USA > Iowa > Marshall County > The History of Marshall County, Iowa, containing a history of the county, its cities, towns, &c., a biographical directory of citizens, war record of its volunteers in the late rebellion, general and local statistics, portraits of early settlers and prominent men etc > Part 42
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At the time of its occurrence, the erection of the Court House was regarded as a very important matter. The pledge in the gift-deed required the comple- tion of the building by the time Court met, and to accomplish this purpose, every available man was impressed into the service as mason or builder. So rapidly was the work done that Marietta was scarcely aware of the commence- ment of the walls in the Spring, before news of the finishing of the building was transmitted to the rival town.
The erection of this building had a marked effect upon the voters outside of the immediate locality of Marietta. It was considered an act indicative of generosity and public spirit.
With these alliances the contest was renewed. At the June term of the County Court, in 1857, Judge Smith listened to the voluminous petition pray- ing for another election on the subject; and accordingly, after a long and heated canvass, the vote was taken on the 5th day of April, 1858.
When the poll books were returned to the County Judge, he called to his aid two Justices of the Peace, viz., John Turner and John W. Tripp, both favorable to the retention of the seat at Marietta. The following return was made by the Board of Canvassers :
Abstract of the ballots in the several townships in the county of Marshall, State of Iowa, on Monday, the 5th day of April, 1858, for the county seat of said county of Marshall, in the State of Iowa :
Township.
Marshall.
Marietta.
Le Grand*
. .
.....
Marshall
13
177
Marietta.
1
103
Liberty
3
94
Bangor
I26
106
Marion*
...
...
Eden.
18
30
Jefferson
79
1
Green Castle*
.....
.....
18
8
Vienna
462
519
Total
* A majority of the Board of County Canvassers decide that there is no return from the township.
204
Iowa
368
HISTORY OF MARSHALL COUNTY.
STATE OF IOWA, COUNTY OF MARSHALL, SS .: We, the undersigned Board of County Can- wassers in and for the County and State aforesaid, do hereby certify that we have this day can- vassed the votes cast for the county seat of said county of Marshall, in the State of Iowa, in the several townships in said county, on Monday, the 5th day of April, A. D. 1858, and find the result to be as follows, to wit : Whole number of votes cast for the county seat of said county of Marshall, in the State of Iowa, nine hundred and eighty-one, of which Marietta received five hundred and nineteen votes, and Marshall received four hundred and sixty-two votes, for the county seat of Marshall County, Iowa. Marietta having received the highest number of votes for the county seat of the said county of Marshall, in the State of Iowa, is declared elected.
In witness whereof, we have hereunto set our official signatures, and affixed the seal of said county of Marshall, at Marietta, this 6th day of April, A. D. 1858.
[SEAL. ]
WILLIAM C. SMITH, County Judge. JOHN TURNER, Justice of the Peace, JOHN W. TRIPP, Justice of the Peace, County Commissioners.
STATE OF IOWA, MARSHALL COUNTY, SS .: I, William C. Smith, County Judge within and for said county, do hereby certify that the within and foregoing is a true and complete copy of the county canvass had on the 6th day of April, 1858, of the ballots cast on Monday, the 5th day of April, 1858, on the question of the removal of the county seat of Marshall County, Iowa, from the town of Marietta to the town of Marshall, in said county.
Witness my hand, with the seal of said county hereto affixed, this 6th day of April, 1858. [SEAL. ] WILLIAM C. SMITH, County Judge.
The returns from Le Grand, Marion and Green Castle townships did not contain the properly worded jurat, and were alleged to be technically imper- fect in the matter of identification. The vote in those towns was :
Marshall. Marietta.
Le Grand
79
19
Marion
87
17
Green Castle.
39
7
Total
205
43
This arbitrary act deprived Marshall of 162 votes, which, added to the 462 declared in the returns, would have made a total of 667 as against 562 for Marietta, leaving a clear majority of 105 in favor of Marshall.
At the April (1858) term of the District Court, Wells S. Rice filed his information, setting forth the facts in the case and exhibiting all papers of record. The reproduction of the legal formalities herein is not deemed essential, inasmuch as the points claimed by Mr. Rice are shown in simple form.
The District Court awarded an alternative writ of mandamus commanding the Judge to take to his aid two Justices of the Peace, and recanvass the vote and return the result according to the actual number of votes cast. The nature of the writ was such that it allowed the Judge an opportunity to defend his position before the Court. The County Judge replied with a long list of reasons for not obeying the order to recanvass the vote. The District Court ruled the reply of Judge Smith insufficient, and issued a peremptory writ of mandamus compelling the recounting of the ballots.
It is here incidentally mentioned that Judge Smith claims that the Marshall returns were as imperfect as either of the disputed three, when first filed with him; but that Sylvanus Rice and Solomon Dunton came to him and requested the privilege of examining the same, which was granted. When the poll lists were again filed, they were properly certified to. As this forms no part of the records, we give it merely as a part of the story of the contest.
369
HISTORY OF MARSHALL COUNTY.
Upon the issuance of the peremptory writ compelling a recanvass, Judge Smith appealed to the Supreme Court. The Court delivered the following opinion :
OPINION OF THE SUPREME COURT.
The State of Iowa ex rel. Wells S. Rice, vs.
The County Judge of Marshall County, Appellant.
By the statute of 1854-5, Chap. 6 (Acts 55, p. 71), it is provided that when the citizens of any county desire the relocation of the county seat, the major part of the voters of the county may petition the County Judge to order an election for that purpose, naming in their petition the place at which they desire it located. The returns being made to the County Judge, he is to take to his aid two Justices of the Peace, and they are to canvass the election and declare the result.
At the April election (1858) such a vote was taken upon the question of reloca- tion of the county seat of Marshall County, between the town of Marietta, its then seat, and Marshall, the proposed place. The canvassers rejected the returns from two townships, and declared the result in favor of Marietta. Upon an infor- mation filed upon the relation of Wells S. Rice, an alternative writ of manda- mus was issued to the County Judge, commanding him to take to his assistance two Justices of the Peace, and recanvass the said votes ; and in such recan- vass, to count the votes cast on the said question by the townships of Le Grand, Green Castle and Marion, respectively, according to the returns of said election from said townships, and, when so recanvassed, declare the result in accordance with said vote; or in default therein, to make known why they have not done the same. The return, with the causes shown therein, is sufficiently set forth in the opinion of the Court. The District Court awarded a peremptory writ.
The defendant appeals.
OPINION.
The return of the defendant assigns twenty-seven causes why he has not obeyed the alternative writ, several of which may be classed as objections to the validity of the law relating to the re-location of county seats, and to the validity of the election held under it, and other causes; but there are two or three which we will refer to particularly :
The first states that the defendant had already canvassed the vote, as required by law, and declared the result, and that the Board of Canvassers no longer exists, and that there is no law under which he can re-organize it.
The second is, that the poll-books, or abstracts, of the said three townships were rejected because they were not in accordance with the requirements of the statute.
Fifteenth. That the writ is directed to the wrong person. Sixteenth. That the defendant has no authority to call to his assistance other persons and recanvass the vote.
Twentieth. That the writ requires the defendant to do a particular act in a particular way.
Twenty-first. That it commands him to call others to his assistance, and requires them to do a judicial act in a particular way.
Twenty-second. That the writ is directed to the County Judge, and re- quires other persons, not now parties, to act.
Twenty-fourth. That the writ does not show that the canvassers are legally bound to do the act required ; nor that they have been requested and have re- fused to act.
370
HISTORY OF MARSHALL COUNTY.
A demurrer to the return was sustained, and a motion to quash the writ was overruled.
The defendant assigns as errors, the refusal to quash the writ.
Second. The sustaining the demurrer ; and
Third. The granting of the peremptory writ.
Without adverting specifically to cach objection taken, we will point out the views entertained by us in relation to the proceedings.
The writ is directed to the proper person. that is, the County Judge. One conclusive reason against directing it to one of the two Justices with him is, that they may have gone out of office before the writ issues : and again. they are not a board of such a nature that no other can perform the duty. The County Judge is the only permanent member, and he calls to his assistance, such other two being Justices, as he sees fit, and for the same reasons they are not such a board that their dissolution renders it impracticable that the duty should be performed. If it has not been done, it may still be done by a com- mand of the Judge to take to his assistance two proper persons.
Another point is, that the duty to be performed is not a judicial one; it is ministerial. Neither is there, properly speaking, a discretion to be exercised.
In respect to this, there is a wide-spread error among the civil officers. and the people generally. It is not correct to suppose that a board of canvassers, such as the County Board, in the present instance, has the duty or the authority to judge of the validity of returns or of votes. This duty, or power, belongs to that tribunal which is appointed by law for the ultimate trial of contested elections, or to a court before which the case may be brought in any manner recognized by law. The canvassers are only to receive the returns and count them, leav- ing all questions as to their sufficiency or validity to another tribunal. (The People vs. Cook, 4 Selden, 67, 89; the same, 14 Barb., 285; The People vs. Van Slyck, 4 Cow., 297 : Ex parte Heath, 3 Hill, 42; Bacon vs. York Co. Coms., 26; Maine, 491 : Opinion of Court, 25; Maine. 56; Brown rs. O'Brien, 2 Carter, 423; The People vs. Korduff, 15 Ill., 492; and cases therein cited.)
It is true that extreme cases may be supposed when the paper does not bear sufficient marks as to be known as an election paper. Such a case stands by itself. But the foregoing remarks apply to the cases which usually occur, and where there is enough to show what it is intended to be ; but where the paper only wants some of the appointed marks of authenticity or of completeness. Thus we might instance that, if the supposed returns were not signed by any one, they have not the evidence of being returns ; but if it does not show that the officers were sworn, this goes to its sufficiency only. The canvassers must judge whether they are the returns from such a township, or such a county, but when known to be such, they are not to determine upon their sufficiency. This belongs to another tribunal empowered to judge upon the legality of the case ultimately. In the present case, the canvassers rejected the returns from the townships because they did not show that the elective officers were sworn. This was not within their province, and was an error. Now this Court does not in this case determine upon the sufficiency of the returns. It only decides that the canvassers should count them, leaving the other question to such tribunal as may have cognizance of the case, in the event that the election should be contested or otherwise tried. The proceedings under the writ of mandamus do not, in all cases, determine the ultimate right. Thus, it has been applied where it could determine but one step in the progress of inquiry, and when it could not finally settle the controversy, but it might still be neces-
371
HISTORY OF MARSHALL COUNTY.
sary to resort to quo warranto an injunction, or a contest of election under the statute. (Ex parte Strong, 20 Pick., 496 ; Brown vs. O'Brien, 2 Carder, 423 ; The People vs. Kilduff, 15 III).
In the case of Strong, above cited, the Court intimates that the party might still be obliged to resort to quo warranto, and in Brown vs. O'Brien he says that the writ confers no right, but merely places the party in possession. which enables him to assert his right, which, in some cases, he could not other- wise do ; and farther, there may possibly be cases in which this writ would not be applicable for any purpose or in any degree.
It has been remarked that the duty of the canvassers is ministerial in its nature, and such it is in the main ; but this is not true universally. There are points in the range of their duty where it partakes of the judicial or allows of the discretionary character (The People vs. Cook, 14 Barb., 294); but so far as the present case bears upon them, they are ministerial.
The next subject of examination is the answer that the duty has already been performed. Inasmuch as the canvassers have rejected the returns from three of the townships which they should have counted, it is legally true that the duty has not been discharged, and when the writ now commands, it is not in a proper legal sense to recanvass, but to canvass the returns of that election. It is to do that which was their duty, but which they omitted. What has been done is as if it had not been done, and the Judge is commanded to pro- ceed as if no former steps had been taken.
To say that the Judge is commanded to do a particular act in a particular way, is not a strictly correct use of language. He is commanded to do some- thing which he has omitted to do, which is the very object of the writ. But even as the objection is stated, it is not necessary ; for the manner may be of the essence, and the mandate may be correct if the manner is not a subject of dis- cretion. To the first part of the twenty-fourth objection we answer, in view of what has been said, that the writ does show that the canvassers are legally bound to do the act required.
This duty is a result of the facts stated and the law applied to them.
The objections to the writ presented in the answer are so numerous that it is impossible within reasonable limits to respond to them severally, and we would say, generally, that the answer is partly an answer to the information, and so far requires no attention. A portion of the objections go to matters which fell within the cognizance of the County Judge in ordering the election, and he having acted, they do not remain subjects of examination, and others are not pertinent to the present inquiry ; others still are not sufficient to invalidate the election, though well founded as matters of fact.
In the matter of public right, any citizen may be a relator in an application for a mandamus. (The People vs. Collins, 19, Wend. 5, 6; Pike County "'s. The People, Ill., 202; Napier vs. Poe, 12 Georgia, 170.)
The allegations of fraud and bribery in the election do not come within the cognizance of the court under this proceeding.
These and other objections might be proper subjects of examination in a subsequent proceeding, adopted to attest the legality and validity of the election or the several steps leading to it, or of the law under which it was held. The present one is only to arrive at the result of the election which has been held.
The remarks before mnade cover those objections which have an important bearing on the present matter. But there remains to be noticed the objection that the writ does not show that the defendant was requested to do or perform the act and that he has refused. It is stated that a demand must be made and
372
HISTORY OF MARSHALL COUNTY.
a refusal thereto. (Tap. on Mand. 382-3, and in Chance vs. Temple, Ist Iowa, 189.) This is true as a general rule, and it is more especially true where the proceeding has relation of private rights or interests, as will be observed by the subjects treated by Tapping on Mandamus, pages 84, 162, 163, marginal. But it is manifest that there are cases affecting public officers or duties where the idea of a literal demand and refusal does not have place, there being no one particularly empowered to demand, as it does not affect individual interests ; but the official duty is in the place of it, and omission or neglect is refusal, and especially is this true where the respondent has done an act which he calls a performance, but which the law says is not such. The refusal is not necessa- rily a literal one. Tapping 1, 282, says it must be either in direct terms or by conduct from which a refusal can be conclusively implied ; and on page 285, he says it is not necessary that the word refused or any equivalent of it should be used, but there should be enough from the whole of the facts to show to the Court that from some improper reason compliance is withheld, and a direct de- termination not to do what is required; and instances are given in which acts have been construed to amount to a refusal. We cannot bring ourselves to think that in a case of public duty like that at bar, in which the act to be done is well known, and should have been performed already if the party did not intend not to do it, and where it belongs to no one to demand it, but it does belong to the defendant to do it, a formal demand and refusal are not necessary. It is clear that duty makes the demand, and omission is the refusal.
Another point remains. The Court rendered judgment that a peremptory writ issue, but ordered that it be stayed that the cause might be taken to this court.
From this order the complainant appealed. The matter is of no practical importance in the present cause, and does not call for a formal disposition. But it may be remarked that no reason is perceived why 'the appeal, with a bond as provided by law, would not stay the proceedings as in other cases ; and in that case the order would be unnecessary, whilst without the bond the order would be unavailing. (The People vs. Steele, 2 Barb., 564.)
The judgment of the District Court in awarding a peremptory writ of mandamus is affirmed, and a writ of procedendo will issue accordingly.
W. G. WOODWARD, Justice.
SPECIAL ORDERS.
State of Iowa, Supreme Court, December Term, A. D. 1858.
The State of Iowa, ex rel. Wells S. Rice, vs.
Cross Appeal from Marshall County.
The County Judge of Marshall County.
Comes now counsel for plaintiff, and moves the Court to amend the order of this Court for issuing the procedendo to the District Court, so as to require the Clerk of said District Court to issue the peremptory writ of mandamus without delay.'returnable at the April term of said District Court, 1859, and commanding the defendant to perform the duties required of him in the alternative writ without delay ; and theCourt having heard counsel for plaintiff and defendant on said motion. and being sufficiently advised of and concerning the premises.
It is ordered by the Court that the procedendo to the District Court in this cause shall direct the Clerk of said District Court to forthwith, upon receiving said procedendo, issue the peremptory writ of mandamus, as of the September term, 1858. returnable at the April term, 1859, and commanding the defend- ant to perform the duties required by the alternative writ heretofore issued, without delay.
-
MARSHALLTOWN
375
HISTORY OF MARSHALL COUNTY.
I. Lewis Kinsey, Clerk of the Supreme Court of Iowa, do hereby certify that the foregoing contains a full, true and complete copy of the record entry in the cause to which it refers-as full, true and complete as the same now re- mains of record in my office.
Witness my hand and the seal of said Court hereto affixed. Done at Des Moines, this 31st day of December, 1858. LEWIS KINSEY,
[SEAL. ]
Clerk Supreme Court of Iowa.
PROCEDENDO.
The State of Iowa to the District Court of Marshall County :
WHEREAS, The Supreme Court of said State being lately certified of the record and proceedings in a certain cause which was in the District Court for Marshall County and State aforesaid, wherein the State of Iowa, ex rel. Wells S. Rice, plaintiff, and the County Judge of Marshall County, defendant; in which said cause judgment was rendered against the said defendant, from which judgment so rendered the said defendant appealed to the said Supreme Court ; and the said Court having duly examined the records and proceedings aforesaid in the premises, at the Capitol at Des Moines, in said State, on the 17th day of December, 1858, did affirm the judgment aforesaid, as rendered in the court below, and order that the Clerk of the District Court, forthwith upon receiving this writ, issue the peremptory writ of mandamus as of the September term, 1858, returnable at the April term, 1859, commanding the defendant to perform the duties required by the alternative writ heretofore issued, without delay;
Therefore, you are hereby commanded, that, with the speed which of right and according to law you may, you proceed in the same manner as if no appeal had been taken and prosecuted in this Court, anything in the record or proceed- ing aforesaid heretofore certified to the contrary notwithstanding.
Witness, Lewis Kinsey, Clerk of the Supreme Court, with the seal of the said Court hereunto affixed, at Des Moines, this 6th day of January, A. D. 1859.
[SEAL.]
LEWIS KINSEY, Clerk of the Supreme Court.
In compliance with the foregoing orders, James L. Williams, Clerk of the District Court, issued the following mandamus :
MANDAMUS.
THE STATE OF IOWA, COUNTY OF MARSHALL, SS .: To the County Judge of Marshall County, Greeting :
WHEREAS, on the 21st day of April, A. D. 1858, an alternative writ of mandamus was issued from the Clerk's office of the District Court of Marshall County, directed to the said County Judge of Marshall County, which writ was duly executed and returned, and such proceedings were had thereon by the said District Court, that, upon a full hearing thereof, a peremptory writ of mandamus was adjudged to issue, from which judgment the parties interested therein appealed to the Supreme Court of Iowa; And, whereas, the judgment of the District Court aforesaid, was affirmed in and by the said Supreme Court of Iowa, upon which judgment of affirmance a writ of procedendo has been issued from the Clerk's office of the Supreme Court, and has this day been duly filed in the Clerk's office of the District Court aforesaid, and by which procedendo the Clerk of the said District Court of Marshall County is ordered forthwith, on receiving the said procedendo, to issue the peremptory writ of mandamus as of the September term, 1858, returnable at the April term, 1859, command- ing the defendant to perform the duties required by the alternative writ hereto-
E
376
HISTORY OF MARSHALL COUNTY.
fore issued without delay ; Now, these are, therefore, in the name of the State of Iowa to command you to forthwith take to your assistance two Justices of the Peace of said county of Marshall. and recanvass the votes cast at the April election, 1858, in said county, on the question of relocating the county seat of said county of Marshall, at the town of Marshall in said county, and in such recanvass to count the votes cast respectively on said question in the townships of Le Grand, Green Castle and Marion, in said county, according to the returns of said election from said townships now on file in your office, and when so re- canvassed, to declare the result in accordance with said vote at the said elec- tion, and that you make out returns hereof, together with your actions and doings hereunder, to the District Court of Marshall County at the next April term, thereof you are not to fail.
In testimony whereof, I, James L. Williams, Clerk of the District Court of Marshall County, have hereunto set my hand and affixed the seal of said Court this 6th day of January, A. D. 1859. JAMES L. WILLIAMS,
[SEAL.] Clerk.
It is claimed by some of the Marietta men that Justice Wright presented a dissenting opinion in the preceding case, and that the opposition to Marshall, on their part, was largely based on this decision. 'We can find no trace of any such opinion. The reports contain no mention of it. The singular feature of this part of the case is that the impression that Judge Wright made a state- ment, should be so wide-spread, without some available evidence to substan- tiate the belief.
The peremptory mandamus was made out, but illegally served upon the County Judge. The law explicitly provides that the original writ shall be personally served on the party ; but in this case a copy was read to the Judge, who certified to having been served in that manner. This irregular proceeding created a whirl of excitement among the Marshall faction.
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