Marshall v. Kerns | Cases | Westlaw

At the May term, 1852, of the circuit court of Campbell, James M. Marshall produced a formal certificate of his election as clerk of said court, and also proper official bonds with sureties, and moved the court to induct him into said office. Whereon George W. Kerns, the incumbent in said office, and late a candidate for reappointment in the election by the people, moved the court for leave to defend and resist the said motion, and it was granted to him.

The certificate of the coroner, acting as sheriff, states “that at an election held at the several district election grounds in my county, on the sixth day of March, 1852, according to law, James M. Marshall was duly elected to the office of circuit-court clerk.” And he states the vote: James M. Marshall, 199, and George M. Kerns, 196; there being a majority of three votes for Marshall.

It was proved by witnesses that the election was not held in the fourth civil district of said county. The officer appointed to hold it failed and neglected to attend at the place of voting. There were some fifty or sixty voters resident in that district, and some twenty of them attended on the day at the place of voting. The coroner had notice, before his return, that the election was not held in this district. It was a case of wilful omission on the part of the deputy appointed to *70 hold it, but we are not prepared to say that the neglect was for any fraudulent design to favor either of the candidates. The proposed new county of Union was to include this district, and it was apprehended by the officer that if the election were held in the district it might prejudice the efforts that were then being made to establish the new county by a vote of the people. The proposed new county has never had a legal existence.

**2 His honor the judge held the election as void, and refused to induct the plaintiff into said office. Whereon the plaintiff has appealed to this court.

We may premise that each county in the state is laid off into “districts of convenient size” (Const., art. 6, sec. 15), in which places are designated for holding all popular elections; 1835, ch. 1, sec. 4. These districts, into which the whole state is divided, are justly considered a very important feature in our system and policy. The people being thus divided into small communities, and having in each an organization of their own, are the better able to carry out their policy of self-government, as regards both its smallest and greatest interests. The civil-district system is of special value in a popular point of view, as it enables every citizen, freely and conveniently, to exercise his elective franchise, as it were, at home in his own little community. In view of this policy, it is made the imperative duty of the sheriff “to open and hold all popular elections at the places designated” in each civil district. 1835, ch. 2.

Now, the present election was not held in one of the civil districts. This was an injury to the people of that district, who were thus defrauded of their lawful right to vote in the election of their clerk. Nor can *71 it be said that the election was legally held, as the law required it to be held in every civil district.

The people of an important division of the county being thus deprived of their privileges of voting, the officer's return is no reliable evidence that the person returned as elected was the choice of the people in the county. If the election had been held in this omitted district, the result might have been different. To hold the election valid would be of dangerous tendency; for if one district may be omitted, more than one may be omitted and the election be placed very much in the power of the officer.

We do not think the motive of the officer material to the question. The injury to the public is the same, whether the omitted duty be the result of corrupt motives or of mere negligence. In either case the public has been deprived of an important and highly-valued right.

We rest the case simply upon the ground that the election was not legally held, because not held in all the civil districts of the county. The people of the county are the appointing power; and the power not being legally exercised, not fully exercised, the plaintiff is not, in fact or in legal effect, appointed to the office.

The sheriff's return is prima-facie evidence of the election. But certainly it was competent to falsify it by the truth of witnesses, as was done in the present case.

We see no reason why the present incumbent, or other citizen of the county interested as a citizen in the appointment, might not be permitted to offer legal opposition to a false and void election. And such fact *72 appearing to the judge, he should deem it his duty to refuse to qualify and induct the pretender to the office.

**3 Affirm the judgment.