State ex rel. Shaw v. McCoy

Lore, C. J., delivered the opinion of the Court. The peremptory writ of mandamus prayed for in this case is to compel the Board of Canvass of Kent County to recanvass the vote cast in that county at the last general election, held November 3, 1896, for the election of Governor, Senators, Representatives, Sheriff, Coroner and other officers. The facts of the case are mainly those set out in the case of The State ex rel. Allee et al. vs. McCoy et al., tried in the Superior Court of this county and — 586 — reviewed in the Court of Errors and Appeals January 4, 1897. They need not again be recited here. The additional facts are,—That pursuant to a peremptory writ of mandamus issued out of this Court, the election officers of West Dover Hundred, on January 30, 1897, made and signed two certificates of the election in their hundred according to law. In ten other election districts the certificates of election under like peremptory writs were completed March 20, 1897, so as to show for what hundred the respective candidates for Levy Court were voted for. To the alternative writ of mandamus issued in this case the respondents have filed their answer or return. The relators claim through their counsel, that upon the face of the answer, on the respondents’ own showing, the peremptory writ should be awarded ; and by their counsel have moved the Court to quash the answer for the reason that it is ambiguous, argumentative, evasive, and insufficient. The answer of the respondents up to and including paragraph 12 relates to matters that are either immaterial or such as have been passed upon and settled in the previous determination of this election controversy. They are therefore eliminated from our consideration. The question remaining for us to determine is the one raised by paragraph 13 of the answer, which sets up an act of the General Assembly of this State, entitled “An Act to amend Chapter 18 of the Revised Statutes,” passed at Dover April 16,1897, which act repeals all those portions of the chapter which constituted the inspectors of election a Board of Canvass, and substitutes, in lieu of them as such Board, the Associate Judge, the Sheriff and Register of Wills of each county. It is contended for the respondents that this act abolishes the Board of Canvass of which the respondents were a part, and that there is now no law under which they can be compelled to recanvass the returns of said election, the statute having taken away their functions as a Board of Canvass. The interpretation and effect of this statute uder our constitu — 587 — tion and laws relating to elections is the question presented for our consideration. The Constitution of this State provides for the election of Governor, Senators, and other officers named, and prescribes for the purity and freedom of the elections; and the bill of rights provides that all elections shall be free and equal. The election of November 3d, 1896, was held under the provisions of the Constitution naming the day and prescribing the mode by ballot. Art. 4, Sec. 1. By the same section the Legislature is by law to “prescribe the means, methods and instruments of voting so as best to secure secrecy, the independence of the voter; preserve the freedom, and purity of elections and prevent fraud, corruption and intimidation thereat.” Under our form of Government, therefore, an election is the-Constitutional expression of the sovereign will of the people, as to who shall be their accredited agents to execute the laws, and to preserve their rights and liberties. By necessary intendment therefore, an election under the Constitution involves every element necessary to the complete ascertainment of such expression of the popular will, embracing the entire-range, from the deposit of the ballot by the elector up to the final ascertainment and certification of the result. An election by the people means and includes the perfected ascertainment of such result. Statutes may and do provide the means for ascertaining such, results. Their function is to ascertain and not to defeat such results ; to carry into effect and not to annul Constitutional provisions. The act of April 16, 1897, amends Chapter 18, by striking out all those sections which constituted the inspectors a Board of Canvass, and substituted the Associated Judge, Sheriff and Register of Wills of each county as such Board. As to future elections, this act unquestionably provides a new Board of Canvass to ascertain and certify the results thereof. What is its effect however upon the election of November 3, 1896, which has not yet been certified, and under the decision of the Court of — 588 — Errors and Appeals, could not be lawfully ascertained and certified with the vote of West Dover Hundred out. At the time of the passage of the last named act- the election -of November 3d had been held under the Constitution. The -choice of the people had thereby been expressed by ballot under the ■Constitution, but the result had not been lawfully ascertained and ■certified. Under this condition of facts, does that act stop all further inquiry into and annul the election of 1896 ? Unless it can be lawfully ascertained and certified it is annulled, inasmuch as .no lawful ascertainment has been or could have been made. The repealing act nowhere in terms, relates to the election of 1896. It is well settled law that no retrospective operation wil,l be given to an act, unless the act plainly and unmistakably so provides. This is ruled in Jones vs. Wootten, 1 Harring. 81; Smith vs. Clemson, 6 Houst. 180; which cases only emphasize an unbroken •current of authority. We may not give it a retroactive effect unless compelled to do so by express provision. There is no such express provision. Even .if there were, we should be loath to recognize the right of the legislature to defeat constitutional rights by such proceeding, and would ■be constrained to say that such a law was unconstitutional. It would in effect set the Legislature above the constitution; the •creature above the creator. Otherwise the Legislature after an election had been held, might by law stop all inquiry into such an election and prevent the ascertainment of its results; -keep out of office the agents whom the people had elected; and keep in or put in office persons whom the people did not elect, or whom they defeated. This would be setting aside the constitution ; the Legislature and not the people would become the electors; and a Republican form of government cease to exist. Under such a construction what would become of the constitutional provision that such officers should be elected by the people ? Such a construction would ■embalm in judical sanction the craft to devise and the power to defeat the will of the people at the will of the Legislature. No thoughtful person can contemplate without abhorrence the — 589 — possible results of such a construction. It would be political suicide ; and finds no sanction either in reason or authority. Much stress was laid by counsel for the respondents on the case of State Ex rel. Bloxham vs. Board of State Canvass, 13 Fla. 55, where the Court held in a case very similar to the one at bar, “That the Board of Canvass being a special tribunal created by statute,. and their duties created by statute, the repeal of the statute takes away their function as canvassers and they cannot proceed further in the matter under any law,” and therefore they could not be compelled to finish what they had commenced. We are unable to determine what were the provisions of the constitution and statutes of the State of Florida, when this decision was rendered. The opinion of the Court is very short, and gives no detail. We have however carefully examined the authorities referred to in the case upon which the Court based its decision, and we find that they do not support such a construction. One of those authorities; Beebe vs. O'Brien, 10 Wis. 481; defines the three classes of cases in which a repeal of a statute operates to defeat proceedings theretofore had under it, which are as follows: 1. Where the statute repealed was one creating the cause of action. 2. Where the statute repealed related to the remedy. 3. Where the statute repealed conferred jurisdiction where it did not before exist. In defining this limitation Dixon, C. J., says: “ After a patient examination of all of the authorities upon this subject within our reach, and which it is deemed unnecessary to cite here, it is believed none can be found going beyond the principles above laid down.” The cases cited in 13 Fla., viz: Springfield vs. Hamden, Commissioner of Highways, 6 Pick. 501; Thayer vs. Lokey, 11 Me. 284 ; Saco vs. Gurney, 34 id. 14 ; Heald vs. The State, 36 id. 32; come under one or another of these classes, and do not involve the issue in the case at bar. The decision is not sustained by the — 590 — authorities cited in it,, and is not so founded on reason as to command approval. It seems to have been one of the decisions rendered in the early reconstruction period of that State (1871), following the civil war when society and law were both very much unsettled. We can not therefore recognize this decision as law. It is mot founded on reason, it is not supported by the authorities cited in it, nor is any reasoning of the Court given to sustain it. It has been held and is well settled, that the enforcement of a judgment, for a penalty under a penal statute may not be stayed by the repeal of the statute because the right to the penalty is vested. How much less then can a repeal deprive the people of the vested 'Constitutional right to have their will ascertained and certified. The case at bar comes under none of the classes cited in the Florida case. It is one involving a vested constitutional right in the people, to hold an election, and to have the results of that election duly and fully ascertained and enforced. It comes rather within the principle of the case of Couch vs. Jefferies, 4 Burr. 2460, an old and leading case, where Lord Mansfield uses this language: “ Here is a vested right and it is not to be imagined that the Legislature could by general words mean to take it away. It can never foe the true construction of this act to take away this vested right.” The Parliament of Great Britain is omnipotent, yet in Sir Francis Barrington’s case, 8 ¡Rep. 1136 b; it is laid down as an elementary principle that an act of Parliament shall never be so construed as to do injustice. Much less then should an act of the Legislature be so construed as to destroy a Constitutional right. We must ever bear in mind that in this State the Constitution is the supreme authority. Admit the construction claimed that the Legislature may thus annul an election and where does it lead us ? The people at the polls may defeat the party in power by a decisive majority, but still leave the election machinery in the hands of the defeated party. In ascertaining the election results the defeated party may count only such returns as are favorable to its continuance in power; may unlawfully certify such finding; and give certificates in pur — 591 — suance- thereof. When proceedings are instituted in a Court of Justice to ascertain and enforce the verdict of the people, it may then resort to technical subterfuges, writs of error, and all other dilatory methods known to accomplished advocates, or within the range of acute politicians, and thereby delay a final decision until the time to reap the fruits of the election has come and passed; then the candidates defeated at the polls, clothed with illegal certificates may take their seats without inquiry and become self-constituted judges of their own cases. They may then pass a law to smother all inquiry as to the result of the election. This too in the name of law and under the shadow of the temple of justice. Can we conceive a case where, in the language of one of the masters of our tongue, the law’s delay and the insolence of office could more ruthlessly set aside the dearest of human rights and interests. It seems unnecessary to amplify this opinion further than to say that the act of April 16, 1897, not being expressly retroactive in its terms, may not be so construed; that even if it were expressly retroactive in terms, it would, in our judgment, clearly be unconstitutional and therefore a nullity. The judgment of the Court therefore is that the answer and return of the respondents to the alternative writ is insufficient and should be quashed. It is hereby ordered by the Court that it be quashed, and it is further ordered that the peremptory writ of mandamus be awarded as prayed for. Note :—This case was taken, on writ of error, to the Court of Errors and Appeals. Before hearing was had that Court was abolished by the promulgation of a new constitution, and the case was transferred to the Supreme Court. The Legislature provided that the first session of the Supreme Court should be held in June, 1898. At that session this case was stricken from the record for want of prosecution and remanded back to the Superior Court. The peremptory, writ of mandamus was issued and the respondents made return of obedience as by the said writ they were commanded.