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(Duties of return judges or canvassers.)

It has been held, in the general assembly of Pennsylvania, that where the vote stood 16 yeas to 15 nays, the speaker had no right to vote; it being his duty to be indifferent between the parties. 4 Votes of Assembly 330-37. But the modern practice in the United States is otherwise, although the Pennsylvania precedent agrees with the parliamentary usage of Great Britain.


In the Supreme Court of Missouri.



[Duties of return judges or canvassers.]

Canvassers are mere ministerial officers; it is their duty simply to cast up the votes and award the certificate to the person having the highest number; they have no judicial power.

This was an information in the nature of a quo warranto, filed by the attorney-general to inquire by what title the defendant, John H. Steers, claimed to exercise the office of sheriff of Ralls county.

Johnson, attorney-general, and Shields, for the relator.

Dryden, Lindley and Dryden, for the defendant.

WAGNER, J., delivered the opinion of the court. The attorney-general, on behalf of the state, appears and files an information in the nature of a quo warranto, in which, among other things, he states that at a general election held in this state, on the third day of November 1868, in the various counties, for state and county officers, one Samuel C. McCune, and the defendant John H. Steers, were

(Duties of return judges or canvassers.)

candidates, and the only candidates, in the county of Ralls, for the office of sheriff of said county; that McCune received a majority of all the legal votes cast for that office, in the said county, at that election, and that the judges and clerks of election in the various election districts in such county so certified to the county clerks of said county; that notwithstanding the fact that McCune received the majority of all the legal votes cast for the office of sheriff, the county-clerk and board of county-canvassers, unlawfully and wrongfully, for alleged informality and illegality, rejected and refused to count the votes, as certified by the judges and clerks of election, cast for said office in Jasper election district in said county; the said defendant, Steers, by the said illegal and wrongful action of the county-clerk, in refusing to count and take into consideration the said votes and poll-books of Jasper election district, illegally obtained from the county-clerk of such county his certificate of election, and on the said certificate of election, the governor of the state issued his commission to the defendant, as sheriff of said county, under which commission the said defendant now holds and executes the duties of the said office of sheriff. The information then specifies the number of votes given, showing that, upon a counting of the whole vote of Ralls county, McCune was legally elected, and that by the act of the clerk in throwing out the vote of Jasper election district, the result was changed and a majority left for the defendant. A judgment of ouster is demanded against the defendant, for the reason that he is usurping and exercising the duties of an office to which he has no just or legal claim.

The defendant, in answer, sets up the plea that, at the regular election, in 1866, he was a candidate for the office of sheriff, in Ralls county, and was duly elected; that he received a certificate of such election from the clerk of the county court of said county, and that thereon he was duly commissioned by the governor to serve for two years, and

(Duties of return judges or canvassers.)

until his successor should be duly elected and qualified; and the defendant further alleges that, in pursuance of his said election, in 1866, and by authority of the said commission, he accepted the said office of sheriff, and still holds and executes said office, no successor to the defendant, in said office, having been duly elected and qualified, and the defendant not having been removed for malfea


Upon these pleadings, the case stands in this court; the information expressly alleges that the defendant is holding and exercising the functions of the office, by virtue of the election of 1868, and in consequence of a certificate wrongfully issued by the clerk of the county court, upon which a commission was issued. There is no express denial of the averment, but there is an answer (argumentative, evasive and negative in its character) stating that the defendant holds said office, no successor to him having ever been elected and qualified. The information is a pleading which must be answered or demurred to, and it has been decided, that the general rules of pleading are applicable to proceedings upon an information in the nature of a quo warranto. People v. Clark, 4 Cow. 95; State v. Bernoudy, 36 Mo. 279; State v. Messmore, 14 Wis. 115. The evasive answer, that no successor to the defendant had ever been qualified, is full of duplicity, and may be construed to mean, that he holds under either election, no other person having succeeded him in the office. The allegation in the information is a plain, simple one, requiring a denial, which the defendant has not seen proper to make.

A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office, without having been legally elected, it is an unlawful holding, and he may be ousted at the instance of the state, notwithstanding his commission. Attorney-General v. Barstow, 4 Wis. 567. In the case of People v. Van Slyck, 4 Cow. 297, it was determined,

(Duties of return judges or canvassers,)

that an information in the nature of a quo warranto would lie against one intruding into the office of sheriff, in consequence of an unlawful decision of the county-board of canvassers, the duties of the board being ministerial, and not judicial. It is true, that by force of existing law, the officer holds until his successor is elected and qualified; but if, by unlawfully obtaining his certificate and commission, he prevents the person legally entitled thereto from qualifying, he will not be allowed to set this up in defence, and reap a benefit from his own wrong.

The question then arises, by what authority did the county-clerk, acting as a mere canvassing officer, assume to determine the legality of the vote in the Jasper election district? Although the vote might have been informally certified, that would make no difference; officers should look at substance, and not at form. A literal compliance with the prescribed forms is not required in any case, if the spirit of the law be not violated; and the governing principle in all cases is, to clearly ascertain the intention. of the voters; if a defect existed in the certificate, that might be supplied at any time, by the judges and clerks, whose duty it was to make the same before the vote was counted.

The statute requires that, within eight days after the close of each election, the clerk of each county court shall take to his assistance two justices of the peace of his county, or two justices of the county court, and examine and cast up the votes given to each candidate, and give to those having the highest number of votes a certificate of election. Gen. Stat. 1865, p. 63, § 25. Here is no discretion given, no power to pass upon and adjudge whether votes are legal or illegal, but the simple ministerial duty to cast up, and award the certificate to the person having the highest number of votes; if the clerk has sufficient mathematical ability to correctly count up the returns, he is perfectly qualified for his office, for that is the only duty devolved upon him by law. To determine upon the

(Duties of return judges or canvassers.)

legality of votes is a judicial proceeding before a court competent to hear and adjudicate, where the parties interested can appear and present their respective claims. To admit a mere ministerial officer arbitrarily to reject returns, at his mere caprice or pleasure, is to infringe or destroy the rights of parties, without notice or opportunity to be heard; a thing which the law abhors and prohibits. Admit the power, and there will be no uniformity; one canvassing officer will reject for one thing, and another for a different matter; and no man can tell whether he is legally elected to an office, until he consults the notions of a canvasser. The exercise of such a power is subversive of the rights of the citizen, and dangerous and fatal to the elective franchise.

But it is enough to say, that the claim is utterly unauthorized. The law has provided tribunals with ample power to hear and determine all questions pertaining to elections, and pass upon the validity of votes, where the parties interested can appear, and have a fair trial upon pleadings and proof. When a ministerial officer leaves his proper sphere, and attempts to exercise judicial functions, he is exceeding the limits of the law, and guilty of usurpation; in this case, it would have been more decent and seemly for the clerk to have confined himself to the discharge of the duties pointed out by law, and not to have attempted the exercise of powers which were never entrusted to him. I have examined, with a good deal of research, the authorities, and have not been able to find a single one that held otherwise, than that the canvasser acted ministerially, but they are unanimous and decisive, in declaring him a ministerial officer, and nothing more.

The record abundantly shows that the defendant has no legal right to the office which he is now holding, and judgment of ouster will, therefore, be entered against him, with costs.

Judgment for the state.

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