Dotson v. Ritchie , 211 Ark. 789 ( 1947 )

I respectfully dissent. In my opinion the lower court properly dismissed appellant's petition.

Mandamus is an extraordinary remedy and is never granted unless the party applying therefor has a clear right thereto and has no other adequate remedy in the premises. Ex Parte Trapnall, 6 Ark. 9, 42 Am. Dec. 676; Basham v. Carroll, 44 Ark. 284; Cotton v. Steel, 95 Ark. 623,129 S.W. 1198; Snapp v. Coffman, 145 Ark. 1,223 S.W. 360; Jones v. Adkins, 170 Ark. 298, 280 S.W. 389.

As I view the matter, appellant failed to show any right to mandamus, because he was, in effect, asking that the writ be used to control the discretion of the election commissioners.

The county clerk receives ballots of absentee voters, but does not count the ballots. He is required to turn them over to the election commissioners, who, under the provisions of 4783, Pope's Digest, must open them and count them if they are "found regular." Who, under the statute, is vested with discretion, in the first instance, to say whether a given absentee ballot is regular and should be counted? Manifestly, only the election commissioners have this discretion and authority.

In the case at bar it was shown that they had exercised this discretion and had refused to include in their tabulation certain ballots which they found to be irregular. That this was done is shown by the testimony. Mr. Ledford, one of the commissioners, testified: "We rejected them [the ballots in dispute] for several reasons, some being illegal on their face, probably the affidavit not properly signed or made out. Others had not been signed. There are a number of reasons that those were rejected." Mr. Ledford and Mr. Ritchie, another member of the board, both testified that all votes had been canvassed and the board was ready to certify the result. This testimony is corroborated most convincingly by the fact that the official returns from this county, signed by all three election commissioners, now on file in the office of the Secretary of State, of which we take judicial notice, show the result in the sheriff's race, including votes in the absentee box, exactly as Ledford and Ritchie testified that they ascertained it to be.

It is apparent that the sole purpose of the petition for mandamus was to control the discretion of these election commissioners, acting, as to the absentee box, in the capacity of election judges, and to compel them to count ballots which they had found to be irregular and which they were not, under the plain letter of the law, required to count. Mandamus never lies to control discretion of a public official. Rolfe v. Spybuck Drainage District No. 1, 101 Ark. 29, 140 S.W. 988; Robertson v. Derrick, 113 Ark. 40, 166 S.W. 936; Village Creek Drainage District v. Ivie, 168 Ark. 523,271 S.W. 4; State ex rel. v. City of Marianna, 183 Ark. 927,39 S.W.2d 301: Watson v. Gattis, 188 Ark. 376, 65 S.W.2d 911; Garland Power Developing Company v. State Board of Railroad Incorporation, 94 Ark. 422, 127 S.W. 454; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Huie v. Barkman, 179 Ark. 772, 18 S.W.2d 334; Democrat Printing Lithographing Company v. Parker, 192 Ark. 989,96 S.W.2d 16; Jackson v. Collins, 193 Ark. 737, 102 S.W.2d 548; Southern Cities Distributing Company v. Carter, 44 S.W.2d 362; Satterfield v. Fewell, 202 Ark. 67,149 S.W.2d 949; Hardin v. Cassinelli, 204 Ark. 1016,166 S.W.2d 258; Better Way Life Insurance Company v. Graves, 210 Ark. 13, 194 S.W.2d 10.

In the case of State ex rel. v. Deate, 23 Fla. 121,1 So. 698, 11 Am. St. Rep. 343, a candidate sought to compel election inspectors to count a certain ballot for him. The writ was denied, the court saying: "In this proceeding we cannot control their discretion or judgment or substitute ours for theirs."

A similar holding is to be found in the case of Arberry v. Beavers, 6 Tex. 457, 55 Am. Dec. 791.

Likewise, a mandamus against election inspectors was denied in the case of People v. Hanes, 44 Misc. 475,90 N.Y.S. 61. There the court said: "In determining what ballots shall be counted for or against any candidate, . . . or what ballots shall be rejected, they act judicially. . . . The inspectors have performed the judicial act complained of. They may not have reached a correct conclusion, but they have acted and exercised their judgment, and the conclusion reached by them cannot be reviewed herein."

If the election commissioners failed to count any legal ballots in his favor, appellant had a complete, adequate and effective remedy, under the statute (4833 to 4838, Pope's Digest) providing for election contests, to right this alleged wrong. For that reason, if for no other, mandamus did not lie. In the annotation shown at p. 1259 of vol. 1912C, Ann. Cas., this appears: "Where a statute provides an adequate and complete remedy for the correction of errors or mistakes occurring in an election . . . by contest . . . , mandamus will not lie to compel canvassers of an election to recanvass the returns."

The impropriety of substituting the writ of mandamus for an election contest is forcibly shown in the instant case. In this case the successful candidate for sheriff — now duly certified and commissioned — was not made a party. Under the holding of the majority that election officials may be required to count votes which they, in the exercise of their discretion, have found to be invalid, it may occur that a candidate will be denied an office which he has fairly won by illegal votes being counted for his adversary, in a court proceeding to which he is not a party. The inevitable effect of the majority opinion, as I see it, will be to complicate and confuse administration of our election laws.

I am authorized to state that Mr. Justice McHANEY and Mr. Justice MILLWEE concur in the views above expressed.