State ex rel. Metcalf v. Garesche

Hough, J.

This was an application at the relation of Lyne S. Metcalf for a mandamus to compel the defendants? Einney and Schultz, Justices of the County Court of St. Louis county, and the defendant, Garesche, clerk of said court, as canvassers of the returns of the election held on the 7th day of November, 1876, to count the returns of precinct No. 57 in St. Louis county, as two hundred and seventy-two votes for R. Graham Frost and three hundred and eighteen votes for the relator for Representative in Congress for the third district of Missouri. The chief averments of the alternative writ, omitting the formal parts, are that at said election the relator and said Frost were the only candidates for Representative in Congress for said district, and that the judges and clerks of election precinct fifty-seven, in said district, certified on the poll-books from said precinct, that at said election said Frost received for said office two hundred and seventy-two votes and the relator three hundred and eighteen' votes; that said poll-book and return, so certified, were returned and delivered to defendant, Garesche, at the county clerk’s office on the 8th day of November, 1876 ; that after said book was so received and while it was in the custody of said Garesche, and on the 9th day of November, 1876, said return was illegally, falsely and fraudulently altered by *486 changing the figure seven therein into a figure nine, so as to make it read two hundred and ninety-two, instead of two hundred and seventy-two, votes for Frost; that the defendants, acting as canvassers, have arbitrarily and oppressively refused to count the vote of said precinct fifty-seven as two hundred and seventy-two for Frost, as the same was returned and certified, and, unless prevented, will, contrary to law and in violation of their duty in the premises, falsely return two hundred and ninety-two votes as cast for Frost at said precinct, instead of two hundred and seventy-two, as returned by the judges and clerks of election.

The defendants, Finney and Schultz, in their return to the writ, averred that they did not know that there had been any change in the certificate and return of the judges and clerks of election precinct No. 57, nor whether if such change had been made, the same was made before or after said return was delivered to said Garesclie; that said Garesche informed them that there were circumstances which led him to believe that said return had boon changed in his office, but that he had neither official nor personal knowledge of the fact; that said Garesehe furnished them with said poll-books, and the returns and certificates showed that,said Frost had received two hundred and ninety-two votes at said precinct at said election, and they, as canvassers, counted said returns as they appeared on the face of the poll-books, and not otherwise, as they were in law bound to do.

Defendant Garesehe in his return averred that, from circumstantial evidence elicited by him in an examination of the facts, he believed that the alteration as alleged in the petition had been made, but by whom he had no knowledge or information sufficient to form a belief; that in his desire to do even justice and faithfully perform the duties imposed on him by law, he had inquired of counsel learned in the law, whether he would not be authorized to change it to two hundred and seventy-two, which he *487 believed to be tlie true return. But he was by the counsel whom he so consulted, advised that unless he knew the fact of such alteration, and did not simply believe it from circumstances which came to his knowledge since the alleged alteration was made, he had no authority to count it otherwise than as two hundred and ninety-two, but that with these figures he should in his return recite his belief as to the alteration. The circuit judge who tried the cause found, from the testimony, that the figures on the poll-book of precinct fifty-seven, representing the number of votes cast for Mr. Erost, were two hundred and seventy-two when the said book was returned by the judges of election to the county clerk; that the figure seven of the said number two hundred and seventy-two was changed and altered to a figure nine, so as to make the figures representing the number of votes cast for Mr. Frost' at that precinct two hundred and ninety-two instead of two hundred and seventy-two, and that such change or alteration was made after the said poll-book had been returned by the judges of election to the county clerk, and thereupon awarded the peremptory writ as prayed. The judgment of the circuit court was affirmed by the Court of Appeals, and the defendants have appealed to this court.

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The facts found by the circuit judge were fully established by the testimony given at the trial. . The number of votes returned for Frost was two hundred and seventy•-two and not two hundred and ninety-two. "With the correctness of that return the canvassers had nothing to do, nor was it a proper subject of inquiry in the trial court. The duties of the canvassers were purely ministerial; they were without official discretion. The vote which was certified to the county clerk, was the vote which it was the duty of the defendants to certify to the Secretary of State. No alteration of that vote on the poll-books which was known by the canvassing officers to have been made, either by accident or fraud, after they came to the custody of the *488 county clerk, could alter their duty to certify the vote so returned. It would in such- case have been their duty to restore the true figures, and certify the same as they had originally been returned to them. The pei’formance of such duty could undoubtedly be compelled by mandamus. This much is conceded by defendants’ counsel. "Where, however, the canvassing officers know that an alteration has been made, but do not know, though they may have good reason to suspect, that such alteration was made after the poll-books came to the custody of the county clerk, as they cannot take testimony and cannot therefore ascertain what figures were certified by the judges and clerks of election, can the circuit court in a proceeding by mandamus to co'mpel such canvassing officers to count /the vote certified .by the judges and clerks of election, determine for them which is the vote so certified ? This is the precise question presented by the appeal. We think it can. If it cannot, a proceeding by mandamus, in such a case, must be utterly nugatory. A peremptory writ of mandamus simply to count the vote certified by the judges and clerks, without ascertaining which was the vote so certified, would be a mere brutum fulmen, as it could never be determined from a certificate of obedience, whether the writ had in fact ever been obeyed. If it be left to the canvassers to determine what the true return is, no attachment for a violation of the writ, in- that regard, could ever issue; for the court could never determine that its writ had been violated, without first deciding what vote should have been counted. The object of the writ in the present case was to compel the counting of the true return; the writ could not issue until there had been a failure or refusal to count such return and no such failure or refusal could be found to exist, until the court had determined which was the true return.

*489

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*488 Having ascertained which was the true return and that the canvassing officers had failed or refused to count it, *489 thus leaving their legal duty unfulfilled, the peremptory writ commanded its performance. It will thus be seen that the right to determine the specific legal duty of ministerial officers, such as the defendants are, necessarily results from the very nature of the proceeding by mandamus. In tire case of officers or tribiinals exercising judicial functions, it is otherwise ; the writ only commands them to act, without designating what their action shall be. In the case of State ex rel. Adamson v. Lafayette County Court, 41 Mo. 224 , it was said: “ The writ of mandamus either lies to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to proceed to exercise their judicial functions.” The discrimination here made between the functions of this writ when addressed to judicial or ministerial officers, supports the view we have taken. It does not lie to compel the performance of a particular judicial act, but it does lie to compel the performance of a particular ministerial act. It simply requires the judicial officer to proceed to do his duty ; it not only requires the ministerial officer to proceed to do his duty, but it also indicates what his specific duty is.

To assert that the writ of mandamus cannot require the performance by a ministerial officer of any act which he does not, with the lights before him,. conceive it his duty to perform, is to destroy the efficacy of the writ, and to substitute the conscience of the officer for the command of the law; for his errors, unlike those of judicial officers, may not be reviewed upon appeal. Yet such is the argument of defendants. They insist that as they intended no wrong in counting 292 votes for Frost instead of 272, and because they did not have sufficient information to convince them that the alteration was made after the returns reached the county clerk, and they were without authority to take testimony on that subject, therefore the court can not compel them to do otherwise than they have done; *490 that the court itself would not have done otherwise, if placed in their situation. Such considerations might be invoked to shield them from penal or pecuniary liability, but they cannot excuse the non-fulfillment of the law. The court found that the specific legal duty imposed upon the defendants by statute to count the return as transmitted by the judges and clerks of election, had not been performed, and it required them to perform it. The judgment of the circuit court was right, and the judgment of the court of appeals will therefore be affirmed.

All the judges concur.

'Affirmed.