People ex rel. Leverson v. Thompson

McKinstry, J. The petitioners are not entitled to a mandate directing the secretary of State to certify to the governor that two of them were duly elected Congressmen-at-Iarge, and that each of the others was elected a member of the House of Representatives, in a congressional district created by the Act of the legislature of 1872. If it should be conceded that the Act of 1883 is invalid, because of nbn-compliance by the legislature with certain formalities required by the Constitution, yet, as appears from the petition and facts of which we take judicial notice, the electors throughout the State did not vote for two members of Congress at large, nor did the electors within the limits of each of the congressional districts, as prescribed by the Act of 1872, vote for a member of Congress to represent the people of such district. Notice to the electors lies at' the foundation of any popular system of government. It has sometimes. been held that the existence of a law fixing the time of an election, and the offices to be filled, is of itself notice. It may be conceded that when a term of office is to expire at a certain date after a general election (no other election to intervene), the electors take notice the office is to be filled at such general election. Some decisions have gone so far. But it is well settled that when .a vacancy has occurred by reason of death or resignation, the voters are not bound to take notice of such vacancy, and the casting of votes for a candidate or candidates to fill the vacancy does not constitute an election. The facts of the present case bring it within the principle of the decisions which hold that, in cases of special elections to fill a vacancy, a proclamation is necessary, even although the special election be held at the same time as a general election. The principle is that a notice by proclamation, is necessary whenever the voters are not bound by law to take notice of the time of - the election and of the officers then to be chosen. The contrary not being averred in the petition it- must be presumed that the governor, who had approved the Act of 1883, issued his proclamation for the election of a member of Congress in each of the districts defined by that act. [629] The general rule is that all are bound to know the law. But the recognition of this general rule does not compel us to hold, that the electors, as matter of fact, knew that the Act of 1883 was of no force or effect. It does not compel us to hold that, as matter of law, the electors throughout the State were bound to know (under penalty of disfranchisement) that a statute regular in form, certified to have been properly passed by the appropriate officers, published as other statutes are published, approved by the governor and by him acted under when he issued his proclamation, was void, because of matters not appearing on the face of the statute, but which could be ascertained only by an examination of the journals of the two houses of the legislature; that, thus taking notice of the invalidity of the Act of 1883, the electors were bound to know that the law of 1872 was still in full force and operation. That the electors did not know all it is claimed they ought to have known, is apparent from the matters set forth in the petition, and from the fact that the petitioners have found it necessary to ask that the secretary of State be prohibited from estimating the votes cast for members of the House of Representatives of the United States in the respective districts created, or attempted to be created, by the Act of 1883. Courts of justice in this State take judicial notice, perhaps, of. the contents of the journals of the two houses of the legislature; the citizens at large are not required to take legal notice of the entries of the j ournals. The people had not actually been notified of such entries when the election was held. They had before them (let us assume) the Statute of 1883, approved by the governor, and published as statutes are required to be published, and the governor’s proclamation. We are asked to decide that all the voters should have inquired whether the statute was invalid by reason of matters of which they had not been notified. That the duty was imposed upon them to make investigation into the history in the legislature of the bill, for the Act of 1883; to consider questions as to the validity of the law arising out of the proceedings in the legislature which preceded its final passage; to determine such questions correctly, or as petitioners claim they should be determined (questions it may be difficult of solution by the courts with the aid of counsel learned in the [630] law), and then to vote for officers not mentioned in the governor’s proclamation, in districts not defined in the law so as aforesaid to be mentally determined to be invalid, and not recognized as continuing in existence by the executive or other officers of the State. Thus to decide, would be a formal acknowledgment by this court of results which cannot be treated as an intelligent and binding expression of the voice of the people, and which are entirely beyond any consequence legitimately derivative from the maxim that all are supposed to know the law. Whether anybody else was or was not elected to the House of ■ Representatives of the United States, at the general election, we are quite certain that the petitioners were not. Writ denied and petition dismissed. Morrison, C. J., Thornton, J., and McKee, J., concurred.