32 Mont. 4 | Mont. | 1905
delivered the opinion of the court.
Application for writ of mandamus. The affidavit on which the application is based states substantially the following: That under section 32 of the Code of Civil Procedure, as amended by an Act of the legislative assembly approved March 11, 1901 (Laws 1901, p. 156), it is provided that there must be a district judge in each judicial district of the state, who must be elected by the qualified voters of the district; that his term of office shall be four years; and that it is further provided that in the first district there must be two judges, and in the second district three. It is then averred that on May 4, 1901, the governor of the state of Montana appointed John B. McOlernan an additional judge for the second district, to make up the number provided by statute; that at the general election held in November, 1902, the said John B. McClernan was duly elected by the electors of Silver Bow county, constituting said judicial district, as his own successor, and that by virtue of his appointment and subsequent election he has continued to discharge the functions of one of the judges for that district; that at the general election held in the state of Montana on the 8th day of November, 1904, there were six candidates for the office of judge in that district voted for by the voters, namely, George M. Bourquin, Michael Donlan, Peter Breen, the relator, Lewis P. Forestell, G. J. Langford and Charles Kohl; that the returns of said election so held in the county of Silver Bow had been duly made by the judges and clerks of election of the various voting precincts in said county to the board of county canvassers, and that the same were duly canvassed by that board; that it was therefrom determined that George M. Bourquin had received for the office of judge of the second judicial district 6,753 votes; Michael Donlan, 6,502 votes; Peter Breen,
At. the hearing the defendant, by motion to quash the alternative writ, challenged the sufficiency of the facts to warrant the relief demanded. The motion was overruled pro forma, and an answer required. Thereupon evidence was heard and the cause submitted.
Are these facts sufficient to warrant the issuance of the writ ? When the governor issued his proclamation giving notice of the general election to be held on November 8, 1904, under the requirements of sections 1160 and 1161 of the Political Code, he omitted therefrom all mention of an election of a third judge for the second judicial district, calling for the election of only two; this omission being made upon the assumption, no doubt, that the term for which John B. McOlernan had been elected in 1902 was four years, and that there should be no election for the third judgeship in that district at the general election of last year. Of this action of the executive department of the state government, as well as the political history of the state, this court must take judicial notice. ( Code of Civil Proc., sec. 3150.) The facts stated in the affidavit must be considered in the light of this knowledge, and their sufficiency determined accordingly. The conclusion thus reached will determine whether the relator is entitled prima facie to the relief demanded.
It is argued by counsel.for relator that under the sections of the Constitution and the statute creating the office of district judge, fixing the term thereof, and providing for the filling of any vacancy therein (Const., Art. VIII, secs. 12, 13, 14, 18, 26, 34; Code of Civil Proc., sec. 35), John B. McOlernan was elected in 1902 to serve the remainder of an unexpired term created by the amendment to section 32 of the Code of Civil Procedure, his appointment by the governor in May, 1901, having been to fill a vacancy until the next general election thereafter, and that his successor should have been elected in November, 1904. This contention is based upon a construction given the sections of the Constitution, supra, to the effect that the terms of district judges, both of those first provided for in section 12, as well as those subsequently provided for under sec
On the part of the defendant the contention is that there is not alleged any fact to show that there was a candidate for the third office, or that the voters actually voted for one, and that, such being the case, there is no presumption that they did so. The contention is also .made that under the provisions of the Constitution cited John B. McClernan was in 1902 elected for a term of four years, and that therefore his successor was not to be elected at the election last year.
•Under the view we take of this case, we do not think it necessary to determine whether the Constitution requires uniformity in the terms of office of district judges, and hence whether a third judge should have been elected in Silver Bow county. Bor present purposes this may be conceded, and still we are of the opinion that the relator is not entitled to any relief.
We agree with counsel for relator that under the law in this state the powers of canvassing officers are neither judicial nor quasi judicial; that they have no means given to them to inquire, nor any power to inquire, beyond the returns of the local election boards; and that their sole duty is to ascertain and declare the result. They cannot hear evidence touching the regularity or legality of any election, and decide controversies
It will be noticed that it is not specifically alleged in the affidavit that candidates were actually voted for for all the three offices which might be filled by the people. At most, a knowledge of this fact must be gained, if at all, by inference from the averment that six candidates were actually voted for. Prom this statement it is sought to have the further legal inference drawn that the relator is entitled to one of the three offices, because the law declares that the candidate having the highest number of legal votes must be declared elected. (Const, Art. IX, sec. 13.)
Two prerequisites must exist to warrant the issuance of mandamus, to wit: Pirst, the relator must show a clear, legal right in himself to have a particular act or a duty performed by the defendant; and, second, it must appear that the law affords no other adequate remedy. (High on Extraordinary Legal Eemedies, secs. 9, 10; State ex rel. Beach v. District Court, 29 Mont. 268, 74 Pac. 498, and cases cited.) The right sought to be protected must be a substantial one. The writ may not be invoked to determine questions in which the relator has no personal or pecuniary interest, nor when its issuance will be futile. (High on Extraordinary Legal Eemedies, sec. 10.) It follows from these principles that the affidavit should set forth clearly and succinctly the facts furnishing the foundation for the relief sought, leaving nothing to inference or speculation; for the alternative writ must, either by actual recital or by appropriate reference to the affidavit, set forth the facts so distinctly that the defendant may admit or deny them, so
Tested by these rules, do the averments of the affidavit show that, notwithstanding the proclamation of the governor, the people of Silver Bow county elected, or undertook to elect, the relator to one of the three judgeships ? Must we indulge the presumption, without specific averment to support it, that the people exercised their supposed constitutional privilege of voting for candidates for the third judgeship, or that they pursued the course pointed out by the governor, and voted for two only ? What, if anything, is shown by the returns certified by the state canvassing board beyond the fact that there were six candidates, who each received the number of votes accredited to him, does not appear except by mere inference; and even the proper inference to he drawn is left in douht and uncertainty. Eor the fact that six candidates were voted for, and that three of them received the highest number of votes, is just as consistent with the idea that the voters sought to fill only two of the judgeships as it'is with the idea that they voted to fill the whole number; for we may not shut our eyes to another fact, which is a part of the political history of the state, that there were during the last political campaign at least three political party organizations in this state with tickets in the field, seeking the suffrages of the people for their respective candidates. If each of these parties nominated candidates for two of the judge-ships only in Silver Bow county, the result would he six candidates, and the returns would he relatively the same as appear in this case; for almost certainly three of them would have received relatively more votes than any one of the other three. In that case no one of them would he entitled to claim that he was elected to the third judgeship, for no one voted with the intention of choosing one of them for that office.
We must, in order to issue the writ, indulge the presumption that the people acted independently of the governor’s proclamation, and elected, or at least undertook to elect, the relator. This course might lead to absurd, not to say serious, results. Suppose each of the political parties nominated a
We do not controvert the rule recognized by all the courts that the formalities of notice, etc., are not necessary to render a general election valid. The law gives notice to the people when general elections are to take place. The officers whose duty it is to give the notice directed by the statute may not, by the neglect to perform this duty, deprive the people of their constitutional or statutory right to elect their officers. It is only when special elections are held to fill vacancies that the technicality of notice is essential. The law does not give notice of the time when such elections shall occur.
Nor have we overlooked another rule, stated by Mr. High (Extraordinary Legal Remedies, sec. 11), that mandamus proceedings do not always necessarily determine the question of the ultimate right involved, and that the writ is frequently granted when it can only determine one step in the progress of inquiry — as where, in election cases, it is issued to the board of canvassers of election to compel them to canvass the votes cast and declare the result, though it would still be necessary to resort to quo warranto, or some other appropriate proceeding, to determine the ultimate question of right, and admit the relator into the office sought.
As stated above, the circumstances of this case are peculiar and anomalous, and, so far as we have been able to ascertain,
It follows that the motion to quash the writ must be sustained, and the application dismissed.
Dismissed:
