Price v. Harned , 1 Iowa 473 ( 1855 )

Wright, C. J.

We bad occasion at tbe last term, in tbe •case of Chance v. Temple, as School Fund Commissioner, ante, 179, to examine tbe law regulating tbe writ of mandamus, and to lay down, quite fully, our views of tbe practice in ■relation thereto. This proceeding, under tbe rules there declared, is, in many respects, defective. Tbe order for tbe writ, and tbe writ itself, were issued in vacation, and not during tbe term of, and by tbe court, as such, Tbe proceeding is not carried on, in tbe name of tbe state. Tbe writ itself recites no part of tbe inducement, or that which must j ustify tbe command, as was there held to be necessary. In these, •and other particulars, this proceeding would be erroneous, if tbe views taken of these questions in tbe case referred to, be correct. Tbe appellees claim, however, that these and •similar defects, were cured by appearance; and that our •Code has changed entirely, tbe strictness required under tbe English practice, in relation to this writ, and as practiced in many of our sister states; and that so much of tbe former ruling, as does not recognize these modifications and changes, is incorrect, and we are urged to re-examine the' positions there assumed, and, in effect, to overrule them. We see no reason to change substantially tbe views there -announced. And especially so, as in matters of practice, -certainty, without substantial injury, is preferable to constant change. But, independent of these considerations, we think there are other and substantial defects in this case, that must reverse it.

By the act under which this vote was taken, the returns were .to be canvassed and entered, “ under the same rules and restrictions as in other elections.” The law regulating other elections, provides as follows: “ Section 273. The person having the greatest number of votes for any office, is to be declared elected. Section 274. Each of the abstracts shall be signed by the county judge and justices, in their official capacity, and as county canvassers, and have the county seal affixed. Section 275. Each abstract of the votes for such officers as the county alone elects, shall contain a. declaration of whom the canvassers determine is elected.” And a previous section requires the county judge, to take to his assistance two justices of the peace of his county, and that they together shall open and examine the several returns and make abstracts. By these rules and restrictions, to say nothing of others, these canvassers were to be governed in canvassing this vote.. The information admits, that they did proceed to canvass the returns made, but alleges, that returns from certain townships, were improperly excluded. Grant that they were, and how does the case stand ? To determine this, let us look to the Code, to see when this writ may issue, to whom, and for what purpose. Section 2179 provides, that “ The writ of mandamus issues from the District Court to any inferior tribunal, corporation, board, or person, to compel the performance of an act, which the law specially enjoins, as a duty resulting from an office, trust, or station.” What duty did the law “especially enjoin” on the county judge, sheriff, and other county officers, in relation to this removal? To remove their offices, books, papers, &c., belonging thereto, to Sigour-ney,. it is said. This is true; but when, and upon what condition? Clearly, if a majority of the votes cast at said election, was in favor of said removal; otherwise, not. Who was to determine, in the first instance, which place had a majority ? Unquestionably, the county canvassers, and not the county officers. At the time the alternative writ was granted, wbat bad tbe sheriff, recorder, and clerk, to say nothing of the county judge, refused to do, to justify this mandate ? Was it their duty to act in direct violation of the determination of the canvassers ? Certainly not. Indeed, it appears to us, that as matters then stood, they were in the clear discharge of their duties, in remaining at Lancaster. The law did not enjoin upon them to canvass the votes, nor yet to act in disregard of that canvass, because they, or any other citizen or citizens, might deem the canvass ever so flagrantly illegal and erroneous. This writ should not issue, until there is some wrong on the part of the tribunal, corporation, board, or person, to be commanded. By this, we do not mean an act criminal in its character, but that the party to be compelled, should have failed and refused to do that which it was clearly and certainly his duty to do, from his office, trust, or station. They could not determine, then, that this canvass was wrong. It was no part of their duty to do so, and to command them to so remove their offices, while -the vote stood in this condition, was clearly unwarranted and erroneous. It may be said, however, that the writ and information were amended, so as to make the county canvassers parties, and that the alternative writ, as thus amended, commanded them to correct that canvass ; and that, in this respect, the peremptory writ follows the alternative. But is this so ? The amendment directs the mandate to the county judge and canvassers, and commands them to count the votes of all the townships, and record the true result of said vote. The order for the peremptory writ is, that the “ county judge is to so amend his record, as to show the true state of the majority vote for the town of Sigourney,” and for him and the other county officers to remove to Sigourney, on the 15th day of March, 1856. It is not easily perceived, how the county judge could be commanded to amend Ms record, until either in connection with the former assistants, or others, to be selected, or in some other method, the returns had been reexamined, and the result declared, so that the judge could make his amendment therefrom. The county judge has not alone, any power to make tbis examination. He makes tbe entry on bis books, it is true, but it is only after tbe canvassers bave determined tbe result, and, as a board, made tbe abstracts. Whether tbeir duties are judicial, or exclusively ministerial, there must be tbe action of tbe three in making tbe canvass.

But, further, tbe record shows, that the peremptory writ was ordered, without any other evidence or record, than that contained in tbe information, writ, answer, and demurrer. How, then, was it shown that tbis canvass was improper ? Certainly not upon tbe face of tbe pleadings. Or, if tbe order commanding tbe county judge to correct bis record, was designed to require a new canvass, and to bave tbe correct result declared, then bow is it left ? Suppose that on such second canvass, a majority of tbe votes should still be found in favor of Lancaster ? In that event, we would have tbis singular state of things: An absolute peremptory mandate to tbe county officers to remove tbeir offices on a definite day, while tbe vote, as canvassed, might show that under tbe law, there should bave been no removal. In any view of it, then, it appears to us, tbis peremptory writ was unwarranted, from anything that is developed in tbis record.

Yery great injustice may bave been done by tbe first canvass. If so, we bave no doubt, but that tbe writ of mandamus could properly issue to compel tbe board to correct the mistake, and do tbeir duty. And upon such correction, if tbe majority was in favor of Sigourney, it is just as clear, that upon a failure of tbe county officers to remove, they could be compelled to do so by mandamus. While we would not say, that tbe alternative writ might not issue, commanding tbe board of canvassers to correct tbe canvass, and upon such correction, commanding tbe county officers to remove tbeir offices; yet, we think, tbe better practice would be, to first compel tbe board to act, so as to correct tbe canvass. When tbis has been done, and tbe duty of tbe county officers clearly fixed, so that tbeir duty can be said to be “ specially enjoined,” and they refuse, then let tbe mandate of tbe court issue, commanding them to act. And less objection, it is believed, obtains to tbis course, from the fact, that the law* contemplates speedy action. The defendants may be required to answer forthwith. The very nature of the writ, carries with it the necessity of prompt and decisive action . on the part of the court. By pursuing this course, confusion will be avoided, and each tribunal, and officer, held liable for their own action; for their own contempts, and their own costs; and this too, it is believed, without any prejudice to the rights of the relators.

Judgment reversed and cause remanded.