State ex rel. Anderton v. Kempe

LyoN, J. Conceding the jurisdiction of the court, we think the complaint states a cause of action. It contains all the averments required by sec. 3468, E. S., in such a case. But it is objected that it contains no allegation that the steps required by ch. 464, Laws of 1885, to preserve the ballots, were taken. The statute required the ballots to be preserved and disposed of in a particular manner by the proper officers, and it must be presumed, even without averment, that those officer's performed their duty. Hence the second ground of demurrer is not well taken. The controlling question in the case relates to the jurisdiction of the court over the subject of the action. Sec. 6, ch. 324, Laws of 1882, amendatory of the charter of the city of Mihvaukee (ch. 184, Laws of 1874), provides that “ the common council shall be the judge of the election and qualification of its own members.” The argument is that this provision excludes the jurisdiction of the courts to ad474 juclicate between contesting claimants for the office of aider-man, and vests that power solely in the common council. It must be conceded that there are some decisions of courts of high authority which seem to approve this doctrine. Among these are the cases of Comm. ex rel. McCurdy v. Leech, 44 Pa. St. 332; Lamb v. Lynd, 44 Pa. St. 336; Comm. ex rel. Yard v. Meeser, 44 Pa. St. 341; Peabody v. School Committee, 115 Mass. 383; People v. Metzker, 47 Cal. 524. But the great weight of authority, and we think the better reason, is opposed to such doctrine. We think the rule is satisfactorily established that unless the statute conferring the jurisdiction upon the common council to judge of the election and qualification of its members unequivocally excludes, by express provision or necessary implication, the jurisdiction of the courts in that behalf, such jurisdiction remains in the courts, and that conferred upon the council is only concurrent or temporary. This is the doctrine laid down b}^ Judge Dillon in his treatise on Municipal Corporations, vol. 1 (3d ed.), §§ 202, 203, and notes; also in McCrary, American Law of Elections, § 295, and cases cited. A few of those cases are the following: Ex parte Heath, 3 Hill, 42; People ex rel. Hatzel v. Hall, 80 N. Y. 117; McVeany v. Mayor of New York, 80 N. Y. 185; Comm. v. Allen, 70 Pa. St. 465; Comm. v. M'Closkey, 2 Rawle, 369; State v. McKinnon, 8 Ore. 493; Kendell v. Camden, 47 N. J. Law, 64; Kane v. People ex rel. Snyder, 4 Neb. 509; State ex rel. Turner v. Fitzgerald, 44 Mo. 425; State v. Wilmington, 3 Har. (Del.), 294. In many of the above cases, the language of the charters under consideration is substantially the same as that of the charter of Milwaukee. The case of Comm. v. Allen, above cited, in effect overrules the cases cited from 44 Pa. St. as sustaining the opposite doctrine. Some of the cases of that class hold that language like that contained in the charter of Milwaukee excludes the jurisdiction of the courts, be [475] cause it is substantially the same as that employed in most of the state constitutions, and found in art. IY, sec. 7, of the constitution of this state, as follows: i£Each house shall be the judge of the elections, returns, and qualifications of its own members.” No one denies that this provision excludes the jurisdiction of the courts in that behalf, and so it has been held, notably in the case of People ex rel. Vejar v. Metzker, 47 Cal. 524, that this language must receive the same construction when employed in a statute, that it receives when employed in the constitution. Ve cannot give our assent to this proposition. We think that the same terms when used in different statutes, or in a statute and constitution, may properly receive different constructions, if that be indicated by the object and scope of the several statutes in which the same is employed. However, we do not care to discuss this question here; but for a full and satisfactory discussion thereof we refer to the above cases of People ex rel. Hatzel v. Hall, 80 N. Y. 117 (opinion by Judge Folger); Comm. v. Allen, 70 Pa. St. 465 (opinion by Judge Agnew); Kendell v. Camden, 47 N. J. Law, 64 (opinion by Judge Scudder). We adopt the doctrine of Judges Dillon and McCrary in their treatises above cited, that the jurisdiction of the courts remains in such cases, “ unless it appears with unequivocal certainty that the legislature intended to take it away.” And we hold, upon principle and authority, that the provision of the charter of Milwaukee under consideration does not interfere with the common law jurisdiction of the proper courts to determine the right to the office in controversy. Whether the legislature has the power to confer the exclusive authority upon a non-judicial tribunal to determine finally the right to any office (which is judicial power), and thus oust the courts of their common-law and statutory jurisdiction over such controversies, is a question of great [476] importance, but the same is not presented by this record, and will not be here determined. By the Court.— The order of the circuit court sustaining the demurrer to the complaint is reversed, and the cause is remanded, with directions to that court to overrule the demurrer.