Odegard v. Olson

119 N.W.2d 717, 264 Minn. 439, 1963 Minn. LEXIS 611

Opinions

Murphy, Justice.

Upon petition of the relator, Robert J. Odegard, we issued a temporary injunction and order to show cause directed to Joseph L. Donovan, secretary of state of the State of Minnesota, requiring that he appear and answer the relator’s petition, which seeks to enjoin and restrain the secretary of state from issuing a certificate of election to the respondent, Alec G. Olson, who was the apparent winner of an election contest for the office of representative to United States Congress from the Sixth District of Minnesota in the November 6, 1962, election. On the return date the secretary of state appeared, together with the candidates and their counsel; and after hearing arguments we made an order vacating the injunction or restraining order and denying the relief asked for by the relator.

Before giving the reasons for our decision a preliminary statement of the issues should be made. The relator, the Republican candidate for representative from the Sixth Congressional District, received at the November 6, 1962, general election 76,962 votes — 348 votes less than the 77,310 votes cast for the respondent, the Democratic-Farmer-Labor candidate. It is conceded that the relator has duly commenced proceedings to contest the election pursuant to 9 Stat. 568 (1851), Rev. Stat. § 105, 2 USCA, § 201, the exclusive avenue open to him to contest the seating of his opponent in Congress. The contest proceedings by the appropriate congressional committee either have begun or will shortly begin. The relator asks that pending the final determination of the outcome of this contest the secretary of state should be restrained from issuing to the respondent a certificate of election as provided by Minn. St. 204.32, subd. 2. Our decision must turn upon the interpretation of this particular provision, which reads as follows:

“The auditor of any county and the secretary of state may not issue a certificate of election to any person declared elected by the canvassing board of the county or the state canvassing board until 12 days after the canvassing board has canvassed the returns and declared the result of the election. In case of a contest, the certificate may not be issued until the proper court has determined the contest.”

The relator ably contends that the secretary of state is prevented from issuing the certificate because a contest has been instituted and that the issuance must await the result in the House of Representatives, which he asserts is, within the meaning of the statute, “the proper court” to determine the contest.

1. It is unnecessary to set out the various grounds upon which the relator seeks to prevail in the contest before the House of Representatives. The issues thus raised are not before us. While the state legislature may regulate the conduct of elections subject to the limitations expressed in U. S. Const, art. I, § 4, it should be conceded that under the provisions of art. I, § 5, each house of Congress is the sole judge of the election returns and qualifications of its members, exclusive of every other tribunal, including the courts. Youngdale v. Eastvold, 232 Minn. 134, 44 N. W. (2d) 459; State ex rel. 25 Voters v. Sel-vig, 170 Minn. 406, 212 N. W. 604; Williams v. Maas, 198 Minn. 516, 270 N. W. 586; Danielson v. Fitzsimmons, 232 Minn. 149, 44 N. W. (2d) 484. See, also, 54 Am. Jur., United States, § 17; Annotation, 107 A. L. R. 205.

2. The relator does not quarrel with the foregoing authority. By his brief he argues, “This proceeding seeks only to prevent the Secretary of State from performing a ministerial act, issuing a certificate, of election, in a case where he is, by Minnesota statute, specifically forbidden so to do.” He further argues that, since he has duly instituted the proceedings to contest the election of his opponent, the secretary of state must under the provisions of Minn. St. 204.32 refrain from issuing the certificate of election until that contest is resolved.

In considering the merits of the relator’s argument, it is necessary to view § 204.32 with other sections of our statute which relate to the mechanics of determining the election of the successful candidate. Section 204.31, subd. 3, provides in part:

“After the general election, the canvassing board shall canvass the certified copies of the statements made by the county canvassing boards, and they shall prepare therefrom a statement of the following information:

“(a) A statement of the whole number of votes counted for candidates for state offices, congressional offices, and such other candidates as shall be voted for in more than one county, specifying the several counties in which they were cast.”

Subd. 4 thereof provides:

“All members of the state canvassing board shall subscribe their names to the statement and certify to its correctness; and within three days after the completion of the canvass, the board shall declare the result.”

Section 204.32 prescribes the duty of the county auditor, or the secretary of state in the case where the candidate for office is voted for in more than one county, to issue the certificates of election to the candidates certified by the state canvassing board to be the victors. Subd. 1 reads in part:

“The auditor of each county, and the secretary of state where the candidates for office are voted for in more than one county, shall make for every person elected a certificate of his election and deliver the certificate to the person entitled thereto upon demand, and without fee.”

Subd. 2 thereof,¹ previously quoted, operates as a limitation upon the general provision enunciated in subd. 1.

After carefully examining these statutory provisions, we must come to the conclusion that § 204.32, subd. 2, has no application to a contest in the United States Senate or House of Representatives. Our courts are divested of jurisdiction by U. S. Const, art. I, § 5, which provides: “Each house shall be the judge of the election returns and qualifications of its own members, * * The determinative fact in the mechanics of this particular election is the act of the state canvassing board in declaring the election of the respondent pursuant to authority of that board under Minn. St. 204.31, subds. 3 and 4. The certificate of election as provided by § 204.32 has no greater significance than a publication by the secretary of state of the official action taken by the canvassing board. The effect of any order of this court enjoining the secretary of state from performing the ministerial function of furnishing respondent a certificate of election would be gratuitous and of no force as bearing upon the merits of the election contest pending in the House of Representatives. It would, as expressed in State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 408, 212 N. W. 604, be “officious and nugatory.” The contest is pending in a forum, the jurisdiction of which this court is bound to respect. The House of Representatives may seat members elected without a certificate, just as it might refuse to seat members who have a certificate, if it chooses to do so.² Since the House of Representatives is the final and exclusive judge of the legality of election or qualification of its members, this court should not gratuitously issue a prerogative writ which might be considered a tactical advantage for one or the other candidate.

That the term “contest” as used in the last sentence of § 204.32, subd. 2, does not comprehend a contest pending in the United States House of Representatives is further apparent from an examination of c. 209, which deals with the subject of election contests. It is significant that in providing for the ground rules for election contests in this state the legislature has provided authority in § 209.02, subd. 1, to contest elections to “a state, county, legislative, or municipal, or district court office, or the declared result of a constitutional amendment * * The law as it now exists does not include a contest for the office of a member of the United States Congress.³ '

We are accordingly of the view that the provision relating to “contest” incorporated in § 204.32 refers solely to contests initiated pursuant to the general election laws of this state and is not applicable to a contest in the House of Representatives in Congress. We are of the further view that the term “proper court” in the same section applies to the state court which is given jurisdiction under c. 209 and does not include the Congress of the United States.

The relator’s petition for writ or order restraining the secretary of state from issuing a certificate of election to the respondent was properly denied by the order of this court dated December 4, 1962.

Writ vacated.

Footnotes

1

L. 1945, c. 229, § 3, added: “In case of a contest, the certificate shall not be issued until the district court has determined the contest.” (Italics supplied.) The law was repealed by L. 1959, c. 675, art. 13, § 1. If was reenacted by art. 5, § 32, subd.-2, of that act to read proper court instead of district court. There is no legislative history to enlighten us as to why that change was made. There is no doubt as to the meaning prior to the 1959 act since until then it specifically related to contests in the district court.

2

Keogh v. Horner (S. D. Ill.) 8 F. Supp. 933.

3

The legislative interim commission on election laws commented (Report of the Interim Commission on Election Laws, 1961, p. 15, Minnesota Election Laws, 1962 ed. p. 155):

“Under existing law there are at least three different procedures applicable to commencing an election contest by court action. The way to begin a contest depends largely on the grounds for contest and the kind of office in question. A prospective contestant who chooses the wrong procedure finds that he is prevented from carrying on the contest. The amendment [Minn. St. 209.02] provides one uniform way of commencing a contest which is applicable whether the grounds relate to misconduct on the part of the candidate or his agents, or to a question over who received the most votes, and also to all kinds of offices. The notice of contest, manner of service, time of commencement, place of action, as well as what is sufficient to confer jurisdiction upon the court to determine the contest, are all provided for in the amendment. It is important to keep in mind that while one procedure would govern all contests, in the case of contests over legislative offices the courts are limited by a subsequent section because by provision of the constitution, the legislature is the final judge over the election of its members. The contest law does not apply for similar reasons to-final elections in the case of congressional offices.'’ (Italics supplied.)