106 Minn. 392 | Minn. | 1909
Lead Opinion
This appeal from a judgment entered m the district court of St. Louis county presents questions of very great importance and the results of the decision will be very far-reaching. It will determine the power of the legislature over methods of taxation, and thus vitally affect the future development of the commonwealth and the individual interests
1. The legislature proposed to the people of the state for their approval or rejection a certain amendment to article 9 of the constitution, which, when adopted, was to be known as section 1 of said article 9, and to be as follows:
“Section 1. The power of taxation shall never be surrendered, suspended or contracted away. Taxes shall be uniform upon the same class of subjects, and shall be levied and collected for public purposes, but public burying grounds, public schoolhouses, public hospitals, academies, colleges, universities, and all seminaries of learning, all churches, church property, and houses of worship, institutions of purely public charity, and public property used exclusively for any public purpose, shall be exempt from taxation, and there may be exempted from taxation personal property not exceeding in value $200 for each household, individual or head of a family, as the legislature may determine:
Provided, that the legislature may authorize municipal corporations to levy and collect assessments for local improvements upon property benefited thereby without regard to a cash valuation, and, provided further, that nothing herein contained shall be construed to affect, modi
This proposed amendment will be referred to as the “tax amendment.”
By chapter 212, p. 280, of the laws of Minnesota for the year 1905, the legislature also proposed to the people of the state for their approval or rejection a certain amendment to section 16 of article 9 of the constitution of the state, so that said section 16, when amended, should read as follows:
“Section 16. For the purpose of lending aid in the construction and improvement of public highways and bridges, there is hereby created a fund, to be known as the ‘state, road and bridge fund,’ said fund shall include all moneys accruing from the income derived from investments in the internal improvement land fund, or that may hereafter accrue to said fund, and shall also include all funds accruing to any state road and bridge fund, however provided. The legislature is authorized to add to such fund, for the purpose of constructing or improving roads and bridges of this state, by providing, in its discretion, for an annual tax levy upon the property of this state of not to exceed in any year one-fourth (^) of one mill on all the taxable property within the state.
Provided, that no county shall receive in any year more than three (3) per cent, or less than one-half (%) of one (1) per cent, of the total fund thus provided and expended during such year; and provided, further, that in no case shall more than one-third (%) of the cost of constructing or improving any road or bridge be paid by the state from such fund.”
This proposed amendment will be referred to as the “good roads amendment.”
These two proposed tax amendments were submitted to the people of the state for their approval or rejection at the general election held on November 6, 1906. At this election 284,366 votes were cast. On December 21, 1906, the state canvassing board found from the returns submitted to it that 156,051 of the electors of the state voting at the election had voted for the tax amendment, and thereupon it declared that the tax amendment had been adopted by a majority of 13,568 votes. On December 27, 1906, the Governor of the state made his proclamation of the fact, as required by law. On December 21, 1906,
Both amendments were submitted throughout the state as required by law upon a separate pink ballot, and the result of the ballots cast thereon was likewise counted upon separate pink tally sheets. On the ballots the good roads amendment appeared as No. i, and the tax amendment as No. 2. No. 3 was an amendment which is in no wise involved in the present matter. On the tally sheets the tax amendment was printed first and the good roads amendment second, in order. At the time of the election there were 83 counties in the state, divided into 2,670 election districts.
On December 31, 1906, the contestant, Samuel G. McConaughy, served upon the secretary of state a notice of contest, in which it was alleged that the tally books and tally sheets used in each precinct at the general election of 1906 had printed thereon the so-called tax amendment as the first in order, and the so-called good roads amendment as the second in order, and that on the official ballots used at the election the good roads amendment appeared first and the tax amendment second in order, and that by reason of such transposition many ballots cast for or against the good roads amendment were by mistake counted and returned as having been cast in favor of or against the tax amendment, and that many of the ballots cast for or against the tax amendment were by mistake counted for or against the good roads amendment; that of the votes of the electors voting at said election a majority of the same were not cast in favor of the adoption of the tax amendment, and that in' fact the tax amendment had been thereby rejected, but that a majority of the votes of the electors voting at the election had been cast in favor of the good roads amendment and that the same had been thereby adopted. By the filing of the points of contest and notice of appeal with the secretary of state the contestant attempted to institute a contest and to appeal to the district court, under the provisions of sections 336 and 337, R. R. 1905, from the determination of the state board of canvassers as to the adoption of the tax amendment and the
A similar contest was entered and appeal taken from the finding that the good roads amendment had not been adopted. The notices of appeal and points of contest were delivered by the secretary of state to the attorney general.
In January, 1907, the district court, under the provisions of sections 336 and 337, R. L,. 1905, appointed inspectors to inspect the ballots cast on the constitutional amendments at said election, and thereafter the inspectors examined and counted the ballots in 654 of the election districts out of the 2,670 election districts in the state, and in six months’ time counted in all about 141,000 of the ballots cast on the good roads and tax amendments. The inspectors also endeavored to count the ballots in 71 of the other election precincts of the state, but were unable to do so for the reason that the ballots therein had been lost or destroyed. No effort was made to inspect or count the ballots in the remaining 1,945 voting districts of the state, and no ballot evidence was offered before the court with reference to those precincts. The inspectors appointed by the court endeavored to count ballots in all of the counties of the state except two, but not all of the ballots in any one county were counted.
When the matter came on for hearing before the district court, the attorney general appeared and objected to the jurisdiction of the court and to the proofs. This objection was overruled, and the court found upon the evidence submitted to it that the total number of affirmative votes for the tax amendment in the state was 140,714. This conclusion was reached by taking the return of the state canvassing board as to the precincts of the state which were not recounted by the inspectors, and finding therefrom that 83,349 votes had been cast therein in favor of said tax amendment, adding this to the vote from the precincts which were recounted and the recount received in. evidence, which amounted to 57,365. By this method it appeared that the tax amendment failed of ratification by 1,470 votes.
By the same process the court also found that there had been cast 157,377 votes for the good roads amendment; that is, by taking the returns as fixed by the state canvassing board in the precincts which were not recounted, and finding therefrom that 79,427 affirmative votes had
2. At the threshold of the case we are met with the assertion that the questions involved are political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the state canvassing board would then be final, regardless of the actual vote upon the amendment. The question thus raised is a fundamental one; but it has been so often decided contrary to the view contended for by the attorney general that it would seem to be finally settled. That the courts have jurisdiction to determine whether proposed amendments to the constitution have been legally adopted was assumed in Dayton v. City of St. Paul, 22 Minn. 400, Secombe v. Kittelson, 29 Minn. 555, 12 N. W. 519, and State v. Stearns, 72 Minn. 200, 75 N. W. 210; but, as the power of the court seems not to have been heretofore seriously questioned in this state, it has seemed advisable to consider the question somewhat carefully.
In Rich v. Board, 100 Mich. 453, 458, 59 N. W. 183, the court said: “It is contended that the determination of the question whether an amendment to the constitution has been carried involves the exercise of political, and not judicial, power. If this be so, it follows that the promulgation of any purported amendment by the executive or any executive department is final, and that the action cannot be questioned by the judiciary. But, with reference to the conditions precedent to submitting a proposed amendment to a vote of the people, it has been repeatedly held, by courts of the highest respectability, that it is within the power of the judiciary to inquire into the question, even in a collateral •proceeding. * * * It is to be noted that, under section 1 of article ;20 of the constitution of the state, no amendment can become a part of
In considering the cases it is necessary to note whether in the particular case the court was called upon to determine between rival governments, or whether the legislature, or some board or official, had legally performed the duty imposed by the constitution or statutes.
In State v. McBride, 4 Mo. 303, 29 Am. Dec. 636, it was held that the general assembly, under the power granted by the constitution, •could change the constitution only in the manner prescribed by it, and that it was the duty of the court to determine whether all prerequisites had been complied with. In Collier v. Frierson, 24 Ala. 100, it was held that a constitution can be changed only by the people in convention or in a mode described by the constitution itself, and that if the latter mode is adopted every requisite of the constitution must be observed. “It has been said,” says the court, “that certain acts are to be •done — certain requisitions are to be observed, before a change can be effected. But to what purpose are these acts required, or these requisitions enjoined, if the legislature or any other department of the gov■ernment can dispense with them? To do so would be to violate the instrument which they are sworn to support; and every principle of public law and sound constitutional policy requires the courts to pronounce against every amendment which is shown not to have been made in accordance with the rules prescribed by the fundamental law.”
In State v. Swift, 69 Ind. 505, 518, it was said that: “The people of .a state may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; but if they undertake to add an .amendment, by the authority of legislation, to a constitution already in existence, they can do it only by the method pointed out by the constitution to which the amendment is to be added. The power to amend .a constitution by legislative action does not confer the power to break it, any more than it confers the power to legislate on any other subject, -contrary to its prohibitions.” So, in State v. Timme, 54 Wis. 318, 11 N. W. 785, it was held that no amendments can be made to the con
In the Prohibition and Amendment Case, 24 Kan. 700, the court determined judicially whether an amendment to the constitution had been legally adopted. After approving the statement quoted from Collier v. Frierson, supra, that “we entertain no doubt that, to change the constitution in any other mode than by a convention, every requisite which is demanded by the instrument itself, must be observed, and the omission of any one is fatal to the amendment,” the court held that as “substance of right is grander and more potent than methods and forms,” there had been substantial compliance with the constitutional requirement that a proposed amendment to the constitution must be entered at length on the legislative journal. It appears that the joint resolution making a submission simply provided that a proposition should be submitted to the electors at the general election of 1880. It did not declare that the machinery of the general, election law should control, or that any particular officers' or board would receive, count, or canvass the votes cast. But the existing election machinery was adequate, and the votes were received, counted, and canvassed, and the result declared as fully as though it had been in terms so ordered. These methods had been followed in the adoption of previous amendments, and it was held that, conceding the irregularity of the proceedings of the legislature and the doubtful scope of the provisions for the election, yet in view of the very uncertainty of such provisions, the past legislative history of similar propositions, the universal prior acquiescence in the same forms of procedure, and the popular and unchallenged acceptance of the legal pendency before the people of the question of the amendment for decision, and in view of the duty cast upon the court of taking judicial knowledge of anything affecting the existence and validity of any law or portion of the constitution, it must be adjudged that the proposed amendment became a part of the constitution. The effect was to hold that a provision of the constitution requiring the proposed amendment to be entered in full on the journals, was directory, and not mandatory. This liberal view was approved in State v. Winnett, 78 Neb. 379, 110 N. W. 1113, 10 L. R. A. (N. S.) 149, and People v.
In Oakland v. Hilton, 69 Cal. 479, 497, 11 Pac. 3, the court, in commenting upon the Kansas case said: “The reasoning by which the learned court reached the conclusion it did is not based on any sound legal principles, but contrary to them. Neither the argument nor the conclusion can command our assent or approval. The argument is illogical, and based on premises which are without any sound foundation, and rest merely in assumption.” See also the well-considered case of Kadderly v. Portland, 44 Ore. 118, 74 Pac. 710, 75 Pac. 222.
All these cases concede the jurisdiction of the court to determine whether, in submitting a proposed amendment to the people, the legislature legally observed the constitutional provisions as to the'manner of procedure. In Livermore v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L. R. A. 312, the court, at the instance of a citizen and a taxpayer, restrained the secretary of state from taking steps to submit to the people a proposed amendment to the constitution agreed to by the legislature on the ground that the legislature had not acted in conformity with the constitution and that the proposed amendment was of such a character that it could not properly become a part of the constitution. The supreme court of Colorado, in People v. Sours, supra, refused to exercise this authority.
The entire question received elaborate consideration in Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609. The amendment, which concededly had "been adopted by the people, had not, before its submission, been entered in full upon the legislative journals, as required by the constitution, and it was held that this was a material variance in both form and substance from the constitutional requirements, and that the amendment did not, therefore, become a part of the constitution.
As to the claim that the question was political, and not judicial, it was said that, while it is not competent for courts to inquire into the validity of the constitution and the form of government under which they themselves exist, and from which they derive their powers, yet, where the existing constitution prescribes a method for its own amendment, an amendment thereto, to be valid, must be adopted in strict conformity to that method; and it is the duty of the courts in a prop-'
In University v. McIver, 72 N. C. 76, the question whether a proposed amendment to the constitution had been legally adopted was treated as a judicial question. By the constitution a proposed amendment was required to be approved by two legislatures before its submission to the people. In this instance a bill was passed which contained seventeen amendments. The next legislature rejected nine and adopted eight of these amendments, and submitted them to the people. The majority of the people voted for their adoption; but it was contended that the constitution contemplated and required that the same bill and the same amendments, without change, should be approved by both legislatures, and that it did not follow that, because the second legislature adopted separately eight out of the seventeen amendments adopted by the first legislature, it would have adopted the seventeen, or any of them, if they had been voted upon by the second in the form adopted by the first body. The substance of the contention was that there had not been a concurrence of the two legislatures on the same amendments, according to the letter and spirit of the constitution. The court held that the power of the legislature in submitting amendments could not be distinguished from the powers of the convention, and that, as the people had spoken and ratified the amendments, they became a part of the constitution.
In Westinghausen v. People, 44 Mich. 265, 6 N. W. 641, it was held that prior to 1876 a proposed amendment to the constitution could not be submitted to the people at any other than a general election; but, as the amendment under consideration had been submitted after the constitution had been changed, it had been legally submitted' and adopted.
In State v. Powell, 77 Miss. 543, 27 South. 927, the question whether an amendment to the constitution had been legally submitted and adopted by the people was held to be judicial, and not political, in its nature. The amendment under consideration changed the constitution by providing for an electivej instead of an appointive, judi
It was argued that the rules prescribed by the constitution “are all for the guidance of the legislature, and from the very nature of the thing the legislature must be the exclusive judge of all questions to be measured or determined by those rules; whether the question be political and certainly a legislative one, or judicial to be determined by the courts, this section of rules, not only of procedure but of final judgment as well, confides to the separate magistracy of the legislative department full power to hear, consider, and adjudge that question. The legislature puts the question to the qualified electors. The qualified electors answer back to the. legislature. ‘If it shall appear’ to the legislature that its question has been answered in the affirmative, the amendment is inserted and made a part of the constitution. The Governor and the courts have no authority to speak at any stage of this proceeding between the sovereign and the legislature, and when the matter is thus concluded it is closed, and the judiciary is as powerless to interfere as the executive.” But it was held that the question whether the proposition submitted to the voters constituted one, or more than one, amendment, whether the submission was according to the requirements of the constitution, and whether the proposition was in fact adopted, were all judicial, and not political, questions. “We do not,” said Chief Justice Whitfield, “seek a jurisdiction not imposed upon us by the constitution. We could not, if we would, escape the exercise of that jurisdiction which the constitution has imposed upon us. In the particular instance in which we are now acting, our duty to know what the- constitution of the state is, and in ac
In Bott v. Wurts, 63 N. J. L. 289, 293, 43 Atl. 744, 881, 45 L. R. A. 251, it was held that it was the duty of the judicial department of the government to determine whether the legislative department or its officers had observed the constitutional injunctions in attempting to amend the constitution, and to annul their acts if they had not done so. The case is an interesting and well-considered one. The constitution provided the manner in which proposed amendnients should be submitted to the people, but did not provide a method for canvassing the votes. The legislature, having agreed to certain proposed amendments, passed an act for submitting the same to the people. This statute provided for the transmission to the secretary of state of certificates showing the result of the voting throughout the state, and made it the duty of the Governor at the designated time to summon four or more senators, who, with the Governor, should constitute a board of state canvassers to canvass and estimate the votes for and against each amendment. This board was to determine and declare which of the proposed amendments had been adopted and to deliver a statement of the results to the secretary of state, and “any proposed amendment which, by said certificate and determination of the board of canvassers, shall appear to have received in its favor a majority of all the votes cast in the state for and against said proposed amendment shall, from the time of filing such certificate, be and become an amendment to and a part of the constitution of this state; and it shall be the duty of the Governor of this state forthwith, after such determination, to issue a proclamation declaring which of said proposed amendments have been adopted by the people.” This'board was required to file a statement of the result of the election, and the Governor to issue his proclamation declaring that the amendment had been adopted and become a part of the constitution. At the instance of a taxpayer the supreme court allowed a writ of certiorari to remove into the court for review the statement of the results of the election made by the canvassing board, in order that it might be judicially' determined whether on the facts shown in that statement the board had legally determined that the proposed amendment had been adopted. The supreme court de-
“It thus becomes manifest that there was present in the supreme court, and is now present in this court, every element tending to maintain jurisdiction over the subject-matter, unless it be true, as insisted, that the judicial department of the government has not the right to consider whether the legislative department and its agencies have observed constitutional injunctions in attempting to amend the constitution, and to annul their acts, in case they have not done so. That such a proposition is not true seems to be indicated by the whole history of jurisprudence in this country.” The court, after considering the case on the merits, held that the proper conclusion had been drawn therefrom, and that the amendmént in question was legally submitted and adopted.
The recent case of Rice v. Palmer, 78 Ark. 432, 440, 96 S. W. 396, presented the identical question which we have under consideration. In reference to the contention that the constitution intended to delegate to the Speaker of the House of Representatives the power to determine whether an amendment had been adopted, and that the question was political, and not judicial, the court observed: “This argument has often been made in similar cases to the courts, and it is found in many dissenting opinions, but, with possibly a few exceptions, it is not found in the prevailing opinion.”
In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L. R. A. 560, it was held that the constitutional requirement of publication of a proposed constitutional provision for three months prior to the election at which it is to be submitted to the people is mandatory, and that noncompliance therewith renders the adoption of an amendment of no effect.
The authorities are thus practically uniform in holding that whether a constitutional amendment has been properly adopted according to the requirements of an existing constitution is a judicial question.
In Worman v. Hagan it appeared that the constitution made it the duty of the.Governor to make publication of the proposed amendment, and, if it appeared that a majority of the electors had voted in its favor, to issue a proclamation declaring that it had been adopted, and henceforth it became a part of the constitution. It does not appear how the Governor was to ascertain whether the proposed amendment had passed. It was held that the action of the Governor was final, and the conclusion was rested upon the theory that the special tribunal had been created by the constitution itself. “It will be seen,” says Mr. Jus ■ tice Bryan, “that the constitution confides to the Governor exclusively the power and duty of ascertaining the result of the vote from an examination of the returns made to him. And on his proclamation that the proposed amendment has received a majority of the votes cast, it becomes eo instante a part of the constitution. There is no reference of the question to any other officer or to any other department. It is committed to the Governor without qualification or reserve, and without appeal to any other authority. Most certainly no jurisdiction is conferred on this court to revise his decision. Tt may be asked what is to be done in case the Governor should violate his duty and wrong
Having thus determined its incompetency, the court proceeded to discuss the evidence and reached the conclusion that the amendment in question has been legally adopted as a part of the constitution. The decision is not very satisfactory, nor very conclusive, even if it is conceded that the constitution under consideration created a special tribunal. No authorities are cited. The conclusion assumes that, because the constitution imposed certain duties on the Governor, it was the intention to deprive the judicial department, which is created by the same instrument, of its inherent power to determine the legality of the actions of officers.
Miller v. Johnson, 92 Ky. 589, 596, 18 S. W. 522, 15 L. R. A. 525, is an interesting case which has some bearing upon the question. Acting under the authority of the constitution, the legislature provided for calling a constitutional convention to frame a new constitution for submission to the people. The constitution provided for such a convention, but did not require that the work of the convention should be submitted to a popular vote. The convention met and drafted a complete constitution and provided for its submission. The people voted for its adoption. The convention then reassembled and made numerous changes in the instrument which had been adopted. As thus changed, the new constitution was promulgated by the convention. The court declined to determine the legality of the procedure. The distinction between political and judicial questions was referred to; but the decision seems to rest on the fact that it was, as said by Chief Justice Holt, “a case where a new constitution has been framed and promulgated according to the forms of law. Great interests have arisen un
It is conceded, however, that in a case like that at bar the court would have jurisdiction. The question under consideration, said the court, was not “whether merely an amendment to a constitution, has been adopted as required by that constitution. If it provides how it is to be done then, unless the manner be followed, the judiciary, as the interpreter of that constitution, will declare the amendment invalid” —citing Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, 15 N. W. 609, and State v. Tufly, 19 Nev. 391, 12 Pac. 835, 3 Am. St. 895.
Luther v. Borden, 7 How. 1, 40, 12 L. Ed. 581, is always cited by those who assert that the courts have no power to determine questions of a political character. It is interesting historically, but it has not the slightest application to the case at bar. .When carefully analyzed, it appears that it merely determines that the federal courts will accept as final and controlling a decision of the highest court of a state upon a question of the construction of the constitution of the state.
The state of Rhode Island, unlike the other states, did not adopt a new constitution when it entered the Union,'but continued under the old charter which it had received from Charles II in 1663. The people finally outgrew this archaic instrument, and demanded a revision which would extend the suffrage and in other ways modernize the government. The legal power of initiative rested with the charter government, which was controlled by the conservative landholding element, which benefited by the existing system. In 1841 the people, acting without direct legal authority, held a convention and framed á new constitution, which was submitted to a popular vote and declared adopted. Under it a new set of state officers were elected. All this was done in utter disregard of the existing laws. Its 'justification, if any existed, was found in a general right of a majority 'of the people to frame such a government as they pleased, so long as it was republican in form.' Dorr, who had'been elected Governor under the new constitution, attempted to get possession of the public offices and records by
Uater the matter came before the federal courts in an action of trespass brought by Uuther, a citizen of Massachusetts, against Borden for breaking and entering his house. Borden justified upon the ground that at the time of the breaking the state was under martial law, and the act had been committed while he was in the military service, acting under the orders of his superior officers, for the purpose of arresting the plaintiff, who was aiding and abetting an insurrection against the state. The circuit court declined to receive evidence tending to' show that the Dorr government was the legitimate government. It appeared that the state court had already decided that the charter government continued in force until it was superseded by the constitution of 1843, and Chief Justice Taney based the decision, which affirmed the judgment of the circuit court, upon this ground. “The point, then, raised here,” said he, “has been already decided by the courts
The meaning of executive, legislative, and judicial power is fairly well understood;^ but much confusion has resulted from the use of
The questions which arise within the sphere of state action are less easily differentiated. When the Governor vetoes a bill, he exercises a political power; but, when he removes a subordinate officer, he is said to exercise an administrative power. What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the government, with discretionary power to act. See State v. Cunningham, 81 Wis. 440, 497, 51 N. W. 724, 15 L. R. A. 561; In re Gunn, 50 Kan. 155, 32 Pac. 470, 948, 19 L. R. A. 519; Green v. Mills, 69 Fed. 852, 16 C. C. A. 516, 30 L. R. A. 90; Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. 220.
Thus the legislature may in its discretion determine whether it will pass a law or submit a proposed constitutional amendment to the people. The courts have no judicial control over such matters, not merely because they involve political questions, but because they are matters which the people have by the constitution delegated to the legislature. The Governor may exercise the powers delegated to him, free from judicial control, so long as he observes the laws and acts within the limits of the power conferred. His discretionary acts cannot be controllable, not primarily because they are of a political nature, but because the constitution and laws have placed the particular matter under his con
The wise statesmen who framed the early American constitutions feared that party passion, guided by private interests, would be liable to lead to frequent tampering with the fundamental law. The federal constitution had departed from the English model, under which the constitution of the government could be changed by a simple legislative act. The period immediately following its adoption was one of unrest. Tumultuous assemblages, without color of legal authority, claimed the right, not only to dictate the present policy of the government, but also to amend the constitution. 1 Curtis, Const. Hist. U. S. 261. The ancient Aristotelian theory of the eternal fixity of constitutions had long been abandoned. It was necessary to provide means for change as experience disclosed the weakness of existing systems. As John Stuart Mill has said: “No government can now be expected to be permanent unless it guarantees progress as well as order; nor can it continue really to secure order unless it promotes progress. It can go on as yet, with only a little of the spirit of improvement. While reformers have even a remote hope of effecting their objects through the existing system, they are generally willing to bear with it. But when there is no hope at all, when the institutions themselves seem to place an unyielding barrier to the progress of improvement, the advancing tide heaps itself up behind them till it bears them down.”
In making provision for amendment, it was therefore designed to provide for growth and progress, as well as stability. As said by Jame-son in his learned work on Constitutional Conventions; “Provisions
A different question is presented when the issue is as to which of two rival governments is legitimate. It may be that such questions are not the subject of judicial determination. A court must exist by virtue of a constitution. It is a constituent part of the government, and can áct only by virtue of power conferred by the constitution. The acceptance of judicial office is a.recognition of the authority of the gov-
The legislature could not create a new judicial tribunal, which would be free from the reviewing jurisdiction of this court. That it was not the legislature’s intention to create a special statutory tribunal with final authority to determine the question is placed beyond controversy by the subsequent statute, which removed every possible doubt by expressly providing for a judicial contest in such a case. R. R. 1905, § 336. The method of canvassing votes with reference to state officers is prescribed by sections 326, 327, R. R. 1905. The state board of canvassers consists of the secretary of state, two justices of the supreme court, and two judges of the district court. This board is required to ■open and canvass the certified copies of the statements returned by the county canvassing boards and prepare therefrom a statement of the whole number of votes cast at such election for candidates of the different state officers, the names of the persons receiving such votes, and the number received by each, specifying the several counties in which they were cast. It shall then subscribe and certify the correctness of such statements and declare the result.
It will be noted that this board does no more than tabulate the reports received from the various county boards and add up and certify the results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L. R. A. (N. S.) 1221. It is settled law that the decisions of election officers and canvassing boards are not conclusive, and that the final decision must rest with the courts unless the law declares that the decisions of the board shall be final. We need not determine whether the action of a special statutory board can be made final and conclusive, as neither the constitution nor the statutes declare that such shall be the effect of the state canvassing board’s certificate. The correctness of the conclusion of the state board rests upon the correctness of the returns made by the county boards, and it is inconceivable that it was intended that this statement of the result should be final and conclusive, regardless of the actual facts. The proclamation of the Governor adds nothing in the way of conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the people
3. The state also contends that, even though the courts have jurisdiction to determine whether a constitutional amendment has been legally submitted and adopted, regardless of the certificate of the canvassing board and the proclamation of the Governor, no proceedings can be maintained in this instance, because the statutes of the state provide no adequate procedure for representation by the people and for making effective any judgment the court may render. The statute proposing the tax amendment was approved April 13, 1905, and at that time there was no provision for contesting the declared result of the vote on a proposed constitutional amendment. The amendment in question was voted upon at the general election held in November, 1906. Prior to the election, on March 1, 1906, the Revised Raws of 1905 had gone into effect, so that when the people voted on the amendment the statute contained a provision to the effect that "any voter may contest the election of any person for or against whom he had the right to vote, who is declared elected to state, county or municipal office, or the declared result upon a constitutional amendment or othsr question submitted to popular vote, 'by proceeding as follows.” [R. R. 1905, § 336.] When the contest relates to the election of an officer, the party contesting shall file with the clerk of the district court of the county of his residence, within ten days after the canvass is completed, a notice of such appeal to such court and cause a copy thereof to be served upon the contestee. When the contest relates to a matter submitted to popular vote which affects the entire state, the notice of appeal must be served on the secretary of state. This notice shall be treated as a pleading in the case and shall be delivered in tire same manner as the summons in a civil action. The testimony on the contest shall be taken and the matter treated and determined in the same manner as such questions are treated by the court.
The objection to the statutory method provided for a contest does not,.strike us as having any particular force. The statute was originally intended to govern contests between rival claimants to an office, and, when the provision authorizing a voter to contest the declared result of the vote upon a constitutional amendment was added, the statute was not changed, so as to provide for the peculiar conditions which might
The inadequacy of the bond which the contestant is required to file is no argument against the jurisdiction of the court or the applicability of the statute. It is the same bond which is required in the case of a contest against a person declared elected to a state office, and the expense may be as great in the one case as in the other. The provision for service on the secretary of state is intended to convey notice to the people of the state in their collective capacity, and the necessary inference is that the officer upon whom the service is made must take the requisite steps for the defense of the public interests. This he did by delivering it to the attorney general, whose duty it is to appear for the state in all cases, “whenever in his opinion the interests of the state require it.” Section 56, R. R. 1905. It appeared from the statement of the canvassing board and proclamation of the Governor that the amendment had been adopted and was therefore a part of the organic law. A contest of this character affects the interests of the entire state, and the attorney general was naturally of the opinion that the public interests required him to appear and represent the public.
The statute provides for the preservation of the ballots for a reasonable time, in order that they may be examined and recounted, should occasion require it. Section 312, R. R. 1905, provides that, “as soon as practicable after each ballot box has been sealed, it shall be deposited with the clerk of the municipality or town, and there remain with unbroken seals until the next general election, unless previously opened by proper authority for examination or recount.”
The claim that the court has no process by which to make effective the judgment it may render in a proceeding of this character may be true; but it has power to determine that the amendment was or was not adopted by the vote of the people, and its judgment will be
4. It being thus established that the courts have jurisdiction to determine whether the tax amendment to the constitution was adopted, and that the statutes provide adequate machinery for contesting the declared result of the voting, we reach the question whether, upon the facts as found, the lower court was correct in its conclusion that the amendment had not received a majority of all the votes cast at the election. There are comparatively few cases which involve contests of this character. The ordinary statutory election contest is an adversary proceeding, wherein the candidate defeated on the face of the returns is the contestant and the candidate returned as elected is the contestee. The power of courts to determine such contests is purely statutory. They have no inherent common-law or equity powers over elections. Ogburn v. Elmore, 123 Ga. 677, 51 S. E. 641; Quartier v. Dowiat, 219 Ill. 326, 76 N. E. 371. But the legislature may confer the power on the courts and determine the manner in which it shall be exercised. When the contest is between rival claimants for an office, the interest of the general public is remote, and the legislature may waive the right of the state to be a party to the proceedings. Boring v. Griffith, 1 Heisk. (Tenn.) 456; State v. Lewis, 51 Conn. 113; 15 Cyc. 402. But, when the contest is as to the result of a vote of the people on a public matter, in which no candidate is directly interested, provision must be made for making the public a party. Metamora v. Eureka, 163 Ill. 9, 45 N. E. 209; Perry v. Whitaker, 71 N. C. 477.
Such a contest is not in a strict legal sense an adversary proceeding. It is neither an action at law nor a suit in equity. Ogburn v. Elmore, supra. It is more in the nature of an investigation for the purpose of discovering the truth, in the result of which no individual has any direct personal interest antagonistic to the general public. It must be carried on in the way authorized by the statute, and an orderly proceeding requires that the general rules for the production of testimony shall be observed. But it is not necessary or desirable that every tech
Proceeding under section 336, R. L. 1905, the contestant filed a petition with the clerk of the district court of St. Louis county, which fully stated the points upon which the contest would be made. Proper service thereof was made on the secretary of state and the papers were by him transmitted to the attorney general, who, after objecting to the jurisdiction of the court, appeared and thereafter participated in the proceedings. This petition alleged the fact of the submission of the proposed amendment and the certification of the state canvassing board that it had been adopted, and “that in and about the polling, counting, canvassing and returning of said votes by the judges of election, the county canvassing boards in the various counties of said state, the county auditors in the various counties of said state, and the state canvassing board of said state, numerous mistakes, errors, miscounts, wrongs and omissions occurred, and that in truth and in fact the said proposed amendment to article nine (9) of the constitution of the state of Minnesota, relating to taxation, failed to pass, and was not approv
In the “points of contest,” which accompanied the petition, it was alleged: That the tally books and tally sheets “furnished to and used by the judges and clerks of the several election districts of the several counties of the state” had printed thereon the proposed amendment of article 9 of the constitution of the state of Minnesota as the first in order, and an amendment of section 16 of article 9 of the constitution of said state, establishing the road and bridge fund, and authorizing the legislature to levy an annual tax for the purpose of constructing and improving roads and bridges within said state, was printed on the said tally books and tally sheets as second in order, whereas upon the official ballots used at said election the amendment relating to the road and bridge fund appeared as the first in order, and the amendment relating to taxation as second in order. That upon the official return sheets of the several election districts of the state the amendments were printed in the same order as that in which they were printed upon the tally sheets. That by reason of this transposition “many ballots cast and votes for the said constitutional amendment relating to roads and bridges were by mistake counted and returned by the clerks and judges” of the several precincts of the several counties of the state of Minnesota “as having been cast in favor of the said amendment relating to taxation, and were so canvassed by the county canvassing boards and so returned to the county auditors” of the several counties of the state of Minnesota, “by whom they were likewise erroneously returned to the secretary of state, and that thereafter said votes were likewise erroneously counted and returned by the state canvassing board.” That as a result of said errors the amendment relating to roads and bridges was declared by the state canvassing board to have been not adopted and the amendment relating to taxation to have been adopted. That, if the votes had been correctly counted, returned and canvassed, the amendment relating to taxation would have been declared to have been rejected by the voters. After alleging certain specific errors in the counties of St. Touis, Hennepin, and Ramsey, it was charged that “in each one of the election districts of the several counties of the state” there were cast many votes and ballots in favor of the amendment relating to roads and bridges, all of which votes and
The contestant thus charged that by reason of the failure to have the amendments printed in the same relative order on the ballots, tally books and tally sheets the judges of election were misled and caused to count the votes for the tax amendment which should have been counted’ for the road and bridge amendment; that is, the votes were transposed, so that the heavier vote cast for the road and bridge amendment was counted for the tax amendment, and the lighter vote for the tax amendment was credited to the road and bridge amendment. It was charged that this occurred in “each-of the election districts of the several counties of the state.” It is conceded that the transposition on ballots and tally sheets did in fact occur, but it is denied that the result was as claimed by the contestant. The inspectors counted the original ballots in 654 out of 2,670 election districts in the eighty three counties of the state. In sixty five of the districts recounted the result of the recount was withdrawn under the rulings of the court. In seventy one districts the ballots had been illegally destroyed by the local officials in order to use the ballot boxes for a local election. The court found that “the inspectors counted, or endeavored to count, ballots in all of the counties of said state except two; that in four of the counties they endeavored to count certain precincts,' but the ballots therein were lost or destroyed; that in four other of the counties they counted ballots, but the same are not in evidence, the offer of them having been withdrawn by contestants when objection was made; and that ballots from 73 counties were offered and received in evidence, but not all the ballots in any one county were counted or offered or received in evidence.”
But the contestant now contends that the trial court was wrong in holding that the error existed in the uncounted as well as the recounted districts, and claims the right to rely on a presumption that the result of the votes in the uncounted districts was correctly certified
There is very little authority for the theory that a contestant, after counting the votes in certain districts, and finding enough errors to overthrow the declared majority against him, may rest and rely upon the correctness of the votes as certified in the remaining districts. The result of such practice would be to shift the burden of counting the other districts to the contestee. When he had counted enough ballots to recover his lead, the burden would shift back, and so on until the end was reached.' Ordinarily, in a contest between rival candidates, the contestant in his petition or pleading alleges errors in certain specified voting districts only, and makes no attack on the returns in the others. He may then, of course, rely upon the returns in the unattacked districts and count the returned vote therein as a part of his vote. This was the rule applied in Merkley v. Trainor, 142 Cal. 265, 75 Pac. 656, where the contestee in his answer had expressly alleged that such returns were correct. The issue in such contest is between rival candidates, and there is every reason why the procedure of an ordinary action under definite pleadings should be applied. In the case at bar formal pleadings were not framed. In his petition the contestant alleged the incorrectness of the count in every district in the state, and his evidence showed that whatever errors did occur were generally due to a cause which operated, or may have operated, in every district. Having thus neutralized the effect of the general presumption of the correctness of the returns of the various county canvassing boards, he was not in a position to claim the benefit of a presumption which he had overthrown.
The controlling presumption in this proceeding is that which arises from the statement and certificate of the state canvassing board. In a collateral proceeding this certificate is conclusive (McCrary, Elections, §'§ 306, 316; Hoy v. State, 168 Ind. 506, 81 N. E. 509), and in a direct attack it can be overthrown only by very clear and satisfactory
Our conclusio'n, after very careful consideration, is that the findings of fact do not sustain the conclusion that the tax amendment failed to pass, and the judgment is therefore reversed, with directions to enter judgment in conformity with the views herein expressed.
Judgment reversed.
Dissenting Opinion
(dissenting).
I concur in the conclusion that the court has jurisdiction to entertain the contest and that the statute providing therefor is not void for uncertainty, but dissent from that part of the decision holding, in effect, that contestants failed to make out their case, because there was not a complete recount of all the ballots cast at the election. That conclusion is, in my view, in conflict with elementary principles of procedure in such cases and unsound. The contestants charged in their notices of contest irregularities, errors, and mistakes in the returns of the election, and that the true vote showed the adoption of the good roads amendment and the defeat of the tax amendment. To this the state, appearing by the attorney general, made no response by counter notice of an intention to offer evidence on points not specified in the notice of contest, but rested upon the presumptive correctness of the returns and upon the theory that contestants were required affirmatively to prove their case, and, if they could do so, nothing remained for the state to offer. So that the state, as contestee, in no way challenged the accuracy of the election returns as certified by the proper officials. In this condition of the issues the contests proceeded to trial, and upon the final hearing below were consolidated and disposed of as one case. The trial court found from the evidence submitted to it that the good roads amendment received in fact a majority of all the votes cast at the election, but that the tax amendment fell short of
There is no question but that the evidence fully sustains the findings of the court. The attorney general makes no contention to the contrary; but he insists, in effect, and a majority of this court sustain him, that because there was not a complete recount of all the ballots cast in every precinct of the state the findings of the trial court cannot stand, and there must be a reversal, because, perchance, if a complete recount had been made, it might have appeared that the tax amendment was in fact adopted by the necessary majority vote. In this I am unable to concur.
It is elementary that election returns properly certified are prima facie evidence of the correctness of the result thereby shown, and in the absence of proof to the contrary, not mere assertion in a notice of contest, import absolute verity and are final and conclusive. To overcome this presumption the evidence of irregularities, errors, or defects must be clear and free from doubt. It is unnecessary to cite authorities to a proposition so fundamental and necessary to the integrity of our elections. It is also elementary that in contest proceedings the contestant, however broad may be the allegations of his notice, is required to go no further with his evidence than to make out a prima facie case in his favor. “They may prove less, but not more, than they allege.” Paine, Elections, 824. He may attack by his evidence such of the returns as he chooses, and if he thereby changes the result announced by the official returns he may rely upon the verity of those not attacked and rest his case. At this point, by all rules of proceedings in cases of this kind, the contestee must take the laboring oar and overcome the prima facie case thus made. 5 Am. & Eng. Enc. (2d Ed.) 39; Merritt v. Hinton, 55 Ark. 12, 17 S. W. 270; People v. Thacher, 55 N. Y. 525, 14 Am. 312; Phelps v. Schroder, 26 Oh. St. 549; Lloyd v. Sullivan, 9 Mont. 577, 24 Pac. 218.
There was no attempt to do this in the case at bar. The court holds that it was incumbent upon the cohtestant to proceed further with the recount, notwithstanding the fact that when he rested his case was complete, and upon the facts then before the court but one conclusion could be reached, and that to the effect announced by the trial court. This is a departure from the settled practice, and in my opinion not
