Hudmon v. Slaughter , 70 Ala. 546 ( 1881 )

SOMEBYILLE, J.

This is an application for the writ of mandamus by the petitioner, Slaughter, who claims to have been legally elected alderman, as a member of the board of Mayor and Aldermen of the city of Opelika, at ail election held under the charter of the city 'on March 7, 1882. The relator alleges the failure and refusal of the municipal board to count the votes, as shown in the returns made to them, and to' certify the result, as was their duty under the charter; and the prayer of the petition is to compel the performance of this duty.

The answer of the respondents admits their refusal to count,, and seeks to justify their action under a resolution of the board declaring the election void, and ordering a new election, on account of alleged irregularities and frauds, both in the registration and in the election. The main reasons assigned are, the failure of the city clerk, in his official capacity as registrar, to administer the oath to a vast majority of the voters, as he was required to do by the charter, and the alleged insufficiency and imperfections of the registration booh, or lists, kept by the clerk, with which the city board was required to compare the poll-lists, in order to arrive at the result. The Circuit Court granted the peremptory writ on the final hearing, and the respondents appeal from this judgment.

In oxir judgment, but two questions are involved in the case: first, the nature-of the duties imposed'on the board by the charter, as being purely ministerial or judicial: secondly, the sufficiency or insufficiency in form of the registration lists and election returns, from an examination of which the respondents were authorized to certify the result.

It is insisted by the appellants, that the charter conferred on them judicial, and not merely ministerial functions, in this matter. This claim is based upon the construction of section 3 of the charter, as found on page 352, of the Acts of 1872-73, and approved March 26, 1873. This section, after fixing the qualification of voters in the city election, and making registration in a book kept by the city clerk a pre-requisite, declares as follows : “ That the votes ” [cast for the several candidates for mayor and aldermen] “ shall be returned to the existing mayor and council, whose duty it shall be, within five days after the election, to count the votes, and compare the poll-lists with the registration lists, and reyect all votes cast by persons whose names do not appear registered as hereinafter provided; and to dedicare by publication in a newspaper published in the city of Opelika, and by posting notices in at least four public places, the name of the person havi/ng received the greatest number of registered votes for mayor, and the names of the six persons having received the greatest number of registered votes for aldermen at said election.”

It is pei’fectly clear to our mind, that the duties intended to be imp>osed on the board by this section are ministerial, and in no sense judicial — that they are constituted mere canvassers, or supervisors of the election returns, and have no authority to exercise the judicial power of investigating or determining the validity of the election.

This view becomes apparent by comparing the former with the present charter, by which it is superseded. A manifest change lias been made in the nature and extent of the p>owers of the board, as regards the whole subject of munidpal elections. The former charter expressly constituted the city council to be “judges of all [such] elections,” and reposed in them “full power to determine all matters in relation thereto, and ascertain the legality of votes f and “to reject all illegal votes, and count only such as are legal;” and, in fine, to take testimony, and examine witnesses, with the view of deciding the result. These powers are fully commensurate with those possessed by judges authorized to sit and determine regular election contests.—Acts 1869-70, p. 323, § 3; Echols v. The State, ex rel. Dunbar, 56 Ala. 131. Why did the legislature abrogate these powers, which were so clearly expressed, and substitute for them the one simpfie duty of counting the votes, and declaring the result from a mere comparison of the registration and pooil-lists ? Can we convict them of doing a useless thing, by which they meant nothing, leaving out of view other ptotent facts disclosing an obvious intention to the contrary? That the duties of the board, furthermore, are ministerial, is plain from the additional fact, that the charter declares the board to be guilty of a misdemeanor, and pnmishable criminally, by fine and imprisonment, for failing or refusing to discharge these duties, as required.—Acts 1872-73, p. 354, § 4. It is not customary to punish any officer for failure or refusal to discharge a judicial duty, as the discretion devolved carries with it the right to determine whether to perform or not to perform in each adjudged case. Nor can it be supposed, either, that the charter would require the respondents to count and declare the result within so brief a space as five days after the election, if the intention was to authorize an investigation of irregularities or frauds, other than such as appear on the face of the returns and papers before them. The legislative intention is further evinced in this matter by an express provision, declaring that the judge of probate shall have jurisdiction of all* proceedings inaugurated for the pmrpose of contesting such elections, and that the issues formed shall be tried by a jury of disinterested persons — thus reposing elsewhere a power taken away by the new charter from the municipal board. — Acts 1872-73, § 10, p. 355.

It is noticeable, also, that the respondents are designated in section 10 of the charter, as a “ board of supervisors.” The ordinary duties of such officers are universally recognized as being purely ministerial. They are simply to make a correct statement' of the votes cast for each candidate, from the face of the returns, and to ascertain by arithmetical computation who has the majority, and so to certify, or declare, as the statute may require.—Code, 1876, §§ 291-2. It is settled, without controversy, that mere canvassers possess no judicial or discretionary powers, and can not go behind the returns.—High on Extr. Rem. §§ 60-63; McCrary on Elections, §§ 83-84; Brightly’s Elec. Cases, p. 306, note; State, ex rel. v. Judge of 9th Circuit, 13 Ala. 805 ; State, ex rel. Thompson v. Circuit Judge, 9 Ala. 338 ; Cooley on Const. Lim. 621, 784.; Moses on Mandamus, p. 90 ; Mister v. Cameron, 39 Ind. 488; State v. Steers, 44 Mo. 223; Clark v. McKenzie, 7 Bush (Ky.), 523.

It is true that boards of supervisors, or canvassers, must of necessity determine, as a preliminay question, whether the returns before them, which they are required to cast up, are “genuine and intelligible, and substantially authenticated as required by law” — or, in other words, whether such documents are in fact returns or not — and the power thus to determine is often said to be in its nature quasi-judicial. — High on Extr. Rem. § 56; McCrary on Elec. §§ 331, 82-83 ; People v. Head, 25 Ill. 328. Yet it must always be for the courts to determine, in each given case, whether there is any scope for the operation of this principle, and whether it be Iona ficle invoked.

It is well settled, however, that in a proceeding by mandamus, to compel-a board of canvassers to perform their official duties, they can not set up irregularities in the returns, or frauds in the conduct of the election, however gross or monstrous in their character. These are not matters for the considerations of courts, in applications of this kind, at least where another forum has been provided for the contest of the election, by which a complete and adequate remedy is furnished. High on Extr. Rem. § 56; McCrary on Elec. § 331; State v. Jones, 19 Ind. 365; People v. Head, 25 Ill. 328; Brightly’s Elec. Cases, p. 306, note. The basis of the principle lies in the fact, that a canvassing board has no power to discard or reject returns of votes, which on their face appear genuine and regular in form, on the ground of frauds committed in the election. Lewis v. Commissioners, 22 Amer. Rep. 275 (s. c., 16 Kan. 102); Kister v. Cameron, 39 Ind. 488, supra. In the case of the Attorney-General v. Parstow, 4 Wisc. 749, it was said by the court, that canvassing officers were authorized only “to add up and certify by calculation the number of votes given for any officeand it was added, that “ they have no discretion to hear and take proof as to frauds, even if morally certain that monstrous frauds have been perpetrated.”

That the writ of mandamus will be awarded to compel the discharge of such of these duties as are merely ministerial, is uniformly admitted by all the authorities. — Moses on Mandamus, p. 90, and cases above cited; High on Extr. Rem. § 56.

It is almost too obvious for argument, that the respondents can derive no aid in this proceeding, from the clause in the city charter which constitutes them judges of the election and qualifications of their own members. This can apply only to a contest between.two or more candidates claiming membership by election to the same board. To permit the board to determine the fact of their election, as against another' contesting board, would be to constitute them judges in their own cases; which has always been considered so monstrous a perversion of justice, as that it has been often asserted that the proverbial omnipotence of Parliament was entirely inadequate to its accomplishment.—Davy v. Savadge, Hobart, 87; 12 Mod. 687.

We conclude, in view of the above considerations, that the power reposed by the General Assembly in the respondents, under the provisions of the third section of the city charter, are of a ministerial, and not a judicial nature.

We next consider the other question, as to the sufficiency in form of the registration book and list, and the other election returns, from an examination of which the city council were authorized to certify the result. Section 11 of the charter provides, in reference to these matters, that it shall be the duty of the clerk of the city council “ to keep a well-bound registration book, in which shall be registered the names of all persons who claim the right to vote at any city electionthat it shall be his further duty “ to have written or printed, at the top of each page of said registration book, the 'following oath: ‘ I do solemnly swear, that I am over the age of twenty-one years, and legally entitled to vote in the State of Alabama for members of the General Assembly, and have been a resident citizen of the city of Opelika for the last three months” which oath is required to be administered by the clerk, or his assistants, to every person who registers his name in the book, and the name of the person registered is required to be written under this oath. Any person, who makes application, is authorized to register, “ without delay or hindrance.” The clerk is also enjoined, within three days after each city election, to record in a book, in alphabetical order, the names of all persons registered to vote at said election, said book to be placed in the archives of said city for safe-keeping.”

It is our opinion that the original registration booh and this •alphabetical copy of it constitute the “registration books” referred to in the third section of the charter, with which the board are required to compare the poll-lists. Theré is no express provision requiring the clerk to affix a certificate to this alphabetical list. The former, we apprehend, may either be implied as a convenient method of identification, or else it may be considered entirely unnecessary, in view of the fact that the clerk, who makes it, is an officer of the body in whose archives it is deposited, and it thereby becomes a quasi municipal record.

The original registration book is before us, for our personal inspection, having been transmitted to this court in accordance with the 20th Rule of Practice, that we might examine its sufficiency, in connection with the record. It is a well-bound book, containing the names of between six and seven hundred . persons, signed beneath the proper oath written at the top of each page, in accordance with the charter requirement. Some erasures of names appear in pencil, and others by pen.

If there had been no registration whatever, it may be that the election would have been absolutely void, and the failure on the part of the respondents to discharge the duties in question would have been justified.—Cooley Const. Lim., 4th ed. 758 [602]. But it is well settled, that mere informalities in a registration, where one is made, will not vitiate it, and canvassers can not, on this account, either reject votes, or refuse to count those which appear to have been registered.—State v. Baker, 38 Wis. 71. Canvassers, as we have seen above, have no authority to go behind the face of the returns, and other documents before them, in order to« adjudge questions of either irregularity or fraud. They can only reject such returns as are void on their face, as being so destitute of essential form as to render them unintelligible.—State v. State Canvassers, 36 Wis. 498 ; Phelps v. Schroeder, 26 Ohio St. 549.

It is our judgment, that this registration book, taken in connection with the alphabetical copy of it identified by the city clerk’s authentication, constitutes, on the face of it, sufficient evidence of a substantial registration as required by the charter; and it is sufficiently intelligible, and in due form, to enable the respondents to count the votes and compare the poll-lists with them. This is a ministerial duty, and they have shown no lawful excuse for refusing its performance. They had no authority to declare the election void. The failure of the clerk to administer the oath to each person applying for registration, as he clearly should have done, can'not be investigated by them in their capacity as canvassers. The flagrant and very gross frauds, which seem to have been practiced, alike in the registration and election, are matters for consideration by another tribunal, and can not be alleged by way of answer to this petition for a mmidwmus.

The judgment of the Circuit Cojirt, granting the .prayer of the petition, is affirmed. It is corrected, however, so as to authorize the respondents to look to both the original registration book and the alphabetical copy of it made by the clerk, in addition to the other returns made by the managers.