
    The State of Ohio ex rel. Andrew R. Ingerson v. Curtis Berry, junior, Clerk of the Court of Common Pleas of Wyandot County.
    The clerk of the court of common pleas of Wyandot county, with two justices of the peace of his county, having opened the returns of votes polled by the electors of said county, at the election for state and county officers, held on the second Tuesday of October, 1863, rejected, in good faith, a part of said returns, as illegal, and refused to incorporate them into the abstract exhibiting the result of the election, and thereupon declared M. duly elected sheriff of said county, in conformity with the result of the abstract thus made, and gave him a certificate of election. Had the votes, included in the rejected returns, been counted, the election for sheriff would have resulted in favor of I. Notice of intention to contest the right of M. to the office, was thereupon given by I., who took the necessary steps for perfecting his appeal, and giving jurisdiction of the whole case to the court of common pleas of Wyandot county. Pending this appeal, and after the expiration of the time limited by statute for instituting a contest in regard to the result of the election, application was made, on the relation of I., for a peremptory writ of mandamus, requiring the clerk to proceed to the proper discharge of his statutory duties, by counting the returns which were alleged to have been improperly excluded by him, and declaring the relator duly elected to the office of sheriff, and giving him a certificate accordingly. Held :
    ,s!Ehat, assuming the clerk to have erred in the attempted "performance of his duty, and that the relator had a clear legal right to have the rejected returns counted by the clerk and justices, and to demand and receive a certificate of his election, at the proper time, yet the remedy by mandamus would, under the circumstancesstated, be no longer adequate, or appropriate.
    .A contest, on appeal to the court of common pleas, is the specific remedy provided by statute for the correction of all errors, frauds and mistakes which may occur in the process of ascertaining and declaring the public will as expressed through the ballot boxes.
    When such appeal is perfected, the whole subject matter is withdrawn from the sphere of the clerk and justices* statutory power of action, and they become functi ojjiaio.
    
    ‘When an inferior board or tribunal has failed to perform a ministerial duty at the proper time, and its execution is no longer consistent with the substantial rights of other parties or with public interests, the writ will not be issued to compel its performance.
    'Nor, when it can be seen, that the writ, in its operation, must prove abortive and fruitless to the relator.
    Application for a peremptory mandamus.
    On December 22,1863,' on tbe petition of the relator, An•.drew R. Ingerson, an alternative writ of mandamus was issued out of this court, directed to the defendant, Curtis Berry, jr., clerk of the court of common picas of Wyandot county. The writ recites, in substance, that It had been suggested to the court:
    That Ingerson, the relator, a citizen and voter of said county, was eligible to the office of sheriff of said county, and that the term of the incumbent of that office would expire on the ■first Monday of January, 1864. That, at the annual election ■-for state and county officers, held in said county, on the second Tuesday of October last, Ingerson, the relator, and' one William Marlow, were the only candidates for said office of sheriff,, and that at said election, Ingerson had received for said office, from the qualified electors of said county, who voted in the several townships thereof, sixteen hundred and seventeen votes, and that Marlow received for the same office from said electors, seventeen hundred and forty-two votes. That between said second Tuesday of October and the 12th November, 1863,. there were returned to said Berry, as clerk aforesaid, which office he then and still holds, the poll-books and votes of two ■ hundred and seventy-one voters and qualified electors of Wyandot county, who, at the time of said election, were in the actual military service of the United States, and absent from the townships of their residence. That the said two hundred and seventy-one votes were given and returned for the said office of sheriff, of which number of votes Ingerson, the relator, received two hundred and twenty-three, and Marlow forty-eight. That said votes were given on said second Tuesday of October, at elections held and conducted according to the laws • of this state, and that the poll-books and returns of said elections were certified and returned, in strict accordance with the forms and provisions of the laws of this state. That the ag- • gregate number of the votes cast by the qualified voters of said county, at said annual election for the office of sheriff was three thousand six’hundred and thirty, of which Ingerson received one thousand eight hundred and forty, and Marlow one thousand seven hundred and ninety, and that Ingerson’smajority of said votes, over Marlow was fifty, and, therefore, duly elected to said office of sheriff.
    That, although more than thirty days had elapsed since said second Tuesday of October, the defendant Berry, as clerk, neglects and refuses to make an abstract of the votes so cast and returned by the qualified electors of said county, who, at the time of said election were absent from the township of their residence, in the actual military service of the United. States, and that said Berry, as clerk, neglects and refuses to count said votes with the other returns of .votes cast at said election in the several townships of Wyandot county, and that-•he rejects and excludes from the abstract of votes given for ■ sheriff of said county all of said votes of said electors who were absent in the actual military service of the United States, • except one vote east at Camp Chase, in the State of Ohio; and that said Berry, the clerk, neglects and refuses to deliver to Ingerson a certificate of his election to said office of sheriff, although Ingerson has demanded such certificate, and is entitled to receive the same, and to be commissioned by the governor as sheriff of said county, and to hold said office and ■ enjoy its emoluments for the term of two years from and after the firm; Monday of January, 1864.
    The writ, therefore, commands Berry, the clerk, immediately to call to his assistance two justices of the peace of said county, to open, and make abstracts of said votes cast by said electors in the actual military service of the United States, and to count the same with the votes given in the county for said office of sheriff, and to make out under his hand and. the seal of his court, and deliver to Ingerson a proper certificate ■of his election to said office of sheriff; or show cause why he refuses to do so, etc.
    To the alternative writ, and its commands, the defendant Berry answers, in substance:
    1. That on the 14th October last, after all the poll-books of the votes cast at the election for state and county officers, in the several townships of the county, had been received by him, he took to his assistance two justices of the peace of the county, •and opened said poll-books and made abstracts therefrom, according to law, showing that for the office of sheriff, Ingerson received sixteen hundred and seventeen votes, and Marlow .seventeen hundred and forty-two votos- of those cast in the several townships of the county.
    2. That afterward, on 12th Novembei following, the defendant as clerk, again took to his assistance two justices of the peace of the county, and proceeded to open and make abstracts of all returns made to his office, of elections for state and county officers, held in this state on the second Tuesday of October last, under the provisions of the act of April 18, ,1863, entitled, “ An act to enable qualified voters of this state, ■in the military service of this state, or of the United States, to exercise the right of suffrage.” That said returns were •canvassed and the votes shown therein counted with the •other returns of the state and county elections, as if received from the several townships of the county. And, it .appearing from so counting the votes embraced in said abstracts, that for the office of sheriff Marlow had the highest •number of votes, he was by the defendant and the two justices of the peace declared duly elected to that office; whereupon in due time the defendant made out and delivered to Marlow a certificate of his election to said office of sheriff according to law. And that the relator thereupon gave notice to Mar-low that his said election would be contested; and also filed •in the office of the defendant said notice of contest, and testimony taken by the relator in said matter of contest, and the same is still pending in the court of common pleas of said county.
    That after making the abstract above mentioned, the defendant in due time transmitted a certified copy thereof to the secretary of state, at Columbus, as required by law.
    3. That the poll-books above mentioned, so opened, abstracted and the votes therein returned, counted as aforesaid, were all the poll-books containing the returns of elections held on said second Tuesday of October, in this state, or authorized and provided for by the laws of this state, which were received by the defendant as clerk aforesaid. But the defendant deems it proper to state, that within thirty days after said election he received sundry papers and documents transmitted to him by mail, postmarked at various places beyond the limits ■of this state, and purporting to be the poll-books of elections held on said second Tuesday of October, in various other states of the American Union. That the defendant did not, however, receive or recognize the same, nor did he and the two justices of the peace taken to his assistance, deem it proper to act upon the same, as the poll-books of elections authorized by the laws of this state, inasmuch as, in the first •place, no law of this state had authorized or provided, in terms, for elections to be held beyond the limits of this state; ■and, in the second place, these papers were not authenticated or certified by the judges and clerks of the said supposed' elections, to be the poll-books or returns of elections held by electors absent from their townships or wards, in the military service of the United States, or of this state; and that, in other respects, these papers were not such as the laws of this state had authorized or provided for, as poll-books and returns-of an election for state and county officers in this-state.
    4. The defendant denies that between the day of said election and the 12th November, 1863, the poll-books and returns of said election, duly certified and returned in strict accordance with the forms and provisions of the laws of this state, showing two hundred and seventy-one votes of qualified electors of said county, absent from the townships of their residence, and in the actual military service of the United States, were sent and- returned to him as clerk, which he neglected or refused to abstract and count with the other returns of votes cast at said election and returned to him. The defendant also denies that he rejected or excluded from the abstracts and enumeration of the votes given for sheriff of said county, any votes of the electors of the county, absent in the military service of the United States, duly authorized and provided for, and returned to him according to the laws of this state. The defendant denies, also, the statement of the writ as to the aggregate number of legal votes given for the office of sheriff of said county at said election; denies the statement as to the aggregate number of legal votes given and duly returned for1 the relator as a candidate for said office of sheriff; denies the statement that the relator received, at said election, the highest number of votes legally given and returned for said office of sheriff; and denies that the relator was or is entitled to the certificate of election to said office, as he has alleged.
    5. The defendant further avers that in the discharge of his duty as clerk of the court, in regard to receiving the said poll-books, and canvassing and abstracting and counting the returns of the votes given at said election, he acted from a conscientious sense of duty, and in the exercise of his best judgment. And, in order that he may be corrected, if he has erred in the matter, he has carefully preserved the said papers-transmitted to him from other states, as aforesaid, which he could not consider it his duty to recognize, and act on, as poll-books of elections, provided for and authorized by law. And he now produces the same here for the inspection of the court,
    The case was submitted to the court upon the writ and answer.
    
      0. Bowen and J. B. Sears, for the relator.
    
      T. W. Bartley and Chester R. Mott, for the defendant.
   Scott, J.

The first inquiry which arises in the consideration of this case, is, whether, assuming that the clerk and justices should have included all the poll-books returned to the clerk, in their abstract; and that it was the plain duty of the-clerk to have declared the relator duly elected to the office of sheriff of Wyandot county, and to have given him a certificate-of his election; the relator can, at this time, and under the circumstances disclosed by the writ and answer, which constitute the pleadings, call for the intervention of this court by writ of mandamus ?

The writ of mandamus, is, at the common law, “ a high prerogative writ,” employed to prevent a failure of justice, and, therefore, only allowed when a party has no other adequate-specific remedy. It has been said, that “ the most usual object, sought by this writ is to exact the execution of some official duty from a ministerial officer.” 5 Ohio Rep. 542; 9 Ohio Rep. 25. And it has been held, that mandamus lies in all cases-where the relator has a clear legal right to the performance of some official or corporate act by a public officer or corporation, and no other adequate specific remedy. C. W. and Z. Railroad Co. v. The Commissioners of Clinton County, 1 Ohio St. Rep. 78. The provisions of our present civil code upon the subject fully harmonize with the principles of the common law. “ The writ of mandamus may 'be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act, which the law specially enjoins -as a duty resulting from an office, trust or station. But though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it can not control judicial •discretion. This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course ■of the law.” Code, secs. 569, 570.

In considering this question, it may be assumed that the duties of the clerk and justices, the performance of which is here sought to be enforced, are of a ministerial character. The general election laws of this state direct the clerk, with two justices of the peace called to his assistance, to open and make abstracts of the several returns which shall have be'en .made to his office, and they provide that in making such abstracts of votes, the justices and clerk shall not decide on the •validity of the returns, but shall be governed by the number of votes stated in the poll-books, and that no election shall be •set aside for want of form in the poll-books, provided they •contain the substance. S. & C. Stat. 536, 539.

The clerk is also required to make out for each person who has “the highest number of votes given,” a certificate of his election, and deliver the same to him without fee. S. & 0 Stat. 540.

The aggregate results of the. returns, exhibited by the several poll-books, are to be ascertained by arithmetical calculation, and can not be controlled by the discretion of the persons performing the duty. Such counting of votes, making of abstracts, which exhibit the result, and giving cirtificates accordingly, are duties which fall within the province of a clerk and accountant, they admit of no discretion, and are in their nature ministerial. 20 Pick. 484.

The performance of such duties may, therefore, be enforced without assuming to control judicial discretion.

I see nothing, therefore, in the intrinsic nature of the duty which the law in this case enjoined upon the defendant, nor in •the character of his office or station, to prevent the enforce■ment of its proner performance by mandamus. But this writ will only issue m furtherance of substantial justice, and when hhe relator has no other adequate specific remedy. If it be no longer in the power of the defendant to perform the duty •enjoined by the law, or if, having failed to discharge it at the •.proper time, its present execution would no longer be consistent with the substantial rights of other parties, or beneficial to the relator, the writ should not issue. Designed only as a remedy to prevent the failure of justice, it must not be made the minister of injustice, and the law does not require the performance of things which are either impossible or useless. Let us endeavor to apply these principles to the case before us.

The duty of opening the returns, making abstracts and declaring the person having the highest number of votes duly elected, is, by statute, required to be performed within a limited number of days after the election. Had the relator been thus declared duly elected, at the proper time, it would have been the statutory right of Marlow, to whom the certificate of election was improperly given, or of any elector of Wyandot county, who might choose to contest the relator’s right to the office of sheriff, to appeal from this declaration of election, to the court of common pleas of his county, and that court is required by law “ to hear and determine the contest.” But •the times for perfecting such appeal, by entering notice thereof with the clerk of the court, and giving notice to the party declared elected, and for taking depositions in the' case, are fixed by statute with reference to the day of election, and have now expired. The statute directs, the declaration of a candidate’s ■election to be made “ subject to an appeal,” and it can hardly be the duty of this court to require it to be made exempt from all right of appeal, by requiring it at a time when appeal has •ceased to be possible.

The importance, in a government like ours, of preserving the purity of elections, and of ascertaining truly, and rendering effective, the will of the people as fairly expressed through the ballot-boxes, needs no comment. In the accomplishment •of these, purposes, the right of contesting all elections, is perhaps the most efficient agency provided by law. The duty of making such provision is solemnly enjoined upon the legislature, by the constitution of our state. Its language is: “ The general assembly shall determine by law, before what authority, and in what manner the trial of contested elections shall be conducted.” Art. 2, sec. 21. And for the efficient exercise-of this right of contest, provision has at all times been made in the legislation of the state. This is the specific remedy provided by statute for the correction of all errors, frauds and-mistakes which may occur in the process of ascertaining and declaring the true expression of the public will. This controlling policy may not be nullified by the courts of the state,, but should be protected and cherished with the same sedulous-care that the constitution and laws evince.

But were it possible to overcome this difficulty, by applying the doctrine of relation, or a kindred principle, which should regard the time when the duty of the defendant is performed in obedience to the command of the writ as the time fixed by law for its performance, and thus preserve, by fiction, the-right of contest intact; still, other difficulties intervene to prevent the issuing of the writ.

The defendant has once attempted the performance, in good faith, of the duty imposed on him by the statute. We take-for granted that he erred in its performance. Still, he went through all the forms of his statutory duties, in good faith. He opened the returns, made abstracts, and declared Marlow elected, when the declaration should have been in favor of the-relator. Now, conceding that this erroneous performance of a ministerial duty might have been treated as a nullity by the-relator, yet, I think it was clearly sufficient under the statute to give a right of appeal and contest. Marlow was declared duly elected, and this declaration was made through the proper agency, at the proper time and place. Nothing more could be necessary to give the relator the power of contesting, by appeal, the right of the person thus declared duly elected, to-the office.

But in the present case, the relator has thought proper not to regard the action of the clerk and justices as a nullity, but to treat it as the rendition of a judgment, which though erroneous, is made in the exercise of legal jurisdiction, and may,, therefore, be appealed from. He has taken the necessary steps, under the statute, to give full jurisdiction of the whole case, upon his own appeal, to the court of common pleas of Wyandot county. He has filed in that court his notice of appeal, and his testimony taken in the case, and has given no-dice of contest to the party declared duly elected, and the . whole case is now pending before that court, where right and justice may be fully done between the parties to the contest, .and'where the decision and judgment when rendered will be final unless reversed upon error. Having thus treated the defendant as functus officio, and withdrawn the whole subject matter from the sphere of his statutory power of action, it is •difficult to perceive how he can call upon him to take further •action in the case. Can the question as to which of the candidates has been duly elected, be at the same time pending before the clerk and justices, and before the appellate tribunal of the court of common pleas ? And if it can, which of the decisions shall control? Certainly that of the court which ■exercised the higher and appellate jurisdiction. Under these ■ circumstances, of what avail to the relator would it be that the clerk and justices should declare him to have been duly elected sheriff of Wyandot county ? The whole force and effect of such declaration must be nullified or superseded by the ultimate judgment of the appellate court before whom the question is now rightfully pending, and from whose jurisdiction, as I apprehend, it can only be withdrawn by consent of the par-dies. It can be of no practical benefit to the relator to have ■the result of the election, as disclosed by the poll-books, truly ■declared by an inferior board (whether the functions of that board be of a judicial or ministerial character), when the whole ■question is pending before a superior tribunal, clothed with full power, not only to ascertain that result for itself, but' also ■to judge of the validity of the returns as shown'by the poll-'books, and to go behind them and inquire into the legality of >every vote which they exhibit. In this appellate tribunal, the declaration of the clerk and justices would not even be competent evidence for the party in whose favor it is made ; for the appeal vacates, or, at least,- wholly suspends, its operation The law does not, and courts governed by law, can not .require the performance of a vain thing. In the case of The People ex rel. Bailey v. The Supervisors of Greene (12 Barbour’s S. C. Rep. 217), where it was sought, by peremptory mandamus, to compel the supervivors of the several towns of Greene county (who by statute composed the board of county canvassers), to re-assemble, and include in their canvass and estimate the returns from a certain election district, which in a canvass, previously made, they had excluded, the supreme court of New York, after holding that the supervisors were, as a board of canvassers, fundi officio, and could not, therefore, be re-assembled, and re-invested with the power which they had previously exercised erroneously, proceeded to say, that if this could be done, the result would be fruitless to the relator, inasmuch as the controversy between him and the person previously declared elected could only be settled by an action in the nature of quo warranto. And it was, therefore, said by the court, “ such a revision of the canvass, therefore, if practicable, would produce no beneficial result even to the relator himself. Instead of being an efficacious remedy, the writ, in its operation, would be wholly abortive. When it can be foreseen that this must be the result, the writ should not be granted. Lex non cogit ad inutilia. ‘ The court will refuse the writ/’ says Tapping, if it be manifest that it must be vain and fruitless, or can not have a beneficial effect.’ ” (Tapping on Mandamus, 17.)

And so, in the case of Shelby et al. v. Hoffman (7 Ohio St. Rep. 450), it was held by this court, that where an inferior state court had improperly refused to certify a case pending-before it, to the proper federal court, and proceed no further therein; and had, on the contrary, proceeded to final judgment, mandamus would not lie to compel the state court to-certify the case as aforesaid; and for the reason, among others,, that, after judgment, this writ would be fruitless, and therefore-no longer an appropriate or adequate remedy.

Under our laws, the relator may not be able to have the result of the election inquired into by quo warranto, but if not, the only reason is, that the statute has furnished the means-for this specific object, by contest. In the present case, such, contest is, in fact, now pending, and the judgment to be rendered therein can not be collaterally impeached by the parties^ to that contest. Com. ex rel. Attorney General v. Garrigues, 28 Penn. St. Rep. 9.

The Indiana and Iowa cases referred to by counsel, in which the writ of mandamus was allowed, differ from the present one, at least in this, that in neither of them, had a contest been instituted by an appeal from the action of the clerk. In the Indiana case, the board of canvassers had declared the relator duly elected, and the clerk had simply re fused to certify accordingly. 2 Carter Rep. 423. ■

It has been suggested, in argument, that the relator’s remedy, by contest, for the grievance complained of, is not plain and adequate,” because, as the election laws of the state now stand, it is supposed the relator might have difficulty in securing his full rights in that mode.

It is certain the legislature has intended to interpose no such difficulties, and that in the various modifications or changes of the laws regulating the election of county officers, provision has always been made for the exercise of the right of contest by appeal — which was doubtless intended to be not only a “ plain and adequate,” but the specific and sole remedy. And so it would seem ever to have been regarded, for an attempted correction by mandamus of erroneous acts of officers whom the law employs in the holding of elections, or in the ascertainment and declaration of their results, when those acts may all be fully examined into upon appeal, would, it is believed, be without the sanction of a precedent in the judicial history of the state.

But,, at all events, the relator has resorted to this remedy of contest; all questions m regard to the result of the election, as between Marlow and himself, are now fully open for investigation and decision by the court of common pleas, and whether the statute furnishes adequate facilities for such investigation or does not, the ultimate decision of that court must supersede the action now demanded of the clerk, and conclude the parties; and as the purpose of the writ, if accomplished, would not even be subsidiary in that contest, it must be in vam to allow it. An examination of the further questions, made in argument, is, therefore, uncalled for.

Writ refused.

Peck, C.J., and Brinkerhoee, Ranney and Wilder, JJ., concurred.  