Lead Opinion
delivered the opinion of the court:
By leave of court granted at the December term, 1912, George R. Bruce filed his petition for a peremptory writ of mandamus directed to Charles S. Deneen, Governor, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General. The petition alleged that at the general election held in the twenty-third senatorial district in November, 1912, the petitioner was a candidate for the office of representative in the General Assembly; that the canvassing board for Cook county outside of the city of Chicago and town of Cicero, and the canvassing board for said city and town, severally canvassed the returns of said election and certified the result to the county clerk; that the county clerk prepared abstracts of the votes, showing that Joseph Strauss received 9997J2 votes, the petitioner, George R. Bruce, 10,925, George A. Miller 10,778, Carl Bloomberg 9172^2, J'. C. Scovern 274, Christian M. Mad-sen 13,699 and Emil N. Zoila 17,285, and an abstract, properly certified, was forwarded to the Secretary of State; that nоtwithstanding the petitioner was one of the three who received the highest number of votes, as shown by said abstract, said Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. Deneen, Governor, refused to declare the petitioner elected, and said Charles S'. Deneen, Governor, refused to make proclamation that the petitioner had been duly elected a representative in the General Assembly. The prayer was for the writ, directed to Charles S. Deneen, Governor, Cornelius J. Doyle, Secretary of. State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, and William H. Stead, Attorney General, commanding them forthwith to correctly and properly canvass the abstract of votes as returned to them and to declare the petitioner elected to said office, and to cause proclamation of the result to be made and to issue a certificate of election to the petitioner.
By like leave a petition for a peremptory writ of mandamus was filed by James H. Felts against the same defendants, alleging that he was a candidate in the fiftieth senatorial district, at the same election, for the office of representative in the General Assembly; that the canvassing boards of the counties composing the district canvassed the returns, and the county clerk in each county prepared an abstract of the votes cast and forwarded the same to Cornelius J. Doyle, Secretary of State; that the total votes received by the candidates, as shown by the abstracts, were as follows: George W. Crawford 17,551, the petitioner, James H. Felts, 16,281, R. D. Kirkpatrick 16,143^ and Charles Curran 17,525 ; that notwithstanding the petitioner was one of the three who received the highest number of votes, as shown by the abstracts, Cornelius J. Doyle, Secretary of State, James S. McCullough, Auditor, Edward E. Mitchell, Treasurer, William H. Stead, Attorney General, and Charles S. D'eneen, Governor, refused to declare the petitioner elected, and that Charles S-. Deneen, Governor, refused to make proclаmation that the petitioner had been elected or to certify to his election. The prayer was of the same character as that of George R. Bruce.
Writs were issued, returnable on the first day of the succeeding February term. Before the return day of the writs the terms of office of the defendants had expired and the petitioners were permitted to amend the titles of their suits so as to prosecute in the name of the People, on relation of the said petitioners, respectively, and to amend their petitions by substituting for the original defendants their successors in office, Edward F. Dunne, Governor, Harry Woods, Secretary of State, James J. Brady, Aud-’ itor, William Ryan, Jr., Treasurer, and P. J. Eucey, Attorney General. The prayers were also amended so as to ask the court to require the Governor to make proclamation that the relators were duly elected and to issue certificates of election to them, instead of commanding all of the defendants to perform such acts. The defendants, who were substituted, aрpeared and answered the petition in each case, admitting the averments contained therein, except as to William H. Stead, Attorney General, who, the answers averred, refused to take part in the proceedings. The answers averred that the Secretary of State, Auditor and Treasurer met as a canvassing board in the presence of the Governor, and, objection being made to the returns, heard evidence as to their correctness and found that the returns as received were erroneous, and while the returns showed the relators elected they were not correct, and therefore they refused to malee proclamation that the relators had been duly elected. They further set forth in their answers their election to the offices of Governor, Secretary of State, Auditor, Treasurer and Attorney General, and submitted to the court whether the writs asked for should issue. George A. Miller and R. D. Kirkpatrick presented motions to be admitted as defendants, from which it appeared that certificates of election had been issued to them by Gov. Deneen, and counsel for the relators in each case, in the statement of the case, say that certificates of election were so issued to George A. Miller and R. D. Kirkpatrick, and that the State canvassing board went back of the abstracts of the votes and attempted to correct errors in the work of the judges of election and the county canvassing boards. The Election law provides that one of the lists of voters, with the certificate of the judges of election written thereon, and one of the tally papers, footed up, shall be directed to the Secretary of State and mailed to him, to be kept for one year. The canvassing board accepted the lists of voters and tally papers in preference to the abstracts. The cases were submitted on the petitions and answers. The questions in the two cases and the arguments of counsel in each being identical, they were heard and have-been considered together.
The points which are made in the briefs and argued by counsel for the relators are, that the duties of the State canvassing board are purely ministerial; that a writ of mandamus may issue against the Governor to compel the performance of such duties; that the State canvassing board had no right to look back of the abstracts of votes and the certificates of the county canvassing boards but should have accepted them and declared the result accordingly,' and that the State canvassing board is a permanent body, and the act sought to be 'compelled is one which does not require a re-assembling of the board. The brief of the Attorney General for the defendants makes the following points, followed by an argument in support of them: That the State canvassing board can act only upon the certified statements of the county canvassers, and has no authority to procure corrected returns or go behind the returns or receive testimony either to sustain or invalidate them; that the duties of the canvassing board are purely ministerial, and mandamus will lie to compel the board to issue a certificate to the person having the greatest number of votes, as shown by the returns; that while the writ cannot issue to control the head of an executive department in the discharge of a duty involving judgment and discretion, mandamus may issue where the duty is merely ministerial, and that the writ will issue against the Governor and other executive officers when they have submitted to the jurisdiction of the court.
■ It will therefore be seen that there is entire agreement between the counsel for the relators and the Attorney General, representing the defendants, concerning the questions of law involved, and there being no controversy or difference of opinion between them respecting the law and the duty of the State canvassing board, there does not seem to be any necessity for calling into exercise the power of the court to coerce the defendants to do what they admit to be their duty under the law. The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty which one charged with the duty has refused to perform. The writ can only be issued to compel a party to act when it was his duty to act without it. It confers upon the party against whom it may be issued no new authority, and from its very nature can confer none. (People v. Gilmer,
There is another inquiry that must be made and answered before we can determine whether the writs should issue, if they were necessary to compel action, and that is,, whether, under the constitution, we have jurisdiction to compel the chief executive of the State to perform a duty imposed upon him by his office. Each department of the government derives its powers from the constitution, which also prescribes the limits of such powers. It declares, in article 3, that the powers of the government of this State are divided into three distinct departments,—the legislative, executive and judicial,—and no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as therein expressly directed or permitted,—and substantially the same provision was contained in the constitution of 1848. By section 6 of article 5 the supreme executive power of the government is vested in the Governor. In the great majority of jurisdictions it is held that in view of the division of the powers of government there is no power on the part of courts to enforce by mandamus the performance of any duty, whether discretionary or ministerial, imposed upon the chief executive by virtue of his office. (26 Cyc. 230; 6 Am. &' Eng. Ency. of Eaw,—2d ed.— 1017.) All authorities class this State with the majority as holding that doctrine. The independence of the judicial department and its freedom from interference by the other departments has-been maintained. (Rockhold v. Canton Masonic Mutual Benevolent Society,
'The question whether the court has power to command the performance of executive duties arose in the early history of the State under the constitution of 1848, and was decided in People v. Bissell,
The cases of People v. Hatch and People v. DuBois,
In People v. Yates,
In People v. Palmer,
In People v. Cullom,
In People v. O’Toole,
Cases like People v. Rives,
Counsel for the relators say that the duty which they sought to have performed by Gov. Deneen, and which he refused to perform, was not a duty enjoined upon him as Governor but was a duty to be performed because he was Governor, and therefore it was not the performance of an executive act. To adopt that doctrine would be to locate every act of a Governor outside of the executive department, since it is only because an individual is Governor that he can do any of the things authorized by the constitution ; and in People v. Cullom, supra, the writ was sought to compel the Governor to call an election, which was a duty prescribed by statute.
Article 3 of the constitution includes in its prohibition each of the three departments of the government, and its interpretation as to one department applies with equal force to each of the others. Therefore the court, in construing the article in the case of People v. Bissell, supra, as applied to the executive department, also showed its application to the legislative department and gave illustrations of such application. It is pertinent to this inquiry to show that the court has never departed from the construction there given with respect to either of the other departments and that there has been no encroachment by the court upon the powers granted to them. No more baseless and defenseless proposition could be put into words than to say that the court has ever arrogated to itself the authority to pass upon the wisdom or propriety of either executive or legislative acts. It has never assumed to declare laws valid or invalid because they were wise or unwise, or because they tended to advance or retard social justice, individual justice, corrective justice, or any other variety of justice. The only law made by the people is the constitution, enacted by them, under their original and sovereign power, as the fundamental law, wherein they have granted powers to and prescribed limits for each one of the several departments. It was deemed essential to the existence of the government that there should be some department authorized to construe that law, and determine, when called upon in some form known to the law, whether its limits, have been disregarded. That duty rests upon the courts, and to the exercise of that function this court has always strictly limited itself. When the validity of an act of the legislative department has been in question, the constant rule has been to construe it so as to uphold its validity if it could reasonably be done, and if its construction was doubtful the doubt was resolved in favor of the law. (People v. Thompson,
The court has never attempted to exercise any compulsory power over the legislative department. The constitution enjoins upon that department the duty to enact certain laws, such as liberal homestead and exemption laws, laws necessary -for the protection of operative miners, and laws to give full effect to article 13, relating to warehouses; and the court has not only never attempted to determine whether the laws enacted for those purposes were such as were necessary or proper, but if the legislature had neglected or refused to pass any such laws no one would think for a moment of asking the court to enforce the performance of the duties so specifically enjoined upon the legislature. These are commands of the people to the legislature, but they cannot be enforced by the courts. (Gillinwater v. Mississippi and Atlantic Railroad Co.
It necessarily follows from uniform decisions of this court that we have no jurisdiction tо award writs against the chief executive of the State commanding him to issue certificates of election to the relators. Whether the other executive officers who were made defendants could be coerced by the writ to do the things asked for, according to the view of this court as to the proper manner of canvassing returns, need not be considered, since the writs would be ineffective unless the Governor were included and required to make proclamations and issue the certificates.
It is argued that the writ may issue against the Governor in any case where he has submitted himself to the jurisdiction of the court. There have been such cases, as before noted, but that ought to be so only in a case where there is a difference of opinion between the Governor and the one requiring the performance of an alleged duty and an unwillingness on his part to perform the act except in accordance with the opinion of the court. The courts will not do a useless thing, and a command to an exеcutive to do that which he is willing to do would be of that character. Moreover, in these cases the writ is sought to annul and set aside the action of the canvassing board and Gov. Deneen as illegal and' to substitute a new canvass in each case and new certificates of election, and neither the Governor, who issued the certificates, nor the officers who canvassed the returns, have appeared or consented to have their action as officers of the executive department reviewed, set aside or annulled.
Another rule of law is, that the writ of mandamus, which is awarded in the discretion of the court, will not be issued where it would create disorder or confusion. (Kenneally v. City of Chicago,
The writs are denied.
mks
Dissenting Opinion
dissenting:
The denial of the writ in this case is based upon three grounds: (i) That respondents do not in their answer disagree with the relators as to the duties and powers of the canvassing board under the law, and as they express no unwillingness or refusal to properly canvass the vote and declare the result as the statute requires, the writ should not be awarded; (2) that the writ would be ineffective unless issued against the Governor, and the majority opinion holds the court has no power to issue a writ of mandamus commanding or directing him in the discharge of any duties conferred upon him; and (3) that awarding the writ would tend to create disorder and confusion, and for that reason it should not issue.
Respondents constitute the canvassing board, but they are not the same persons who composed the board when the vote was- canvassed, the result declared and certificates issued. The terms of office of the persons then composing the canvassing board expired soon after the performance of that act, and no answer was made to the petition by the persons then constituting the board but the answer was filed by respondents. They do not in their answer refuse to canvass the vote and issue the certificates in accordance with the prayer of the petition, nor do they take issue with the relators as to the law governing the canvassing board in the discharge of its duties, but the fact remains that they have refused to take the law into their own hands and again canvass the vote, declare the result and issue certificates, and have submitted the question of their powers and duty, under the circumstances, to the determination of this court. Whatever the views of respondents may be as to the unlawfulness of the acts of the officers who preceded them as members of the canvassing board, they have chosen the orderly and lawful method of asking that their .powers and duties in the premises be determined by this court in this proceeding, and by that determination they will abide, whatever it may be. This, it seems to me, is much more commendable than it would have been for respondents to have taken the law into their own hands, canvassed the vote and declared the result without any directions from a court. Because they have chosen to pursue this course instead of the arbitrary one which the opinion indicates they could have pursued, affords no justification, in my judgment, for a denial of the writ.
With the general proposition that courts have no power to control an executive officer in the discharge of his duties I agree, but that rule is subject to some qualifications. The authorities, I believe, are all in harmony upon the proposition that courts have no power to control an executive officer in the discharge of any political or discretionary duty; but certain duties may be, and often are, conferred upon the executive which are purely ministerial in character. As to whether the executive may be controlled in the discharge of such duties the authorities are not harmonious. Many States where the question has been decided have held that the chief executive of the State is subject to control by the courts in the discharge of purely ministerial duties which might as well have been conferred upon any other officer as upon the Governor, and many States have held that courts have no power to comрel the performance by the Governor of any duty, recognizing no distinction between discretionary and ministerial duties. A ministerial act- is defined to be “one which a person performs under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or exercise of his own judgment upon the propriety of the act being done.” (Flournay v. Jeffersonville,
Some of the cases denying the jurisdiction-of courts to award the writ of mandamus against the Governor of a State are based upon the theory that all his duties are executive and in the performance of them he has a right to exercise a discretion, and therefore hold that courts cannot interfere in the control of any of his acts. This subject was elaborately discussed and the conflicting authorities referred to in Martin v. Ingham,
While' it may not be customary, as said in some cases, to impose ministerial duties upon the Governor, there is nothing in the nature of the office which prevents that being done, and it is well known that such duties are enjoined upon the Governor of a State. Other State officers, such as Secretary of State, Auditor, Treasurer and Attorney General, are offiсers of the executive department, but the legislature has charged them also with the performance of some ministerial duties. While the court does not decide whether they are subject to control by the courts in the performance of ministerial duties, I am unable to see any difference, in principle, between such officers arid the Governor in the performance of such duties. Imposing such duties upon an executive officer, whether he be Governor or some other executive officer of the State, does not transform such duties from ministerial to executive or discretionary duties. An officer' charged with the performance of a purely ministerial duty by an act of the legislature containing specific directions as to how it shall be performed, leaving nothing to the judgment or discretion of the officer, is as to that duty, no matter what his title may be, a ministerial officer. Chief Justice Marshall said in Marbury v. Madison,
The question of the jurisdiction of a court to award a writ of mandamus against the Post-master General was before the Supreme Court of the United States in Kendall v. United States,
In United States v. Blaine,
I do not regard People v. Bissell,
In People v. Deneen,
In People v. Deneen,
All three of the above cases were original proceedings begun by leave in this court. They were all considered upon their merits, and while the writ was denied in each case, the denials were based on the opinion of the court that the petitioners were not entitled, under the law, to the relief prayed, and not upon the want of jurisdiction of the court to grant the relief. It is very certain that if the petitioners had shown themselves entitled to the relief prayed, and that the canvassing board had, by its unlawful act or the failure to perform its duty as prescribed by .the statute, deprived petitioners of their rights, the writ would have been ordered to issue. In the five opinions filed in the three cases ño intimation will be found that the court had not jurisdiction to direct, by writ of mandamus, that the board, including the Governor as a member of the board, perform its duty under the statute.
But if the later cases are to be departed from and the dicta of the earlier cases that the courts will not assume to control the action of the executive in the performance of any duty is to be adhered to and applied to purely ministerial duties, still, under the facts of this case the relators are entitled to the writ and the court has the power to issue it under the. early cases cited in the opinion of the court. In People v. Bissell,
The answer of respondents in this case admits the facts alleged in the petition; alleges that since the filing of the petition the terms of office of the officers composing, the board of cаnvassers had expired; that they had been succeeded by respondents, and that respondents submitted to this court whether or not the writ of mandamus should issue commanding them to forthwith canvass the abstracts of votes returned to the canvassing board by the county clerks, declare petitioners elected, cause proclamation of the result to be made and certificates to issue. The answer prayed that the court should enter such order in the premises directing them as law and justice should require. This is clearly and unmistakably a submission to the jurisdiction of the court. All question whether the Governor or the other members of the board were subject to be controlled in the performance of the duty involved was waived, and the court was invited to determine and advise respondents what their duties were under the facts alleged in the petition. The position of respondents as disclosed by the answer is, that they admit the returns have never been canvassed by the board of canvassers, the result declared and certificates issued in accordance with the requirements of the statute, 'but as a pretended canvass of the returns had been made by their predecessors in office they were uncertain as to what their powers and duties were under the circumstances. They therefore submitted themselves to the jurisdiction of the court for the purpose of getting its advice in reference to some duty imposed upon them by law, (People v. Bissell, supra,) and thereby “relieved the court of all consideration of the question as to the authority of the court to coerce the performance of a public düty by the executive of the State.” (People v. Palmer, supra.) If we are to accept those cases as holding that the court cannot assume to control the executive in the performance of any duty, how can we consistently disregard the exception made by them in cases where the executive voluntarily submits to the jurisdiction of the court and asks to be advised as to what his duties are? It seems to me that under the authorities reliеd upon by the court we should have decided the question submitted and advised the respondents what their powers and duties are, as we were requested to do.
It is also said in the opinion of the court that awarding the writ would tend to create disorder and confusion, and that it is discretionary with the court to deny it in such cases. It is said the predecessors of respondents, as members of the board of canvassers, declared George A. Miller and R. D. Kirkpatrick elected members of the house of representatives and commissions had been issued to them; that the house is now in session, and awarding the writs would result in different persons holding certificates of election to the same office, some made by Gov. Deneen and some by Gov. Dunne, contending for seats in the house. This, it is said, would create disorder and confusion and result in no substantial benefit to relators, who would necessarily be required to submit their claims to the decision of the house. This seems to me wholly insufficient to^ afford any justification for a denial of the writ. As previously stated, it is not denied that if thе board that canvassed the returns and declared the result of the election had performed its duty in the manner required by the statute, relators would have been declared elected and given certificates. This action of the board would not have been conclusive of their election, for the house of representatives is the sole judge of the election of its own members. The canvassing board has no other power- than to accept the abstracts of votes returned by the county clerks and be governed thereby. That body has no power, in a contest between different claimants to the office of representative, to determine who is elected. That question can only be determined by the house itself. The opinion correctly states that if relators were awarded the writ and given certificates this would not be conclusive, but their right to the office they claim would have to be submitted to the house of representatives for decision. They have a right, without the writ, to contest before the house thе election of the persons now holding certificates and have a decision of that body upon that question. The persons to whom the certificates have been issued, having been sworn in and admitted to membership, would hold their seats until relators had established their right and the house had decided in their favor. The procedure would be the same and would be attended with no more disorder and confusion than would be the case if relators contested the right of the sitting members to the office without having applied for or obtained certificates. If relators were entitled to certificates upon the face of the returns but were denied them and they were issued to persons not entitled to them on the face of the returns, it is no answer to say they must submit to the wrong done them because to correct the wrong in an orderly legal proceeding would tend to create disorder and confusion. The cases in which the writ of man-damns has been denied upon that ground are not analogous to this case. In my opinion the writ should be awarded.
Mr. Justice Cooke: I concur in the dissenting opinion of Mr. Justice Parmer.