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The practice of extending statutes far beyond their legitimate meaning, indeed, of often giving them a construction directly in opposition to the plain intention of those who made them, has been in many instances carried to a most unwarrantable length. That statutes, which have in view the remedy of a particular mischief, should be construed by the courts so as to carry that intention into effect, is, in the general, a plain proposition; but when the formal mode prescribed for carrying into execution the provisions of one statute, is recognised and prescribed as the mode of carrying into execution the provisions of another, to determine that all the substantial enactments of the first are included in the last, might produce much confusion. Nor can I perceive the necessity for these extended constructions; did our general assembly meet but once in some dozen years, the argument ab inconvenienti would possess great force indeed; but when there are annual sessions, surely it is safer and more becoming in the judicial tribunals, rather to suggest to this more immediate organ of the people, the amendment which they consider politic, than to make it themselves.

I consider the policy upon which our happy institutions are based, of keeping separate and distinct the three departments of the government, as the one best calculated to secure the permanence of our liberties; and while I would watchfully guard against the encroachment of the execu tive or legislative departments upon the independence of the judicial, I would be equally vigilant not to pass the boundary laid down for me as a judge. While all shall act in this way, we shall move on harmoniously, and the great object of the constitution, the security of the people's rights, will be perfectly effected.

I consider it unnecessary to dwell upon the consequences produced by the announcement made by the sheriff, Barton, that the relator was duly elected; this could have no possible effect. If he had received a minority of votes, this declaration could not make him a sheriff, either de facto or de


jure; if he had received a majority, he was entitled to the office, whether declared so or not. I am of opinion, the judgment should be affirmed, and of this opinion are a majority of the court.

LIPSCOMB, J. I have not formed an opinion on the point, whether the act of 1812 was abrogated or not, by the constitution; but I most fully concur in the construction given to that act in the above opinion.

SAFFOLD, J., dissented.

Judgment affirmed.

An election is in all cases determined by a majority of the legal votes actually polled; those who do not attend and exercise the privilege of voting are presumed to concur with the majority of the actual voters. Louisville and Nashville Railroad Co. v. County Court of Davidson, 1 Sneed 638. So, it has been held, that where a proposition was directed to be submitted to a two-thirds vote of the qualified voters of the city, to be sufficient that two-thirds of the actual voters were in favor of the question submitted. State v. Renick, 37 Mo. 270. But where an officer is to be elected by two-thirds of the voters present at a meeting, if there be twenty-two corporators present, and eleven vote for one candidate and ten for another, the chairman not voting, there is no election; for the chairman, being present, ought to vote, and is to be considered a voter present at the election, in order to determine whether either candidate had a majority of the votes. Regina v. Guardians of St. Martin's in the Fields, 5 Eng. L. & Eq. 361.

Under a law authorizing the election of two commissioners, an election was held, but it was conducted in all respects as if one only was to be chosen; two persons were opposing candidates, and each elector voted for one of the two, but in no instance did a ballot contain more than one name for the office; and it was held, that only the one who received the highest number of votes was chosen, and that as to the other, there was a failure to elect, and the office remained vacant. People v. Canvassers of Kent County, 11 Mich. 111. In case of a tie vote, a new election will be ordered. 5 Votes of Assembly 435.

(Duties of return judges or canvassers.)

It has been held, in the general assembly of Pennsylvania, that where the vote stood 16 yeas to 15 nays, the speaker had no right to vote; it being his duty to be indifferent between the parties. 4 Votes of Assembly 330-37. But the modern practice in the United States is otherwise, although the Pennsylvania precedent agrees with the parliamentary usage of Great Britain.


In the Supreme Court of Missouri.



[Duties of return judges or canvassers.]

Canvassers are mere ministerial officers; it is their duty simply to cast up the votes and award the certificate to the person having the highest number; they have no judicial power.

This was an information in the nature of a quo warranto, filed by the attorney-general to inquire by what title the defendant, John H. Steers, claimed to exercise the office of sheriff of Ralls county.

Johnson, attorney-general, and Shields, for the relator.

Dryden, Lindley and Dryden, for the defendant.

WAGNER, J., delivered the opinion of the court. The attorney-general, on behalf of the state, appears and files an information in the nature of a quo warranto, in which, among other things, he states that at a general election held in this state, on the third day of November 1868, in the various counties, for state and county officers, one Samuel C. McCune, and the defendant John H. Steers, were

(Duties of return judges or canvassers.)

candidates, and the only candidates, in the county of Ralls, for the office of sheriff of said county; that McCune received a majority of all the legal votes cast for that office, in the said county, at that election, and that the judges and clerks of election in the various election districts in such county so certified to the county clerks of said county; that notwithstanding the fact that McCune received the majority of all the legal votes cast for the office of sheriff, the county-clerk and board of county-canvassers, unlawfully and wrongfully, for alleged informality and illegality, rejected and refused to count the votes, as certified by the judges and clerks of election, cast for said office in Jasper election district in said county; the said defendant, Steers, by the said illegal and wrongful action of the county-clerk, in refusing to count and take into consideration the said votes and poll-books of Jasper election district, illegally obtained from the county-clerk of such county his certificate of election, and on the said certificate of election, the governor of the state issued his commission to the defendant, as sheriff of said county, under which commission the said defendant now holds and executes the duties of the said office of sheriff. The information then specifies the number of votes given, showing that, upon a counting of the whole vote of Ralls county, McCune was legally elected, and that by the act of the clerk in throwing out the vote of Jasper election district, the result was changed and a majority left for the defendant. A judgment of ouster is demanded against the defendant, for the reason that he is usurping and exercising the duties of an office to which he has no just or legal claim.

The defendant, in answer, sets up the plea that, at the regular election, in 1866, he was a candidate for the office of sheriff, in Ralls county, and was duly elected; that he received a certificate of such election from the clerk of the county court of said county, and that thereon he was duly commissioned by the governor to serve for two years, and

(Duties of return judges or canvassers.)

until his successor should be duly elected and qualified; and the defendant further alleges that, in pursuance of his said election, in 1866, and by authority of the said commission, he accepted the said office of sheriff, and still holds and executes said office, no successor to the defendant, in said office, having been duly elected and qualified, and the defendant not having been removed for malfea


Upon these pleadings, the case stands in this court; the information expressly alleges that the defendant is holding and exercising the functions of the office, by virtue of the election of 1868, and in consequence of a certificate wrongfully issued by the clerk of the county court, upon which a commission was issued. There is no express denial of the averment, but there is an answer (argumentative, evasive and negative in its character) stating that the defendant holds said office, no successor to him having ever been elected and qualified. The information is a pleading which must be answered or demurred to, and it has been decided, that the general rules of pleading are applicable to proceedings upon an information in the nature of a quo warranto. People v. Clark, 4 Cow. 95; State v. Bernoudy, 36 Mo. 279; State v. Messmore, 14 Wis. 115. The evasive answer, that no successor to the defendant had ever been qualified, is full of duplicity, and may be construed to mean, that he holds under either election, no other person having succeeded him in the office. The allegation in the information is a plain, simple one, requiring a denial, which the defendant has not seen proper to make.

A person derives his title to an office by his election, and not by his commission; and if he holds and exercises the functions of an office, without having been legally elected, it is an unlawful holding, and he may be ousted at the instance of the state, notwithstanding his commission. Attorney-General v. Barstow, 4 Wis. 567. In the case of People v. Van Slyck, 4 Cow. 297, it was determined,

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