Per Curiam.-The judgment is affirmed with 5 per cent. May Term, damages and costs. H. S. Kelley, for the appellant. (1) Post. (2) Post. 1860. GULICK V. NEW. GULICK V. NEW. The clerk of the Circuit Court is merely a ministerial officer, and in respect to the approval of official bonds, he has no discretion except to determine whether the security offered is sufficient. The governor may determine, even against the decision of a board of canvassers, whether an applicant is entitled to receive a commission or not, where the objection to his right to receive it rests upon the ground that a constitutional prohibition is interposed. If the governor should ascertain that he has commissioned a person who is ineligible to the office, he may issue another commission to the person legally entitled thereto. Where a majority of the ballots at an election were for a person not eligible to The mayor of a city, under the general law, has jurisdiction as a judicial APPEAL from the Marion Court of Common Pleas. HANNA, J.-Gulick filed his complaint and affidavit, averring the same facts involved in the case of Waldo v. Wallace, 12 Ind. R. 570; and, in addition, that he, Gulick, received all the votes cast at said election, in October, 1858, for the office of sheriff, other than those cast for said William J. Wallace; that on the 29th of June, 1859, the Monday, 169 May Term, governor of the state issued to him a commission, &c.; 1860. GULICK V. NEW. and that, on the same day, he took and subscribed the requisite oath, indorsed thereon, and executed, together with sufficient sureties, the bond required by law, &c., and presented the said bond to the defendant, as clerk, &c., to be by him approved, which official duty he refused to perform; wherefore, a mandate is prayed, &c. The defendant demurred to the complaint, because, upon its face, it shows that Wallace was performing the duties. of sheriff de facto, under color of law, and, therefore, the writ of mandate is not the proper remedy to determine the title to the office, and there is another and ample remedy to determine that question; and because it appears upon the face of said complaint that the plaintiff was not duly elected to the office of sheriff at said election. The demurrer was sustained. The demurrer admits the truth of the matters set forth in the complaint, which are well pleaded. The facts set forth bring this case within that of Waldo v. Wallace, supra; and that case, therefore, determines the first question that arises in this, namely, that Wallace, the person shown by the record to have been the competitor of Gulick, was ineligible to the office of sheriff at the date of the election. The demurrer also admits that the complainant received all other votes cast at the election, except those received by Wallace, who was ineligible; that a commission had issued to him; that he had taken the oath, &c., and tendered a sufficient bond, the approval of which was refused by the defendant. The simple inquiry presented to us upon the record, is, what was the official duty of New, upon this state of facts? and if he refused to discharge that duty, what is the remedy of the complainant? As the demurrer concedes that Wallace was not eligible to be elected to the office of sheriff, for a limited time, for the reasons given in the record, namely, because he was prohibited from holding any office under the state, other than a judicial office, during that time, by the constitu tion, we cannot perceive the force of the argument advanced by the defendant to sustain his refusal to approve the bond herein, to-wit, that Wallace was already inducted into the office, and acting as sheriff; and, therefore, because he was and is wrongfully exercising the duties of the office, affords a sufficient reason for the refusal of the defendant to act. This reasoning is not valid. The clerk is a mere ministerial officer; and in respect to the approval of bonds, which it is made his duty to approve, he has no discretion other than to determine whether the security offered is sufficient. Was it his duty to approve this? The records, of which he is, by law, the keeper, show that but two candidates were voted for at the election for sheriff. The record in this case shows that he was not only constructively, but in fact, cognizant of that, for it contains his official certificate to that effect, and giving the vote of each. It is true, that his records also show that the board of canvassers had certified and declared that Wallace was elected; but this certificate is not, under the circumstances of this case, any shield for him in his refusal to act; because he admits, by his demurrer, that Wallace, the person therein named, is totally and absolutely ineligible to the office, by virtue of the constitutional prohibition already adverted to. Looking, then, to the powers and duties of a clerk, and to this case as presented to us on the pleadings, we are of opinion that such a prima facie right to the office was made, as entitled the complainant to the privilege of filing his bond, and such as made it the duty of the clerk to act officially in the approval thereof. In this view of the case, we do not take notice of the fact, nor stop to inquire whether it was the duty of the clerk to take notice, that the highest judicial tribunal in the state had declared the ineligibility of Wallace. The facts upon which that ineligibility rests, and the conclusion to that effect, are fully stated in the complaint; and the facts, if not the conclusion deduced therefrom by the pleader, are admitted by the defendant, by his demurrer, May Term, 1860. GULICK V. NEW. May Term, to be true, and the conclusion appears to be silently conceded in the brief of the appellee. 1860. GULICK V. NEW. It is urged by the appellee that the action of the board of canvassers of the returns of the election, and the certificate of the clerk based thereon, are the only basis upon which the governor can act in issuing a commission, and it is assumed that he had issued one commission upon such evidence, to-wit, to Wallace, and that he had thereby exhausted his power in that behalf. In Collins v. The State, 8 Ind. R. 344, it is, in effect, decided by this Court that the secretary of state was not concluded by the action of the governor in issuing a commission, but, when called upon to approve a bond, might determine for himself whether there was a vacancy to be filled, &c. The reasoning offered in support of that decision, would, it appears to us, sustain the governor in determining, even against the decision of a board of canvassers, as to whether an applicant is entitled to a commission or not, where the objection to his right to receive it rests upon the ground that a constitutional prohibition is interposed. As to the second branch of the objection. It is made the duty of the governor to issue commissions in certain cases, and to certain officers. The sheriff is one of the officers that thus receives a commission upon his election; and we have no doubt that if the governor should ascer tain that he had, through mistake or otherwise, improperly issued a commission to one person to fill that office, when in truth it ought to have been issued to another, he may correct the error by issuing one to the person legally entitled thereto. an In the case of The State v. Johnson, 17 Ark. R. election had been held for the office of mayor, &c. Johnson received the certificate of election from the board of canvassers, and the governor of the state commissioned him, and he was in the discharge of the duties, &c. Rogers, his opponent, contested the election before the tribunal provided for hearing, &c., which board decided in The 1860. GULICK NEW. his favor; and upon the governor being properly informed May Term, thereof, he also issued a commission to him, &c. Court say: "After the close of the election, Rogers was, to all intents and purposes, mayor de jure, and so soon as he was commissioned by the governor, and proceeded to act thereunder, he became mayor de facto, and the commission, which had been issued to appellee by the governor, became, and was from that time, virtually destroyed, canceled, and superseded; so that if he continued to act as mayor after that time, he was a naked officer de facto, without the commission to give color to his acts as such." The Court did not decide in that case, nor do we decide in this case, as the question is not directly before us, whether the acts of a naked officer de facto, acting without color of office, are merely irregular, or whether they are not absolutely void. Whether Gulick is shown to have been entitled to such commission, remains to be examined. It being conceded that the votes cast for Wallace were powerless and fruitless, in effecting the main end arrived at, that is, in electing him, we are still asked to decide that they were so far effective as to prevent the election of any other person; that they were, so far as affirmative results were involved, thrown away, but that negatively they were operative. We are reminded that in our form of government, the majority should rule, and that if the course indicated is not followed, a majority of the voters may be disfranchised, their voice disregarded and their rights trampled under foot, and the choice of a minority listened to. True, by the constitution and laws of this state, the voice of a majority controls our elections; but that voice must be constitutionally and legally expressed. Even a majority should not nullify a provision of the constitution, or be permitted, at will, to disregard the law. In this is the strength and beauty of our institutions. Suppose a majority should persist in voting for a man totally ineligible to take the office of sheriff, what would be the result? As he could not hold the office, either the one capable of holding, receiving the next highest vote, would, as conVOL. XIV.-7 |
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