State ex rel. Hudson v. Pigott

1. Counties. Elections for creating. Canvass and returns. Duty of Commissioners. Laws 1910, ch. 321, p. 278. Mandamus. The commissioners of an election, appointed under Laws 1910, ch. 321, p. 278, conditionally authorizing the creation of a new county, to be called Walthall, must canvass and return the votes cast; and having rejected all ballots cast at a voting precinct because of an alleged inability to .distinguish legal from illegal votes, mandamus lies to compel them to reassemble and canvass and return the ballots. 2. Same. Power of commissioners. Testimony. The commissioners of election, appointed under said act (Laws 1910, ch. 321, p. 278), have no authority to take testimony touching the legality or illegality of the .votes cast, and their sole power is to canvass and return the ballots. 3. Supreme Court Practice. Final judgment. When rendered. Mandamus. The supreme court, on appeal from a judgment erroneously refusing mandamus to compel commissioners of election under said act (Laws 1910, ch. 321, p. 278), to reassemble and canvass and return tbe ballots, will not remand tbe cause to tbe circuit court, but will render final judgment directing tbe issuance of tbe writ.

From the circuit court of Marion county. .Hon. A. Edward Weati-iersby, Judge. The state, ex rel. Hudson, attorney-general, was plaintiff in the court below; Pigott and others, commissioners of election, appellees, were defendants there. From a judgment denying a writ of mandamus, and dismissing the suit, the plaintiff ap^ pealed to the supreme court. The facts are stated in the opinion of the court. The election authorized by the act to create Walthall county is a special election, and Code 1906, § 4193, provides “that all special elections or elections to fill vacancies shall in all respects be held, conducted and returned in the same manner as general elections.” • Section 4142 placed upon the election commissioners the duty of sending out the poll boohs with no names thereon except those qualified to vote, and managers of election have a right to rely upon the integrity of the poll books, examined, supervised and delivered to them by the election commissioners as correct. The duties of the commissioners are complete when they prepare for the election and receive and make their full returns, and not by partial returns, as the report to the secretary of state shows in this case. The result of the election showed that the majority of votes polled and certified by the clerks and managers, and given to the commissioners, were in favor of the new county; It also showed that the majority of those now claimed to have been disqualified and voting, voted against the new county. The record when clearly analyzed bears a blushing suggestion that designing persons sought to have persons vote, whom they now claim were disqualified, for the benefit of the old county, and after that was done and in spite of such vote, a majority resulting for the new county, they undertook to use that to vitiate the whole vote of the Slade box. By taking advantage of their own wrong'they now try to profit thereby and go to the extent of disqualifying 215 votes at Slade’s to carry this point; but to do this, after failing at every other point, it became necessary for the commissioners to' constitute themselves a special tribunal with plenary powers, and follow a line of decisions now discarded by most of the courts, that if one apparently disqualified votes and the vote is counted and found in the box and cannot be identified, the box must be thrown out and the whole count discarded, rather than the view adopted by our own court, that such a vote, not being able to locate and identify it will be ignored rather than to disfranchise those certainly entitled to vote. We deny that any person voting should now be declared disqualified by the commissioners on account of registration, etc. Under Code 1906, § 4142, the commissioners conclusively fixed that proposition in so far as their finding can fix it. “Does mandamus lie in this case to compel the commissioners to reassemble, etc. ? Rosenthal v. State Board of Canvassers (Nam), 19 L. B. A. 157. The courts have jurisdiction in mandamus to control a canvassing board, whether it be township, city, county or state, if it neglects or refuses to perform any act which the law especially enjoins upon it as a duty. The court, by mandamus, may require a board of canvassers, after it has made a partial canvass and declared the result, to reassemble and canvass all the returns, if on the first canvass it improperly rejected tbe returns from one precinct. If tbe commissioners attempt to travel beyond the scope of tbeir ministerial duties and enter upon a judicial investigation of the regularities of tbe election they may be compelled by mandamus to canvass the returns as they have them before them. 15 Cyc,' 380; Stearns v. State, 100 Pac. 909, • “But on the other band it bas been repeatedly decided and seems to be tbe better doctrine, that after canvassers have made one canvass, declared the 'result and adjourned, they may be compelled by mandamus to- reassemble and make a correct canvass of all tbe returns where it appears that upon tbe first canvass they neglected or refused fully to perform tbeir duty. It is settled by abundant authority that where the board refused to .canvass any of tbe votes it may be compelled so to- do by mandamus, even though it bas adjourned sine die, and there can be no difference in principle between a refusal to canvass any and a refusal to canvass- a part only of tbe returns.” 15 Cyc. 384, and authorities there cited. Payne v. Hodgson, 34 Utah, 269, 97 Pae. 132, In tbe case at bar only one-fifth of the returns were certified to- by the commissioners, a fraudulent return to the secretary of state, and in law no return at all. There were but two boxes in that portion of Marion county, tbe one giving a small majority for tbe old county, and tbe other a large majority for tbe new county, and tbe partial- return in such case is equivalent to no return at all, but it is a ease where a partial return is tbe only thing that would serve tbe purpose of a majority of tbe commissioners, thus we say, that they have not performed tbeir duty, as in tbe Oglesby case, and they can be made, as officers of tbe law, to- meet and perform a simple ministerial duty, where tbe vast public interest is so seriously involved. 15 Cyc. 379, 380, 381; Steams v. State, 100 Pac. 909; AMorney-General v: Board of County Canvassers, 64 Midi. 607, 31 N. W. 539; Hagge y. State, etc., 10 Neb. 51, 4 N. W. 375; State y. Stearns, 11 Neb. 104, 7 N. W. 743; State v. Board of State Canvassers, 36 Wis. 498; State v. Mason, 44 La. Ann. 1065, 11 South. 711; Maxwell v. Tolly, 26 S. C. 77, 1 S. E. 160; State v. Board of Sup’rs of Coahoma County (Miss.), 3 South. 143; Lehman v. Pettingell, 39 Colo. 258, 89 Pac. 48; State v. Stearns, 44 Mo. 223. The power of the court by mandamus to compel the commissioners to reassemble and recanvass where there has been only a partial performance of duty is clearly stated in 15 Cyc. 383, 384. It will be seen from the notes on page 384 that this power is affirmed in thirteen states; whereas, it would seem to be denied in only four states. The four cases cited in the note on page 383 as denying this power to compel the board to reassemble, we will briefly notice: Clark v. Buchanan, 2 Minn. 346, held that mandamus could not issue against an inferior tribunal, or board, after it had ceased to exist, and held further that the board of canvassers created by the statute of that state by adjourning sine die as required by law had become dissolved, and for this reason there was no board of canvassers “in existence at the time the complaint was framed.” The court held that under the statute there was no power in the board voluntarily even to act except within the time specified by the statute and that time had expired when the complaint was filed. Swain v. McRae, 80 N. C. Ill; State v. Berry, 14 Ohio St. 315; State v. Martin, 103 Pac. 840; People v. Ammenwerth, 197 N. T. 240, 90 N. E. 973; State v. Peacock, 15 Neb. 442, 19 N. W. 685; Clarke v. McKenzie, 7 Bush (Ey.) 523. Appellant cannot more abhor 'than we do the idea that elections should be determined by the whims or mere wishes of any man or set of men, but this idea carried too far would require an endless chain of appellate tribunals. Confidence must be finally reposed somewhere and in some tribunal for the ultimate determination of such questions. Where has the legislature reposed confidence and what tribunal is the ultimate one in this case ? Certainly there can reasonably be but one answer. The Marion county election commissioners constituted the ultimate tribunal to decide the questions presented in this case. They were in duty bound to make return of the election here involved to the secretary of state. They did so, and certainly in the absence of a charge of fraud and corruption their return is final. Suppose (and they were present at the Slade box during the -election) they had seen one of the managers of the election, just as the last man voted, slip a bundle of tickets, so- large that it could not have contained less than fifty, into the ballot box and shake the box so violently that when it was opened the ballots fraudulently put therein could not be separated from the true ballots, would they have been justified in counting them- and returning to the secretary of state under their oaths as a result that which they did not, and could not, know to be true ? If they were, then our friends on the other side have presented .a case which all honest men will abhor, and that case is likely to arise wherever and whenever the legislature provides for an election without provision for its formal contest. The question now before the court is altogether unlike the ones presented by most, if not all, of the authorities cited by appellant. In fact the quotations in their brief from most of the authorities cited by them differentiate them from the case at bar. The court will readily understand that when a statute providing for an election is but part of a legislative scheme therefor, in which provision is made for a contest of the result announced by the commissioners before some other tribunal, the question of the power of the commissioners is quite a different one from that now presented. In such case the statutes are to be construed together and' an affirmative grant of jurisdiction to some other tribunal may well be construed as a denial of such jurisdiction to the commissioners. The case of. Rosenthall v. State Board of Canvassers (Kan.), 19 L. R. A. 157; cited by appellants, is illustrative. That case involved an. election of a member of the legislature, manifestly an election held under the general election laws of the state, and the Kansas, constitution, as shown by the case, provided that “each, house of the legislature shall judge of the election, returns and qualifications of its own members.” Of course under such a state of constitutional and statutory law the decision is aside from this case. The ordinary county election commissioners in this state would not be empowered to-determine a contest between two persons, each -claiming to have-been elected a member of the legislature. The Kansas case, stipra, however, is a pertinent authority against appellant on another point in this case as we will proceed to show. Remember, the petition in this case shows that the Marion county election commissioners, appellees, have acted under-the statute and made their return to the secretary of state. It doés not present a case of non-action, nor a case of fraudulent and corrupt action, the equivalent in law of non-action, and the-Kansas case (19 L. R. A. 157) distinctly holds that mandamus will not lie to compel reaction by election officers, and that the-writ can be invoked only where the officers could rightfully do-voluntarily that which they are sought to be mandamused to do. Could appellees voluntarily reassemble and make another and variant return? We think not, and the Kansas case, and other-authorities cited by appellant, show they could not. The other authorities cited by appellant’s counsel, in so far as we have been able to examine them, are all beside the question. here involvd as is the Kansas case (19 L. K. A. 157). The citation of 16 Cyc. 387, 380, by adverse counsel, is especially unfortunate because the paragraph cited not only deals alone with cases wherein tribunals other than the election commissioners are given jurisdiction of contests, but concludes with the sentence, “In case the official returns do- not truly recite the votes as cast the remedy provided for those, who are aggrieved is by contesting the election.” And this authority, too, reading a little further in the book (p. 383), tells us that “When a board of canvassers has fully performed its duty, proclaimed the result of the count according to law, and adjourned sine die, its duty must be considered as having been performed once and for all time. The board is fundus officio and the persons who composed it have no power or authority voluntarily to reassemble and canvass the returns; and upon the theory that the existence of the board as such has terminated it has been hold that mandamus will not lie to compel the former members to reassemble for the purpose of recanvassing the returns, although it be alleged that they did not fully or accurately perform their duties.” The author, however, informs us that there is a conflict of the authorities on this latter point. But the point that the commissioners cannot be compelled by mandamus to reassemble and contest the votes anew and make a second - return has been authoritatively adjudicated and determined in this state in appellees’ favor. Oglesby v. Sigman, 58 Miss. 502. While it is true that the house of representatives of the United States congress (6 Cong. Election Cases, 338) refused to follow Oglesby v. Sigman, its refusal was not based on this feature of thé case; it held that, since each house of congress was the judge of the qualifications and elections of its own members, a state supreme court could not by any decision render the question res adjudicaia and that the validity of a ticket, dependent upon matters appearing on its face, was for congress to decide and a partisan majority voted in favor of a result variant from the conclusion of this court as to" the validity of tickets, a sample of which is shown on page 504 of 58 Miss. Surely a partisan majority of one house of congress cannot overrule a decision of this court, and unless the present bench shall overrule Oglesby v. Sigman■, this ease must fail because the election commissioners have gone out of office and lost all right to a'ct at all, either in the way sought to be imposed, or in any other way. The efforts of appellant’s counsel in their brief to differentiate the Oglesby case on the point now under consideration are ineffectual. It is true that the commissioners in this case failed to return that 115 votes were cast for the new county at the Slade box and that 100 votes were cast there against it, but they did return that because “large numbers of illegal voters were allowed to participate” in the election at that box they (the commissioners) “could not determine the number of legal votes voting for or against said county at said box.” This statement in the return must for the purpose of this case be taken as true. Do opposing counsel seek to have a false return made by the commissioners ? Surely not. Do they seek to have illegal votes returned as if they were legal ones ? If so, how and when can the validity of the election ever be determined ? They do seek to establish a condition of the law of which they express abhorrence, that is, that the so-called managers of the election at Slade’s precinct shall be treated as having been licensed to violate the law with impunity without any remedy to right the wrongs done by them. To claim that the so-called managers of the election at the several voting precincts were the tribunals in which rdtimate confidence was reposed is to do violence to the act of the legislature under which the election was held. Election managers are not mentioned in that act either directly or indirectly. The second section of the act so far as Marion county was concerned provides that it shall be the duty of the commissioners, appellees, “to hold the election and malee return of said election to the secretary of stateThe managers were not more than agents or deputies of the commissioners, appellees, in receiving the ballots at the two Marion county voting places. By the very terms of the act (section 2)' the commissioners were “to hold the electionIt is to be noted that our code chapter entitled “Registration and Elections,” Code 1906, ch. 119, our general law governing elections, is only referred to once in the Walthall county act, and that reference is in section 2, and in these words: — “It shall be the duty of said commissioners to give notice as required for special elections.” The act is sui generis and is complete in itself. It is well to note, however, that under our general election laws the commissioners of elections do not hold and are not empowered to hold an election. Their duties and powers are prescribed in various sections of the code chapter, but they are nowhere directed or empowered to hold an election. Under the Walthall county act the commissioners are empowered and required to hold the election. They were therefore the managers of the election, the persons required to hold it, and there being more than one voting place, they were, presumably, authorized to act by deputies or assistants, and the argument of appellant’s counsel, 'claiming* that the manágers at each of the boxes or voting places constituted the supreme tribunal, elevates the deputies or assistants to a position superior to the one held by their principals. This cannot be true. Under our general election laws the managers are given designated powers and they act independently of the county election commissioners by'whom they are appointed, just as the commissioners under the Walthall county act are independent of-the governor by whom.they were appointed. There is no provision in the Walthall county act prescribing the duties of managers or creating the office or requiring the election to be held in accordance with the general laws governing elections. As confirmatory of the fact that the persons, so-called managers, who received the ballots and deposited them in the ballot box at Slade precinct, were acting merely as assistants or dep>uties of the commissioners, attention is called to the fact that they received fourteen ballots under protest, deposited them in the box with evidence of the protest attached to each of them, and returned them to the commissioners as the ultimate tribunal to pass upon the qualifications as voters of the persons who sought to vote these tickets. How were these contested ballots counted? Sanction for counting them was not given by the so-called managers who received them and placed them in the ballot box. If these were counted, or if eight, certainly nine, of them were counted against the new county and the balance rejected, this would end appellant’s case. This suit is predicated of the idea that the commissioners must not count at least nine, certainly eight, of the protested- votes against the new county and reject the balance of them. Would the circuit court by mandamus control the commissioners in this regard ? Their discretion and judgment cannot be controlled. The circuit court is powerless to pass upon the protested votes. The fourteen protested votes have even a deeper significance in this case. They show that on the hearing in the circuit court the judge was unable from the evidence to adjudge that the plaintiff had made out a case entitling it to the mandamus prayed. The court was not enlightened on the subject as to how these votes should be counted, and plaintiff’s ease depended upon the count of them. Plaintiff therefore failed to show that it was entitled to the writ and, so failing, the judgment of the court below was correqt, the only one that could have been rightfully rendered, and it should be affirmed for that reason. The commissioners in this ease in taking testimony did the right thing; they but enquired into the acts of those who acted for them; they reviewed their own acts performed by them through their agents and assistants, called managers simply for identification without having been “managers” within the meaning of the law and without having any power independently of that bestowed upon the commissioners by the act of the legislature in question. While the testimony and record evidence upon which the commissioners acted is not before this court, save perhaps to determine its admissibility when offered 'to be read on the trial of this case, yet it is not deemed amiss to say that the appellant was duly represented in the hearing before them and contested their finding and that it shows beyond cavil that the return made was not a corrupt or fraudulent return but one justified by the evidence. No man can tell from it how many legal or how many illegal votes were cast at the Slade box, nor how many (if any) of the disqualified persons voted for or how many against the new county. The evidence left the result of the alleged election at that box so uncertain that the commissioners were unable to' determine the result of the vote there, and they could have done nothing but what they did, exclude the entire box from the count. But even if the appellant had a right to complain of the result reached it did not seasonably exercise the right; it should have enjoined or in some way prevented the making of the return. Think of the condition of things that may result should this suit be maintained and a new return enforced. The governor may find two returns in the office of the secretary of state, one showing that the new county did not receive a majority vote, the other that it did receive such vote. Upon which will he act ? The courts of the state cannot compel him to act upon the second and later one. The county cannot be brought into existence under the statute until the chief executive of the state shall have issued his proclamation promulgating the fact of its creation. The governor is not, nor could he be. properly made, a party to this suit; he is not bound by any result that may be reached in it. Think of what he may find in the secretary of state’s office should a judgment be rendered requiring the commissioners to make another report. He may there find two reports of the election or returns, probably the one contradictory of the other. The second return could not be compelled to show that it was made by order of the circuit court, or this court, and the governor does not officially take notice of judicial proceedings. Which would be treated as the controlling one? Suppose the Marion county commissioners should voluntarily make a second report, and they cannot be mandamused to do anything which they are unauthorized to do voluntarily. Would the governor be required to determine which of the two voluntary reports should control his action? Certainly not, for the statute will not warrant a construction which makes the chief executive the tribunal to determine the result of the election. Presumptively, the governor has already determined upon a course of non-action and has refrained from issuing a proclamation under the Walt-hall county act; so far as he is concerned the matter is a past event. These considerations are confirmatory of the correctness of the decision in the Oglesby case and shows the error of.the authorities adverse to the decision therein made. The case of State v. Board of Supervisors of Coahoma County, 91 Miss. 582, 3 South. 113, is a conclusive authority against the appellant in this case. The official reporter failed to report this case until the decision in McHenry v. State, 91 Miss. 562, when it was ordered to be reported, although it had been decided many years before. But the case just mentioned, McHenry v. State, 91 Miss. 562, and that of Native Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 171, leave no room for controversy in this case touching the law of this state on the main points involved in this cause. The act in question in those cases, Laws 1906, p. 185, conditionally providing for the division of Harrison county into two circuit and chancery court districts required the governor, like the Walthall county act, to appoint election commissioners and authorized them to fix the date of the election, and, unlike the Walthall county act, gave them power to appoint deputies (managers) and clerks for the election and, again unlike the Walthall county act, affirmatively provided that the election should be conducted, except as was expressly provided therein, as nearly as practicable in the manner provided by law for the holding of general elections, thus making the general election laws part of itself. And the commissioners were charged with the duty of providing ballots and canvassing the result of said election and were required to make a report to the boa'rd of supervisors, and the board of supervisors (the governor in the Walthall county case) were directed to promulgate the result as certified to it. In the Native Lumber Co. case it was decided that the question of thé result of the election was political and that the whole subject-matter was committed by the legislature to the election commissioners without appeal, and that they could not by mandatory injunction be required to produce the ballot boxes, tickets voted, etc., for the purpose of a recount, and that, too, when the most palpable frauds affecting the result of the election were charged against them; and in the McHenry case it was decided that mandamus would not lie. to secure a recount and an additional return; that neither the chancery court nor the circuit court could exercise control of the subject-matter. A careful reading of the two cases will show that no argumentation can save this case from condemnation by them. If appellant succeeds it will therefore be necessary to overrule at least four cases heretofore decided by this court; they are, Oglesby v. Sigman, 58 Miss. 502; Native Lumber Co. v. Board of Supervisors of Harrison County, 89 Miss. 171; Me-Henry v. Slate, 91 Miss. 562, and State v. Board of Supervisors of Goahoma County, 91 Miss. 582. The claim in the brief of appellant’s counsel that the election commissioners constituted a tabulating board for the precincts is unfounded. The act under which they proceeded required them to hold the election. How such a power can be exercised in the absence of authority to determine the qualifications of electors, there being no other person or tribunal to make the determination, is beyond our comprehension. The Walthall county act is exhausted and was exhausted when this suit was begun. The Marion county commissioners, appellees, having made report as required by the act became functi officio and therefore had no more power over the subject-matter of the suit than any other three citizens „of the county. The nature and character of their report cuts no figure on this point; it makes no difference what the report was, its return to the secretary of state put an end to the official functions of the late commissioners. State ex rel., etc. v. Board of State Canvassers, 32 Mont. 13, 4 Am. & Eng. Ann. Cases, 734. After the submission of the case it was remanded to the docket by the court for further argument, and the case was argued orally a second time by the same counsel in behalf of their respective clients.