Napton, Judge,
delivered the opinion of the court.
Upon the facts disclosed in the petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the First Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewer, 3 Ad. & Ellis, 715, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go ; and our attention has not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by. the statute, that was a preliminary objection upon a point of law which this court can review upon u writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.
It is not deemed important to go into any extended examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct. The fifty-fifth section of the election law (B. C. [275]*2751855, p. 706) provides that a. legal notice in every contested election of a county officer must be given within twenty days after the official count. This is the longest period allowed for such notices. It may be requisite to give them before the lapse of twenty days, but they can not be deferred beyond that period in any case. The essential constituents of the notice in the case of sheriffs are stated in the fiftieth section. The notice in this case was not given within twenty days after the official count, and we are therefore of opinion that the peremptory mandamus be refused.
Scott, Judge.
At the last August election Michael Cerre and James Castello were candidates for the office of sheriff in St. Louis county. Cerre, according to the count, having received the greater number of votes, was declared to be elected. A certificate of election was delivered to him and he qualified according to law. Castello contested the election of Cerre and gave him what he supposed to be the notice required by the statute. The cause coming on to be heard in the circuit court, the notice of the contest was produced in evidence, and, Cerre objecting to its sufficiency, the court ruled it out, and, being of the opinion that the notice required by the statute had not been given, dismissed all further proceedings in the cause. Upon this state of facts, Castello, assuming that no appeal or writ of error would lie, applied to this court for a mandanlus to compel the circuit court to proceed with the hearing of the cause. This application raises the sole question whether, according to the principles of law, a mandamus is the appropriate remedy to attain the end sought by Castello.
At this stage of the pleading we have nothing to do with the correctness of the decision of the circuit court. We do not say whether it was correct or incorrect. It will not be denied but that Castello, in his' contest, in order to succeed, must show two things at least; first, that he gave the notice required by law; secondly, that he received the greater number of legal votes. It will not do to prove one of these re[276]*276quirements. He must prove both. The proof of one without the other is as fatal in law as if neither had been proved. This, it is presumed, will not be controverted. If then the circuit court proceeded so far in the hearing of the cause as to determine that the legal notice had not been given, was not the controversy then terminated, and terminated, too, on its legal merits ? Cerre had the office. It was competent to the general assembly to make his certificate of election final and conclusive as to his right to the place. This however has not been done. The law has given a right to his unsuccessful opponent to contest his election. This has not been granted absolutely, but on a condition. That condition is that he shall give the notice of his intention to contest required by the statute. Now if he omits to do this, he must fail in his contest. The circuit court has heard the cause and has determined that the required notice had not been given, and, being of that opinion, very properly dismissed all further proceedings ; for, as the contestant had not given the necessary notice, if the court, after having heard the objections to the notice, had gone on with the trial, and after receiving the whole evidence, had been of the opinion that Castello had received the greater number of legal votes, yet if it had been of the opinion that he had neglected to give the -requisite notice, it would have been bound to have given judgment against him. Where, then, is the use in commanding the court to proceed with the trial of the cause ? What will it profit the contestant ? After expending weeks, perhaps months (judging from the record), in trying it, must not the same judgment necessarily be entered that has been already given in the cause ? Was it ever heard that after a cause had been tried on its merits in the proper tribunal, that a mandamus would lie to correct the errors of the judgment ? Authorities will not be cited on this point. The learning on this subject is too trite to be paraded in citations. Is there a lawyer in this state who, on a point like this being decided against his client, would not take a bill of exceptions to the opinion of the court and bring the case here by appeal or [277]*277writ of error ? But it is said that no appeal or writ of error will lie in this proceeding. Why not ? If the law is so, is it because the statute did not intend that, in cases of contested elections tried by the circuit courts, there should be a review of their judgments, that they should be final ? If the statute did contemplate that such proceedings should not be reviewed on appeal or writ of error, that the judgment of the circuit court should be final, did it ever intend that the same thing should be done by a mandamus, thus prostituting that process to a purpose to which it was never before applied ? Would not an appeal or writ of error be the most easy, the least expensive, and the most appropriate means for effecting a review; and can we suppose that the legislature would discard them and sanction a mode of correcting the errors of judgment of an inferior tribunal that had never before been applied to such a purpose ? But see how a mandamus works as a process for reviewing the judgment of the circuit court. If a review is open to one party, it ought also be to the other. Now if the court had overruled the objections of Cerre to the sufficiency of the notice, and had gone on with the cause, will any body pretend that Cerre could have come here for a mandamus on the circuit court; would not such an application have been laughed out of the coui’t room? What sort of a process is this, then, which would be substituted for an appeal or writ of error — a one-sided process, free to one party to a cause and not to the other ?
Free access — add to your briefcase to read the full text and ask questions with AI
Napton, Judge,
delivered the opinion of the court.
Upon the facts disclosed in the petition in this case for a mandamus upon the circuit court, a majority of this court determined that a conditional mandamus should be awarded, and it was accordingly so ordered. This determination was based upon the principle that where an inferior judicial tribunal declines to hear a case upon what is termed a preliminary objection, and that objection is purely a matter of law, a mandamus will go, if the inferior court has misconstrued the law. The cases of the King v. The Justices of the First Riding of Yorkshire, 5 Barn. & Adol. 667, and Rex v. The Justices of Middlesex, 5 B. & Ad. 1113, The King v. Hewer, 3 Ad. & Ellis, 715, and Regina v. The Recorder of Liverpool, 1 Eng. Law & Eq. R. 291, are believed to be conclusive upon this point so far as the English authorities go ; and our attention has not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by. the statute, that was a preliminary objection upon a point of law which this court can review upon u writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory.
It is not deemed important to go into any extended examination of this question, since upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct. The fifty-fifth section of the election law (B. C. [275]*2751855, p. 706) provides that a. legal notice in every contested election of a county officer must be given within twenty days after the official count. This is the longest period allowed for such notices. It may be requisite to give them before the lapse of twenty days, but they can not be deferred beyond that period in any case. The essential constituents of the notice in the case of sheriffs are stated in the fiftieth section. The notice in this case was not given within twenty days after the official count, and we are therefore of opinion that the peremptory mandamus be refused.
Scott, Judge.
At the last August election Michael Cerre and James Castello were candidates for the office of sheriff in St. Louis county. Cerre, according to the count, having received the greater number of votes, was declared to be elected. A certificate of election was delivered to him and he qualified according to law. Castello contested the election of Cerre and gave him what he supposed to be the notice required by the statute. The cause coming on to be heard in the circuit court, the notice of the contest was produced in evidence, and, Cerre objecting to its sufficiency, the court ruled it out, and, being of the opinion that the notice required by the statute had not been given, dismissed all further proceedings in the cause. Upon this state of facts, Castello, assuming that no appeal or writ of error would lie, applied to this court for a mandanlus to compel the circuit court to proceed with the hearing of the cause. This application raises the sole question whether, according to the principles of law, a mandamus is the appropriate remedy to attain the end sought by Castello.
At this stage of the pleading we have nothing to do with the correctness of the decision of the circuit court. We do not say whether it was correct or incorrect. It will not be denied but that Castello, in his' contest, in order to succeed, must show two things at least; first, that he gave the notice required by law; secondly, that he received the greater number of legal votes. It will not do to prove one of these re[276]*276quirements. He must prove both. The proof of one without the other is as fatal in law as if neither had been proved. This, it is presumed, will not be controverted. If then the circuit court proceeded so far in the hearing of the cause as to determine that the legal notice had not been given, was not the controversy then terminated, and terminated, too, on its legal merits ? Cerre had the office. It was competent to the general assembly to make his certificate of election final and conclusive as to his right to the place. This however has not been done. The law has given a right to his unsuccessful opponent to contest his election. This has not been granted absolutely, but on a condition. That condition is that he shall give the notice of his intention to contest required by the statute. Now if he omits to do this, he must fail in his contest. The circuit court has heard the cause and has determined that the required notice had not been given, and, being of that opinion, very properly dismissed all further proceedings ; for, as the contestant had not given the necessary notice, if the court, after having heard the objections to the notice, had gone on with the trial, and after receiving the whole evidence, had been of the opinion that Castello had received the greater number of legal votes, yet if it had been of the opinion that he had neglected to give the -requisite notice, it would have been bound to have given judgment against him. Where, then, is the use in commanding the court to proceed with the trial of the cause ? What will it profit the contestant ? After expending weeks, perhaps months (judging from the record), in trying it, must not the same judgment necessarily be entered that has been already given in the cause ? Was it ever heard that after a cause had been tried on its merits in the proper tribunal, that a mandamus would lie to correct the errors of the judgment ? Authorities will not be cited on this point. The learning on this subject is too trite to be paraded in citations. Is there a lawyer in this state who, on a point like this being decided against his client, would not take a bill of exceptions to the opinion of the court and bring the case here by appeal or [277]*277writ of error ? But it is said that no appeal or writ of error will lie in this proceeding. Why not ? If the law is so, is it because the statute did not intend that, in cases of contested elections tried by the circuit courts, there should be a review of their judgments, that they should be final ? If the statute did contemplate that such proceedings should not be reviewed on appeal or writ of error, that the judgment of the circuit court should be final, did it ever intend that the same thing should be done by a mandamus, thus prostituting that process to a purpose to which it was never before applied ? Would not an appeal or writ of error be the most easy, the least expensive, and the most appropriate means for effecting a review; and can we suppose that the legislature would discard them and sanction a mode of correcting the errors of judgment of an inferior tribunal that had never before been applied to such a purpose ? But see how a mandamus works as a process for reviewing the judgment of the circuit court. If a review is open to one party, it ought also be to the other. Now if the court had overruled the objections of Cerre to the sufficiency of the notice, and had gone on with the cause, will any body pretend that Cerre could have come here for a mandamus on the circuit court; would not such an application have been laughed out of the coui’t room? What sort of a process is this, then, which would be substituted for an appeal or writ of error — a one-sided process, free to one party to a cause and not to the other ?
It may be said that the circuit court, in trying a contested election, not ■ proceeding according to the course of the common law, is the reason that an appeal or writ of-error will not lie upon its judgments in such cases. If such be the case, would therefore the nature of a writ of mandamus be changed ? Could it therefore be made to answer a purpose to which it is not adapted and for which it was never intended ? The judgment in this case is a final one in whatever way it may have been entered in the court below ; and its errors, if any there be, can not be remedied by a mandamus, for it is [278]*278admitted on all sides that a mandamus can not correct the judgment of an inferior court even though it be erroneotis. It is most manifest that this court can not grant the writ asked for, or at least no end whatever can be' obtained by-granting it, unless it is prepared to hold that Castello can .oust the present incumbent without giving any notice of his intention to contest his election; for if the notice be necessary, then its existence is of the legal merits of this controversy ; and the court below having decided that it is insufficient, there is an end of this contest, at least so far as it can be affected by the process of mandamus — a process that can require an inferior tribunal to proceed with a cause and enter a judgment on it, but can never interfere with the judgment after it has been entered.
Recent English authorities on the subject of writs of mandamus have been cited, and it is maintained that they furnish grounds for the opinion that the writ of mandamus is the appropriate remedy under the circumstances of the case before us. In Tapping on Mandamus, (p. 280,) it is said, where the quarter sessions on appeal decide on a point preliminary to the whole case, or to the reception of a particular piece of evidence, that they will not hear the cause further, their decision is conclusive if the point involve matter of fact only, but otherwise if it raise a mere point of practice, which the court of king’s bench can perceive to be a a point of law; in the latter case a mandamus to hear, &c., will be granted; in the former, not.‘ On the same page it is said that the ordinary practice of the court of king’s bench is to grant the writ of mandamus to command magistrates' or the quarter sessions to hear and determine or give judg-' ment in cases within their jurisdiction, where they have refused altogether to exercise it; but no- instance can be cited in which the court of king's bench has granted a mandamus to compel them to do a specific act, as to come to any particular decision, for, after they have once decided an appeal, Sfc., even erroneously, or under a mistake of law, such decision is final and conclusive. It may be that we do not comprehend [279]*279what is understood by tlie terms “ point preliminary” in the above citation. In looking over the cases, it will be seen that the English judges themselves complain that they have been misunderstod. It should be no surprise then that they should mislead those who are so remote from the tribunals in which they are employed. But there is one case among the recent English' decisions which serves to show, negatively at least, what is not meant by it, and it is a case which decides a point identical with that involved in the application before us. It is the case of Rex v. The West Riding of Yorkshire Justices, 5 Barn. & Adol. 667. There is another case of the same title, in the same book, at page 1008 ; but the case to which reference is made is at page 667. There a statute required that ten days’ notice of an appeal should be given. After the appeal had been taken, it was, in the language of the English books, respited to one place and then to another. The cause coming on to be heard, it was objected that no notice of the respited appeal had been given, and the court being of the opinion that such a notice was necessary, refused to hear the cause. A mandamus was applied for to the king’s bench, and the court was of the opinion it should be granted. The judges said that the notice of the respited appeal was not required by any rule of law or practice of the court, and that the justices had no authority to exact it from the appellant. But they said that if the inferior court had decided on the original notice of appeal — a notice required by statute — they would not have interfered nor granted a mandamus. Reference is made to the opinions of the judges, not to the syllabus of the case. That case is on all fours with this. There the court held that if a statutory notice was adjudged insufficient by the inferior tribunal, they would not control' its judgment by a mandamus. So in the case before us, the inferior court has declared that a notice required by statute is not sufficient; then, if the English authority is to have any weight, we can not issue the writ of mandamus. This case is valuable to show what idea is conveyed by the terms “ point preliminary.” It shows that [280]*280where a statute requires a notice and that notice is adjudged insufficient by the inferior tribunal, its judgment will not be controlled by mandamus. It is not deemed necessary to review the other authorities cited, as none of them are found to overrule or explain away the case to which reference has been made.
It is not intended that any thing contained in this opinion should be regarded as an expression of our views on the question whether a writ of error or appeal will lie in this case. It is not true that a writ of mandamus will lie in all cases where there is no other remedy. Before a party 'is entitled to a mandamus or any other writ, he must have a right. Whether the contestant has any right to a review of the judgment of the circuit court may be a question and is to be shown, and if such right is shown, the writ of mandamus can not be made to assume the office of a writ of error or appeal. If the law contemplated that the action of the circuit court in determining contested elections .should be reviewed, then there can be no reason whatever, in law for not resorting to those means by which the errors of judgment in that court are corrected in all other cases.
In my opinion, the mandamus ought to be refused.