Crowell v. Lambert

By the Court — Berry, J.

— This was an application for a peremptory mandamus. |A motion was made on behalf of the defendant; Lambert, to dismiss the proceedings on the ground that this Court had no jurisdiction to issue the writ of mandamus save to a District Court or District Judge. Section 2, Art. 6, of the Constitution declares that the Supreme Court “ shall have original jurisdiction in such remedial cases as may be prescribed by law, * * * * but there shall be no trial by jury in said Courts.” Section 5 of the same article provides that “ the District Courts shal have original jurisdiction in all civil cases, both in law and equity,” &c. In both cases the jurisdiction conferred is original, and so the word “ original” cannot be used in the sense of exclusive. By Sec. é,page 475, Bub. Stat., the Supreme Court is empowered to issue writs of mandamus to all courts of inferior juris *373 diction, and to individuals, &c. Sec. 17, page 633, Pub. Stat. enacts that “the several District Courts of this Territory shall have original jurisdiction in cases of mandamus,” &c. Under this state of the law it is clear that the Supreme Court possessed jurisdiction concurrently with the District Courts over mandamus proceedings, except that there could be no trial by jury in the Supreme Court. See Harkins vs. Board of Supervisors of Scott Co., 2 Minn., 342 . And here again it is to be noticed that the word. a original ” in section 17 above cited, was not intended to confer exclusivo jurisdiction on the District Courts, because in sections 12 and 13 of the same chapter the authority of the Supreme Court to issue writs of mandamus is expressly recognized. But the defendant contends that the power of the Supreme Court in matters of this nature, depending as it does .under the Constitution wholly upon legislation, has been cut off by Chap. 18, page 71, Laws of 1862. This chapter takes away in terms from the Supreme Court the right to try an issue of tact raised in a mandamus proceeding, or to order the trial of such issue by a jury. In the view taken by the Court in the case cited from 2 Minn., this had already been done by the Constitution. But Sec. 3 of the act of 1862 goes on to provide that “the several District Courts of this State shall have original jurisdiction in all cases of mandamus, except in cases where such writ is to be directed to one of said District Courts or a Judge thereof in his special capacity, in which case the Supreme Court shall have jurisdiction,” &c. The counsel for the defendant insists that here the word “ original” is used in the sense of exclusive. We perceive no reason why the word should be taken in that sense here any more than in the Constitution or the public statutes, where, as we have already shown, it certainly cannot have that meaning. In our view the main purpose of the act of 1862 was to make the statutes correspond in reference to the trial of issues of fact by the Supreme Court with the provision of the Constitution and the decision in 2 Minn. before referred to, and in addition to point out with more particularity what proceedings should be had where a mandamus was issued by the Supreme Court to a District Court or *374 Judge. If it liad been the intention of the Legislature to deprive this court of the general power to issue the writ except when directed to a District Court or Judge, this might have been done directly in a very few words. But we find nothing to this effect. The motion to dismiss was accordingly overruled.

To come to the merits of the controversy, it appears that the defendant, Lambert, was elected to the office of Judge of Probate for Ramsey county, at the general election in 1862, that his term of office commenced as early as the first day of January, 1863, and expired as soon as the first day of January, 1865. The Constitution declares that Judges of Probate shall be elected for the term of two years, while it does not provide that a Judge of Probate shall hold Ms office until his' successor is elected and qualified, as in the case of Judges of the Supreme Court. 9 Minn., 283 ; 8 Abb. Pr. R. 359. Under this state of facts it would seem that from the time when Lambert’s term expired under his election in 1862, and until his successor was inducted, there was de jure a vacancy in the office. Upon the election in 1864 Lambert was not returned as elected, nor was any certificate issued to him, nor does he appear to have qualified. On the other hand, it is alleged in the petition, and not denied by the defendant, that there was a general election held in 1864, in and for the county of Ramsey, and also in general terms that the vote was canvassed (without stating by whom), and that the petitioner was returned as having received a majority of votes cast for the office of Judge of Probate. The defendant in his affidavit admits that there was a canvass made by “ three unauthorized persons, neither of whom, ” in his own language, “ was the County Auditor or a Justice of the Peace of said county, taken to the assistance of the County Auditor by the County Auditor,” who assumed to act as a County Canvassing Board and declared Crowell elected at the close of their canvass. Now all that is contained in this denial might be true construed together, and yet the canvass might have been made by the deputy County Auditor and two competent Justices of the Peace taken to his assistance. The plaintiff deposes that the certificate of election which is set out in haec verba, was issued to him. That *375 certificate was signed by the County Auditor by his deputy, and the seal of the County Auditor affixed. The defendant denies " that any such alleged certificate was ever tested or signed by the County Auditor of said countyunder the seal of said County Auditor or otherwise.” This is not a denial of the allegation of the petition that a certificate was issued to him signed and sealed by the County Auditor by his deputy. The sufficiency of the averments of the petition in this regard depends upon the authority of a County Auditor to act by deputy in such cases. The duties of the Auditor so far as this case is concerned are purely ministerial, and there is no inconsiderable authority for the doctrine that in the absence of statutory prohibition a “ ministerial office may be executed by deputy.” 2 Bl. Com. (36); Blackwell on Tax Titles, 443; Bouvier's Law Dic., 447, Title, Deputy. But aside from this the office of deputy County Auditor is expressly recognized in Secs. 7, 9 and 25, Chap. 2, Laws 1860, and there is no statutory limitation of his power. It is also stated in the petition, and not denied in the affidavit of the defendant, that Crowell qualified as required by law, and that he made a proper demand of the books, papers, &c., belonging to the office of Judge of Probate.

We think that the other allegations of the petitiou which are denied by the defendant may be regarded as surplusage.

On the facts appearing from the petition as to which no issues are properly raised, we conclude that the plaintiff is entitled to the writ of peremptory mandamus. Some points were made by the defendant which we do not deem it necessary to dwell upon. On the whole it may be said that the question here is not who will be entitled to the office on an examination into the merits of the election, but who is noto entitled to the possession of the books and papers appertaining to .the office. The person holding the certificate is, under the circumstances of the case, prima facie tho officer, and therefore prima facie entitled to the insignia and records of the office. In such cases the writ of mandamus is a peculiarly proper, adequate and speedy remedy, and perhaps the only one by which to enforce the delivery of the books, &c.

*376 We do not deem, it necessary to point out the inconveniences resulting in some cases in a total denial of justice, which would follow if a party situated as the plaintiff is in this case, were compelled to await the result of the election contest provided for by statute — a contest which might be prolonged until the term for which he was elected had expired. The conclusions to which we have arrived are abundantly sustained in The People vs. Head, 25 Ill., 325 , a ease which presents a remarkable analogy to the case before us, both in its facts and in the questions raised upon the trial. See also Jones vs. Kilduff, 15 Ill., 502 ; People vs. Hilliard, 29 Ill., 414 ; 21 Pick., 151 .

Peremptory mandamus awarded.