30 Colo. 377 | Colo. | 1902
Lead Opinion
delivered the opinion of the court.
The foregoing preliminary statement fairly presents the questions necessary to consider in so far as they are argued by counsel for the secretary of state. They contend that under the apportionment act of 1901 no senator is to be elected from the 26th district at the next general election, and hence the. refusal of the secretary of státe to receive and file the certificate of nomination or certify the name of Mr. Newell to. be printed upon the official ballots; should not be disturbed. The only question as to the apportionment act which either party raises is the one of vacancy in that district, which necessarily implies that the only controversy between them in this respect is, which one of the several districts claiming the right to elect senators at the next general election, including the 26th, is asserting a right to elect one which is not entitled to elect at that time? This is a question which the senate must determine for itself, and its authority to do so cannot be infringed. Our constitution expressly - provides that each house of the general assembly shall judge of the election and qualification of its members— § 10, art. V. The power thus vested is exclusive, and cannot be exercised by any other tribunal. Hughes v. Felton, 11 Colo., 489; State v. Gilmore, 20 Kan., 551.
The secretary of state bases' his action upon the ground that there is. no vacancy in the 26th district. On the strength of this construction of the apportioninent act of 1901,' he takes the steps which will result in the eléction of the statutory number of senators
In view of the constitutional provision above referred to, if this court should undertake to decide whether the secretary of state was right or wrong in his construction of the apportionment act, it would also exercise an authority which it does not possess because it would be an attempt to determine questions which the senate alone has jurisdiction to settle. Aside from these considerations, if it could be successfully urged that the inhibition of the constitution is not controlling in this case, it is not amiss to add, that no harm can ever come of permitting the
The judgment of the district court is affirmed.
Affirmed.
Concurrence Opinion
concurring.
I fully concur in the opinion of Mr. Justice Gabbert. The ground upon which he bases his conclusion is impregnable, and is so clearly and concisely stated that amplification would serve to obscure, rather than to elucidate, the controversy. The opinion speaks for itself, and it would seem that there
In an opinion the statement of a rule in general terms must be taken in connection with the particular facts of the case. In the determination of a pending controversy disclosing certain facts it is not a safe practice, nor do courts usually indulge therein, to anticipate and decide other cases that may arise exhibiting an entirely different state of facts, and to which other legal principles may apply. It will be time-enough, therefore, to determine the duty of the secretary of state when the general assembly enacts a law expressly providing that there shall be no vacancy in a given senatorial district at a given election. It has not so declared in the apportionment act of 1901. It did so declare in the act of 1891 — SessionLawsl891 22, 24. In the act of 1891 the general assembly very wisely specified, as should have been done in 1901, in what senatorial districts elections should, and in what districts elections should not, be held at the next general election after the act took effect. But if a case such as suggested in the dissenting opinion should be presented to the court, it may not be inappropriate to observe that we would then have, in advance of the election, an authoritative declaration, in the form of a statute, by the general assembly itself, with which body rests the sole power of judging of the election and qualification of its members, that in the districts wherein it had’ said elections should be held, those duly elected thereat would be entitled to seats at its ensuing session. But such supposed case is so rad
The condition which now confessedly confronts us is that if elections are held in all the senatorial districts created by the apportionment act which are not now fully represented, those elected therefrom, together with the hold-over senators who cannot be displaced, will, if all are seated, constitute the senate a body of 36 members, whereas, under the constitution, it is limited to 35. Mr. Justice Gabbert has demonstrated that neither the secretary of state nor the courts can say what senatorial district shall be disfranchised. Mr. Justice Steele thinks, as I understand it, they may determine in which district a vacancy exists. If the court has such power then, if the condition wás that like provision had been made for the election of- a number of senators who, together with the hold-overs, would give a senate of 34 members, it would have power to add one so as to make good the constitutional number. It would have the same power to add one to, as it would have to subtract one from, the number provided for by the legislature. In neither case has a court such power, nor could that power be conferred upon it. To attempt to exercise it would be a flagrant usurpation of jurisdiction which the general assembly alone possesses, and likewise an exhibition of judicial legislation without a parallel.
Courts cannot thus make laws by arbitrarily eliminating from invalid enactments the clauses which produce the invalidity. Neither can they give life to an act which is defective because of the absence of provisions which the legislature might have, but did not, put into it, by injecting into the statute the omitted provision.
Again, suppose that Mr. Newell’s nomination had been received, and a nominee in some other district had filed an objection to its certification on the ground that there was no vacancy in the 26th district. If the secretary of state has the power here asserted and sustains the objection, would he not indirectly, but none the less conclusively, determine which claimant had the right to a seat in the next senate? He certainly could not do this in a contest between rival claimants, and he cannot of his own motion do so. If such exclusive power is not vested in the ministerial officer, or the courts, and the legislation has not assumed to confer it, why should they arbitrarily exercise it?
If the reasons given by Mr. Justice Gabbert for
Dissenting Opinion
dissenting.
I disagree with my associates in the disposal of this case. The judgment is in nowise based upon the provisions of the apportionment act. My associates are of opinion that this court has no authority to read and construe the act for the purpose of ascertaining whether a vacancy exists in the 26th district, and that even though it can be ascertained from the provisions of the act that no election should be held in the 26th district in the year 1902, it is nevertheless the duty of the secretary of state to certify the nomination; and their opinion is predicated upon the theory that if the secretary of state were to refuse to file a certificate of nomination of candidates in districts where by the plain mandate of the law no election is to be held, or if this court were to direct the secretary of state to refuse to file such certificates, the secretary or this court would violate that provision of our constitution which declares that each house of the legislature “shall judge of the election and qualification of its members. ’ ’
This, I think, is an erroneous construction of our ■constitution. I deem it to be the duty of the secretary of state, when the legislature has indicated that no
I am of opinion that we should ascertain from the apportionment act whether or not there is a vacancy in the 26th senatorial district. If, after reading the act, we are of opinion that a vacancy exists, we should direct the secretary of state to file the certificate of nomination and certify the names of candidates to the various county clerks,- if, on the other hand, we are of opinion that no vacancy exists, we should direct the secretary of state to refuse to file the certificate of nomination.
I should not regard the act of this court in' directing the secretary of state to refuse to file a certificate of nomination in districts where no vacancy exists as an interference with the right of the legislature to "judge of the election of its members, but should regard such action as a proper exercise of the jurisdiction of this court in ascertaining the true meaning and intent of the legislature (and not of the senate only), as expressed in the apportionment act. If, as stated in the opinion, we must ignore the provisions of the statute and arm Senator Newell with the proper credentials to enable him to present his claims to the senate of the next general- assembly, whether a vacancy exists in the 26th district or not, it follows that we must arm every other candidate with credentials and that there may be forty persons with such credentials presenting themselves as senators of the next general assembly, notwithstanding the constitutional membership of the senate is thirty-five.