Kumalae v. Kalauokalani

OPINION OP THE COURT BY KEMP, J. (Coke, C. J., dissenting in part and concurring in part.) These cases are before us upon questions reserved to us by the second judge of the first judicial circuit, the questions in the Pacheco case being as follows: “1. In this case does the following question arise, namely: was the petitioner, M. C. Pacheco, at the time of the election held on June 3, 1919, for supervisors of the City and County of Honolulu ineligible for election as one of said supervisors by reason of the fact that at the election held on November 5, 1916, he was duly elected as a member of the senate of the legislature of the Territory of Hawaii to serve for the term of four years? “2. If the question aforesaid of eligibility does arise in this case, was the petitioner at the time of the election of June 3, 1919, eligible for election as one of the supervisors of the City and County of Honolulu? “3. Should the court grant the petitioner’s motion to strike certain allegations from the respondent’s return and the motion to strike certain exhibits (letters) from — 3 — tlie files, which motions were noted by the court reporter and are reported herewith? “4. ¡Should the alternative Avrit heretofore issued herein be made peremptory?” The questions in the case of Jonah Kumalae against the sanie respondent are the same as the above except in the first question it is stated that petitioner was in 1918 elected to the house of representatives to serve for a term of tAvo years. In a memorandum opinion heretofore filed Ave held, without setting forth any reasons therefor, that the first of said questions should be ansAvered in the negative, that because of our answer to the first question it became unnecessary to ansAver the second question and that the third and fourth questions should be ansAvered in the affirmative. It avüI noAV be our endeavor to set forth the reasons for our ansAver as above set forth. A brief statement of the proceedings had in the loAver court, together Avith the facts there developed, Avill be necessary to an understanding of our vieAvs: It appears that at an election held in the City and County of Honolulu on June 3, 1919, the petitioners were two of fourteen candidates for the office of supervisor of the City and County of Honolulu; that of the fourteen candidates for said office seven Avere to be elected; that from the official tabulation of the Arotes received by the Amrious candidates it appeared that the petitioner Pacheco received the highest number of votes and the petitioner .Kumalae received the third highest vote; that the respondent is the city and county (derlc, the officer avIio under our statute tabulates the returns and issues certificates of election; that after the A'otes had been tabulated petitioners made demand upon respondent that he issue to them certificates of election and that he has — 4 — failed and refused and still fails and refuses to issue to them such certificates. Petitioners each filed a petition for mandamus against respondent setting forth the facts as above outlined but in more detail, and each prayed for the issuance of an alternative writ commanding the respondent to issue and deliver him a certificate of election in due form, or to show cause within a time to he fixed by the court why he should not do so. Upon these petitions the alternative writs were issued as prayed in which respondent was commanded to issue and deliver to such petitioner his certificate of election to the office of supervisor of the City and County of Honolulu or to show cause at 9 o’clock a. m. on Saturday, June 21, 1919, why he should not do so. The writs were dated and issued on June 19, 1919, and were served at 3:35 o’clock p. m. of the same day. From this point on for convenience we will refer to only one of the cases as anything that is said in one will apply with equal force in the other. At the hour fixed in the alternative writ for respondent to show cause he filed a motion to quash the writ on the ground that the writ did not comply with the statute in that it did not direct him to> do what had been demanded of him or show cause to the contrary within a certain time after service of the order, fixed by any court, justice or judge, and upon the further ground that he had had less than forty-eight.hours written notice of the hearing of said matter. The motion to quash was overruled whereupon respondent demurred to the writ generally and specially that said writ does not show that the petitioner is eligible to fill the office and does not show that he is a citizen of the United States of America and of the Territory of Hawaii and that he has been a duly qualified elector of said Territory and of the City and — 5 — County for at least two years next prior to the election in the petition alleged. Before' a ruling was had upon the demurrer the petitioner, with the permission of the court, amended his petition and the writ was thereupon amended so as to allege that he is a citizen of the United States and of the Territory, and that he has been a duly qualified elector of said Territory and of the City and County for more than two years next prior to said election. No allegation of general eligibility to hold the office of supervisor was made. Upon the allowance of this amendment the demurrer was overruled and respondent filed his return to the alternative writ. The return admits that the petitioner possesses the qualifications alleged in the amended petition and set forth in the amended writ; that he was a candidate for the office of supervisor at said election as alleged and that there were the fourteen candidates (seven were elected) as alleged. Answering the allegation to the effect that respondent as county clerk and returning officer immediately upon the receipt of statement of votes and poll lists from the inspectors of election tabulated the same and ascertained that the totals of said votes cast at said election were as alleged by petitioner and as set forth in said alternative writ, he says that he is advised by counsel that the votes alleged to have been cast for the petitioner were not cast for him and he therefore denies that the said votes or any of them were cast for petitioner. Answering the allegation to the effect that after the respondent had tabulated the votes as alleged and ascertained the fact that petitioner, had received the highest number of votes of any of said fourteen candidates demand was made upon him by petitioner that he issue to petitioner a certificate of his election he admits that such demand was made and that he refused and still refuses to issue and deliver such certifi — 6 — .cate but denies that same Avas after tbe respondent had received and tabulated 'the returns as alleged or ascertained that the totals Avere as set forth in said altematixe Avrit and alleges that said demand was subsequent to the issuance of certificates to EdAvard P. Fogarty and William J. Sheldon hereinafter referred to. Said return further sets forth that after respondent had received the returns of said election and Avhile he Avas proceeding to tabulate the same and ascertain the results of said election he received a letter from J. I-I. Fisher, a citizen and elector of the City and County of Honolulu, demanding that upon the face of the returns certificates of election be issued to Edward P. Fogarty and William J. Sheldon as among tlié seven receiving the highest number of votes, on the ground that'petitioners were not eligible to be elected to said office one being a member of the senate of the Territory and the other a member of the house of representatives of the Territory, and that said letter called his attention to the fact that the attorney general of the Territory had held that petitioners Avere not eligible, and claiming that said ineligibility being known to* the. Azotera their votes could not be counted; that being in doubt as to his duty in the matter he applied to the city and county attorney for his opinion in the matter and Avas advised by said city and county attorney that certificates should be issued to said Fogarty and Sheldon and that he thereupon did issue certificates to said Fogarty and Sheldon. Copies of the letter from said Fisher and the opinions of the attorney general and of the city and county attorney were attached to the return as exhibits. The return further sets up the fact that petitioner Avas a member of the territorial legislature at the time1 of said election and that the court should not in its discretion issue the Avrit because he says it would enable — 7 — petitioner to claim an office Avlriclr lie is ineligible to be elected to. The return further sets up the fact that criminal prosecutions have been instituted and are now pending against the respondent for his failure to issue such certificates and that as a matter of discretion the court should not issue said ivrit while said criminal prosecutions are pending, and that further by reason of the facts aforesaid a speedy and adequate remedy at law is provided in that the title to said office can be tested by quo imrrunto after July 1, 1919. Petitioner made a motion to strike from the records of this case the exhibits attached to respondent’s return and all allegations in said return challenging petitioner’s eligibility and alleging the pendency of criminal prosecutions against respondent for his failure and refusal to issue said certificates. In reply to said return petitioner denied that- any of the matters set up in said return constituted grounds why the peremptory writ should not issue. After the hearing of evidence the court reserved the questions above set out to this court and accompanied them with his findings of fact, the substance of which follows: After finding facts in substance the same as alleged in the alternative writ he finds that petitioner is a mem-, her of the territorial legislature and that during the campaign preceding the primary election and the county election thereafter there were daily discussions in campaign speeches by petitioner and others before the voters in all parts of the county concerning petitioner’s eligibility, in which the opinion of the attorney general holding petitioner ineligible together with the opinion of the former attorney general to the contrary were discussed, petitioner claiming to be eligible, and that as a result of — 8 — these discussions the voters became fully advised of said opinions of the attorney general and the former attorney general and that petitioner was a member of the territorial legislature at the time of said election. The answer to the first question is, in our view of the case, controlling in answering the remaining questions. It is a general principle of law well established by the decisions of the courts throughout the country that when a plain official duty, purely ministerial, requiring the exercise of no discretion is to be performed and performance is refused mandamus will lie upon the application of the party aggrieved to compel its performance. Board of Liquidation v. McComb, 92 U. S. 581; Garfield v. Goldsby, 211 U. S. 249; State ex rel Harvey v. Mason, 45 Wash. 234. It has been universally held, we believe, that the duty of the canvassing officer in the matter of canvassing the returns and issuing certificates of election is purely ministerial. 15 Cyc. 379; People v. Hilliard, 29 Ill. 413; Commonwealth ex rel Parker v. Emminger, 74 Pa. 479; Page v. Utah Commission, 11 Utah 119; Coll v. Canvassers, 83 Mich. 367; Lewis v. Commissioners, 16 Kan. 102-108. There is nothing in our statute that justifies a different conclusion. Under our statute the city and county clerk is the canvassing officer in city and county elections and the statute prescribes among other things that “the persons receiving the highest number of votes shall be declared elected, and the city and county clerk shall immediately deliver to the persons elected certificates of election” (Sec. 1686 R. L. 1915). This statute leaves no room for doubt as to what the duty of the clerk is in respect to the delivery of certificates. It is his duty to deliver certificates to the ones who' on the face of the returns have received the highest number of votes and in ascertaining who has received the highest — 9 — number of votes and issuing certificates he has only-ministerial duties to perform. But it has been contended in behalf of the respondent that the petitioner is ineligible to be elected to said office and that the facts upon which it is claimed the petitioner’ is ineligible being undisputed renders the determination of his eligibility purely a question of law and that regardless of whether respondent had the right to pass upon his eligibility the court should in this proceeding determine the question, because if ineligible it would serve no useful purpose to issue to him a certificate of election to an office from which he could be immediately removed. People v. Board of Canvassers, 129 N. Y. 360, is the case principally relied upon in support of this contention and it undoubtedly supports it. In that case the court took the view that as the question of the candidate’s eligibility had attracted much public attention the public interest required that they should meet and determine the question of eligibility if within their judicial competency to do so. It was decided by a divided court that, the eligibility depending upon undisputed facts, it would be unfortunate to have the case go through all the courts and to leave the most important and vital matter in it undecided. Accordingly the court decided the question of eligibility against the candidate and refused to authorize the writ to aid him in accomplishing what is termed a wrong. There is no disposition upon our part to question the soundness of the abstract, proposition of law to the effect that the writ will not issue to compel the performance of an unlawful act or to aid one in carrying out an unlawful proceeding. What we do question is the application of this principle to such a case as the one before us. In the case of Kanealii v. Hardy, 17 Haw. 1, which — 10 — was a mandamus proceeding to compel a circuit judge to approve the bond of one who had a certificate of election to the office of supervisor, said judge having refused to approve said bond on the ground, as claimed, that certain names on petitioner’s nomination papers were forged, this court speaking through Chief Justice Frear, said: “The judge is not given • any jurisdiction in passing upon the sufficiency of the bond to decide upon the validity of the nomination papers. Neither the petitioner nor any one else has been convicted of forging the nomination papers, nor has the validity or invalidity of those papers been determined in quo warranto or any other proceedings. It is true that an officer who is charged with the duty of approving the bond of another officer is not obliged to approve a bond presented by any person. It is his duty to approve the bond of only the person entitled to the office, and yet all that he can require is proper credentials of the applicant or a prima facie showing that the applicant-is entitled to the office; he cannot in general enter into an investigation for the purpose of passing upon the validity of those credentials or at least the .validity of the acts leading up to the acquisition of those credentials. The approval of the bond does not assume the validity of the election but is merely one step in the process by which the applicant may be put in a position to show an apparent right or to contest proceedings that may be brought questioning his title to the office. How, for instance, in the present case, could the petitioner sustain his right to the office in the quo warranto proceedings in the absence of the approval of his bond, even if he showed that his nomination papers were valid? Even this court, in these mandamus proceedings, cannot go into the question of the validity of the nomination, for mandamus is not a proper method of determining title to office. Courts often compel by — 11 — mandamus boards of canvassers to count- the ballots and declare the results irrespective of alleged violations of law in the prior stages of an election.” In Harris v. Cooper, 14 Haw. 145, this court held that it was the duty of.the secretary to place on the ballot the name of a candidate duly nominated even though he was ineligible, and declined to compel the secretary to omit such name even though for the purpose of that case (submitted on agreed facts) it was admitted that he was ineligible. If, as stated by Chief Justice Frear in Kanealii v. Hardy, the relator was entitled to have his bond approved without regard to whether his nomination papers were forged, as' one step in the process by which the applicant may be put in position to show an apparent right or to contest proceedings that may be brought questioning his title to the office, how can it be said that the petitioner in this case is not entitled to his certificate of election regardless of whether he is eligible or ineligible? Without his certificate of election he cannot show his right to have his bond approved “as a step in the process by which he may be put in a position to show an apparent right to said office.” The case of People v. Board of Canvassers was discussed by this court in both Kanealii v. Hardy and Harris v. Cooper, and while in neither case was there an express disapproval of said decision the . conclusion reached in those cases seems to he contrary to that reached by the New York court. We think that both the weight of authority and reason support the minority opinion in the New York case, where it is held that the writ should issue to compel the canvasser to issue a certificate of election to the petitioner who upon the face of the returns received the highest number of votes without considering the question of his eligibility. — 12 — “When an act, the doing of which is sought to be compelled by mandamus, is the final thing and if done gives to the relator all that he seeks proximately or ultimately, then the question whether he is entitled to have that done may be inquired into by the officer or person to whom the mandamus is sought, and is also to be considered by the tribunal which is moved to grant the mandamus, but where the act to -be done is but a step towards the final result, and is but the means of setting-in motion a tribunal which is to decide upon the right to the final relief claimed, then the inferior officer or tribunal may not inquire whether there exists the right to the final relief, and can only ask whether the relator shows a right to have the act done which is sought from him or it.” People ex rel Freer v. Oanal Appraisers, 73 N. Y. 446. In the present case petitioner’s final and ultimate relief is the judgment of a court of competent jurisdiction, rendered in an appropriate proceeding in which all the necessary parties are present, as to whether he was duly elected supervisor and entitled to hold the office, and that final relief involves not only his plurality of votes but his qualifications as well. But he is here, not asking that final relief but seeking to take one step necessary as a preliminary to it, which involves only the count, but not his qualifications, and neither the county clerk nor the court, in considering his right to that step, can inquire into his right to a different and further ultimate relief. Let us suppose that in this proceeding- we should determine the question of the petitioner’s eligibility and decide it in his favor and it should afterwards develop that some one, not a party to this proceeding, desired to contest his right to the office by quo warranto or other proceedings on the ground of his ineligibility and that by reason of the alleged ineligibility said party is entitled to be inducted into or to hold said office. Under such — 13 — circumstances this court would be placed in the position of having decided the case against the contestant without his having been given a chauce to be heard. This supposition is not far-fetched for it appears from respondent’s return to the alternative writ issued herein that instead of issuing certificates to these petitioners certificates of election have been issued by the respondent to Edward P. Fogarty 'and William J. Sheldon, the candidates at said election who received the eighth and ninth highest vote as shown by the face of the returns and yet the holders of these certificates are not parties to this proceeding and could not have been made parties and therefore could not be bound by any judgment, order or decree entered herein. To compel the issuance of the certificate of election to the petitioner in this case without going into the question of eligibility is simply to compel au observance of that orderly procedure in elections which the law prescribes. It should have the very desirable effect of teaching city clerks that they have no judicial functions and that they must content themselves with doing that which the law requires them to do, viz., to ascertain who has the highest number of votes and to issue a certificate of election to that person. The fact that certificates of election have already been issued to others affords no reason why we should not require respondent to issue a certificate to the party entitled thereto. The respondent cannot set up his own wrongful conduct as a defense to this action. Smith v. Lawrence, 2 S. D. 185; 15 Cyc. 387; Ellis v. County Commissioners, 2 Gray (Mass.) 370; State v. Trimbell, 12 Wash. 440, 41 Pac. 183; Coll v. Canvassers, supra. Counsel have insisted that the theory upon which we hold that the question of eligibility of petitioner is not involved in this case has been disapproved by the Su — 14 — preme Court of the United States in two recent decisions and have referred us to the cases of Duncan Townsite Co. v. Lane, 245 U. S. 308, and United States v. Fisher, 222 U. S. 204. It is in our opinion a sufficient answer to this argument to point out that in each of these cases the petitioner sought to procure the final relief to which he would in any event he entitled. In the Duncan Townsite Co. case the petitioner sought a mandamus to compel the Secretary of the Interior to restore the name of one Alberson .to the rolls under the Choctaw-Chickasaw agreement and to execute and record a patent for land described in an allotment certificate issued in his name by the Dawns Commission. The trial court entered judgment for the petitioner commanding issue and record of the patent but made no order in respect to restoring Alberson’s name to the rolls. The petitioner acquiesced in the judgment; but upon writ of error sued out by respondent the judgment was reversed by the court of appeals and the petitioner brought the case to the Supreme Court on writ of error. In affirming the judgment of the court of appeals the Supreme Court said: “We are not required to decide whether (as suggested in Lowe v. Fisher, 223 U. S. 95, 107) the power to remove Alberson’s name from the rolls had, because of §2 of the Act of April 26, 1906, expired before the Secretary acted. For the Supreme Court of the District did not order the name restored, and its judgment was acquiesced in by the relator. The claim which the relator makes in this court rests wholly upon the fact that the relator was a bona, fide purchaser for value. But the doctrine of bona fide purchaser for value applies only to purchasers of the legal estate. Hawley v. Diller, 178 U. S. 476, 484. It fis in no respect a rule of property, but a rule of inaction.’ Pomeroy, Equity Jurisprudence, — 15 — §743. It is a shield by Avhich the purchaser of a legal title may protect himself against the holder of an equity, not a sword by which the owner of an equity may overcome the holder of both the legal title and an equity. Boone v. Chiles, 10 Pet. 177, 210” (p. 311). Applying the above principles the court used language Avhich is relied upon here but Avhich Ave think has no application to the case before us. The other case referred to is subject to the same criticism. If the relief sought by the petitioner Avas that he be inducted into the office to AAdiich he claims to háve been elected he Avould then be compelled to sIioav not only that he receAed the necessary Antes to elect him but that he Avas and is eligible to be so elected. Garfield v. Goldsby, 211 U. S. 249, was a mandamus by Goldsby to require the then Secretary of the Interior to erase certain marks and notations theretofore made by his predecessor in office upon the rolls, striking therefrom the name of Goldsby as an approved member of the Chickasaw nation and to restore him to enrollment as a member of the nation. It did not appear from the. pleadings that Goldsby Avas an original enrolled member of the tribe but it did appear that he had been enrolled as a member of the ChickasaAv nation by the HaAves Commission and had received an .allotment of land but no patent had been issued for the same. The Secretary of the Interior Avithout, notice to relator erased his name from the rolls. In affirming a judgment requiring the Secretary to restore the relator’s name the court said: “The gOA’ernment contends, and Ave have held, that it does not appear in this case. AAdiether Goldsby’s name Avas on the original or other tribal rolls, a fact essential to be knoAvn in order to determine Avhether his contention be sound that such an enrollment gave him the right to participate in the division of the funds and lands of — 16 — the nation irrespective of the action of the Dawes Commission, the court of the Indian Territory, or the citizenship court. The question here involved concerns the right and authority of the Secretary of the Interior to take the action of March 4, 1907, in summarily striking the relator’s name from the rolls. That is the question involved in this case” (p. 264). It will be noted that the principal difference between this case (Garfield v. Goldsby) and that of Duncan Townsite Co. v. Lane is that in this case the petitioner only sought to have his name restored to the rolls while in the other case the relief sought was to have a patent issued and recorded, which would have vested in him the legal title to. the land and was the final or ultimate relief to which the petitioner would in any event be entitled. In the course of the opinion in Garfield v. Goldsby it was said, “There is no place in our constitutional system for the exercise of arbitrary power, and if the Secretary has exceeded the authority conferred upon him by law, then there is power in the courts to restore the status of the parties aggrieved by such unwarranted action.” These remarks apply with equal force to the facts of this case. So we hold that in the present case the question of petitioner’s eligibility to be elected to the office for which he was a candidate is not an issue. Prom this it necessarily follows that the second question should be returned by us unanswered. It also follows, we think, that the exhibits attached to the respondent’s return and the allegations of the return which challenge petitioner’s eligibility should be stricken as they do not relate to any issue before the court. Neither does the fact that criminal prosecutions are now pending against the respondent involving his refusal to issue the certificate — 17 — of election have any hearing upon any issue here involved, nor does that fact offer any excuse for refusing the writ as a matter of discretion. The objections made to the writ and set out in onr statement of the proceedings are extremely technical and were -properly overruled by the trial judge. E. M. Watson and A. Perry (Watson & Clemons, Perry & Mattheioman and C. M. Hite on the brief) for petitioners. D. L. Withington and C. H. Olson (Castle & Withing-ton and Robertson & Olson on the brief) for respondent. No valid reason having been shown Avhy this case should not come within the rules of laAV announced we must conclude that it is the duty of the trial judge to issue the peremptory writ.