
    Arberry v. Beavers and others.
    The process of mandamus in modern practice is regarded as an action by the .party on whoso relation it is granted to enforce a private right whero the law affords no other adequate means of redress. It lies to compel public officers and courts of inferior jurisdiction to do those acts winch clearly appertain to their duty. If tho act be merely ministerial mandamus lies to compel its performance; if it be judicial, or in other words if there be a question of judgment or discretion whether the act should be dono or not, mandamus lies to compel the exercise of that judgment or discretion, but not to inform or control it. (Note 81.)
    Whero the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to discretion or judgment, the act is simply ministerial; hut where the act to be done involves the exercise of discretion or judgment, it is either judicial or of the nature of a judicial act.
    Where a special statute required the chief justice of a certain county to order an election for a seat of justice, 'and prescribed that the election should be held and tho returns mado in accordance with the laws of the State regulating elections: Held, That tho statute conferred upon the chief justice a personal tru«=t distinct from his oidinaiy official duties; that in receiving and estimating the returns he did not act in a merely ministerial capacity, and that a mandamus would not lie ic coxpel him to receive and estimate certain ro-tuvns which he had rejected. (Nota 82'
    Where a special tribunal is create'd ^ proceedings are not according to the course of tho common law, and whose rr^o«edings are not subject to revision in any of tho ordinary modes provided by 'z»dy the same power which created the tribunal may annul its acts; may confer the sonority upon another tribunal; may provide for revising its decisions; and, in a word, may provide ample means and measure of redress.
    An officer or tribunal invested with authority as to an act requiring the exercise of discretion or judgment might be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law, and in such a case a mandamus would lie it there was no other adequate remedy provided by law.
    This case is distinguishable from the case of The Commissioners of the General Land Office v. Smith. (5 Tex. It.)
    A mandamus is au extraordinary remedy, to be resorted to only when the party has no other adequate moans of redress afforded him by law. And to entitle a party to this remedy he must show a clear legal right in himself and a corresponding obligation on tho part of the officer, for if tho right or the obligation be doubtful the court will not interfere by this process.
    Greater certainty of pleading is required in the must set forth essential and the omission of tho public officer to interpose those matters of defense which he might have interposed will not authorize tho issue of the writ.
    Appeal from Cass. This was a proceeding by mandamus to compel the appellant Arberry, who was chief justice of the county of Cass, to receive and count certain returns of votes given in an election held for the purpose of electing a seat of justice of Cass county.
    Tiie appellees alleged in their petition “that they are citizens of tiie county of Cass; ” that in obedience to “An act to provide for the election of tho scat of justice of Cass county,” approved December 27, 1849, Robert Arberry, chief justice of said county, ordered an election to be held at tiie several precincts thereof by the qualified electors of the county on the first Monday in March, 1850, for the purpose of electing a seat of justice of said county ; that tiie election was then duly held, and the returns thereof made, in accordance with the laws of said State regulating elections, to the chief justice, who was required by law to open the returns, estimate tho result, and record tiie state of tho polls at eacli precinct in a book to be kept by him for that purpose; that said election returns were made to the proper officer within the time prescribed by law; that said chief justice refused to receive the returns from and to count tiie votes given at “Cherokee Precinct-, Beat No. 6, which precinct gave for Linden'29 votes, for Jefferson none; that lie refused to receive tiie returns from and count the votes given at Charles Amis’s Precinct, Beat No. 7, which precinct gave for Jefferson 12 votes, for Linden 12 votes.” The peti-lion proceeded to make in substance tiie same averments respecting four other precincts. It further alleged that the said chief justice counted the votes given at two precincLs only other than the before mentioned, one of which gave for Linden 17 votes, and for Jefferson 89 votes, and tiie other gave for Linden 46 votes, and ior Jefferson none; that the chief justice refused to receive and open the six returns first mentioned, to estimate tlie result, and to record the state of the polls, as the law required; but that he opened the returns of but the two precincts last mentioned, and that lie estimated tlie result of tlie election in said two precincts, and pronounced Jefferson elected by a majority of 26 votes, when it was his duty to proclaim the place elected which received a majority of all the votes polled in the county, and when in truth Linden received a majority of all the votes polled by about 45 votes; that the action of the chief justice was illegal, and lias deprived the complainants (two names excepted) of their electivo franchise in said election and tlie right to liave their votes counted in estimating the result, concluding with a prayer that the defendant he cited to appear aud'show cause why a peremptory mandamus should not issue, commanding him to open all said election returns, to estimate tlie result from all tlie returns, and record the state of tlie polls of each precinct in a book to be by him kept for that purpose, &e.
    The defendant answered, excepting to the jurisdiction of the court, and averring under oatli that Up had “received and counted all tlie votes given for tlie county seat of Cass comity that were returned according to law.”
    The plaintiffs excepted to the legal sufficiency of the answer. The exceptions to the, jurisdiction of tlie court were overruled. The case was submitted to tlie judgment of tlie court on the petition and answer. Tlie court decided that the answer was insufficient and showed no cause why the writ should not issue, and gave judgment directing a peremptory mandamus to issue in accordance with tlie prayer of the petition. Tlie defendant appealed.
    
      E. G. Benners, for appellant.
    I. The act of December 27, 1S49, to provide for the permanent location of tlie seat of justice of Cass comity authorized and required the chief justice of said county to hold an election for the county site. This aet constituted him tlie judge and conferred upon him authority to decide upon tlie election and declare the result. The act did not confer authority upon any tribunal to revise or correct his decision. His decision was therefore final, and from which there was no appeal. lie was left to exercise his own judgment, and his decision was conclusive.. (Baker et al. v. Chisholm, 3 Tex. R.)
    II. Tlie District Court erred in taking jurisdiction of the caso and awarding the writ of mandamus. This process lies to compel courts of inferior jurisdiction to do wliat appertains to their duty. If the chief justice had refused to hold the election, then tlie mandamus would lie to compel him so to do. It would lie, then, to compel him to discharge a duty enjoined by law, but not to instruct him in the manner it should be performed. The manner of discharging his duty was discretionary and to be exercised in accordance with liis own judgment. Mandamus is not tiie process to revise or correct an error if he, had acted erroneously. The error conld only be revised on appeal, if the right of appeal existed, and it is contended it did not. (See Rice et al. v. The Commissioners of Highways of Middlesex, 13 Pick. R„ 225.) The answer of appellant shows he had held the election and de,cided the result, and the authorities referred to are conclusive that he alone had tlie right to exercise his own judgment in declaring the result. He declared that by counting the legal votes polled Jefferson was elected. This decision could not be controverted.
    
      J. C. Everett, also for appellant.
    I. It is a settled principle that a mandamus will not lie against an officer directing him how to act and what particular to do in a .matter wherein lie has a discretion, neither will it lie against one who lias already done an act requiring him to undo it.
    It is, however, a proper remedy to compel an inferior court to adjudicate upon a subject-matter within its jurisdiction when it neglects or refuses to do so ; but when it has adjudicated, the mandamus will not lie for the purpose of revising or correcting its decisions. (See County Court of TVarren v. Daniel, 2 Ky. R., 513.)
    II. The action and decision of said chief justice as to tiie result of said election was final, and said District Court had no jurisdiction or control over the subject-matter or over the said chief justice in the premises ; for the authority conferred upon tiie said chief justice by said statute was special and restricted to one express object. (See Acts of 1830, p. 19.) Ho mode is provided for revising his decision, either by said statute which conferred the authority or by any general law. His exercise of tiie authority conferred was definite and final. This principle was settled by this court in a case that was sent up from DeYV'itt county, founded upon a similar statute providing for tiie election of the location of tiie seat of justice for that county. (Baker et al. v. Chisholm, 3 Tex. R.; see also 13 Pick. R., 225; Rice v. The Commissioners of Highways; and 1 Cond. U. S. R., 19 : United States v. Judge Lawrence.)
    
      Sogers 8p Ferris, for appellees.
    I. The act to locate the county seat of Cass county, under which the election spoken of in tiie petition was held, says that “the place receiving a majority of all the votes polled shall be the seat of justice for said county of Cass,” and that “tiie election shall be held and the returns made in accordance with tiie laws of this State regulating elections.” It makes it “tiie duty of the chief justice to hold tiie election,” &c. How, did he perform his duty as a public officer? (See act to locate-county seat of Cass county, Laws of State, vol. 3, p. 19.) The act regulating elections (State Laws, vol'. 2, p. 120) declares that “tiie election returns shall not be opened by the officer to whom they are returned before return day or tenth day and exclusive of the day of election. At the expiration of that time he shall open them and estimate the result, recording tiie state of the polls of each precinct in a book to be kept by him for that purpose,” after which he shall issue a certificate of election, &c. Prom tiie record it appears that out of eight election returns the appellant, chief justice, <fcc., received only two. This in his answer he does not deny; but comes and says that liis decision is final, aud that tiie District Court has no jurisdiction over the case. He virtually says that he. cau do as lie pleases, and denies that any court can make him show cause for his conduct or control his action. The only point then at issue is, “Has the District Court power by mandamus to compel the chief justice to do what tiie law makes it his duty to do in this case?” If the power given to the chief justice is a judicial power, the District Court under, the Constitution certainly can “issue all writs necessary to give them a general superintendence aud control ” over that jurisdiction. (Const., art. IV, sec. 10.) If it is a ministerial power or a power given to a public officer for public purposes, it is clearly within tile provision of tiie District Court to enforce tiie proper exercise of that power, (Chitty’s Practice, 1 vol., p. 709,) and it has so been held frequently by this court.
    II. It is true that this court has already decided that the County Court cannot control an election for county seat, and that “the decision of tiie chief justice is decisive and final.” • It is believed, however, that for his decision to lie decisive aud final it must be a decision according to law upon all the election returns. lie must receive all the returns, count tiie votes, aud then decide upon the result of the election. Tiie law gives no form of election returns, but prescribes duties to be performed by tiie presiding officer of each precinct; and-when the chief justice receives the returns the presumption is that they are legal and that tiie law lias been complied with, and it is ills duty to act upon ail unless they are impeached on account of fraud, &c. In this case tiie chief justice has acted upon only two out of eight election returns. lie then lias made no decision in contemplation of law upon said election. Tiie District Court does not assume to revise his decision, but to compel him to decide not upon a part, but upon all tiie election returns.
    HI. It is true that the act under which this election was held is a special act, and that when the ends for which that act was framed are accomplished the duties of the chief justice are at au end. Now, everything; has been' performed but the last duty of the officer, and the refusal on ids part to perform what the law says he shall do cannot weaken or destroy the rights of the public; but the courts of the county will take it into their bauds anti force him into duty, however long he may seek delay.
    
      M. D. Rogers, also for appellees.
    I. The statute empowering the appellant to hold the election imposed on him a specific duty, and he having failed to perform that duty, the district judge did not err in compelling- its performance. (Manor at al. v. McCall at al., 5 Ca. 11., 522, and authorities there cited by Bumpkin, J.)
    It is believed that the principles which govern courts in issuing wrils of man damns arc well understood. “Where a ministerial act is to be done, and there is no other specific remedy, a mandamus is the proper writ, and the court will compel the parly to do the act required.” (5 Binii. K., 102.)
    II. Again, the appellees liada legal right, in the act, which they charge it was the duty of appellant to perform; and there being no other specilic legal remedy, the court committed no error in awarding a 'mandamus. (1-1 Johns. R., 325, ax parta Goodall, and authorities there cited; also Bl. Comm., 110; Bac. Ab., MaNdamxts.)
    III. It is not pretended that an order could be made requiring the appellant to revise or correct any previous decision hud to complete au unfinished work. (19 Johns. R., 259.)
    IV. Appellant insists that the decision in case of Baker at al. v. Chisholm at al., delivered in 184S, must govern this case.
    Here, again, we differ. In that case there was no charge? that the County Court or the chief justice refused to receive and count votes in fraud of the right of the citizens; but it seems that the contest arose after the votes were counted. We think there is no analogy between that case and the case at bar, and the question presented wholly different. The question is, (and it seems to us to be the only one.) lias the District Court power by mandamus to compel the. chief justice to do what a special and specific law makes it his duty to do?
    Should it be contended that this cannot he done, then it seems to us that, in the hands of a corrupt officer of the Government, the will of the supreme power, as expressed in legislative enactment, would he defeated, the rights of the citizens, however sacred, abused, trampled upon, and finally destroyed.
   Wheeler, J.

The principal question to be determined is whether a case is presented by the record which authorized the judgment of the court awarding a pi-remplory mandamus.

This process, in modern practice, is regarded as an action by the party on whose relation it is granted to enforce a private right, when the law affords no other adequate means of redress.

It lies to compel public officers and courts of inferior jurisdiction to proceed to do those acts which clearly appertain to their duly. But it does not lie to instruct them as to the manner in which they shall discharge a duty which involves the exercise of. discretion or judgment. The distinction seems to be that if the inferior tribunal has jurisdiction, and refuses to act or to entertain the question for its decision, in eases where the law enjoins upon it to do the act required, or if the act be merely ministerial in its character, obedience to the law will be enforced by mandamus where no other legal remedy exists. But if the act to be performed involves the exercise of judgment, or if the subordinate public agent has a discretion in regard to the matter within his cognizance, and proceeds to exercise it according to the authority conferred by law, the superior court cannot lawfully interfere to control or govern that- judgment or discretion by mandamus. (19 Johns. R., 259; 13 Pick. R., 225.)

The eases in which a mandamus will lie and the pleadings and proceedings in those cases have been the subject of frequent adjudication in this court. (Smith v. Power, 2 Tex. R., 57; Glasscock v. The Commissioner General Land Office, 3 Tex. R., 51; Bracken v. Wells, 3 Id., 88; Banton v. Wilson, 4 Id., 400; Cullem, Adm’x, v. Latimer, Id., 329; Fitzhugh v. Custer, Id., 391; The Commissioner of the General Land Office v. Smith, 5 Id.)

In the case of Glasscock v. The Commissioner of the General Land Office, it was said to be ‘’an undoubted principle of law that a mandamus will not issue against a public officer unless to compel, the performance of an act clearly defined and enjoined by law, and which is therefore ministerial in its nature, and neither involves the exercise of discretion nor leaves any alternative.” And in the case of Thé Commissioner of the General Land Office v. Smith, it was said, upon the authority of numerous eases there citccVthat ‘‘a mandamus will issue to an officer of the Government only where the duty to be performed is ministerial in its character; but where there is imposed upon the officer by law a duty requiring the exercise of discretion or judgment a mandamus will not lie to control the exorcise of that discretion or judgment.”

It appears from the petition in this ease that authority was conferred by law upon the defendant below, who was chief justice of the county of Cass, to take jurisdiction and decide in the matter of the election of a seat of justice for that comity, and that he proceeded to exercise that authority conferred and to decide in the matter submitted to his cognizance. If, therefore, the acts to bo performed wore not ministerial in their character, the case seems very clearly to come within the operation of (he general principle that where there is an authority conferred, and the inferior tribunal has proceeded to exercise that authority and to decide upon the subject-matter within its cognizance, a mandamus will not lie. Hence it becomes material to inquire whether the acts to he performed by the chief justice in this case were merely ministerial acts.

The authority under which the chief justice acted was conferred by a special statute, providing' for the location of the seat of justice of Cass comity. (Acts of 1850, p. 19.) The 1st section of the act requires the chief justice of the county of Cass to ol'der an election for the purpose of electing a seat of justice for the county. The 7th section directs that the election shall be held and the returns made in accordance with tiie laws of the State regulating elections. And the 3d section declares the towns of Jefferson and Linden nominated for said seat of justice, and that the place receiving a majority of all the votes polled shall be the seat of justice of the county.

Tiie 12th section of the, act of 1848 “ regulating elections” (Hart. Dig., p. 299) provides that the managers of the election shall count the votes, make out a correct return signed by them, which símil be sealed up and delivered to the-chief justice of the county “by one of the managers or some other respectable person, who shall swear that ho received tire package from one of the managers or the returning officer, and that the seals have not been broken since, which delivery shall be upon oath before the return day of said election, a duplicate of which return shall be kept by the presiding officer.” The 15th section of the same act provides that “ tiie election returns shall not be opened by the officer to whom they are returned before the return day or tenth day and exclusive of the day of election; at the expiration of that time he shall open them and estimate the result, recording (he state of the polls of each precinct in a book to be kept by him for that purpose,” &c.

These are the provisions of the law, so far as material to the present inquiry, which prescribe llie duties enjoined upon the chief justice of Cass county in the matter of this election.

Were those duties merely ministerial in their character? The distinction between merely ministerial and judicial and other official acts is that “where the law prescribes and defines the duty to be performed with Pitch precision and certainty as to leave nothing- to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial.” (The Commissioner G. L. O. v. Smith, 5 Tex. R., 471.)

The application of these well-settled general principles to particular cases will doubtless sometimes be attended with embarrassment and difficulty. And their application in the present case may not be wholly free from difficulty. But I apprehend by no rides which distinguish merely ministerial from judicial and other official acts, and by no precedent to lie found among adjudged cases, can tlie authority specially delegated to the officer in the present case he held to comprehend only acts of the*"former character.

Judicial knowledge surely was not required in counting the votes and in the computation of numbers. But whether llic elections .liad been hold™ and t.ho returns made from the various precincts in conformity to the provisions of tlie law upon that subject; whether they came in the shape and accompanied with those evidences of correctness and genuineness, and with that legal authentication which entitled them under tlie law to be received and counted, were questions of law tlie decision of which involved the exercise of judgment. They were questions submitted to tlie judgment and decision of the chief justice by the special statute which conferred on him jurisdiction in the matter of this election. In their decision lie cannot he said to have acted in a merely ministerial capacity. Having jurisdiction of this subject, and having acted and exercised his judgment in pursuance of tlie authority conferred, the case comes within the description of that class of cases in which, according- to all tlie authorities on this subject, a mandamus will not lie.

Of tlie numerous cases which might be adduced in illustration of the principie a single reference may suffice.

In tlie case of The Commonwealth v. Cochran, (o Binn. R., 87) the question was whether a mandamus would lie to compel the secretary of tlie land office to make certain calculations of pnrehase-mouey and interest on lands sold preparatory to the obtaining of patents; and it appearing that the officer, under the direction of the board of property who had cognizance of the subject liad made tlie calculations, though in an erroneous manner, it was held that a mandamus would not lie to compel him to make them in a proper manner. If lie had omitted or wholly refused to make tlie calculations, it would have been otherwise. But even then it was said, the act not being considered by the court as merely ministerial, it would not have interfered by that process to command the officer in what manner to make the calculations. Chief Justice Tiighman said: “I do not consider tlie calculation of the purchase-money as an act merely ministerial, for, in order to ascertain the amount, the contract must he examined,” &c. And the reason he assigns for this opinion is that the calculations necessarily involved the decision of certain questions of law as to the maimer in which they should he made. “Tlie principles (lie says) which govern the court in issuing writs of mandamus are well understood. * * * Where a ministerial ait is to be done and there is no other specific remedy a mandamus will be granted to do the act which is required. But where tlie complaint is against a person who acts in a judicial or deliberative capacity he may be ordered by mandamus to proceed to do ids duty by deciding and acting according to .the best of his judgment; but the court will not direct him in what manner to decide.” (Ib., 103, 104.)

In the case of the Commonwealth». The Judges of Common Pleas (3 Id., 275) the. sartie learned judge said : “ In the. case of the United States v. Lawrence (3 Dall. 42) it was determined by the Supreme Court of the United States, clearly and unanimously after full argument, that although they might command' an inferior judge to proceed to judgment, yet they had no power to compel him to decide according to the dictates of any judgment hut his own.”

The officer was constituted by the statute a special tribunal, with authority to judge and decide in the matter of this election. In the exercise of the authority conferred he acted, at least in some measure, in a special, judicial, or deliberative capacity, and his action cannot be controlled by mandamus by any rules by which the scope and object of that process are prescribed and deiined.

As to this election the statute confided to the officer a personal trust, distinct from his ordinary official duties; an independent personal authority, limited to one express object, and to bo exercised according to the dictates of his own judgment upon the law. When he had exercised his judgment and finally disposed of the subject his authority was fundus officio. By its exercise it was exhausted. No mode of revising his decision was provided, either by the special statute which conferred the authority or by any general law. And his decision, therefore, according to the authorities, was-final and conclusive. (Elliott v. Piersoll, 1 Pet. R., 328, 341, and authorities cited in Baker et al. v. Chisholm, 3 Tex. R., 157.)

This point was expressly decided by the unanimous opinion of this court in the case last cited. There, as in this case, a special authority had been conferred on the chief justice of a county respecting the election of a county seat, and no mode of revising his judgment having been provided by law, we held his decision final. (Ib., 158; and see Cullem, Administrator, v. Latimer, 4 Tex. R., 329; Field v. Anderson, 1 Id.)

The authority here conferred was in the nature of a special commission, which was determined by the performance of the act to which it extended. It did not constitute the officer a judicial tribunal or “inferior jurisdiction” within the meaning of the Constitution. (Const., art. 4, sec. 10.) That has reference to those inferior judicial tribunals which are constituted to administer the justice; of the country, and whose proceedings are according to the course of the common law. But if it were otherwise, if the appellant was constituted an “inferior jurisdiction” in the sense of the Constitution, a mandamus is not the appropriate process by which to revise his judgment.

That it was the chief justice of the county who was empowered to act in this case did not change the character of the authority conferred. The duties imposed by the act had no connection with his official duties as chief justice, and might as well have been required of any private citizen. It is otherwise as to ordinary elections. In respect to these the duties of the chief justices are official duties; that is, duties appertaining to their office. The law provides for contesting elections, and thus affords a remedy for the correction of abuses. Should tiie elective franchise be invaded there would no doubt be found ample means of redress and power to correct the evil. No one who has imbibed anything of the spirit aud genius of our free government will ever question the peerless value and sacred inviolability of the elective franchise. It will be guarded with sleepless vigilance by all who appreciate the blessings of free institutions. And in thepresent case, if the appellant has not rightly exercised the authority with which he was entrusted, the same power which conferred the authority may annul his acts, may confer authority upon another officer or tribunal, may provide for revising his decision, and, in a word, may afford ample means and measure of redress, as was done by the Congress of the late Republic in respect to the acts of the boards of commissioners for issuing certificates to lands, by creating the tribunals of review constituted by the “act to detect fraudulent land certificates.” (See Opinion of the Supreme Court of the United States in the case of League'*). De Young on error from this court, Uow. R.) Such exercise of authority by the Legislature is of common occurrence where, as in this case, special tribunals have been created for special purposes, and no appeal has been provided, whose proceedings are not according to the course of the common law, and whose decisions, as those of the board of land commissioners just referred to, are not subject to-revision in any of the ordinary modes provided by law.

The appellant, as to the duties enjoined respecting this election, iiad no successor in office. He was not required to keep or transmit to his successor in the office of chief justice «f the county the returns of tile election or any record of his proceedings. How, then, it may be asked, would his successor be enabled to obey a mandamus commanding' him to act upon those returns? From whom could obedience to the mandate be required? But it is unnecessary to pursue the inquiry; for if the decision of the appellant in the matter of the election is subject to revision in any of the modes provided by law, that it cannot tie by mandamus is conceded by counsel and, indeed, is too clear for controversy.

But it is insisted that the object of this proceeding' is not to revise the decision of the chief justice. That, it is admitted, cannot be done by mandamus. But the object, it is said, is to compel him to act upon the returns from all the precincts. But it seems he did act upon all the returns, counting some and rejecting others.

The case of The Commonwealth v. The Judges of the Common Pleas, befo/e cited, is in point. In that case it was held that a mandamus would not lie to the judges of Common Pleas to compel them to reinstate an appeal which they had dismissed, because this process cannot go to an inferior court to compel them to make any particular decision but only to decide, which the Common Pleas had done.

We have been referred by counsel for the complainants to'the case of Manor et al. v. McCall et al., (5 Ga. R., 522,) which is supposed to be an authority in support of their case. In that case the County Court liad been required by law to levy a tax for the purpose of raising a certain sum of money for a given object. The amount to be raised was known to the County Court. Yet they proceeded to levy a tax which was wholly inadequate to the proposed object. The court recognized the doctrine that a superior court will not undertake to regulate or control by mandamus a discretion in an inferior tribunal. But they held that the sum to be raised in that case having been ascertained, fixed the discretion of the County Court; that they were bound to execute the power conferred on them by the Legislature to that extent, and that to levy a tax for a sum manifestly inadequate was an evasion of their duty. “The mandate of the law,” the court said, “ was imperative and they had no option.” The court evidently regarded the duty enjoined upon the County Court as a positive duty, not admitting of the exercise of discretion or judgment, and consequently as ministerial. Upon this ground the mandamus was, awarded, and the case is therefore in accordance with the well-settled principles of the law upon this subject, as they have been uniformly maintained in other courts.

I do not doubt that a public officer or inferior tribunal may be guilty of so gross an abuse of discretion or such an evasion of positive duty as to amount .to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law, and in such a case a mandamus would afford a remedy where there ivas no other adequate remedy provided by law. (2 McC. R., 171.)

Where the performance of a ministerial duty is enjoined by law upon a public officer or inferior judicial tribunal, the court, upon an application for a mandamus, will judicially determine the legal rights of the applicant, and will, of necessity, decide whether the duty exists. The question of law involved in this determination must, necessarily, intervene in every case where the interposition of judicial authority is required. This principle ivas adverted to in tiie case of the Commissioner of the General Land Office v. Smith. The case there presented, however, is plainly distinguishable from the present. The duty contemplated! as appertaining to the office of the commissioner, is clearly ministerial, consisting simply in issuing a patent when the right of the applicant is free from doubt or controversy or when it shall have been judicially determined.

I have thus far examined this case on its merits, and I am of opinion that it is not a ease in which a mandamus will lie.

But whatever opinion may be entertained of the merits of the ease, if properly presented by tiie record, it is free from doubt that, as presented, the facts did not authorize tiie awarding of the writ.

The ground upon which the complainants place their right to the interposition of tiie authority of the court in their behalf is, that by tiie action of tiie officer they were deprived of their right to have their votes counted in estimating the x'esnlt of the election. Yet they do not aver that they were qualified electors of the county of Cass. This was essential to entitle them to institute this proceeding on the ground of interest alleged. They do, however, state that they are citizens of the county, and that they have been deprived of their elective franchise in this election; and it may perhaps be hence inferred that they were qualified electors. But tiie rules of pleading require that tiie facts relied on be stated directly and positively, and not by way of argument or inference.

In Cullem v. Latimer this court said : ‘‘The circumstances under which tiie applicant claims tiie right should be positively and distinctly stated, and objections which might be anticipated should be met and answered.”

But if tiie complainants have shown such an interest in the subject as entitles them to sue, have they shown a clear legal right to demand and an obligation on the part of the officer to do the acts required? Or have they shown that the officer did not act in accordance with tiie law and Ills duty?

This is an extraordinary remedy, to be resorted to only when the party lias no other adequate means of redress afforded him. And to entitle a party to tliis remedy lie must show a clear legal right in himself and a corresponding obligation on the part of tiie officer; for if the right or the obligation be doubtful the court will not interfere by this process.

The petition alleges in general terms that the election was duly holdcn and the returns thereof made in accordance with tiie laws of the State regulating elections. But when it proceeds to specify the particular returns which were not received, and counted it states only that they were made within the time prescribed by law, but not that they were made in conformity to the requirements of law. And if it did in terms so stated it would not be sufficient, especially in a case of this character, where greater certainty of pleading is required than in ordinary actions. (Cullem v. Latimer.) The pleader ought to state, not legal deductions and conclusions merely, but tiie facts of his case.

The law required that tiie returns should be made under oath. But it is not alleged that those which were rejected were so made. The complainants have tints failed to show a fact, without which they have no cause of complaint.

Títere were, it is true, no exceptions to the petition. But tiie omission of the defendant to except did not authorize tiie judgment awarding the writ. The omission of a public officer to interpose those matters of defense which lie might have interposed will not authorize tiie awarding of a mandamus against' him to enforce the doing of acts involving the interests of the public, and in the performance of which the officer may be less interested than others who are not, and from tiie nature of the case cannot be, made parties to the proceeding and enabled to assert their rights.

In Bracken v. Wells (3 Tex. R.) it was said : “Where there is a substantial defect in the proof of the plaintiff’s right the writ ought not to be awarded, whatever willingness of obedience may be manifested by the officer.”

The answer of the defendant, though vague and uncertain, is not more so than the petition. It traverses tiie substantial ground of complaint; alleging that the. defendant did receive and count all the returns which were made in accordance with law. This, if true in point of fact, was a good defense, in law; and if not true, the harden uf showing its untruth was with tiie plaintiff. (Fitzhugh v. Custer, 4 Tex. R.) If the petition liad stated the facts respecting tlie manner iu which the returns were made the officer would have been apprised of tlie precise grounds of the complaint against him, and the facts he was required to answer. A case would have been presented admitting of a direct and definite answer to the allegations of fact, and it might with better reason have been objected that tlie answer was insufficient.

It does not appear by tlie record that the returns rejected by the officer were not rightly rejected. The court cannot judicially determine from the allegations of tlie parties that those returns were made with such regard to the requirements of the law as authorized the officer to receive and consider them in estimating' tlie result of the election, or that he has violated tlie law and his duty iu any respect whatever. Enough, therefore, does not appear to authorize this proceeding in any view of thecase.

We conclude that tlie mandamus was erroneously awarded, and the judgment must therefore be reversed.

The view we have taken of the case upon tlie pleadings might have dispensed with tlie necessity of discussing the merits. In my view of the case, however, it became necessary to form an opinion upon tlie merits in order to determine upon tlie proper disposition of tlie case, and whether it should he remanded to the District Court; for if it be a case in which a mandamus will lie, and in which, consequently, the defects in tlie pleadings might be cured by amendment, I cannot doubt that it ought to be remanded to the District Court to afford the opportunity to amend,-as was done in the case of the Commissioner of the General Land Office v. Smith; but being of opinion that it is a case in which a mandamus will not lie, and consequently that the complainants cannot so amend as to make out a case proper for the awarding of the writ, I concur in the conclusion, in which we all agree, that the proper disposition of the ease is that it be dismissed.

Reversed and dismissed.

Hemphill, Ch. J.

I concur in the result and in that portion of tlie opinion which treats of the pleadings and of the averments essential iu a petition for a mandamus, and I dissent from tlie conclusion that the act of the chief justice is iinal and.conclusive.

The act of the chief justice is held to he judicial in its character. It must, therefore, have been the exercise of jurisdiction. This was inferior to the District Court, and consequently, by the Constitution, is under the general superintendence and control of the latter.

The superintending control of the District Court would be limited to a very narrow range if it could only compel tlie officer to act, and did not extend to the revision of his act however erroneous or illegal. It is of peculiar importance that tlie officer who lias the power to open the returns and declare tlie result should not he permitted to exercise an arbitrary, irrevisablc, capricious discretion as to whether some of tlie returns shall be counted and others rejected. The question whether an inferior judicature shall be permitted to exercise such absolute power over elections becomes of increasing interest every day. In tlie progress of opinion and in the advancement of political science the sphere of popular suffrage has been very much enlarged.

The power of appointments to many of tlie most important offices which had hitherto been vested in intermediate agents lias been received by the people; (hey are now tlie immediate fountains of almost all the offices and honors pertaining to the government of the country. This extension of the elective franchise, "’this resumption of the appointing power, is predicated on tlie supposition that tlie people themselves are the most safe depositories of tlie power; that (hey will display as much wisdom in the selection as did their agents; and that tlie chances of obtaining offiee through corruption and intrigue will be greatly diminished.

Ilmv important, then, that the will of the people in the exercise of these high powers should not he thwarted, and that the selection of the majority should prevail, and that no inferior officer should be permitted, on whatever specious pretense, to obstruct the popular voice ami to declare that lie lias acted according to law, and that his rejection of perhaps nine hundred out of a thousand votes was in conformity with law and is subject to the revision of no earthly tribunal.

That tlie popular will may be fairly expressed, the Legislature has gone the length of declaring that every person not qualified who gives a vote shall be liable to a penalty of not less than fifty nor more than five hundred dollars. What, then, should be the penalty of a manager or chief justice, who should dare to disfranchise a qualified voter of his suffrage? No penally has been proscribed; but is the citizen, one of tlie constituents of the electoral college, without remedy? Is his voice to be silenced, his vote to be spurned and cast aside, on the ground that tlie act of tlie officer in its rejection, whether it proceed from fraud, or corruption, or ignorance, or mistake, cannot be reopened, revised and reversed, or annulled? '

I cannot assent to a conclusion so hostile to the clear, perfect, and indisputable right of suffrage; and when this right is’established, and it is shown that it has been lawfully exercised, and that tlie vote was returned in accordance with law, and that tlie officer unlawfully refused to estimate it in the result, a case is made, a predicament of facts is stated, which authorizes and imperatively requires ihe superior to compel the inferior court to give tlie rejected vote its full weight in the selection. Is there any other adequate, remedy? Is there any other mode of redress? And can there be a wrong without a remedy? and especially can the right of suffrage, the only political right which tlie people in representative forms of government have retained to themselves, be thus outraged without relief or reparation?

The right of suffrage in free governments is of priceless value. In fact tlie existence of such governments depends on tlie freedom as well as the purity of elections. IE aii armed force were to obstruct tlie voters and drive them from the polls, indignation would fill the land; but what is tlie difference to tlie voter whether "lie be driven off by a soldier, or by a civil officer, dressed in a little brief authority, spurning his vote, and declaring that his act is beyond the control of tlie higher tribunals, and that no court is open to the assertion of tlie voter’s right, however clear, unequivocal, and unquestionable that may be.

In tlie acts regulating general elections the certificates of tlie chief justice are not final anil conclusive. They may be reviewed and annulled in the tribunal designated by taw; and are tlie decisions of even these tribunals not under the supervision and control of tlie higher courts?

The decision of a district judge on the, election of the Comptroller, Commissioner of tlie General Laud Office, and other officers is subject to the revision of tlie Supreme Court; why should the judgment, of a County Court on a contested election for sheriff or clerk be beyond tlie control or supervision of tlie District Court? Is not tlie claimant of such an office as much entitled to the solemn judgment of the highest court in the country as tlie claimant for tlie office of judge, comptroller, &c.?

It may be said that no tribnnal or mode of revision has been prescribed under tliis special statute, but that is only in argument to show the necessity of tlie proceeding by mandamus. Many cases will be found in the books where courts have awarded mandamus under circumstances analogous to those in tlie case before the court.

"Where a man is refused to be admitted or wrongfully turned out of any office or franchise which concerns the public or the administration of j ustice, lie may be admitted or restored bv mandamus. (Bacon’s Abridg., Mandamus, letter C; 4 Burr., 1999, 2241; 5 Burr., 2682; 2 East., 177; 3 Burr., 1483; Cowper, 58; Duglass, 382; Bradley v. McCrabb, Dallam, p. 504.) If a mayor, alderman, burgess, common councilman, freeman, or other peivon, member of a corporation, having a franchise and freehold therein, be refused to he admitted, or being- admitted, bo tnrnecl out or disfranchised without just cause, he may have his remedy by mandamus. (Bacon, Tit. Mandamus.) The acts of the government of the corporation were done by them in their deliberative capacity. They examined their laws and customs and the powers of their charter, and they acted on their judgment on tlie rights of the parly as arising under their laws, &c. But (heir acts, so far from being final, are frequently reversed, a different judgment is rendered, and by mandamus the authorities of tlie corporation are compelled to enforce the new judgment. (11 Co., 94.)

A mandamus is granted to the Commissioner of the General Land Office to compel him to issue a patent. Can it be pretended that the attainment of a just, decision in relation (o the right of the applicant to the particular land claimed does not involve a ranch higher order of judgment, a more enlarged and intelligent discretion, than do the duties imposed on the chief justice in ascertaining- the result of an election? The instructions of the statute to the latter are so plain that they cannot be mistaken or misunderstood by any person of ordinary understanding. He is to receive the returns sealed up and delivered under an oath, the terms of which and the time before which it is to be administered are prescribed in the law. These returns must be opened on (he tenth day, exclusive of (he day of election, the result estimated, the state of the polls in each precinct recorded, and a certificate of election given to the candidate who has the majority of the votes. (Arts. 911, 914, Dig.) Can there be any misapprehension as to the duties of these officers under tlie directions? But when a survey ón a first-class certificate is returned for patent, tlie Commissioner must determine its local situation; whether it be located and surveyed in tlie proper county or not, and this, from the confusion of county boundaries, is not always obvious; whether it he properly connected .with previous surveys, so that its true position on tlie county map may he determined ; whether tlie courses and distances are laid down correctly, so as to cover tlie land intended to be embraced and not conflict with other surveys; whether the amount, and that alone, of the land claimed under the certificate is included within the survey. Another question for his decision is whether the land is liable, to location, whether it be covered by old surveys and (¡ties valid by tlie law of the land or not. The records of the court will show that such questions in some instances can be determined only on repeated arguments and on the intellectual labors and researches of years. He must also ascertain whether the duties of the deputy and county surveyor have been performed in accordance with law or whether they require correction. He must judge upon legal evidence whether the certificate is genuine and legal; and if the applicant be an assignee and the certificate be not issued in his name, he must determine whether the instruments of mesne conveyance are executed by the proper parties in due legal form and have been proven according to law. These, are some of tlie duties of tlie Commissioner preliminary to the issue of a patent; and id certainly cannot be said that these are simple, involve no discretion or judgment, are immaterial in their character, in contrast witli those of the officer who opens the returns of au election and determines by the rules of addition -which candidate lias the greatest number of votes. We have determined that no man shall be deprived of his lands from the mistakes or errors of the Commissioner in the construction of the law. Tiie elective franchise is equally sacred, equally clear, and in my opinion we should hold that none should be deprived of their votes from the ignorance or mistakes of the officer whose duty it is to count them and declare tlx- result of tlie election.

I will close these desultory observations by an extract from the opinion of (lie learned and eminent judge who dissented in the case of Grier v. Shackle-ford, 9 Brevard, 491, and I adopt his views with some modifications. One of the managers from each precinct in South Carolina attends at the court-house on (lie day after the election, and the votes being counted, the result.is declared by tlie managers. After stating some objections to the mode of appointment of managers, which do not here exist in relation to the appointment of chief justices, the judge proceeds: “Their (the managers’) fitness to determine nice and difficult questions is never regarded in making the appointment. It is not to he believed that the Legislature intended to confide to such a tribunal the ultimate decision of great constitutional questions — to hang the most important rights of the citizen on their arbitrary opinions. If they are to range through all the vagaries of their capricious fancies the elective franchise will become an idle mockery. It will vary in every district according to the views of the different managers, and fluctuate in the same district as the managers are changed or the tide of popular opinion ebbs and flows. Thus the Constitution will be blown about by every blast of popular fury, and this much boasted privilege of election become the instrument of party violence and political intrigue. The law never intended any such thing. This court cannot be deprived of its jurisdiction by implication. It is appointed by the Constitution to settle the law, that it may be uniform and certain, and its powers are commensurate with the object.”

Note 81.—Horton v. Pace, 9 T., 81; Meyer v. Carolan, 9 T.. 250; Puckett v. White, 22 T., 559; Marshall v. Clark, 22 T., 28; Durrett v. Crosby, 28 T., 687; Bledsoe v. Int. R. R. Co., 40 T., 537; Kuechler v. Wright, 40 T., 600.

IN’ote 82. — O’Docherty v. Archer, 0 T., 295; Walker v. Tarrant Co., 20 T., 36; Timmins v. Lacy, 30 T., 115; McClelland v. Shelby Co., 32 T., 36; Wright v. Fawcett, 42 T., 203; Ilogers v. Johns, 42 T., 339; Duer v. Police Court of Austin Co., 34 T., 283.

The fact is it is not matter of discretion whether a man shall have his land or his vote. His right to both is beyond question; and when they are refused, when tlie officers do not obey the law, tiiey have a right to the compulsory writs of the superior courts to compel obedience and to afford adequate and complete remedy.  