State ex rel. Benton v. Elder

Cobb, Ch. J. The relator made his formal application for a writ of mandamus to compel the speaker of the house of representatives to open and publish the returns of the general election held on November 4, 1890, in the presence of a majority of each house of the legislature, before proceeding — 171 — to other business, alleging that he is a citizen of the United States, and an elector of this state, and that he was, at the time of the last general election, and for more than two years prior thereto had been, of the age of thirty years, and was eligible for election as auditor of public accounts, and at said election was the regular nominee of the republican party, receiving 73,912 votes, being the highest number of votes cast for any candidate for said office, and a plurality of all the votes so cast at said election; that the returns showing the result of the election have been heretofore delivered to the secretary of state, and by him delivered to the speaker of the house of representatives, showing the vote cast for said office as stated; and that the house of representatives of the twenty-second session of the legislature has been duly elected and organized by the election and qualifying of S. M. Elder as speaker; that George D. Meiklejohn is the lieutenant governor and presiding officer of the senate, which is duly organized, and on January 7, 1891, both bouses of the legislature were assembled in the hall of the house of representatives at 3 P. M., as required by section 4 of article 5 of the constitution of this state, for the purpose of witnessing the opening and publishing of the returns of the election of executive state officers at the last general election; that at said joint assembly the lieutenant governor presided, and demanded of the speaker of the house of representatives that he open and publish the returns of said election which had been then and there placed in his possession, sealed and unopened, together with an abstract of such returns by the secretary of state, as required by law, and that said speaker of the house of representatives then and there neglected and refused to open and publish said returns, and still neglects and refuses so to do; for the reason that contests over the several executive state offices have been instituted, and evidence therein has been taken and returned to the secretary of state, which the speaker assumes to claim should be — 172 — heard and determined first by the legislature before opening and publishing the said returns. The relator alleges that, upon the face of the returns and upon the general abstracts thereof, he is duly elected auditor of public accounts of this'state, and that certain others have received the greatest number of votes for various other executive state offices, and for representatives in congress; and that if said speaker would duly perform his duties under section 4 of article 5 of the constitution of this state, in opening and publishing the returns of said election, the rélator would be declared duly elected to the office of auditor of public accounts, and that certain others having received the greatest number of votes for various other executive state offices would be declared duly elected thereto; but that by reason of his neglect and refusal the relator is greatly damaged, and is without adequate remedy at law, and wholly without remedy, as well as certain others elected to various other offices, except by the interposition of the highest judicial authority of the state, by its writ of mandamus, enforcing the provisions of the constitution in this exigency, with prayer for that relief. Notice of application for the writ of mandamus and a copy of the relator’s information were duly served on the speaker of the house of representatives on January 7, 1891, who answered, as respondent, that he appeared at the bar of the supreme court from courtesy and not in recognition of its jurisdiction over him as the speaker of the house of representatives and the presiding officer of the joint convention of the senate and house of representatives. The respondent set up that as such speaker and presiding officer he represents an independent and co-ordinate branch of the government, and that over his acts, or his failure to act in such capacity, the court has no jurisdiction; that the matters charged in the information relate wholly to the political branch of the government of the state, and are not within the jurisdiction of the court. — 173 — Second — That he denies that George D. Meildejohn was the presiding officer of the joint convention of the two houses of the legislature on January 7, 1891, but that he, the respondent, was, and is, under the constitution and laws of this state, the sole presiding officer of such convention, and presided on January 7, 1891; that within twenty days after the last general election, and within the time required by law, John Batie contested the election of the relator to the office of auditor of public accounts, a notice of which he herewith exhibited; that in pursuance of which a large volume of evidence has been taken tending to impeach the integrity and validity of the returns of said general election, which evidence is now in the office of the secretary of suite; that on January 6, 1891, a copy of the notice of such contest was filed with the respondent notifying him of all the important facts and circumstances therein; that on January 7, 1891, by agreement between the two houses, the legislature assembled in the hall of the house of representatives in joint convention, pursuant to the provisions of the constitution of this state, for the purpose of opening and canvassing the returns of the last general election, and of hearing and determining the contests pending therein, and among others that of the relator, and, in pursuance of his duties as speaker, the respondent presided over said convention of the two houses and announced to a majority of the members thereof that he held the returns of the last general election, together with the notices of contest thereon, and asked directions as to the disposition thereof; that a resolution was adopted referring the election returns, with said notices of contest, and the evidence thereunder, to a joint committee of nine members of the house of representatives and six members of the senate to canvass the returns and hear the contests, and make report thereon, which committee respondent appointed, and the matter of opening and canvassing the returns, as well as that of contest pending, was taken out — 174 — of the power and control of respondent by the. resolution of the joint convention which is herewith exhibited; that while respondent did not open and publish the returns of said election, he did not refuse to do so, as the only body having authority to make such request or demand was the joint convention, which made no such request, but, on the contrary, duly passed the resolution referred to; that the relator has never made any demand on respondent to open and publish said returns, and respondent expressly denies that he refused to open the returns, but alleges that the joint convention took the matter out of his hands in the manner and by the means stated, the record of which is herewith submitted. To this answer the relator demurred, alleging that it is not a sufficient defense to the complaint laid in the information; and the respondent electing to staud on his answer, the issues joined were argued to the court and submitted. Preliminary to the defense, set up by the respondent to this application, he objects to the jurisdiction of the court, and appears at the bar from courtesy only, and not in recognition of its jurisdiction over him as speaker of the house of representatives, and the presiding officer of the joint convention of the two houses. The second section of the sixth article of the constitution of this state, after providing that the supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum, or pronounce a decision, further provides that “ it shall have original jurisdiction in * * * mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law.” Section 645 of the Civil Code of Procedure, of this state, provides that “The writ of mandamus may be issued to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” * * * — 175 — Section 646 declares that “ the writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law,” but “ may issue on the information of the party beneficially interested.” It will be observed that the respondent’s serious ground of objection to the jurisdiction of the court rests on the allegation that he is the speaker of the house of representatives and the presiding officer of the joint convention of the two houses. The letter of the statute makes no exception in mandamus, in favor of the functions of such officer; so that if he is a person upon whom the law has specially enjoined the performance of an act, or acts, as a duty resulting from an office, trust, or station, he is, in the face of all cavil, within the letter of the Code, subject to mandamus, and to the jurisdiction of the court therein. But this objection of the respondent is doubtless based upon his view and construction of the second article of the constitution, that “ the powers of the government are divided into three distinct departments, legislative, executive, and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter provided.” This article has heretofore been subject to judicial scrutiny and construction: First — In the case of Turner v. Althaus, 6 Neb., 54, an action was brought to restrain the treasurer of Douglas county from selling certain lands in the city of Omaha, not laid out into blocks and lots, for delinquent taxes, under certain statutes then in force. The opinion is that of the late Chief Justice Gantt, then sitting upon this bench. In considering the want of power in the courts to declare an act of the legislature void on the grounds of injustice and inexpediency he said: “The doctrine seems to be equally well settled ‘ that no court can pronounce an act of the legislature void’ because it may be imperfect or impolitic, or ‘for any supposed inequality or — 176 — injustice in its intention or its operation, provided it be upon a subject-matter fairly within the scope of legislative authority/ and to bring the validity of a legislative act within the control of the judiciary, it must be clearly subversive of the constitution. There is no mixed power, partly legislative and partly judicial, to be exercised in concert, or in common, by the legislative and judicial departments of the government. The courts have no right to legislate, and the legislature has no right to adjudicate, for the reason that the line which separates them in the exercise of power is clear and distinct, and this principle is well settled and understood. It is said that if the courts were to declare an act unconstitutional, merely because * * * we may consider such act wrong and unjust, ‘it would be assuming a right to change the constitution — to supply what we might conceive to be its defect— to fill every casus omissus, and to interpolate into it whatever, in our opinion, ought to have been put there by its framers.’ ” In the case of the Lincoln Building and Saving Association v. Graham, 7 Neb., 173, the same judge, then chief justice, in delivering the opinion, said: “It is well understood, as a fundamental principle in our system of government, that the making of statutory laws, and their exposition and application to cases as they arise, are clearly and distinctly two different functions. The former is allotted by the constitution to the legislature, the latter to the courts.” And again, on January' 23, 1883, the legislature being in session, the house of representatives, by resolution, submitted to the court for answers the following questions: T. Would railway commissioners be state executive officers, or would the office of railway commissioner of the state be a state executive officer if created by the legislature? II. Would 's’uch an office, if created by the legislature, cci'me within the inhibition of the constitution? TII. Would-a-law regulating the management of rail — 177 — roads in Nebraska, under the commissioner system, be obnoxious to any provision, or provisions, of the constitution of this state? In response to these inquiries, the court, after quoting article II, that “the powers of the government of this state are divided into three distinct departments — the legislative, executive, and judicial” — and stating the provisions of articles III, IV, V, and "VII, replied that “the powers of the state government, being thus divided into three distinct departments, it is clearly incompetent for the legislature to create a commission and invest it with any official power, without assigning the duties thereof to one or the other of them. * * * Even were it not inhibited by other clauses of the constitution, we do not think that it is desired or contemplated to invest such commission with the power to make laws, or even to interpret or apply them, but that such duties would be to aid in carrying the laws into effect. Hence their duties would be executive, and if state officers, if paid from the state treasury, and their field of duty co-extensive with the territorial limits of the state, they would be state executive officers.” In these examples the court observed the literal sense of article II of the constitution, construing its meaning and intent to be that the respective duties incumbent upon and applicable to each separate department of the government are confined to it alone; but did not take the view, nor can it now, that where an officer of either the legislative or executive departments, or the judicial, shall refuse to execute an imperative duty, imposed by law upon the office of the incumbent, to the detriment and prejudice of a citizen or of the public, through this constitutional provision, while the courts have full power of redress in cases of delinquent judicial officers, they are prohibited from considering any flagrant violation of the constitution or^laws by officers of the other departments, lest the courts trench upon their prerogative. — 178 — No such limited and sinister construction can be placed upon the second article without violating the spirit of the first, and violating many of its provisions. In the recent application for mandamus, of Bates, relator, against the governor and the state board of canvassers (ante, 82), to certify the election of the relator to a judicial office, we held that in a proper case to enforce the performance of a ministerial duty, which the law specially enjoins as incident to an office, the writ would issue against officers of the executive department, and even against the supreme executive authority. Since that opinion, I have again examined the leading cases holding adversely: that of the Governor of New Jersey, 1 Dutcher, 331; of Arkansas, 1 Ark., 570; of Maine, 32 Me., 508, in all of which the court, in considering the public and political aspect of the question presented, seemed to lose grasp of the no less important one of the rights of parties to a redress of grievances against those in high temporary power, as well as those in lower official station. It is held in the cases cited that the officers of each department of state government are responsible directly to the people, and not to the judicial department, for their acts. This doubtless means that an aggrieved party — for example, one who had been elected to an office the returns of which had been refused to be canvassed and certified by a state board of canvassers — has no right of remedy in the courts, nor other redress than his future opposition to the exercise of arbitrary power as one of the people. This policy, if followed to its conclusion, would tend to make elections uncertain in result, doubly so as to the result declared, and would leave the payment of the state’s indebtedness, even after legislative appropriation, absolutely dependent upon the vacillating will of approving and disbursing officers. But such has never been understood to be the law of this state. On the contrary, its law reports are strewn with precedents, too numerous and familiar to require citation, where officers of — 179 — the executive department were required by mandamus, on the information of injured parties, to discharge specific ministerial and executive duties. The sections of the Code cited make no distinction in the persons to be compelled to the performance of an act which the law specially enjoins as a duty resulting from an office, on account of any one of the three departments to which such person may belong; nor do I think it probable that the framers of the Code intended to confine the jurisdiction of the-courts to judicial officers alone. The rule laid down by an author of acknowledged merit and authority as to ministerial duties of public officers is deemed of importance to the present proceeding: Most public officers, whatever the nature of their office or the source of their authority, are entrusted with certain duties concerning which they are vested with no discretionary powers, and which are either positively imposed upon them by express law or necessarily result from the nature of their office. These duties, being unattended with any degree of official discretion, are regarded as ministerial in their nature, and the officers at whose hands their performance is required are, as to such duties, ministerial officers. The distinction between obligations of this nature, and those calling for the exercise of judicial discretion and some degree of judgment is obvious. It is a distinction frequently noticed, and perpetually recurring, in any analysis of the principles underlying the law of mandamus. And while the courts have steadily refused to lend their extraordinary aid by mandamus to control in any degree the exercise of official discretion, wherever vested, yet as to official duties of a ministerial character, unattended with the exercise of any degree of discretion, and absolute and imperative in their nature, the law is otherwise. And it may be asserted as a rule of universal application that, in the absence of a,ny other adequate and specific legal remedy, mandamus will lie to compel the performance of purely — 180 — ministerial duties, plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers. Or, in other wprds, wherever a specific duty is required by law of a particular officer, unattended with the exercise of any degree of official judgment or element of discretion, and on the performance of which individual rights depend, manda,mus is the appropriate remedy for a failure or refusal to perform the duty. (High’s Extraordinary Legal Remedies, sec. 80; Kendall v. U. S., 12 Peters, 524; Citizens Bank v. Wright, 6 O. St., 318; People v. Com’r of St. Land Office, 23 Mich., 270; N. W. N. C. R. Co. v. Jenkins, 65 N. C., 173; Queen v. Southampton, 1 Best & Smith, 5; State v. Wrotnowski, 17 La. Ann., 156; State v. Barker, 4 Kan., 379; State v. Magill, Id., 415; People v. Perry, 13 Barb., 206; People v. Taylor, 34 Id., 401; People v. Minor, 37 Id., 466; Silver v. People, 45 Ill., 225; Strong’s Case, Kirby, 345; State v. Meadows, 1 Kan., 90; Simpson v. Register of Land O., Sneed Ky. Dec. [2d Ed.], 217; People v. Collins, 7 Johns. Rep., 549; People v. Canal Appraisers, 73 N. Y., 443; People v. Shearer, 30 Cal., 645; Hempstead v. Underhill’s Heirs, 20 Ark., 331, and other cases there cited.) The respondent is an officer of the legislative department. The duty which it is sought to compel him to perform the law specially enjoins upon him, as resulting from his office as speaker of the house of representatives, by sec. 4 of art. 5 of the constitution, requiring that “The returns of every election for the offices of the executive departments shall be sealed up and transmitted by the returning officers to the secretary of state, directed to the speaker of the house of representatives, who shall, immediately after the organization of the house, and before proceeding to other business, open and publish the same in the presence of a majority of each house of the legislature, who shall for that purpose assemble in the hall of the house of representatives. The — 181 — person having the highest number of votes for either of said offices shall be declared duly elected; but if two or more have an equal aud the highest number of votes, the legislature shall, by joint vote, choose one of such persons for said office. Contested elections for all of said offices shall be determined by both houses of the legislature, by joint vote, in such manner as may be prescribed by law.” In repeated decisions of this court, and I take it to be the settled law of the state, if the county clerk, or any of the county officers, should refuse or neglect to send up to the secretary of state the returns contemplated in sec. 4, art. 5, and application were made to this court for correction and compliance, its power and its duty to compel by mandamus the performance of that duty, by the county officer, is not questioned. If, upon the returns being lodged with the secretary of state, that officer should refuse to place them, or any one of them, in the hands of the speaker, at the precise hour for the discharge of that duty, the court could not refuse its process to compel him to fulfill his office in -accordance with the letter of the constitution. We know of no good reason, nor has any been suggested, why this officer, appointed to perform the ministerial duty of opening and publishing these returns, should be specially taken out of the pale of law any more than other officers. It is true that his duty is to be done in the presence of a majority of the two houses, and the result is to be declared and published, as a constitutional duty, not to be controlled by the joint convention, nor subject to be diverted from its appointed purpose by any reference or submission to a proposed committee, as set up in the respondent’s answer. Such a procedure would seem to be an attempt to evade the duty, or subvert its ends, or to transfer it to an agency not sanctioned by the constitution. That process would include the liberty of taking the returns from the speaker’s possession, out of the body of the two houses, possibly away from the capital of the state and — 182 — from the control of any lawful authority. ■ This would be a condition not contemplated and not sanctioned by any law. The returns are the official history and evidence of the election, and are all that can be recognized as such. There is no substitution, and we cannot but admit the possibility of such accidents as have sometimes overtaken disputed election returns, to the disappointment of the public. The framers of the constitution were careful to provide against that condition and its possible evils in this state. The demurrer of the relator must be sustained to that part of the answer setting up the refusal of the respondent to open and publish the election returns upon the vote of the joint convention referring the same, for report and resolution, to a select committee. No legislative body has the power to interpose a parliamentary contrivance in contravention of the express provisions of the constitution of the state. It alone is the law governing this question. And wisely has the constitution provided a method of contesting elections, to be kept separate and distinct from the canvass and publication of the returns. The last is a' duty devolved upon the speaker of the house of representatives every two years. Fortunately, to the present time, in this state, there have been no contests for any of the state offices, and it may be hoped there will be a long future before us until it shall occur again. The duty of the speaker to open and canvass the returns and declare the result, whether there is any contest or not, must recur every two years, upon the election of state officers, and that duty has no relation whatever to the trial of a contested election, and we hold, confidently, that the demurrer to the answer, setting up the proposed contest of the state officers as a defense, must be sustained. It would seem utterly impossible to enter upon such contest at once, while the constitution prescribes that the respondent’s duty must be first performed to the exclusion of any other business j — 183 — and we must declare- that whatever legislative acts may have been, or shall be done prior to the discharge of this duty, are and will be null and void. Therefore the relator will take his writ.