Bourgeois v. Fairchild ( 1902 )

Calhoon, J.,

delivered the opinion of the court.

The single question for decision is whether mandamus is the proper remedy to compel the mayor to certify the returns of the election commissioners of the town of Waveland. This question-arises on the construction of a clause in an amendment made in March, 1891, to the charter of that town as it appears recorded in the office of the secretary of state. That clause is as follows : ‘£ The board of mayor and aldermen shall appoint three election commissioners, one of whom shall be designated to have printed and distributed the official ballots, and who shall perform all the duties in respect to town elections prescribed by the law to be performed by the county election commissioners, when not otherwise provided. They shall in case there is but one election precinct in the town act as election managers themselves. They shall take an oath before any officer competent to administer same, to faithfully discharge their duties, and shall open the polls at 9 o’clock a. m. and close them at 7 o’clock p. m. and proceed to ascertain the results of the election in the presence of the mayor and at least one alderman, who shall certify with the election officers to the returns.” We think, under the above section of the charter, that mandmnus is the proper remedy, both on reason and on the authorities cited in the brief for appellant. The election commissioners, and they only, can ascertain the results of the election. It is true that this ascertaining must be in the presence of the mayor and at least one alderman, but they perform no function whatever except to certify the returns of the commissioners of election. This duty is purely ministerial, and its performance may be compelled. There is no judicial duty involved in their action. They have no connection with the commissioners, and no veto upon their returns. The whole purpose is to secure their certificate to the returns.

Eeversed and remanded.