
    The United States of America, on the relation of James Davenport & alii Petition for Mamdamus to County Commissioners of Dubuque County.
    Writ of Mandamus generally issues lo compel a public functionary to perform some specific duly. It will never be granted vybere there is any other adequate remedy.
    The appeals authorized by statute from the decisions of the County Commissioners, must be understood to refer exclusively to acts performed in the discharge of their ordinary duties, and such as imply the exercise of some discretion.
    The general purpose of a writ of Mandamus is to prevent disorder from a failure of justice or defect oí pólice, rather than to afford a private remedy.
    The principle is'settled that courts óf merely appellate jurisdiction could not issue this writ except in aid of their appellate powers.
    If practicable different parts of the same statute must receive such an interpretation that they may both exist together: but if they are wholly irreconcilable the latter becomes paramount.
    But although the two sections of the statute cannot in this case be wholly reconciled, it is the duty of this court to give them such a construction as shall1 render the discrepancy as small as possible. This will be done by limiting the'issuing of the writs enumerated to such cases as may be “necessary to enforce the due administration of right and justice throughout the territory.”
    The District Courts are vested to the fullest extent wiih general original jurisdiction in matters civil as well as’criminal, and both at law and in equity. They have power to issue Mandamus.
    The exercise of that power therefore by the Supreme Court being, in ordinary cases, unnecessary, it has in such cases, no jurisdiction.
    The petition in this case set forth that by an act of the Legislature of Wisconsin, (then including the present Territory of Iowa) approved 23d June, A. D. 1838, it was enacted that, for the purpose of permanently establishing the seat of justice of Scott County, a poll shall be opened at each precinct in said county at the general election, on the first Monday in August then next ensuing, for the purpose of deciding whether the town of Davenport or the town of Rockingham shall be the seat of justice for said county: and the ballots received tor the seat of justice shall be upon a separate paper, and deposited in a separate box, from the other ballots received at said election: and a separate poll list shall be kept. That any person shall be entitled to vote for the seat of justice for said county at said election, who is a free white male citizen, of lawful age, and a resident of the county, and who shall have resided in the county at least sixty days preceding said election. That returns of said election for county seat, together with the ballots and'poll list, shall bemadewjthin twenty days after the said election, to the Sheriff of the county of Dubuque, who shall in company with the County Commissioners, or any two of them, proceed to examine said returns, and on being satisfied that any one of the places named has a greater number of votes than the other, the town having the greatest number of votes shall be thence forward the soat of justice of Scott County, and a minute thereof shall be made in the proceedings of said Board of County Commissioners of Dubuque County, as by said law will appear.
    The petition further sets forth that an election was held at the time and in the manner prescribed, and that returns thereof with the ballots and poll list, were made within twenty days after said election to the Sheriff of the connty of Dubuque, and that said Sheriff, in company with said Commissioners, or two of them, did proceed to examine said returns, and was satisfied therefrom that Rockingham had the greatest number of votes for seat of justice, and from that time, to wit, 8th Sept. 1838, Rockingham was, and of right should be, the seat of justice of said county: but said Commissioners for the county of Dubuqne have wholly failed and refused and still refuse to make a minute thereof in the proceedings of said Board of Commissioners, by reason whereof the relators, citizens of Rockingham, and eleetors, as well as the other citizens of Rocking-ham, and the other electors who voted for that place, are deprived of their rights under said law, and the District court is held at Davenport and not at Rockingham. Wherefore the relators being without any specific legal remedy, the United States pray that a mandamus be granted by this court, directed to said Commissioners, commanding them to make a minute of their proceedings, that the Sheriff of Dubuque in company with said Commissioners did examine said returns of said election, and was thereupon satisfied that Rockingham had the greatest number of votes polled for seat of justice for Scott county, and to grant such other relief to the relators as their rights demand.
    The said petition came up for hearing before this court at the Jnly term, A. D. 1839.
    •Learned for the relators.
    Roeer and Henry W. Starr against the petition.
    And at the same term of said court, the court having heard the petition and the arguments of counsel thereon, ordered that an alternative mandamus go to said County Commissioners of Dubuque, to make the record prayed for in said petition, or to show cause why it should not be made. The return states that the record has been made according to the order of said mandamus.
    
      At the time of passing said order the court reserved its opinion upon the question whether this court has a right to issue the writ of mandamus in exercise of original or only of its appellate jurisdiction, and other points taken by counsel, till the final adjudication of the cause.
    And now at the July term, A. D. 1840, of this court, the case was fully argued by
    Learned and Grant for the relators,
    Thoringtcn and Mitchell, and Rorer and Henry W. Starr appeared against the petition.
    Learned for the relators read the statute of Wisconsin before mentioned, and argued that in the proceedings had under the law, the terms of the law had not been complied with, but had been disregarded. The statute made it the duty of the Sheriff to examine the returns, and on being satisfied that one of the two places had the highest vote, that place was to be the seat of justice. That the County Commissioners had nothing to do in the matter but to witness the examination made by the Sheriff, and to make a record of the result as found and declared by him. That here their duty terminated, and that they had no authority to go into an examination of this returns or poll list, or of the legality of the elefction, nor to reject any votes as illegal, as in fact they did : and in consequence of such rejection had recorded the* vote to be given in favor of Davenport.
    That mandamus was the proper remedy to compel the County Commissioners to make the proper record. And that this Court has jurisdiction to issue this writ and to pronounce judgment upon it. By the organic law this court possesses unlimited common law and equitable jurisdiction, except where it is taken away by statute. And that it has the same power as the King’s Bench has over inferior tribunals.
    In support of these positions he quoted The organic law of the territory ; Stat. Wis. June 23, 1838 ; 12 Petersd. 438 — ib. 487 — ib. 457 the King vs. Mayor of York — ib. 463 — ib. 483, the King vs. the Severn Railway — 2 Kyi on Corporations 341 — ib. 332; ib- 291 — Ang.on Corp. 487, 489; ¿6.426 — 1 Blackford R. 155, Jcrred vs. ' Hall, and note — Stat. Wis.p. 196 — Cons. U. S.
    
    As to the direction, service and return of the mandamus, Mr. L. cited 5 Bac. Abr. 256; Ang.on Corp. 450; 12 Petersd. 512; 3 Black. Com. 110,111,112; 2 Toml. Law Die. 512; 12 Petersd. 514, King vs. Lyme Regis.-, 2 Selw. N. P. 1005; 5 Bac. Ab. 281; Ang. on Corp. 455, ’6; 2 Kyd on Corp. 376, 388; ib. 291; Wilcox on Corp. 403. He also cited 1 Kent Com. 300, 301; 4 Harris 8c M:Henry 429; 6 Wheaton R. 119.
    Thorington and Mitchell, e contra.
    Has this court authority to issue this writ P It has appellate jurisdiction only. Org. law, s. 9 — ib. s. 12; Stat. Wis.; 1 Cranch R. 137, Marbury vs. Madison. The remedy should have been by que warranto. 7 T. R. 463; 7 Am. Dig. 372; 3 Johns Cas. 79; Ala. R. 46; 3 B. Sf A, 487; Stat. Wis, sec. 3.
    An entry had been made. The mandamus issued on the supposition that no entry had been made. The whole foundation, therefore, fails, on which the application had been made.
    The statute gives appellate jurisdiction only. And the second section, which allows this court to issue writs of mandamus, cannot enlarge the jurisdiction, but confines the issuing of the writ to cases of appellate jurisdiction. 2 Laws 
      
      U. S.p. 62. To give the court jurisdiction in this case, it must be considered that the second section of the statute repeals the first section. Serg. on Cons. p. 54; Peters’ Pig. 6; ib. 8, 291, Life Sc Trust Ins. Co. JVY Y. vs. Wilson’s heirs; Law Library 14, 222; 12 Petersd. 522, King vs. College of Oxford.
    
    This court is notanalagous to K. B. The King’s Bench has original jurisdiction in both, civil and criminal cases. This court depends on the statute for its jurisdiction: and that confers only appellate and not original jurisdiction.
    Grant in reply.
    The powers of this court are not similar to the powers of the Supreme Court of the United States. That court derives its powers from the Constitution. .Marbury vs. Madison; ¿del of Congress v. 2; Stat. Wis.; Serg. on Cons. s. 35, 71.
    The District Courts of this Territory have no power to issue mandamus. This court has pc wer to issue writs of mandamus as well in exercise of original as of appellate jurisdiction.
    What is not answéred'by the return must be taken tobe true. Returns cannot be amended except as to clerical mistakes
    The mandamds. in this case was not to compel a revision of a judgment, but to make a record, which was required by statute, of a ministerial act of the Sheriff. 2 Hen. ¿C Mun. 232,
    The return must be positive, must state facts, not conclusions of law. It must not be argumentative, but assert or deny facts.
   By the Court.

Mason Ch. Jus.

The delicacy and importance of this subject justify us in having devoted so much time to its discussion, and call for much circumspection in this court in making its decision. We have given to the very elaborate and able arguments that have been addressed to us, our careful consideration, and shall now proceed to state the conclusions to which we have been led.

In 1838 the Legislature of the Territory of Wisconsin authorized an election to be held in' the county of Scott for the purpose of determining which of the two rival towns, Rockingham and Davenport, should thenceforward be the seat of justice of that county. Returns of said election, together with the ballots and poll list, were to be made to the Sheriff of Dubuque County, who, in company with the County Commissioners, or two of them, was to prooeed to examine said returns, and on being satisfied that either of tjie places named had a'greater number of votes than the other, the town having the greatest number of votes was thenceforward to be the seat of justice of Scott county; and minute thereof was directed to be made in the proceedings of the said Board of Commissioners of Dubuque County.

It appears that the election was held, the returns made, and that upon counting the votes, there were fourteen more for Rockingham than for Davenport. The Board of Commissioners, however, without the concurrence of the Sheriff, as it would seem, went into an inquiry as to the legality of some of the. votes polled, and became satisfied that eighteen illegal votes had been cast foy Rock-ingham — leaving a majority of four votes in favor of Davenport, and they certified accordingly.

Previous to the session of this court in July 1839 notice was served on the County Commissioners of Dubuque County that at the said session of the court, a motion w.ould be made directing them to amend and correct their entry aforesaid. At that session, upon sufficient reason .therefor being shown, an alternative mandamus was ordered, and a motion is now made, for a peremptory mandamus.

The first thing into which we propose to inquiráis the legality of the proceedings of the Dubuque Commissioners. Were they authorized to look behind the returns, and. examine into the legality of the votes polled ? It is contended that they are to be •“ satis'fied” that one of the places has a greater number of votes than the other. That the word “ vote” means “ lawful vote,” and that therefore an examination into the legality of such votes was indispensable.

But were the County Commissioners to be “ satisfied” in this case ? The law declares that the returns shall be made to the Sheriff, who shall, in company with the County Commissioners, proceed to examine said returns, and on being satisfied, &c. The grammatical construction of this language clearly points to the Sheriff as the person to be “ satisfied,” — that he was to count the votes, the Commissioners being merely present as witnesses, and in order to record the result.

But even supposing the opposite construction to be correct, of what were they to have been “ satisfied” ? Not of the legality of the votes, but of their mere number on each side. If it had been intended that they should have purged the polls, some direct authority would have been given for that purpose. Some mode of trial would have been prescribed, some means of taking testimony provided, and other measures taken to give both parties an equal opportunity for contesting antagonist votes, and for securing a fair and open investigation. Nothing of all this was done. We are therefore clearly of the opinion that the inspectors of election were the only tribunal authorized by law to determine the.qualification of the voters, that the Sheriff ofDubuque County was to satisfy himself which place had the greatest number of votes, and that the Commissioners ofDubuque County were to make a minute thereof in their records, and that was all their duty.

Our next inquirv will be whether the writ of mandamus was the proper remedy for the relators. This writ generally issues to compel a public functionary to perform some specific duty. It will never be granted where there is any other adequate remedy as is usually the case in all transactions between private individuals.

It is contended on the part of the respondents that if the commissioners had erred, the proper remedy was-an appeal, to the District Court. We think otherwise The appeals authorized must doubtless be understood, to refer exclusively to acts performed in the discharge of their ordinary duties, and such as imply the exercise of some discretion on their part. If, for example, the law had imposed on these commissioners the duty of fixing the seat of justice of Scott county themselves — this being no part of their duty as county officers, there would have been no appeal. Againj the law renders it incumbent on them to-holda session at certain fixed periods. Should they neglect to do so, no appeal would lie, for the act to be performed is specific.

In the case we are now considering, not only was an extraordinary duty imposed upon them, but it consisted in the performance of a specific act which left them no.discretion. It was not a decision within the meaning of the statute. We are therefore clearly of the opinion that no appeal lay therefrom to the Distrjet Court.

It is farther contended that the writ of Quo Warranto is the proper remedy; hut the authorities cited do not sustain the position. They refer to cases where one person claimed an office which was held by another under color of right. Our own statute provides that when any person or persons shall usurp, intrude into, or unlawfully hold or exercise any public civil office, or any franchise within this Territory, or any office in any corporation created by the authority of this Territory; or when any public civil officer shall have done or suffered any act which, by the provisions of law, shall work- a forfeiture of his office, or when any association of persons shall act as a corporation within this' Territory without being lawfully incorporated, the D strict Attorney, of the proper county shall, when directed, &e., file an information in the nature of a Quo Warranto in the District Court. (Iowa Uaws, page 390.) Under that statute, it cannot be contended that the writ of Quo Warranto could issue unless this is an “office” or a “franchise.” We think it neither. If it be either, in whose hands is it? True, the people of the town of Davenport might be ben-effited by having the seat of justice located there, hut they might be equally so by the erection of public buildings, the termination of a railroad, the creation of a water power, and the like. In all these cases, the benefit is only incidental. They have a collateral interest, but not a vested right which will be re-oognized by the laws, and which is essential to the constitution of an office or franchise.

Put it is insisted that a mandamus should not he granted in this case, because the Commissioners have already acted on the subject, and authorities have been adduced to show that it will only issue to compel action, not to direct what that action shall be. This position is doubtless correct, where the act sought to be enforced is one resting in the discretion of an inferior tribunal or other public functionary. But where the law enjoins the performance of a specific act, obedience to that law may, in the absence of other remedies, be enforced by writ of mandamus. Such is the case in the present instance.

The general purpose of this writ is to prevent disorder from a failure of justice or defect of police, rather than to afford a private remedy. In this case, the public have an interest in the establishment of the county seat of Scott county. That interest cannot be adequately secured in any other manner. The entry in the proceedings of the Board of Commissioners of Dubuque county was to he the only record of the fact ol either town being the seat of justice. Not to have that entry made, therefore, would be “a failure of justice,” and might occasion a great “defect of police,” from which disorder might very probably arise. The aid of this writ was therefore very properly invoked.

Bnt it is said the County Commissioners have been changed since the entry should have been made. No difficulty can arise from that source. They were required to act in their official, not in their private capacity. It wasthe County Commissioners of Dubuque county, not the particular individuals composing that Board, who were to make the entry in their proceedings. That Board still exists, and is fully competent to perform the prescribed duty.

It only remains to inquire whether application for the writ of mandamus was properly made to this Court. The case of Marbury vs Madison, 1 Cr. 137, settled the principle that Courts of merely appellate jurisdiction could not issue this writ except in aid of their appellate powers. It matters not from whence a Court receives its authority, whether from a constitutional provision or from a Legislative enaetment. If limited entirely to an appellate j urisdiction, it would have no power to issue this writ as an original proceeding. It is therefore necessary for us to inquire into the character of the constitution of this Court. The organic act of this Territory, after providing for a Supreme, District, and other Courts, declares that their jurisdiction shall be as limited by law. The same act, Sec. 12, provides that the then existing laws of the Territory of Wisconsin shall be extended over this Territory, so far as the same were not incompatible with the said organic act.

The only statute which we find defining the jurisdiction and powers of this Court is contained in the Acts of 1836, page 23. The first section of that act declares that “the Supreme Court of the Territory shall have and exercise an appellate jurisdiction only,” &c. Had this been the only provision in relation to this subject, there would have been no difficulty in disposing of the present question. But the second section of the same act provides that the Supreme Court shall have power to issue writs of habeas corpus, mandamus, quo war-ranto, prohibition, error, supersedeas, procedendo, certiorari, scire facias, and all other writs and process, not specially provided for by statute, which may be necessary to enforce the due administration of right and justice throughout the Territory.”

On the one side it is contended that this section modifies that which precedes it, so far as to authorize any of the writs therein named to be issued in almost all cases for the promotion of justice and the establishment of right throughout the Territory. On the other hand it is insisted that these writs are only aüthorized so far as the same are necessary to carry out the appellate powers of this Court — that the provisions of the two sections should be so construed as that they might exist together, and that it was rot to be presumed the Legislature would make so positive and explicit a declaration on a point of such importance, which they then intended to modify so very materially in the very same act.

We do not concur entirely in either of those constructions of this law. If practicable, the two sections must receive such an interpretation that they may both exist together; but if they are wholly irreconeileable, the latter becomes paramount. The second section above referred to. after enumerating the writ of mandamus and several others, (some of which could hardly become auxiliary to the exercise of appellate power,) authorizes the issuing of all writs and process which may be necessary to enjorce the due administration of right and justice throughout the Territory. The fact that the writ of quo warranto is mentioned, (and perhaps some other,) which could only be used in the exercise of original power, negatives the idea that these writs are only to serve as auxiliaries in the exercise of appellate jurisdiction.

Still, although the two sections cannot be wholly reconciled, it is the duty of this Court to give them such a construction as shall render the discrepancy as small as possible. This will be done by limiting the issuing of the writs mentioned in the second section to cases in which they may be “necessary to enforce the due administration of right and justice throughout the Territory.”— Theyarenotto be granted in all cases whenever required for these purposes, but only when their interposition becomes “necessary.” If, therefore, contrary to the declaration contained in the first section of the statute, we are to venture upon the exercise of original judicial power, the occasions on which it should be exerted ought to be as few as possible.

IVe are confirmed in this view ot the case by the consideration that if the writs and process, authorized by the second section of the statute, are to be issued from this Court in ordinary eases whenever their interposition may be found beneficial, the business of the Court may become very much augmented, to the great inconvenience and delay of suitors and to the detriment of the public interest. Cases of the most trivial nature may be brought from the extreme portions of the Territory, with perhaps little other object than to harrass and oppress, or to indulge some petty feeling of malice. We have therefore no hesitation in coming to the conclusion that resort in such cases can only be had to this Court, where for the due administration of right and justice^, such resort becomes “necessary.”

Is that the case in the present instance? We have already come to the conclusion that, “to enforce the due administration of right and justice” in the present instance, the writ of mandamus was the only effectual process. In other words it is necessary within the meaning of the statute. It only remains to inquire whether it could not more properly be issued by another tribunal. If the proper District Court has jurisdiction-of cases of this kind, recourse to the Supreme Court can certainly not be “necessary.” It would doubtless be much more convenient and proper to apply to the District Court in the first instance.

From an examination of the various statutes in force in this Territory, it ap pears to be the evident intention of the Legislature to vest the District Court to the fullest extent with general original jurisdiction in matters civil as well as criminal, and both at law and in equity. It appears to be the policy of the law to permit suitors a resort to these more convenient tribunals with the right of appeal to the Supreme Court. The seventh section of the act of Wisconsin above alluded to (Laws of 1836, p. 24) gives the District Courts in term time, and the Judges thereof in vacation, power to award throughout the Territory, returnable in the proper county, writs of injunction, ne exeat, habeas corpus, and all other writs and process that may be necessary to the due execution of the powers with which they are vested. Writs of mandamus in all ordinary cases must certainly be included in this number. It may in some instances become necessary to issue a writ of quo warranto or mandamus to the Judge of one of the District Courts. In that case it would probably become necessary that the writ should issue from this Court, and the law in that case gives us jurisdiction. But in all ordinary cases, we deem it much more expedient and proper, more convenient to the parties concerned, and more beneficial to the public in everyrespect, that applications for purposes of this nature should be made to the District Court of the proper county, and such wé believe to be the law of the Territory.

The Supreme Court of the United States in the ease of Kendall vs. the United States (12 Peters, 524) furnish high authority for many of the views herein contained, and especially in relation to the District Court being the proper tribunal for issuing the writ of mandamus. One of the Judges, in delivering his opinion in that case, after stating that this was a high prerogative writ, which in England only issued from the King’s Bench, where the King formerly sat in person, and that it was confined to cases of a public nature, says: “Upon the same principle, I believe it may be affirmed without exception, unless where a statutory provision has beenmade, that in every State of the Union where the common law prevails, this writ issues only from the Court possessingthe highest originál common law jurisdiction.” The District Court of this Territory possesses that jurisdiction, so that, in the absence of all statutory authority, writs of mandamus should (in accordance with the practice of the States of the Union) issue from that Court.

The exercise of that power therefore by the Supreme Court being unnecessary in ordinary cases, for the reason that the District Courts are fully competent for that purpose, we are clearly of the opinion that we have no jurisdiction over the matter, and the motion for a peremptory mandamus will of course be denied.

We might have avoided deciding more than this last point; but, inasmuch as the whole case has been argued at length, and as it will tend to abridge future litigation on the subject, we deemed it proper to express our views on the entire subject.  