State ex rel. Bates v. Thayer

47 N.W. 704, 31 Neb. 82, 1891 Neb. LEXIS 21

• Court: Nebraska Supreme Court
• Decided: January 2, 1891
• Status: Published

Opinion

Cobb, Ch. J.

Edward Bates, the relator, presented his information on November 25, 1890, applying for a peremptory writ of mandaxnus to compel the state board of canvassers, created by section 53, chapter 26, of the Compiled Statutes, to canvass certain votes claimed to have been cast for the relator, as judge of the Sixth judicial district of this state, at the general election held November 4, 1890. The relator and the attorney general agreed to the following stipulation of facts:

I. That the' defendants, John M. Thayer, governor; Benjamin R. Cowdery, secretary of state; Thomas H. Benton, auditor; John E. Hill, treasurer; and William Leese, attorney general, compose the state board of canvassers of the votes for electors, judges, and regents in this state.

II. That on November 4, 1890, a general election was held for state officers and members of the legislature.

III. That on September 23, 1890, the governor issued his proclamation for a general election to be held on November 4, 1890, calling upon the electors of the state to elect the several officers in his proclamation enumerated, and duly sent the same by mail to the several county clerks as required by law, and that the same is the only proclamation issued by the governor for said election, to-wit:

ELECTION PROCLAMATION.

Under and by virtue of the authority vested in me by section eleven (11) of chapter twenty-six (26) of the Compiled Statutes of Nebraska, entitled “Elections,” I, John M. Thayer, governor of the state of Nebraska, do hereby issue my proclamation, declaring that on Tuesday, the fourth day of November, A. D. 1890, there will be an election held at the usual places of voting in said state for the purpose of electing the following officers, to-wit:

One member of congress from the First congressional district.

One member of congress from the Second congressional district.

One member of congress from the Third congressional district.

Governor.

Lieutenant governor.

Secretary of state.

State treasurer.

Auditor of public accounts.

Attorney general.

Commissioner of public lands and buildings.

Superintendent of public instruction.

State senators for each senatorial district, and representatives for each representative district, as provided by law.

Also, the electors of the state will vote upon the following amendments to the constitution :

To amend sections two (2), four (4), and five (5) of article six (6) of the constitution relating to the number of supreme judges.

Also, to amend section thirteen (13) of article six (6) of the constitution relating to the salary of the supreme and district court judges.

Also, to license and regulate the manufacture, sale, and keeping for sale intoxicating liquors as a beverage.

Also, to prohibit the manufacture, sale, and keeping for ' sale intoxicating liquors as a beverage.

In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Nebraska.

Done at Linooln this 23d day of September, A. D. 1890.

[Great Seal or Nebraska.]

By the governor: John M. Thayeb.

Benjamin R. Cowdery,

IV. That the electors of the Sixth judicial district also voted for the election of a district judge.

V. That the incumbent, Jerome PI. Smith, was appointed judge of said district December 12, 1889, to fill the vacancy caused by the resignation of T. L. Norval.

VI. That there was cast at the election, in the four counties comprising said district, Seward, York, Hamilton, and Polk counties, held on November 4,1890,12,734 votes and no more, of which the relator received 7,612, and Jerome IP. Smith received 4,841.

VII. That in issuing his said proclamation the'governor through inadvertency omitted to call any election for a judge of the district court of the Sixth judicial district, and failed to give any notice by proclamation or otherwise of any vacancy in said office, or that the electors of said judicial district would be called upon to elect a judge thereof at said election.

VIII. That the several county clerks of said judicial district have certified to the secretary of state the votes cast on the question of a district judge, and did so prior to November 26, 1890.

IX. That the defendants, though requested so to do by the relator, refuse to meet and canvass said votes cast for judge of said district court, alleging, ás reason for such refusal, that no authority existed for holding said election for said judge on November 4, 1890, nor does the law enjoin upon the defendants the duty of canvassing the votes which may have been cast at said election for the office of judge of the district court of said district.

X. That by virtue of the appointment made by the governor to fill the vacancy caused by the resignation of Judge Norval, Jerome H. Smith now holds said office and fills the same, and by virtue of that appointment alone.

XI. That as early as July, 1890, the incumbent, Jerome II. Smith, was duly nominated by the republican convention as a candidate forjudge of said Sixth judicial district, to be filled at said election; and in August, 1890, the relator was duly nominated by the’peoples’ independent convention, and afterwards in October said nomination was ratified by the democratic party • that each of said nominations was made by conventions of delegates and was published and made known throughout the Sixth judicial district.

XII. That the next election by the people of the state subsequent to the said vacancy in the office of judge of the Sixth judicial district, produced by the resignation of Judge Norval, occurred on November 4, 1890, and which was a general election, at which the relator and Jerome PI. Smith were rival candidates for election to the office of judge of the Sixth judicial district for the unexpired term of Judge Norval, who had resigned.

XIII. That at said general election the total number of votes cast for the office of judge of the Sixth judicial district was 12,455, of which the relator received 7,612, and the said Jerome H. Smith received 4,841, and other candidates received 2; not voting for eithei, 279. That the votes so cast as aforesaid were in the manner required by law counted, canvassed, certified, and transmitted by the several county clerks to the secretary of state, by whom the same were received before the 24th day of November, 1890.

XIV. That the relator is an elector and voter in said judicial district and is eligible to the office of district judge.

XV. That both the relator and the incumbent had at all times actual knowledge of said omission in said proclamation of the governor, and of the failure to call for an election of judge of said district, and the incumbent, during all the times mentioned herein, denied all authority for holding any election for said office of judge, and at all times insisted and claimed that any election for said office held on November 4, 1890, was absolutely null and void, and notwithstanding these facts the incumbent still continued to be a candidate for said office.

The attorney general with counsel appeared for the defendants, and answering denied each and every allegation of the relator.

The respondents in the brief of counsel say that while they present the point questioning the right of this court to issue a writ of mandamus against the chief executive officer of the state in any case, they are not disposed to urge it, and only present it in view of the public interest and a desire to have all questions raised by the proceedings passed upon.

Section 53 of the election law of 1879 provides that “The votes cast for presidential electors, judges of the supreme and district courts, and regents of the university, shall be canvassed by a board of state canvassers, consisting of the governor, secretary of state, auditor of public accounts, treasurer, and attorney general, and a copy of the abstracts of votes cast for such officers shall be made by the county clerks, sealed up, directed to the secretary of state.”

Sections 54 and 55 provide, first, that if the abstracts from any county are not received at the office of the secretary of state by the second Monday after the day of election, the secretary is authorized to send a messenger to the clerk of such county, who shall furnish' such messenger with the abstracts or with a copy of them; second, that the abstracts of votes to be canvassed by the board of state canvassers shall be kept in the office of the secretary of state, and shall only be opened in the presence of such board at the time provided in section 56, on the third Monday after the election; and in case all of said returns shall not have then been received at the office of the secretary of state, the board may adjourn from day to day until the same shall have been received, not exceeding five days.

Section 57 provides that they shall make an abstract stating the number of ballots cast for each office, the names of all the persons voted for, for what office they respectively received the votes, and the number of votes each reoived, in words at length, and stating whom they declared to be elected to the office, which abstract shall be signed by the canvassers in their official capacity, and as state canvassers, and have the seal of the state affixed, but should any two or more persons be returned with an equal and the highest vote, the board shall decide by lot which of said persons is elected.

This duty, as appears by the stipulation of facts, the officers composing said board refused to do, or to meet for that purpose. The power and duty of this court is not questioned to compel by mandamus the several officers other than the governor composing said board to meet and perform this duty if it shall appear that a vacancy existed in the office of district judge for the Sixth district to be filled at the general election of 1890, and that the relator was elected thereto with all legal forms and conditions required.

Mr. High, in his work on Extraordinary Legal Remedies, cited by counsel for respondents, at section 118 says: “And while, as to purely executive or political functions devolving upon the chief executive officer of a state, and as to duties necessarily involving the exercise of official judgment and discretion, the doctrine may be regarded as uncontroverted that mandamus will not lie, yet as to duties of a ministerial nature and involving no element of discretion, which have been imposed by law upon the governor of a state, the authorities are exceedingly conflicting and indeed utterly irreconcilable.”

After further and somewhat extended discussion, the author reaches the conclusion that the great weight of authority is opposed to the exercise by the courts of the power to control the action of the executive in cases falling within the latter branch of the question, and says that such may be taken as the established doctrine upon this subject, and proceeds to cite adjudicated cases from seven states, those of Ohio, Alabama, California, Maryland, North Carolina, Indiana, and Montana on the one hand, and Arkansas, Georgia, Illinois, Louisiana, Missouri, Michigan, Maine, Minnesota, New Jersey, Rhode Island, Florida, and Tennessee upon the other. A careful reading of the cases cited leads me >to the conclusion that while the author is supported by the number of states, his opinion is not sustained by the weight of argument, but that the cases on the other side more clearly support the opinion of Judge Maxwell, from his consideration of the same authorities in his work on Pleading and Practice, (1889 Ed.), p. 735, from which I quote: “There is a conflict in the authorities as to the right of a court to grant a mandamus against the governor of a state to compel the performance of a merely ministerial duty. That the courts have jurisdiction in such cases there seems to be no doubt. In a free government no officer is above the law, and should not be permitted to disregard it with impunity. No good reason can be given why a governor, whose duty it is to see that the laws are executed, should himself be permitted to set them at defiance.”

From the stipulation of facts and the allegations of the petition it appears that at a general election in 1887, T. L. Norval was elected district judge for the Sixth judicial district, for the regular term commencing January, 1888, and terminating in January, 1892; that on December 12, 1889, T. L. Norval resigned said office, and the incumbent, Jerome H. Smith, was duly appointed by the governor to fill such vacancy; that at the general election, November 4, 1890, the relator and the incumbent were opposing candidates in said district for said office, and that the relator, out of a total vote of 12,734, received 7,612, and the incumbent 4,841 votes, and that the relator was eligible to the office. Also, that the several county clerks of the respective counties of the district, prior to November 26, 1890, certified to the secretary of state the votes cast at said election for said office.

In addition to the question stated above, as raised but not insisted upon, the respondents present two other questions: 1, That the election of 1890 was not an election at which it was competent to elect a judge for said district, but that the incumbent, Jerome'H. Smith, was entitled to hold the office by virtue of his appointment until the annual election of 1891, at which the successor of Judge Norval would have been elected had he not resigned. This objection is sufficiently settled by the provisions of the four sections of the statute already cited when construed together, the first providing that “the general election of this state shall he held on Tuesday succeeding the first Monday of November of each year.” Section 103 provides that vacancies shall be filled in the following-manner : “ The office of the reporter of the supreme court, by the supreme court,” and “in all other state and judicial district officers, by the governor.” Section 105 provides that appointments under the provisions of this chapter shall be in writing and continue until the next election at which the vacancy can be filled, and section 107 provides that vacancies occurring in any state, judicial district, county, precinct, township, or any public elective office thirty, days prior to any general election shall be filled thereat.

Prom these provisions it is clear that Judge Norval, the incumbent at the regular election for a full term of the office of district judge for the Sixth district, having resigned the office more than two years before the expiration of the term for which he was elected, it was competent for the governor to make an appointment to fill the vacancy for the time being; and the resignation having caused a vacancy more than thirty days before the general election of 1890, and that being the first general election occurring after the vacancy, it was to be filled within the plain provisions of sections 105 and 107 of the election law, at the first general election, and that the person so elected is the successor of Jerome H. Smith, and, upon his qualifying under such election, the term of office of Jerome H. Smith under his appointment -by the governor will expire. This is deemed to be a sufficient answer to the proposition by Counsel that there was no authority under the constitution and laws of this state for the election of a judge of the Sixth judicial district at the general election of November 4, 1890.

Before entering upon the examination of the third proposition, the second in the brief of counsel, I will call attention to the fact that the elections provided for and regulated by the act, part of which we have considered, and which constitutes a part of chapter 26 of the current compilation, was originally passed in two divisions; the first, of general elections, containing all the sections cited, and the second providing for special elections. Such elections, under the provisions of the act, can only be held to fill vacancies occurring in the office of representative in congress or members of the state legislature, and where the body in which such vacancy exists will convene prior to the next general election, in which case it is made the duty of the governor to order a special election to fill such vacancy at the earliest practicable time, and ten days’ notice shall be given. It is thus apparent that special elections are wholly eliminated from consideration in the case before us.

The remaining question, and that most relied upon by respondents, is presented in the brief as follows: “If constitutional and statutory authority existed for the election of such judge on that day — the general election of 1890— in a proper case, yet the same could not be legally had without a proclamation by the governor.”

We have already considered that by a provision of statute the vacancy in the office of district judge, occurring upon the resignation of Judge Norval in 1889, and temporarily filled by the appointment of Jerome H. Smith, was to be permanenly filled by election at the next general election occurring thirty days or more thereafter, which general election was held on November 4, 1890, and at which the relator claims to have been duly elected.

Section 11 of the general law provides that thirty days prior to any election at which any state officer is to be elected the governor shall issue his proclamation designating all the offices to be filled, by the votes of all the electors of the state, or by those of any congressional, legislative, or judicial district, and transmit a copy by mail 10 the county clerks of-each county, and sections 12 and 13 provide that at least twenty days previous to any election, the county clerk shall make out and deliver to one of the officers therein named, depending upon the system of organization, whether township or county prevailing, certain notices of election to be held, after the statutory form, and it is made the duty of such officers respectively to post the same of the number and at the places designated by statute.

It will be seen from an examination of the three sections last referred to, that section 11 is isolated and separate from the other two. The duties of the county clerk are not made to depend upon any provision of section 11, or upon the action or non-action of the governor under its provisions, and no other part of the election law interferes to shed any additional light on the construction of section 11. Undoubtedly it was the duty of the governor to issue his proclamation thirty days prior to the election, and to have designated therein all the offices to be filled at the election, and to transmit copies to the county clerks; and it is agreed by the stipulation in this case that, from oversight and inadvertence, he failed to perform this duty in this instance in regard to the office of district judge; but this oversight and inadvertence worked no suspension of the law, nor, had he failed to issue his proclamation, inasmuch as the duties of the county clerks were by no means dependent on the discharge' of those of the governor, would the statute making it the primary duty of the clerks to issue the notices of election have been disregarded, but the notices would nevertheless been duly given to the public and would have fulfilled their object.

By reference to the stipulation it is seen that the county clerks were neither in theory or form dependent on the governor for knowledge of the fact that the appointment of Judge Smith was a temporary one, to terminate upon the election of a- successor at the next general election, and his due qualification for the office. To give this information to the clerks and to the public was the only possible utility of the governor’s proclamation, and as the information was common and notorious to both the county clerks and the public, the absence of it by proclamation worked no disability on either hand.

It would not be seriously contended that the election of the successors to the governor and the other state officers, at the general election, is constitutionally dependent on the, proclamation of the governor; and why? For the reason that such election was provided for by law at a general election.

We have already shown that the election of a district judge to fill the vacancy of the resignation of Judge Norval was equally provided for by law, and that the general election of the year 1890 was appointed by the statute as the time when the same should be had; but it is contended for and admitted that the election for governor and other-state officers occurs every two years at the general election held in the even number of years, while the election of a judge to fill a vacancy only occurs upon contingencies. While this is true, and the provision of statute requiring the governor to issue his proclamation a certain length of time preceding an election at which a state officer is to be elected is one of convenience for the purpose of calling attention to the contingency, yet it is not believed that it touches the foundation of the right and power of the people, under the statute, to fill such vacancy at the general election designated by law. Whether the people have executed their right doubtless may, in some instances, depend upon the fact of their having actual notice of the existence of a vacancy.

Respondents rely chiefly upon the authority of the case of McKune v. Weller, 11 Cal., 49, which in many of its features is analogous to the case at bar, but in point of important facts is distinguishable from it. Without going out of the facts of the case, it appears that by statute it was the duty of the governor of California to issue his proclamation the same length of time before each general election provided by our own statute, cited, designating the offices to be filled at such election, and the transmittal of a copy to the boards of supervisors of each county of the state; and by the same statute it was made the duty of the board of supervisors to give at least ten days’ notice by posting at each place of holding election in the proper county a copy of such proclamation, and to insert the same in some newspaper published in the county, if any. The provisions of the statute of that state, requiring vacancies in the office of district judge to be temporarily filled by appointment by the governor and permanently by election, were substantially like those of our own statute, and the facts upon which the relator, McKune, claimed to have been elected to fill the vacancy occasioned by the resignation of Munson were substantially the same as those upon which the present relator claims the office. The argument and opinion of a majority of the court mainly turned upon the question whether the provisions of the statute, requiring the proclamation of the governor and the notice by the supervisors, were mandatory or directory merely; that court holding that the California statute was mandatory. The opinion is lengthy, discursive, and involved in paradox. The distinguishing contrast between the two cases is in the provision regulating the notice of election. ' The California law imposes no original duty upon the board of supervisors, nor upon any other county authority to issue notices of election, but provides that the board of supervisors shall give at least ten days’ notice by posting, or causing to be posted, at each place of holding elections in the county, a copy of the proclamation, and insert the same in some newspaper published in the county, if any. It therefore was held in California that, there having been no proclamation by the governor, there was no notice of the election of the officer. In the casé the principal effort of the writer of the opinion seems to have been to separate it and distinguish it from that of The People v. Cowles, 13 N. Y., 350, in which it was held that:

“Where the office of a justice of the supreme court becomes vacant before the expiration of his term of office, the vacancy is to be supplied by the electors of the judicial district in which it exists, at the next general election of judges, although the vacancy occur at so late a day that no notice is or can be given by the secretary of state or other officer, pursuant to the statute,' that a justice is to be elected at such election to fill the vacancy.

“Accordingly, where the incumbent, whose term of office would not have expired for several years, died on the twenty-third day of October, and the electors of the district at the general election of judges on the ensuing sixth of November elected a person to fill the vacancy; held, that the election was valid notwithstanding no notice was given by the secretary of state that a justice was to be elected to fill the vacancy at the election.”

The question upon which both the California and New York cases depend is that of notice to the electors. Under the California statute it is shown that there could be no legal notice without the proclamation, the notice provided being a copy of it, while under our statute the notice of election is the subject and creature of the statute and is independent of any action of the chief executive, either by proclamation or otherwise.

It may be further stated, as the general and accepted rule of this court, that neither a general or special election held at the time and place provided by law, and where the election has been general, depends upon notice for its validity.

The case of State v. Skirving, 19 Neb., 497, arose from a disputed election to fill a vacancy in the office of county commissioner of Holt county. Erom the opinion of Judge Maxwell, after citing section 107, chap. 26, supra, it being conceded there was no notice of the election given, the opinion proceeds:

“As from the agreed statement of facts, it appears that the defendant removed from the Second district in March, 1885, being more than thirty days prior to the .election, it was the right and duty of the electors of said county to fill the vacancy at said election, and the exercise of this right does not depend upon the notice, or want of it, of the county clerk. In deciding this, however, we do not intend to go beyond the facts in this case. Here it seems to have been generally understood by the electors of the county that a vacancy existed, and they sought to fill said vacancy, nearly all those voting at that election casting their ballots for one of the candidates named.

“This, we think, was sufficient to show that the election was general and participated in by all the electors who desired to vote upon that question. What the rule might ‘be had but a small percentage of the voters participated in the election is not before the court.”

In the case of Ellis v. Karl, 7 Neb., 381, which was a contest for the relocation of the county seat of Saline county, under the law in force in 1878, which provided that notice of the time and places of holding elections for such removals shall be given in the same manner as provided by law for general elections for county purposes • that at least thirty days previous to the election notice thereof should be given by posting up three written or printed notices in each election precinct, Judge Lake in the opinion says:

“But, notwithstanding the failure to give the full statutory notice, we do not think that the plaintiffs are in a situation to complain for the want of it. The only purpose which the notice could serve was that the question to be voted upon might be brought to the attention of each elector, and an opportunity afforded • him to attend the election and express his opinion concerning it through the ballot-box.”

There are other cases to the- same effect, none of which, however, involve the question of proclamation by the governor, but are confined to that of notice as such.

In the supreme court of Michigan it has been almost universally held that statutory provisions for the conduct of elections are directory only, excepting they be of a character that a failure of strict compliance would prevent or obstruct the free and complete expression of the public will, or satisfactory evidence to that effect. I quote from the syllabus in People v. Hartwell, 12 Mich., 508: “The statute requiring notice to be given [of the election and the vacancy] is directory merely.” This was followed in the case of People v. Wetherell, 14 Mich., 48; see also People v. Sackett, Id., 320; People v. Cicott, 16 Id., 283; People v. Bates, 11 Id., 362; People v. Higgins, 3 Id., 233; Secord v. Foutch, 44 Id., 89.

The same rule was held in Wisconsin in Lutfring v. Goetze, 22 Wis., 363, that “An election to fill a vacancy, however created, will not- be held invalid merely because the statutory notice was not given;” but whether it should not be held invalid for want -of actual notice to the body of voters was considered but not'ruled upon. .

In the case of State, ex rel. Peacock, v. Orvis, 20 Wis., 235, it was held: “ In case of -the death of a sheriff, the electors take notice thereof, and of the provisions of the constitution and statutes for the election of his successor, and although it is the duty of the under sheriff, acting as sheriff, in such a case, to order and give notice of the election of sheriff, as required by-sees. 14 and 15, chap. 7, Rev. Stats., yet his omitting to do so will not. render void an election of such officer at the general election next following the creation of the vacancy.”

Many other authorities are cited by counsel for the relator from, the courts of the foregoing and other states not deemed necessary to reproduce, in citation, in a prolonged opinion. The respondents contend that “neither the constitution nor the statute fixed the election of 1890 as being the proper time to elect any officer the votes for whom it was their duty to canvass. Their notice had not been officially called to any vacancy or any election respecting which they had a duty to perform. How can it be said, they argue, that it was clearly their duty to assemble and count the votes alleged to have been cast at that election?”

We have shown that the statute does fix the general election of 1890 as that for permanently filling any vacancy occurring in the office of district judge at any time not thirty days before the general election of 1889, and we have seen that Judge Norval’s resignation of December 12, 1889, created the vacancy.

It is such a matter of history that the court will take judicial notice of the fact that such resignation was made to the incumbent of the executive office, and that on the day last mentioned the principal respondent as governor appointed Jerome H. Smith to temporarily fill the office made vacant, and that in the regular course of executive duties such appointment was certified as official by another of the respondents as secretary of state. These officers at least will be presumed to have known, and still to know, that the judge thus appointed would hold his office only until the next general election occurring more than thirty days after the date thereof, which was the general election of 1890.

. Furthermore it appears that the returns of the election under which the relator claims were duly made out, certified, and forwarded to the secretary of state within the time provided by law, and were at the date of this application deposited in his office as a part of the public records of the state. _

Upon these premises it will be held that it was the duty of the respondents as the board of state canvassers to have met at the office of the secretary of state on the third Monday after the general election of 1890, which was held on November 4, last, and to have then and there made an abstract of the number of ballots cast for the office of district judge of the Sixtli judicial district, the names of all persons voted for for that office, the number of votes each received therefor, and stating whom they declared to be elected, affixing their names and official capacities as a state board of canvassers thereto; and it appearing that such official duty has not been performed by the respondents, a peremptory writ of mandamus will issue as prayed for by the relator.

Writ awarded.

The other judges concur.