McCoy v. State ex rel. Allee

delivered the opinion of the Court.

Recognizing the urgent public reasons for a speedy decision of the important questions essential to the final determination of this case, we .have called a special term, for the first time in its history probably, of this Court of last resort in this State. To this end we have also extended every possible indulgence to the parties and counsel and allowed none to ourselves in the laborious and exhausting effort to discharge our grave and responsible duties within the very limited time at our disposal.

This case is brought here on a writ of error to the Superior Court to review its judgment and proceedings in awarding a peremptory mandamus upon the petition of the defendants in error,

The minority of said Board having severed because they refused to unite with a majority thereof in alleging grounds of error8 the said majority have assigned numerous causes of error to the judgment and proceedings in the Court below.

The relators in this proceeding, in their petition for the mandamus prayed for, claimed to have been elected to certain offices at the general election in said County held on Tuesday, November 3, 1896. In their prayer they asked for the mandate of the Court below to the Sheriff and others whom they allege to be the Board of Canvass of said County, to compel them, as said Board of Canvass, to reconvene and ascertain the state of the said election throughout said County, and to make and deliver certificates thereof, as required by law.

During the course of this particular proceeding much has been stated, as appears by the record, about the alleged bribery, violence and lawlessness attending said election, and which it is contended by the respondents invalidated the alleged election of the relators, and debars them from any legal title to the offices they now claim.

But it is now well settled, as was correctly and unanimously declared by the Court below, that in mandamus proceedings the title to an office cannot be inquired into and determined and that, therefore, in the pending proceeding, said Court could neither determine the validity of the title to any of the offices therein claimed, nor the legality of the election wherefrom alone such title can be derived. It could simply decide whether or not said Board of Canvass possessed the power and had duly discharged its statutory duty to determine who was entitled to have, not the actual title, but merely the prima fade evidence, ydiich the certificate is, of the title to each office in question.

As the Court below could not determine the validity of their title, and to that end inquire into the legality of their alleged election, therefore it could not investigate and pass upon the real merits

The Board oí Canvass in each county of this State has been constituted and empowered by statute as a suitable instrumentality for this convenient purpose. It is composed of the Sheriff as presiding officer and the inspectors of election in each hundred. If the Sheriff be absent, the Coroner or other person is designated to act as presiding officer in his stead pursuant to statutory provisions.

It is the duty of the inspectors and judges of every hundred and election district in the county to make and sign certificates of election in their respective hundreds and districts, according to the form in said statute provided, stating every office for persons to fill which votes had been given at said election, and the name of every person to whom any vote had been given for such office, and the number in words at length of the votes given to each person for said office.

Provision is further made for the delivering of such certificates for the use of the Board of Canvass when engaged in the discharge of its duty to ascertain the state of the election throughout the county as aforesaid. Such certificates, as was properly held by the Court below, are the sole and exclusive evidence from which it, the said

On the contrary, it is their plain and imperative duty to promptly discharge said task of ascertaining the state of the election throughout the county as aforesaid, and from the evidence furnished exclusively by said certificates. And it is the further duty of every such Board, when it comes to their knowledge that the inspectors and judges of any Hundred or Election District have refused or failed to make and sign the certificates of the votes actually given therein at any election, to take such proceedings, without undue delay, as shall be appropriate for procuring such certificates, and thus enabling such Board to complete their task of ascertaining the state of the election throughout the County as aforesaid.

For until said Board “ has calculated the aggregate amount of all the votes for each office which shall have been given in all the Hundreds and Election Districts of the County for every person voted for for such office.”—to quote the statutory language—and signed and delivered the prescribed certificates, it cannot be deemed in legal contemplation to have fulfilled the purpose of its creation, exhausted its powers and become functus officio.

Having described the nature and the purpose of the Boards of Canvass and defined their powers and duties as they áre constituted in this State, we will now refer as briefly as possible to the recog

Mandamus, according to the uniform current of our well-considered adjudications is, in this State, a prerogative writ in the supervisory sense, issuable exclusively by our Superior Court, not of course, but only in the exercise of a sound judicial discretion. It is a remedial writ, the appropriate functions of which are the enforcement of the performance of duties imposed by law, by officers and others who neglect or refuse to perform their duty. The remedy is extraordinary, and if the right is doubtful, or the duty discretionary, or the power to perform the duty wanting, or inadequate, or if there be any other specific and adequate legal remedy, this writ will not in general be allowed. The right which it is sought to protect must be clearly established and the writ is not granted in doubtful cases. When substantial doubt exists as to the duty whose performance it is sought to coerce, or as to the right or power of the officer to perform the duty, the relief will be withheld, since the granting of the writ in such cases would render the process of the Court nugatory and fruitless.

“ It is said to be discretionary in the Court to grant or refuse a mandamus; but a discretion, regulated by the rules and principles of law, must be understood, and not an arbitrary and capricious discretion.” State vs. Bruce, 3 Brev. 264 , 270.

The general principles and rules of pleading and practice prevail in cases of mandamus, so far as applicable to the subject matter, and, in the absence of statutory regulations to the contrary, the practitioner must still resort to and be governed by the rules established at common law. High, Ext. Rem., §§ 448, 498.

The common law principles and rules of pleading and practice governing mandamus proceedings prevail in Delaware, as is shown by the uniform authority of the reported cases adjudicated in this State. State vs. Wilm. Bridge Co., 3 Harring. 315, 341; Houston vs. Levy Court, 5 id. 15, 16, 108; Union Church vs. Saunders, 1

The alternative writ of mandamus is usually regarded as standing in the place of the declaration in an ordinary action at common law. Its first requisite is that it should make out a prima facie case entitling the party aggrieved to the extraordinary aid of the Court. Great strictness is required in the form and contents of the alternative writ. High, Ext. Bern. § 538.

The gravemen of the complaint as stated in the inducement of the writ must be distinctly charged since the Court will infer no fault or dereliction on the part of the respondents for the purpose of sustaining the writ. It must show upon its face a clear right to the relief demanded, and the material facts on which the relator relies must be distinctly set forth so that they may be admitted or traversed by the return.

In this State, the common law rule prevails that the return to the alternative writ is conclusive and to be taken as true for the purposes of the case, until proven false in an action for false return. State vs. Wilm. Bridge Co., 3 Harring. 540.

It is generally competent for the respondent to set forth in his r'eturn several distinct and separate defences, at his option, and if he prevails in either of them, the peremptory writ will be refused. But if they be inconsistent or repugnant, the Conrt may quash the entire return ; yet it is within the discretion of the Court to quash such portion of the return as it may deem insufficient, and to allow the rest to remain. High, Ext. Bern. § 462.

The return to the alternative writ must set forth either a positive denial of the truth of the allegation therein contained, or state other facts sufficient in law to defeat the relator’s right. And in general the return should contain positive allegations of facts, and not state mere inferences from facts. An argumentative return, like any other argumentative pleading, is bad. And a return, as well as the alternative writ, is faulty which states mere conclusions of law, without stating the facts so that the Court may judge of their sufficiency.

Here two general inquiries are to be considered :

1. Have the relators clearly shown that they were pi ainly entitled when the peremptory writ was awarded to have the specific things done—that is, the canvassing of all the votes actually given in all the Hundreds and the making and delivering of the certificates of the result of the election throughout the county—in aid of which they prayed for said mandamus ?

2. Have they also shown that the alleged Board of Canvass to whom the peremptory writ is directed, had then the power to do those specific things ?

The majority of the respondents below, by their return showing cause against the mandamus, contend that neither of these essential prerequisites to the awarding of the peremptory writ has been sufficiently shown or established. The theory upon which said respondents have based said return is :

1. That the alleged inspectors composing said alleged Board of Canvass, excepting only one, have never been elected or appointed under any statute of this State and that therefore said alleged Board is not and has never been, legally constituted, or lawfully entitled, empowered or required to perform the specific acts commanded to be done by this particular mandamus.

2. That if, however, they are, and have been, in legal contemplation, duly and legally constituted, and lawfully authorized and required to do said acts, yet that they, nevertheless, have always been and were when the peremptory writ was awarded unable, for the several causes they have specified in said return, to ascertain the state of the election throughout the County by calculating the aggregate amount of all the votes for such office which have been actually given in all the Hundreds and Election Districts of the county for every person voted for for such office, and to make the prescribed certificates thereof as required by law, and therefore

Of the said several causes of said inability specified in the said respondents’ réturn, and assigned as error, we shall now consider but one only, as its determination will, in our judgment, be sufficient to adversely dispose of . the case before us.

This particular cause of inability and want of power in said Board which is urged in their return by the majority of the respondents below as a ground for refusing the peremptory writ", is as follows:

Said respondents have specifically and clearly alleged in their return that under the plain and mandatory provisions of the statute in that behalf, it was the imperative duty of said Board of Canvass, if it must be viewed in law and fact to be a duly constituted Board of Canvass, to canvass, as required by law, all the votes for each office which have been given in all the Hundreds of the County for every person voted for for such office at the general election on Tuesday, November 3d, 1896, and to make the prescribed certificates of the result thereof as required by law; that votes had been given in West Dover Hundred at said election, but that the inspector and judges of said Hundred did not then and have not hitherto made or signed and delivered the certificates of election in said Hundred as required by law, and that by reason thereof, the said Board was at the time of awarding the said mandamus and always theretofore unable to canvass said votes and so, to this extent, to perform their duty of ascertaining the state of said election throughout the County as required by law and commanded by the alternative writ to do; and that therefore the peremptory writ should not be awarded.

After a careful examination of said respondents’ return, we are unable to conclude that this ground and portion of said return should not stand as a sufficient return by said respondents, plaintiffs in error, to the alternative writ appearing of record here. If this much of said return should so stand, then it was fatal to the application of the relators. For as the return, under the established

But even if the entire return were insufficient, yet if this ground of objection, viz., the want of power to do the required acts, is plainly disclosed by the relators’ petition and alternative writ, then said Court would not have been warranted in awarding the peremptory writ, and therefore should not have done so, because in that event its decision would be liable to review and reversal for error manifest of record.

In our judgment, said ground of objedtion, arising from the absolute failure of the inspector and judges of West Dover Hundred to make, sign and deliver said prescribed certificates as required by law, is plainly disclosed upon the face of the petition of the relators and of the alternative writ drawn in conformity therewith.

Indeed, so far as the petition and writ are concerned, it does not sufficiently appear that the prescribed certificates of the election in the respective Hundreds and Election Districts of the County were ever made, signed or delivered in the form and manner required by law, by any of the respective inspectors and judges of any of the said Hundreds or Election Districts.

As already shown, the burden is on the relators not only to aver and show that they are entitled to have the specific things done in aid of which they seek the mandamus, but also to aver and show that those to whom the writ is directed have the power to do it.

In the pending case then the relators must distinctly and particularly set forth inter alia in their petition and alternative writ, every such fact—and not mere conclusions—as will apprise the respondents of what facts they are to admit or deny, and, further, enable the Court to judge whether such facts warrant the inference sought to be drawn from them.

It is true that they allege in Paragraph 10 of Section 6 of their petition and writ that the “ certificate of election ” of each Hundred where elections were held, was delivered to the Sheriff, but they do not aver that it was the certificate made and signed in form and manner as prescribed by law; nor do they aver that the ballot box of any Hundred containing the duplicate certificate and duly secured as prescribed by law was duly delivered to the Sheriff for the use of the Board as required by statute.

Now, it is not sufficient to say that because it was the duty, as they aver, of the inspectors and judges to make, sign and deliver the prescribed certificates, and because “ the certificates of election” simply—and not the certificates of election made and signed and delivered in form and manner as prescribed by law—are alleged to have been delivered to the Sheriff, therefore the duty was performed, and that such prescribed certificates were actually made, signed and delivered as required by law. Such pleading is argumentative and in this, as well as in other respects, is faulty and is also insufficient in law.

This fatal insufficiency of the relators’ allegations is still more' clearly established by their several admissions in their petition and writ that no return of the votes cast in West Dover Hundred was ever made to the Board of Canvass.

They do impliedly—but not directly—and therefore argu

For the foregoing reasons, therefore, the insufficient averments of these essential and indispensable facts are inadequate to maintain the relators’ case as presented in the said petition and writ, aud consequently present a sufficient ground for the reversal of the judgment below. Without the requisite certificates of West Dover Hundred, as well as of every other hundred in thé county in which votes were actually given, the Board could not have the power necessary to the complete discharge of the duty commanded by said writ. Since the relators have failed to aver, and the said respondents have, in their return, denied that said certificates were ever made, signed and delivered as required by law, it is not shown to this Court that said Board had the power necessary for the performance of the duty imposed on it by law and sought to be enforced by said writ. Therefore, it should have been refused, because if granted it would prove nugatory and unavailing.

That the plain, broad and mandatory language of the statute, without exception, proviso or reservation as it stands, imperatively requires the Board to canvass all the votes actually given in any Hundred, exclusively upon the evidence of the certificates thereof, notwithstanding that it has not expressly provided any specific means for compelling the making and delivering of such certificates when none have been made and signed, is unquestionable.

That a mandamus is allowable for such a purpose, was held in State, ex rel. Ferris vs. Knight et al., 6 Houst. 146 , and was after-wards recognized in the same case, on error, in this Court, 6 Houst. 321 . Moreover under our recent law for the calling of Courts in special session this is now more feasible than formerly.

Hence the relators in this cause, if the Board failed to do so, should have first applied to the Court below for such preliminary mandamus before resorting to it for the present mandamus, in order to clothe the Board with the power indispensably necessary to enable it to discharge the duty specified and commanded by the latter. It is no sufficient objection to say that there would not be time for both proceedings. For this would be equally applicable to the present or any mandamus proceeding, which may, and often does for that reason, actually prove nugatory and fruitless, although such result, when such mandamus was granted, could not be certainly anticipated.

Nor can it be objected that the Board cannot take notice that there were votes given and an election held in West Dover Hundred in the absence of any official certificate before them, on •the ground that the only evidence upon which it can act must be that of the prescribed certificate. In this State the Board of Canvass is composed—in addition to the Sheriff—of all the election inspectors of the County. The West Dover inspector being one of them, therefore as a member of the Board, he actually knew that

Moreover, it is manifest by Section 27; Chap. 18, of the Revised Code, page 168, that the Board is not confined to the evidence-of the certificates in determining the mere fact that the votes have actually been given in a particular district or hundred which have not been duly certified by its election officers. For the provision of said section that the Sheriff or other presiding officer of the-Board shall issue his warrant to obtain the certificate and the box containing its duplicate when they are already in existence but have not been delivered to him for the use of the Board, clearly imports that the Board may ascertain in the absence of the official certificate, that votes have been given and an election held in any particular district; and. therefore take the needful steps to secure-such certificate. Because the Legislature has not expressly given power to procure the making, signing and delivering thereof by mandamus against the proper inspector and judges, it doés not follow that mandamus should not be invoked for this- purpose, as a necessary precedent auxiliary to a mandamus to compel the Board in its turn to count such certificates in ascertaining the whole vote given in the county. It is more reasonable to infer that the Legislature did not specifically give such power because, as must be-presumed, it was aware that mandamus was already an existing remedy for such purpose.

The people have a right, as has the individual candidate, to have their will, as really expressed at each and every poll, truly recorded, and their choice regarded. Unless the defaulting inspector and judges in any Election District are compelled to furnish the prescribed and indispensable certificates to the Board, the latter cannot perform its duty, and thus the choice of the people as'expressed at the polls will be disregarded and may, possibly, be defeated.

Consequently, mandamus as a precedent auxiliary to the action of the Board should first be properly applied for by it, or by a.

If this would compel the Board to adjourn until some other day than that of its first meeting, there is nothing in the law to prevent or forbid it. Section 29, Chapter 18, Revised Code, forbids the Board to adjourn or separate after it has calculated the aggregate amount of all the votes given in all the Hundreds of the county, without first making the prescribed certificates of the result thereof, but it does not forbid the doing so before it has completed said computation. If the Sheriff fails to find the absent certificate and ballot box containing its duplicate, which it is his duty to procure under Section 27 of Chapter 18, during the first day of the Board’s sitting, can it be held that in case of such default, the Board must complete the count in the absence of such certificate ? How can this be when the statute commands that it shall count all the votes given in all the Hundreds, etc., and actually makes provision for procuring an absent certificate as needful to afford a complete ascertainment of the people’s expressed will at all the polls where an election has actually been held. Then why may not a mandamus be invoked to aid the Board to perform its duty, when it cannot do so unless some remedy is available for that purpose ?

The statute commands that all the votes actually given in all of the hundreds shall be counted, but does not limit the time within which the duty shall be performed. The law itself, therefore, interposes no obstacle to the preliminary mandamus against the delinquent poll officials to compel the production of the certificates indispensably necessary to enable the Board to discharge its duty, and thus record the will of the people as really expressed in each and all of the hundreds throughout the county. Any other construction would defeat the plain purpose of the statute. If it be urged that the possible- delay thus occasioned may prove both impracticable and detrimental to the public interest, the reply must be that the remedy is to be sought in a repeal or alteration of the law, which is a matter of legislative and not judicial discretion and power.

Their contention that the Board, in discharging the duty commanded by the peremptory writ awarded in this case, may exclude from its computation the votes actually given in the said West Dover Hundred, when the prescribed certificates thereof have not been signed and delivered for its use, and when the result of the ■election would not be thereby changed, is altogether untenable.

Mandamus is employed only to compel the performance of an •act in accordance with and not contrary to the law. It can neither diminish nor increase the duty as fully prescribed by law. Its function is not to create a duty, but to coerce the performance of a pre-existing duty. In the present instance it has been invoked to enforce the performance of the duty imposed by the statute upon the said Board of Canvass. That duty is to compute exclusively from the prescribed certificates of the election all the votes actually given in all the hundreds of this county, including those shown and admitted by both the relators and respondents to have been .actually cast in said West Dover Hundred.

Hence the Court, in awarding the writ, when allowable, must necessarily order this, and the Board must do this, no matter ■whether the actual votes given were or not contrary to the showing of the certificates, or whether the unexecuted or missing, certificates would or not alter the result. For so the statute expressly commands. Hence, in granting and obeying the mandamus, it is immaterial whether or not the mere withholding of the certificates •would alter the result.

Especially is this true where, in a case like the present, it does not appear by the record or otherwise, that in the West Dover Hundred election the ballots have been lost or destroyed, or that

It should therefore have been apparent to both the Court below and the relators that the Board had not then the power to perform the duty commanded by said writ and required by the statute, and that the power to obey both the writ and the law depended upon two contingencies, viz: either the willingness of the three Dover hundred election officers to do what the respondents’ return shows a majority of them had refused, and thereunto omitted to do, or the uncertain success of a preliminary mandamus to compel said officers to make, sign and deliver the requisite certificates. A peremptory mandamus is an absolute command to perform the particular act which it seeks to coerce, and only a return of obedience to-the writ and of what has been done in its execution will be allowed;, and therefore this writ will not be granted unless 'the act or duty whose enforcement is sought is legally possible at the time.

The present writ was awarded Dec. 3d, 1896, and made returnable on the 12th—but nine days afterward—and thereupon the-court adjourned to the latter day. There was no prayer by the relators or any other person, for a preliminary mandamus against the-West Dover Hundred election officers to furnish said Board with.

This view was plainly expressed by Chancellor Saulsbury in this court, in Knight and Kennedy vs. Ferris, 6 Houston 324 . That case was a proceeding by mandamus against the inspector and two -judges of an Election District, to compel them to make, sign and deliver to the relator therein the certificate of his election.

said : “ It won’t do to say that the petitioner states in his petition that Pierce is willing to do his duty.

The Court cannot assume without his express admission of vrecord that he would so act, and upon such assumption award the peremptory writ against the other two judges. Courts do not, and rshould not, so act. Their commands should be such that obedience rto them can be enforced and not be dependent upon the voluntary .action of any one.”

For .the reasons stated, this Court considers that the judgment of the Court below, awarding the peremptory writ, should be reversed.

The decree entered was as follows:

And now, to wit, this fourth day of January, A. D„, 1897, it is ordered, adjudged and decreed by the Court here, that the judgment in this cause in the court below be and the same is hereby reversed, and that the petitioners below pay the costs in three months, or attachment, and that this judgment be certified to the •Court below.