wording of the vote which is cast. The question is: does the informality leave the intention of -the voters doubtful ? In this case, we think there is no doubt. The votes cast for the relators designate the office with as much technical precision, as fixed by the constitution, as do those given for the three who are said to have been commissioned, and even more so, although the latter follow the statute more closely. In construing this statute in the case above referred to, we sought to get at the intention of the legislature, when the words police magistrates were used; and, on that question of fact, we had no doubt but that justices of the peace were intended, and so held; that the legislature had a right to pass the law under that clause of the constitution. The same rule applies, when we ascertain the intention of the voter. When we are satisfied on that point, we are bound to give effect to such intention.

It was suggested at the bar, on behalf of those who received the commissions under this election, that- mandamus will not lie, to admit the relators to an office which is already filled. We recognize the rule as unquestioned, that, ordinarily at least, the court will not, by mandamus, turn out one officer and admit another in his place. This we do not propose to do. We have nothing to do with those parties, who are not now before us. This decision does not affect their rights to their offices, one way or the other. If they were holding their offices rightfully before, they will do so still. And if they had no legal right to the offices before, but were merely holding by color of office, this decision makes them no less officers de jure. Their right to the offices can be determined directly by quo warranto.

The writ must issue as stipulated.

Mandamus awarded.