The clarion. [volume] (Jackson, Miss.) 1883-1888, 1883-04-18
MYERS, Secretary Of State.
CHALMERS.
CAMPBELL, G. j.,


CAMPBELL, &. j.,
Hold
This is petition by the appellee for a
mandamus to compel the appellant to
count for him 1472 votes cast for him in
Tate county at the election held there
for representative in the Congress of
the United States, on the 7th day OF
November, 1882, and to declare him
elected. The first petition was filed
before the count vas made, and from the
apprehension that the votes mentioned
would not be counted for the petitioner.
They were not so counted, but were
counted for another, and the appellant
declared Manning to have been elected,
and, thereupon, the Governor commits
stoned him. An amended petition was
filed, and presented these facts, and such
proceedings were had as resulted in a
Judgment of the Circuit Court as prayed
IN the petition, from which an appeal
was taken.
That mandamus is the appropriate
means to compel an officer charged with
the duty to declare the result of an elec-
tion is beyond dispute. That the office
is such that the courts have nothing 10
do with trial of the right to 1t is not
an objection to the exercise Of their
power to compel the performance of
duty by an officer with respect to the
election.
The only difference in the cases is as
to the circumstances under which the
courts should interpose, and the relief
they will afford. McCrary on elections,
Sec, 33S, says, "We gather from all the
authorities, the following rules"
]. If the officers Of election refuse or
fail to act, mandamus will lie to compel
them to discharge their duties as requir-
ed by statute, but in such cases the writ
will not as general rule command such
officers to certify that any particular
person has been elected
2. II there are two or more persons
claiming the office, the writ viii never
issue to require such officers to declare
either one elected, but only to command
them to execute the duties and exercise
the functions conferred upon them by
! law.
Q. If it clearly appears that particu-
lar person has received majority Of the
votes cast, and that no question is made
upon this point, perhaps mandamus may
issue to compel such officers to certify
the election of that person by name, nj.
though this is substantially the same
thing as to order them to certify the re.
suit according to law, and therefore tho
latter form will always be found to be
| the best.
In section 1897, this author says, "a
few cases may be found in which the
writ of mandamus has issued to the
proper certifying or returning officer
commanding him to certify the election
of a particular person by name, but this
| is believed to be an improper or at least
an improvident use Of the writ. II
should be issued, if at all, simply to com
pei a return or certiication Of the result
as shown by the proper returns, but the
court issuing the writ should not assume
to determine, and in advance, who by
such returns, is entitled to the office. Al
we have heretofore observed the proper
use of this writ is TO compel but moi
control action by the returning officers
If the person actually elected is not re
turned and certified to be elected his
remedy is plain and it is desirable thai
all questions connected with counting
the votes and declaring the result, should
in the first instance remain with the off
GERS of the election"
1t is clear that where ministerial off
Ger refuses or fails to act in the perform
ance of his duty as to the result of al
election, he may be compelled to do so
and number Of cases hold that wher,
he has acted, but wrongly, he will b,
compelled to act over and rightly. O
these are Florida, ex rel, Bisbce vs.
State canvassers, IL Florida, 90; Fullc
VS.. Hilliard, 20 Illinois, 4l2; Clark vs.
} Mckenzie, Bush, 523; OFerrell vs
Colby, 2 Mimi, 1870. State, ex rel, Pric
VS.. Lawrence, 3 Kansas 81.
The Secretary Of State has no duty 4
perform as to elections, except to "sun
up the whole number Of votes given 70
each candidate, and to ascertain the per
son or persons having the greatest mum
Der of votes for each Office, and shal
declare such person or persons to be dul
elcted, and thereupon All persons chose
to any Office at such election, shall b
t commissioned by the Governor" Cod,
. 1890 section Id1 The Sacretarv of Stat