Howard, et al. v. McDiarmid.

HOWARD et al. v. MCDIARMID.

[DECEMBER

MANDAMUS-When will lie.-It is a general rule that where a person has a legal right to insist that a certain act shall be done, the performance of which is, by law, made the duty of a public officer, mandamus will lie. ELECTION RETURNS-Duty of County Clerk.-It is the duty of the county clerk to make out and return to the office of secretary of State, an abstract, of the whole number of votes cast at an election, according to the returns on file, in the clerk's office, for each candidate.

The clerk cannot decide the legality, nor can he question the validity of the appointment of judges.

Regularity is to be presumed in favor of the returns of elections by judges

appointed in the manner prescribed by law, and if there be a question respecting the regularity, the clerk has no authority to decide it. SENATORIAL AND REPRESENTATIVE DISTRICTS.-The provisions of the Constitution, regulating the apportionment of Representative and Senatorial districts, does not inhibit the Legislature from passing an act, changing county boundaries.

Petition for Mandamus.

Garland & Nash, English, Gantt & English, Watkins & Rose and Warwick, for petitioners.

Rice & Benjamin, Yonley, Gantt and Montgomery, for respondent.

MCCLURE, J.

The plaintiffs filed their petition, praying for a mandamus, against McDiarmid, the county clerk of Pulaski county, to compel him to certify certain election returns, to the secretary of State.

The petition, in substance, recites that the petitioners were candidates for election to the House of Representatives, and that an election was held in said county, for that purpose, on the eighth of November, 1870; that the board of registration, immediately before said election, appointed judges of election, in the manner prescribed by law: that a copy of the appoint

TERM, 1870.]

Howard, et al. o. McDiarmid.

ments, thus made, was filed in the office of the county clerk of said county, and became a record in that office; that in the townships of Ashley, Eastman, Campbell, Gray and Badgett, armed mobs seized and usurped the places, designated as voting places, and prevented the judges, regularly appointed, from holding the election, and appointed others in their stead, and held a pretended election, the returns of which were forwarded to said McDiarmid; that in the township of Eagle, and the first and third wards of the city of Little Rock, the judges appointed as aforesaid, by the board of registration, held an election and duly certified the returns of the same to said McDiarmid, county clerk, who has utterly disregarded his duty and refuses to certify the same to the secretary of State, as by law he is required to do.

The relief asked for, is that this writ, by mandamus, compel the said McDiarmid, county clerk, etc., to certify to the secretary of State, abstracts and statements of the votes, cast at said election, for representatives to the House of Representatives of the General Assembly, from the township of Eagle and the first and third wards of the city of Little Rock, by the judges of election constituted and appointed by the board of registration as aforesaid, as well as other returns, or pretended returns, of such election presented to him, or on file in his office.

McDiarmid filed a response to the petition, in which he declares that he, before the filing of the petition, did make out abstracts and statements of the votes cast at said election to the House of Representatives, etc., held on the 8th day of November, from the township of Eagle, and the first and third wards of the city of Little Rock, held by the persons appointed judges of election by the board of registration, to the secretary of the State of Arkansas, and that before the filing of the petition against him, he had made abstracts and statements of all returns, or pretended returns, of such election, presented to or filed in his office, and returned and certified the same to the secretary of State, and asks that he may be dismissed.

Howard, et al. o. McDiarmid.

[DECEMBER

Thereupon the plaintiffs filed a supplemental petition, wherein it is set up that said McDiarmid, in the pretended returns made by him, as charged in his answer, did not in any manner comply with the law, but on the contrary violated the same in many respects.

First. That said returns, so made by said McDiarmid to the secretary of State, show that in the first and third wards of the city of Little Rock, and in the township of Eagle, in said county, there were double elections, or elections by two sets of judges, or persons claiming to be judges, and that said returns fail to show which were the regular and legal elections in said wards and township, etc.

Second. That said returns make no showing at all as to the persons claiming to have held elections being the regular and legal judges, when said clerk knew who, in fact, were such legal and regular judges, and this was and is an important matter to be placed before the secretary of State, etc.

Third. That said returns inform the secretary of State that the townships of Caroline, Clear Lake, Richwoods and Prairie are, and were at the time of the election aforesaid, a portion of the twelfth Senatorial and Representative district, and not a portion of the tenth district, and therefore failed to show that the elections held in said townships were estimated and counted in the elections of said tenth district; when, in fact, the elections held in said townships should be counted and estimated in the returns of the said tenth district.

Fourth. That if said McDiarmid will make out and certify the returns of such election as he should do, and in conformity with the specifications contained in said original petition, and this amendment, and in accordance with the law, that it will furnish the petitioners with the means of securing the places to which they have been legally elected, without which they will be deprived of their places as aforesaid, and the secretary of State will not be able to issue certificates of election to the proper persons.

The amended petition concludes with a prayer, asking that

TERM, 1870.]

Howard, et al. v. McDiarmid.

"the said McDiarmid be ordered and directed to make out and certify said election returns as herein before indicated, and that, to that end, a writ of mandamus issue from this court, etc.

To the amended petition, McDiarmid filed a response to the original and amended petition, and says that the same is not sufficient in law, and he demurs to the same: First. Because the court has no jurisdiction to hear and determine the matters therein complained of and set forth. Second. Because the petition does not set forth facts sufficient to entitle petitioners to the relief asked, or to any other relief.

The demurrer raises no question as to the jurisdiction of this court in cases of mandamus generally, but that, in this particular case, it has no jurisdiction. If this be true, the application for mandamus will be dismissed. It is laid down as a general rule, by all text writers, that mandamus will lie "where a person has a legal right to insist that a certain act shall be done, the performance of which is, by law, made the duty of a public officer." Moses on Mandamus, 16.

The first question to determine is, whether the petitioners "have a legal right to insist" that the election returns shall be certified to the secretary of State.

The second question is, whether that act, insisted on, is one, the performance of which is required by law."

And the third is, whether McDiarmid is a "public officer." We will take up the propositions in just the reverse order of their statement. We will assume that the county clerk is a "public officer," and this assumption disposes of any argument on the third point, and turn our attention to the second proposition, which is, "Is it the duty of the clerk to make out and certify to the secretary of State, an abstract of the votes cast, for candidates voted for, at the general election, in November last, for members of the House of Representatives of the General Assembly of the State of Arkansas?" The answer to this question must be determined by the provisions of the law alone.

Section 39 of the election law says: "On the fifth day after the

Howard, et al. v. McDiarmid.

[DECEMBER

election, if all the returns have been received, the clerk of the county court shall proceed to open and compare the several election returns which have been made to his office, and make abstracts of the votes given for the several candidates for each office, on separate sheets of paper; and such abstracts, being signed by the clerk, shall be deposited in the office of the clerk of the county court, there to remain." This section requires an abstract to be made out.

1

The 42d section of the same act says: "Each clerk of the county court shall, within two days after the comparison and examination of the returns of any election, deposit in the nearest post office, on the most direct route to the seat of government, certified copies of the abstracts, filed in his office, of the returns of the election of all executive, judicial and legislative officers," etc.

These sections clearly make it the duty of the county clerk to make out and return to the office of the secretary of State certified copies of the returns of the election of all executive, judicial and legislative officers, and from this it may be inferred that it is a duty "enjoined by law."

This, now, brings us back to the first proposition, and that is, have the petitioners a "legal right," to insist that these returns shall be certified to the secretary of State?

As an evidence of their right to have this done, the petitioners aver that they were candidates for election as members of the House of Representatives of the General Assembly of the State of Arkansas, and that, if a proper return is made by the clerk of the county of Pulaski, it will appear to the sec retary of State that they are entitled to seats in the House of Representatives.

The 34th section of the election law says: "It shall be the. duty of the secretary of State, on the first day of each regular session of the General Assembly, to lay before each house a list of the members elected, agreeable to the returns in his office."

It seems to us that these facts, undenied as they are, give