State Ex Rel. Morris v. Bulkeley

287 1892. Bulkeley. v. rel. Morris State ex whose possession, Murrays, As officer. attaching against law, now be of the must forms under the obtained though and from the beginning, in fact wrongful been to have held to recover bondsman, entitled the plaintiff their against Conn., 2 Webb, 301. Sutherland 15 full White damages. below, ques- court point 55. The on Damages, tion, ruled correctly. from. no error appealed

There is judgment concurred. In the other this opinion judges Morgan B. ex rel. G Luzon Morris vs. . Bulkeley. Carpen- Oct., T., Andrews, J., Cos., Haven & Fairfield C. New and Seymour, Fenn, ter, Torrance Js. state, providing amended in after The constitution meetings ballot the electors’ for the election No- years, proceeds in alternate as follows: —“When such ballots vember presence electors, and counted in the shall have been received persons for, and duplicate voted number lists presiding officer, each, be given shall made certified one for deposited be in the office of the town clerk lists shall within of which days election, days, other, and the ten after said shall within three secretary, county to the sheriff of the or transmitted receiving held. The sheriff election shall have been said votes sucli secretary within or cause them to be delivered fif- shall deliver days next after said election. The votes so returned shall be teen comptroller treasurer, secretary within the month counted persons given list of the number of votes A fair November. officers, each, be, together with the returns of the shall comptroller, treasurer, secretary made and laid before the holden, day Assembly, on the first then next to be of the ses- same, Assembly shall, after examination of the thereof; and said sion they legally chosen, give person whom shall find to be declare majority accordingly. If shall have notice him votes, equal if or more shall have an said two number of whole votes, Assembly, then said on the second greatest number of said joint houses, proceed session, by shall ballot both with- of their

State ex rel. Morris v. governor a a list of to choose from the names of the two out debate votes, greatest persons having the or the names number of the equal highest having persons and number of votes so returned as Assembly by prescribe shall law the manner aforesaid. The General concerning questions governor, a in all the election of or lieu- which governor, shall in tenant be determined.” The General Statutes, following presid- the enacted statutes: —Gen. "“The §239. every ing meeting officers of each electors’ in town not divided into voting districts, presiding and each officer of the first district in all * * * districts, voting triplicate towns divided into shall make out lists respective given following of the votes in their towns for each of the * *'* officers, namely, governor, two of which lists he shall seal and deposit post-office town, postage paid being in said the thereon, the in secretary Hartford, days, directed to.the the slate one within two days the than other within not less five nor more than ten after meeting; and the third he shall said deliver to the clerk of said town meeting.” days after said within two “The §240. officer shall, meeting, with the the certificate result the electors’ required by secretary state, to the he is send mail send to secretary the his certificate of the reg- whole number of names on the istry lists, having number checked whole voted at such elec- tion, checked, the whole number of names not the number of ballots box, namely, ‘representative,’ ‘general’ in each found and the in wrong box, number of ballots each box not counted as in the double, rejected being the number not counted for and the number causes, specifically which other shall other causes be stated in the cer- secretary tificate. The shall enter said returns in tabular form in kept by purpose, present printed report books him for that a By 4, 1, to the General at its same next session.” art. § constitution, by amendment, governor, modified 27th elected November, Wednesday following in was to hold officefrom the the first Monday January succeeding Wednesday of the next until the after the “ Monday succeeding January, of the third first and until his successor duly qualified.” In an in quo information the nature of a writ of 1891, warranto, brought October, in the relator claimed to have been by majority a elected ballots cast at November, the election in 1890, elected, legally and to have been duly declared and to have been qualified. governor November, 188S, The defendant had been elected years held the and had officefor the 1889and and had continued to hold over. He had not been a candidate at the election of Novem- ber, 1S90. The Senate had declared the relator elected and he had Representatives taken oath of office. The House of had refused to declaration, claiming concur that the relator had not received majority passed of the ballots. It had also a resolution that declaring would take action the matter of the result of the elec- tion, until Senate should have taken action of exam- matter ining by joint all the returns committee. Held.— That the declaration governor result an election of anis indis- rel. ex Morris v. pen adjunct electors, sable choice furnishes authentic evidence of what the choice is. contemplates making 2. That the constitution the declaration in all Assembly, cases and that the declaration when thus made shall be final conclusive. Assembly, 3. That the declaration is to made both houses of the acting jointly concurrently. declaration one A house without the other could have no eSect. having legal case, 4. That there been no election in this re- defendant jure governor mained the de as well as the state. defacto provides The constitution for no evidence of the election of from the examination of which the General is to make the ” declaration, finding except prepared by list fair the treas- urer, secretary comptroller and and the of “returns” the ordinary officers. In the of legislation absence all and in all eases the Assembly intent of the constitution would seem to that the be General by should declare that result which is shown this list and these returns. legislation providing If there should hereafter be that other evidence admitted, equally should be to intent would seem be clear that the Assembly should also examine that evidence. Assembly by The wisdom of the General is left unfettered as to the laws prescribe questions which it shall a for the manner determination of concerning governor. may require election of It and more other complete officers, may and from returns other or create other tribunals matters, report reports to hear and on such but such returns or must day Assembly session, be laid before the General on the first to may that end it itself make the final examination and declaration by required the constitution. provisions and Sections 239 are such on General Statutes further subject, appear compliance and to be a with the direction of the behalf; constitution in this and what the General was com- by prescribe, duty manded constitution it its would be examine. required sufficiently examination The should to determine be full who legally governor, person chosen so that who is declared to be unimpeachable chosen shall have title office. examining time and The manner must be a determined consideration provided may provided per- the means or which be for its hereafter formance, things and with reference to that condition which will laws, Assembly shall, by exist when the General have directed suitable performance. as to the mode of requires constitution that the before the The list returns shall laid session, that, day on it General the first of its if shall find proceed that there has been no it to make choice of shall necessary day. that choice second seem to it This would make the. examination made at least list and returns should be Assembly has second whether the session. But General power day: prece- to act in the The Quxre. matter after the second dents, general re- and the rule of a strict observance constitutional quirements, against power. a are existence of such Yol. lxi. — 19 ex rel. Morris possible adjourned legally it for But as the had not and as was taken, position the court was house to recede from the it had either prepared further in the that it had to act to hold lost governor. declaring of a matter of the election pos- collapse department, Whether, legislative it is not entire and, Superior may investigation, find- make an sible that the Court lawfully ing majority a of all the votes cast received the relator legally judgment governor, that shall be his title some establish by the equivalent should have been made to the declaration which Assembly: Quaere. Superior which the constitution Court cannot make the declaration The Assembly. says can The utmost shall be made lawfully this, is, by judgment it can do in such a case as some make, supply a an omission or heal defect. right legal there general indisputable a rule where there is

It is remedy by legal whenever it is invaded. is a suit jurisdiction jurisdiction, Superior general and has Court is court juris- by any court, cognizable of which exclusive all matters law given other diction is not to some court. judicial process, lawfully any is a what elected to office To decide specially authorized to make such there is no tribunal where juris- always decision, courts must decide. And the courts special not final and con- the decision of the tribunal is diction where special refuses, clusive; cause tribunal from and where prevent act, court, upon principles general failure fails to misrule, anarchy perhaps prevent would seem justice, to make the decision. to be authorized adapted try specially quo action the is the form of warranto writ The only real title. It can be right But it tries the never to an office. try merely apparent title. a used to alleging in not that the present held insufficient relator information The votes, by majority appeared majority but the as it of all the a had officers, parts presiding while other of the informa- the the returns of majority dispute. apparent was in that such showed tion alleging facts which showed that the in not General Assem- insufficient Also right the to decide the relator’s office. bly unable had become should, by information, the an amendment of the relator that if And held majority one, allege he of all the votes by received a new state such facts as showed that lawfully governor, and should for cast to make declaration was without the election, presented of which the respect would be Su- the case in jurisdiction. might take perior Court governor should hold office until that the provision constitution of the The exigencies sup- designed qualified, to cover duly his successor posed to brief. powers in of the General a limitation constitution powers unimpaired leaving in provisions; its by its covered all cases respects. other January 5th, 24th, 1892.] 1891 decided [Argued November 23d .State ex rel. Morris warranto; in a writ of , the nature of quo Information Court in New Haven Superior the County. The brought as follows:— (cid:127)information was

‘ the Honorable Court for New To Haven Superior County, Haven; now in session in said New comes Tilton E. Doolittle, for the within and for state the of New attorney county Haven, who in this behalf in his own prosecutes proper per- Connecticut, behalf the state of at son the relation Morris, Haven, of Luzon B. of the town county New ,and this court to understand be informed: gives (cid:127) November, 4th That on Tuesday, being after first Tuesday November Monday election for a year, general state was held state, several towns of as required.by consti- tution, and said B. Luzon Morris was one of the persons for at for said election

voted governor. That lists of for voted persons at meetings state, towns respective electors so held for-such and of the number of votes received purpose, and counted each, as such were made and meetings given certified of said officers several by the-presiding electors’ re- meetings and were spectively, by transmitted, officers presiding election, with the returns of said to the together secretary state, laws, as constitution and required by by detail such lists and appears returns hereinafter set forth in detail.

That the votes so returned officers electors’ said several meetings as re- secretary, (cid:127)ceived counted for the office of were governor, within November, 1890, treasurer, the month of counted sec- state, comptroller retary count it ap- 67,662 votes, that the number of of said 'pears so as aforesaid counted, returned as received and had been for said given Morris, B. 67,636 Luzon and the votes, number of of said so as returned and counted, aforesaid as received had been re- ceived and counted for all other persons voted for for said of office count Said in the said governor. several electors’ of counted, the votes and said meetings count of the votes ex rel. Morris

State aforesaid, as officers counted presiding as by returned so state, of the treasurer, and comptroller made by secretary of- accurate, presiding except mathematically was amended and Milford made second town of of the ficers cor- town, which said amended said return for corrected treasurer, said by secretary was regarded return rected aforesaid. the count making and comptroller, after of this state holden next That the General treasurer,, by' secretary of said votes counting Hartford, aforesaid, at met in session as stated comptroller 1891, 7th of being day January, on Wednesday, first of that of January following Monday Wednesday year. said General the first said session of As day

That 1891, the 7th the said treas January, sembly, namely, votes urer, whom the returned secretary comptroller, by as received counted for had been aforesaid as counted, stated, laid as hereinbefore before the General As fair list them made returned as by persons sembly office, and the for for said number votes returned voted and counted for each at the as aforesaid received general aforesaid, as held as such result appeared election made, with them returns together count officers of the said said several electors’ presiding fair lists of such them made of the Copies per meetings. office, for said and the returned as voted number sons and counted for at as received each said votes returned elec with the returns of the tion, officers of together affixed, hereto are and are meetings, the said electors’ made as if embodied herein.* as fully hereof part * appended report canvassing board, complaint The as an exhibit, as follows: Connecticut, the Honorable General To to be State, Hartford, Wednesday Monday in said on the after the first holden January, 1891: d. A. undersigned, being designated by law to canvass the votes for Gov- given meetings the electors at their in the several ernor towns of this Tuesday Monday November, after the first on the state re- A. d. report: spectfully Morris ex rel. (cid:127) the made count avers that by by And the said attorney of the votes returned treasurer, comptroller secretary as here- and counted as aforesaid secretary as received stated, fair made as aforesaid of list inbefore for, and the of votes re- number returned voted persons each, and laid for them be- as given and counted ceived that a of Assembly, majority fore the Generаl appeared said returned of- the whole number in the ficers as and counted electors presence received in the at the several towns for governor, electors’ meetings Morris, for B. Luzon and that were electors given by B. had therefrom it that said Luzon Morris been appeared state, chosen at election general the electors and after aforesaid, state from to be the Senate, 1891; and on said first 7th day January, day and after examina- of said Assembly, session assigned day they of Novem- That 22d entered on the duties them days subsequent instant, publicly ber on said and on canvassed given secretary of votes for aforesaid and returned to the Governor in as the state. That the number returned and counted for Governor whole of votes ninety-eight, thirty-five hundred one hundred and thousand two sixty-seven fifty-eight are for six which number thousand hundred sixty-three Morris, Morris, B. nine hun- Luzon four are for L. B. thousand Merwin, Merwin, seventy-five E. dred and for one for are Samuel E. S. sundry specified persons residue are for names are whose given accompanying report, for with the statement number of votes each. voting large num- official returns also that certain districts show reasons, following for cast which were not ber of ballots were counted “ law,” conformity namely: printed “Not votes not with Prohibition ‘ “ ’ Jaw,” according the name printed For was before the word printed which, Marked,” for,” “Illegal,” andfor the office voted other causes specifically persons for are not stated. No return names whom cast made. these ballots were has been presented appears also from evidence the canvassers that It there is a error in the return of the vote the town Milford. clerical inspection. returns are The election herewith submitted 26th, Hartford, a. November i>. 1890. Dated Jay Walsh, Secretary. K. Henry, E. Stevens Treasurer. Wright, Comptroller. B. Jno. State ex rel. Morris Bulkeley.

tion of said fair and list of and voted for said votes persons returns of officers, said several did find and res- by presiding olution did declare as follows “ Whereas, treasurer, tbe and have secretary comptroller made a fair list of the voted for at election held persons November, 1890, on the fourth and of the number of day votes for each and laid the Gen- before given person, list, eral said with returns of the together .the of all officers the electors’ of the votes presiding meetings, for and treasurer lieutenant-governor, secretary, governor, made and certified said officers at comptroller, by presiding ; election; and said “ Whereas, after examination of said lists said rer Luzon B. turns it Morris has a appears majority for and that whole number votes Joseph given governor, a W. has the whole number said Alsop majority votes for and that H. Marvin lieutenant-governor, given Sanger number of for has whole said votes majority given treasurer, and that John J. Phelan has of the majority number of said for whole secretary, given ahas of the whole number of Nicholas Staub said majority for and the constitution in such comptroller; votes given command, case directs the General Assembly, by imperative who have to declare received a persons respectively to be of said votes chosen. Therefore— majority legally “ the Senate that the General Resolved here- by declares Luzon B. to be chosen Morris gover- legally ** * nor. said resolutions to the House of The Senate transmitted 8th, adjourned Representatives; thereupon January 13th, 1891, 1891, and from that when the day January resolutions : Senate passed following “ Whereas, Senate, pursuant provisions constitution, has examined returns made duly held officers several electors’ meetings presiding November, the election of 4th for governor, day treasurer, secretary, comptroller, lieutenant-governor, fair list of also examined the thereto votes relating ex rel. Morris b. authorities, and after constituted duly submitted did, find, on the first and therefore did examination declare, that General Assembly, session of the whole num- Luzon B. has received majority Morris * * * and that said ber of such votes governor, given offices; are said chosen persons respectively “ Whereas, a committee of the House Represen- select election, fair tatives has in relation to said been appointed officers; list of votes and returns made said “ Whereas, Senate, and deliberate full considera- the upon tion, does not invest lias that the constitution determined with over revisory jurisdiction the. and other officers of such of electors’ the judgment presiding nor the General Assembly meetings, inquisitorial give electors’ to the conduct reference of meetings officers; the and and by qualified regularly appointed “ Whereas, the the Senate declined revise judgment the and officers of such of chosen electors’ duly qualified election; and reference to said meetings “ Whereas, said the resolution House select appointing committee is worded as permit inquiry so by of said whether the upon question committee opinion should cast electors’ meetings ballots at said been votes, thus to be counted as and declared substituting of of House Representatives said committee judgment chosen duly of qualified place judgment of therefore— officers electors’ :—Now said meetings “ Resolved the Senate:— by ' n ' n First. at an election for state ‘ballots’ That cast do become meetings officers electors’ several ’ ‘ counted declared until have been votes such ballots electors, as and returned votes by presence to that duty. officers duly appointed ‘ n ' n Second. has no constitu- That officers revise tional judgment jurisdiction electors’ several meetings. to conduct appointed duly the House Senate nor of Rep- Third. That neither substitute authority judgment can its resentatives State ex rel. Morris v. a committee for the of the constitutional officials judgment ’ ‘

for the whether the ballots cast purpose determining counted, declared, be and returned to ‘votes.’ should ' n ' n Fourth.That as the Senate has taken action in decisive fair reference to said list votes returns said pre- officers, and has declared the result said election siding construction of the constitution as based finalitj" upon the said proposed investigation by prohibits committee, fair list select extrinsic said of votes House officers, therefore no such investi- returns select and no such said House committee finding gation can alter the result based such investigation possibly as declared Senate. said election Morris, ' n ' n Fifth. Luzon B. W. That said Joseph Alsop, and Nicholas H. John J. Phelan Staub Marvin Sanger, November, 1890, 4th chosen on the been duly having of the state to be lieutenant- the electors governor, treasurer, secretary, comptroller, respectively, governor, fair list of submitted to the from the appears fully authorities, and constituted General Assembly by duly the several of the officers of electors’ the returns presiding same, the no refusal House by the accompanying meetings its constitutional to de- to perform of duty Representatives fact, thereto based contrary and no declaration clare said to returns of said said extrinsic presiding evidence upon can affect or electors’ impair of the several meetings, officers state so chosen several offices the persons right duties, to the of and exercise powers, the to enter upon offices, that it is the and duty persons their respective the to enter upon performance as aforesaid chosen severally as soon as be. may duties official their several of “ be, Twitched, and Butler Clark That Senators Sixth. are, a committee to wait upon hereby appointed and they Morris, him elec- of his said B. notify Luzon Hon. the imme- to attend beforе the Senate tion, him and request law for the oath provided by governor, to take diately, * * *” of office. duties said the upon to enter at once and on said last mentioned afterwards thereupon, And rei. Morris ex wait as to the said committee aforesaid day, appointed upon their had performed duty, the reported they governor, the and that then before presented they Morris, Senate; B. the said Luzon the thereupon Senate, the resolution proceeded with compliance for the of the law office take oath governor, provided of duties discharge there- qualified proceed of, and then enter of his duties as did upon discharge Senate, by adjourn- And thereupon legal governor. davq has been session ment from day following 4, 21, 28, 29, 3, 5, 20, 27, 10, 11, February days: January 26, 4, 5, 18, 19, 3, 11, 17, 24, 12,17,18, 24, 25, 25, March 1, 7, and 7th of 26, 31, from said day April been April the 14th of 1891. day April, until adjourned on convened The House of Wednes- Representatives 1891, of January, after first Monday 7th being day 1891, and on said day adopted day January, following “ It be the the clerk to duty shall rule: Rule enter thereof, at the of the journal, top each ordinal on page the session. day number When- indicating legislative shall order recess be taken to the House some ever calendar calendar day, subsequent subsequent day same day, part shall be treated legislative make the entries and clerk journal shall indorse- proper files to ou conform this rule.” ments legislative of January, 7th And said report canvassers, fair the said list of votes and being board per- and the said returns the said sons voted of- to, ficers, referred said hereinbefore "received by House Senate, transmitted after- Representatives said House to take a wards voted Representatives re- next,” A.M. that until 10 o’clock Thursday cess being 1891. Said House Januaiy, of 8th day Representatives 1891, in session on said 8th day was thereupon January, that said fair list of body had and and before persons returns said and officers presiding duly received voted Senate, with action from Senate together there- JANUARY, 18.92. ex rel. Morris forth; on hereinbefore set and the said House of thereupon resolution: Representatives passed following “ Whereas, House, this with a accordance custom and which has been unbroken for practice more than fifty years, a resolution for the passed of a providing appointment joint returns committee to examine the and canvass the votes officers, the electors for state given by referred to such committee the returns officers of presiding the electors? held on fourth November, 1890, meetings day transmitted such resolution the returns so referred to the Senate; and

“ Whereas, that branch of the General has re- action, concur with this House in fused to but has re- Senate; to a ferred said returns committee of the special “ Whereas, the Senate has refused to examine the said re- true, turns to determine whether the same are legal reg- ular, or contain correct statement of the votes cast legally November, on the electors fourth or to day same; evidence hear any relating “ Whereas, the Senate has returned the said re- original House, of the electors’ to this turns without meetings having constitution, examination made the required by together with resolutions same sundry joint relating subject matter:— “ therefore, Now, that order the constitutional im- duty bemay duly posed performed, and to the end ballot cast the election every legally November, 1890, the fourth be held on may duly counted, and shall be declared elected to chosen:— to which he was office legally House; Resolved of the state can- report vassers, with the returns officers together and the from of the electors’ resolutions received meetings, officers, to the election state Senate de- relating elected, to be referred duly sundry persons claring members, committee of to be eight appointed House select forthwith by speaker. “ Resolved, be, and it that said committee au- hereby ex rel. Morris of thorized, presid- the returns to make examination of on fourth of held day officers of electors’ ing meeting 1890, November, of the examination for the purpose making for the thereof the constitution. And purpose required by au- said is hereby such examination committee making said returns and thorized take evidence extrinsic of thereof, if and for the deem explanatory they necessary; further said committee is authorized purpose inquiry House, to sit and recess the sessions of this during send for and persons papers. “ Resolved, resolutions, bills, That all and other petitions, House, and documents hereafter introduced in this papers officers, with- election state be referred relating out debate to the select for.” committee herein provided

And on said day committee for in said resolu- provided tion was afterwards the voted re- appointed, House 20th, cess until 1891, Tuesday, at ten January o’clock M.; A. 20th, said House was in session on said again January at ten o’clock and on said vote proceeded M., A. for a senator in States, of the United Congress then said House voted a recess until eleven o’clock A. Wed- M., 21st, 1891, nesday, January when said House was again session, and on that day its suspended session while the joint assembly members of the Senate and House of Repre- sentatives for convened the election a senator in the Con- States; of the United gress after said had joint assembly dissolved, said House of Representatives voted until recess 27th, 1891, Tuesday, January o’clock one on m.; P. 27th, session, said said House January voted again 28th, 1891; recess when said House of January Repre- session, sentatives convened in at which time again the House committee, select to whom had been report referred the canvassers, state board made the following report: “The House committee the canvass for state officers leave to have had respectfully report they beg them the before lists for for officers, voted state persons each, and number with the together re- votes.given turns of and the other officers, documents JANUARY, 1892. Bulkeley. Morris rel.

State ex n whichwere referred to them House of Representa- tives, in accordance with constitution. of provisions “ That the of find first has been their to object investigation whether the face of the returns was any person legally That chosen either the state offices. exam- they returns, : ined said lists and find the facts following “ It from returns that there were the face appears in the whole state 1289 ballots 458 for be- general rejected; ‘ which, double,’ so-called since the secret ing passage committee, law, is no ballot opinion longer, and 881 all other Of cause for for causes. rejection; legal 831, 111 were for the rejected said ballots following general causes, cause, in the none of which assignments opinion ballot, committee, a wit: justifies rejection 4; Britain, 15; For hav- Illegal, New Illegal, Killingwoxth, ‘ ‘ word, For,’ 7; For,’ Because word on the Brooklyn, ing 43; Prohibition votes not in conformity Waterbury, printed law, law, 30; Norwalk, Not according with the printed 1; 11; law, Wolcott, Total, Stratford, Not as prescribed 111. ’ ‘ “ not to for To cause call ballot illegal give reject- statement of what the it. The law specific requires ing It also that eleven general in. appears consists illegality statements, in with the lieu following rejected ballots were whatever, known, Not of cause wit: assignment 3; stated, Haddam, 4; counted, Lebanon, Not Meriden, Not that 110 ballots It further 4; Total, general 11. appears cause and no assigned. were rejected “ the face of returns find from said further committee Your state the number of throughout towns many and returned counters counted officers state in said towns number of votes cast exceeds modеrators to this from schedules attached as will appear respectively, report. committee have recog- your returns In considering ahas a candidate whether finding nized principle ballots, investiga- where the number of a certain majority State ex rel. Morris v.

tion is limited to a and that fails to show a certain vote vote there is no ascertainable majority, majority. “ Therefore from the face of the returns the committee are unable to determine that chosen any person legally election, either of last to wit: offices at the following treasurer, the offices of governor, lieutenant-governor, as it from face returns that secretary, appears said than more a decisive number of were illegally rejected, ; without causes of but rejected specifying legal rejection the face of the indicates the election of returns Nicholas Staub to the office of comptroller. committee, duties, your

“When of their pursuance returns, to examine evidence said proposed explanatory for which was called on the face by questions arising returns, Democratic minority refused to sit with committee, neither the ground committee nor had take extrinsic the returns. evidence regarding “ At the same counsel Democratic in- sitting representing committee, before the and stated that terests if appeared he were to be could and would opened ballot-boxes tender for the fact that committee its use about 2500 Pro- hibition, Labor and ballots cast, were Republican illegally returned, and he that if counted requested any boxes he should an to be have to be opportunity were opened pres- ballots; examine which was request ent granted. interests Republican afterwards representing Counsel ap- that if the committee stated before the ballot- peared he could and would were to be tender to opened boxes its use fact that for several thousand committee Demo- Prohibition ballots were counted and cratic re- illegally turned. committee,in duties, of their

“Your examined pursuance returns, of said and find evidence that in explanatory -of the Norwich the fourth district town of thirty-eight gen- as counted in excess of eral ballots were returned the num- district, in that and in ballots cast ber excess of general the number of names checked as said district. voting State ex rel. Morris v.

“ said, Your further find that twenty wrong- committee counted for the Demo- returned ballots were fully general cratic candidates for treasurer lieutenant-governor, governor, them for candidate ten of the Democratic secretary, for reason of clerical error comptroller, by footing com- number of votes counted for them Your respectively. find for mittee been unable to whom the remaining counted, votes were or the cause their eighteen being- counted.

“Your find that 126 committee further Republican gen- eral ballots in the fifth district of were rejected Bridgeport mark, and that said dis- having alleged distinguishing made de- mark was minute merely speck tinguishing used found on numerous ballots fective also printing, election, in other and was not a said places distinguishing niark in the of the law. meaning ballots, Your further that 103 committee finds general of 111 referred to as of the class hereinbefore are part word ‘For’ were because the rejected, rejected solely for, thereon as of the title of each officer voted part printed that said ballots therefore the were rejected. illegally :— taken us “We therefore evidence report upon by “ has a of the number of 1. That no whole majority and that cast for the names of the lawfully governor; number votes for two having'the greatest gover- persons * * Merwin and Luzon B. Morris.* are Samuel E. nor resolution, found referred to it a intro- “Your committee Haven, Mr. Hotchkiss the in- New by duced concerning them, made the broad and to be by sweeping vestigation of many would require opening provisions state, and the examination all the ballot-boxes perhaps all of the ballots said boxes. perhaps general of many no doubt it is within the proper committee have Your of the Gen- of a of both branches committee functions joint an on sufch to institute carry investigation, eral in a contained resolution. under instructions joint acting committee, a waste it would be But, in the opinion your to the extent by required time pursue investigation JBulkeley. State ex Morris rel. Haven,

the resolution of the from New unless gentleman before the is understood the other investigation begun branch of the all Assembly willing investigate to the in as election manner questions relating thorough the resolution requires.

“Your committee are confident correctness of the at which conclusions have arrived as the result of they their but, in view of the aforesaid resolution in- investigation; Hotchkiss, troduced Mr. the Democratic by member from Haven, New for a calling thorough ballot- investigation boxes, and in view the aforesaid claim made counsel by counted, numbers ballots have been great illegally committee is of the that the your opinion House ought into -refuse enter of the any investigation election to the most extent which be desired thorough the Sen- may ate; that, until the Senate have their decision expressed with to the of such regard question investigation, declaration of the result of the election should be made by this House.

“We therefore recommend the passage accompany- resolution:— ing

“Resolved this House: —Sec. 1. That the facts reported the House select committee on canvass of votes are found to be true. “ 2. That a See. copy report committee this resolution shall be transmitted immediately to the Senate. 3. That if Sec. the Senate shall decide to investigate the said election to the extent called for said Hotchkiss resolution, this House will in said join investigation extent to furthest which the Senate will consent. 4. That

“Sec. will House take no action declaratory of the result of the late election for state officers till the Senate shall have taken action in the matter of an examina- tion all officers, returns presiding those including made under 240 of the Revised 1888, Statutes of a by § select committee on joint canvass votes.” And the said House of thereupon Representatives voted 29th, 1891; to take recess until and on January said 29th

State ex rel. Morris v. 1891, day January, session, said was in House and again voted a'recess until 30th, 1891, and on said .January Jan- 30th, 1891, uary session, in and again resolution passed authorizing committee on canvass of to return custody the House the returns of the offi- cers which were House, before actually and were referred committee, and that the committee be dis- from returns; charged further and custody thereupon said House 3d, voted a recess until 1891. February was, said report 1891, on said 3d day February, accepted and adopted House of Representatives, the ac- resolutions companying And passed. from 3d a February further recess 4th, was voted until February then a 5th, further recess until and then a February further recess 10th, until 11th, then to February then to February Febru- 12th; 12th, and on session, said February being House resolution No. joint Nicholas Staub was declared elected and then said comptroller; House voted a recess to 18th, then, session, February fol- being adopted : resolution lowing “ Resolved this : House “ be, That the are, following they hereby adopted rules of this House.

“Rule In of a absence quorum speaker may, his afternoon, recess until option, pronounce or to a, or to the next calendar within sitting day, one day week. “ Rule 48. The provisions resolution this adopted by on the 8th House all resolu- January, providing bills, tions, and other and documents petitions, papеrs here- House, after introduced to the election relating officers, be referred of state without debate the Select committee canvass votes for state officers.” 24th, then said took a recess to And House February 25th, 26th, then to then from February again February session said day, res- passed being following : olution “ : this House Resolved be, is, That the and it aas following hereby rule adopted this House: ex rel. Morris resolution, bill, or other motion, No petition, “Rule 51. shall state officers the election of document relating until the second calendar sitting day this House acted on by moved, shall been on which the same the day after to the House.” introduced or reported *® * Sd, March recess to And then voted 17th, 1891, March when the session on was House again acted report.of Representatives House of officers, on Of votes for state the canvass House committee Morris on Luzon B. elected resolutions governor, declaring Phelan, 'John J. sec- W. Alsop, lieutenant-governor, Joseph treasurer, H. recommending and Marvin Sanger, retary, resolutions; and the resolutions were rejection * * * committee and from and the report accepted; rejected House has until Said voted November adjourn thence 11th, None the acts hereinbefore recited have rescinded said General repealed, been without day. adjourned yet defendant, G. was one of the Bulkeley, Morgan per- for governor for election held in sons voted general November, 1888, but did not receive of the whole majority ; votes and a committee of governor number given held on the after first Wednesday 1889, the first day of the session of of January, Monday did find Assembly, to the said Gen- report said General * * * as follows: eral afterwards, and on the 10th And said thereupon, 1889, held, the said convention was and the January, joint did to choose proceed said convention ballot fill office of of the state Connecticut from a governor found to have the list of two number of persons greatest at the for the office of electors’ meetings November, first Tuesday on the after the Monday held result that G. said with the con- Morgan Bulkeley office; aud vention was chosen said duly thereupon the du- Bulkeley duly qualified proceeded discharge office. ties of his said Morgan Bulkeley gover- G. not a candidate for

Said

Vol. lxi. —20 JANUARY, 1892. Bulkeley.

State ex rel. Morris v. held, November, 1890, and nor at does election general not claim to have at been elected said election.

And now'said of the facts attorney by reason says detail, was, B. hereinbefore stated Luzon Morris 1890, November, on the 4th election held general day state, chosen and by electors be the governor and since said first of the session of the said Gen- upon held, eral B. said Luzon Morris January, been, law, has the oath entitled to upon talcing provided by office, said and to all and the rights, privileges, dignities emoluments thereto. appertaining

And said to understand attorney further this court gives and be informed:

That said G. claims the to act as Bulkeley right Morgan and said not admitted the Sen- claimed governor, by right ate, but is denied said and he is not bodj-, recognized state, said the lawful and Senate as of this said Sen- governor ‍​​​​‌​‌​‌​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​​​​‌​​‌‌‌​‌​​​​‌​‍ate refuses to his claim to act as And governor. acknowledge said claimed G. to act as Bulkeley right Morgan and admitted the House of he is Representatives, recog- nized said House of lawful Representatives gover- nor of this state.

And said that said further avers G. attorney Morgan exercise, and and continues use to the time of Bulkeley exercised, this information has used still exhibiting exercise, does use and said office of and con- governor, have, liberties, tinues use and all the enjoy dignities, priv- and franchises to said office ileges belonging appertaining; all of which acts G. part the said Bulkeley, Morgan attorney, the facts hereinbefore avers to upon be alleged, and without law or wrongful right.

And the said further this court to attorney under- gives stand be informed: used, use,

That said G. continues to Morgan Bulkeley office, and threatens and to continue to intends so use said its liberties franchises dignities, privileges, belonging thereto, which said use said appertaining attorney avers, the facts herein tobe alleged, usurpation ex rel. Morris and that said said Mor- without law or usurpation by right, menaces the order G. Bulkeley seriously peace, good gan and all the citizens thereof. and welfare of the state the consideration of the said attorney prays Whereupon that due process may this court here the premises, him, to com- awarded the said G. Bulkeley, Morgan against hereto, to court what him to answer and to show this pel and warrant or to have used he claims authority enjoyed office,liberties, and aforesaid. franchises privileges dignities, October, Haven, at this 1891. Dated New 13th day

E. Doolittle, Tilton for County. for State New Haven

Attorney information, on fol- demurred to the The defendant : lowing grounds same, insuf- the facts therein are

1. That the and alleged, to the relief and in the law ficient entitle plaintiff to (cid:127) for. asked judgment

2. of the state is vested by executive The supreme power of one of the in the as member the constitution governor, and this court will branches the government, co-ordinate to entitled notice and person take recognition judicial or and no has power authority office without inquiry, or make render under the constitution to inquiry for. asked judgment and duty and the constitutional

3. It was right what examine, person, find and declare to election at general if was chosen any, legally governor information, and 1890, November, in as held alleged was legally and if no person him notice give accordingly; election, and is the constitutional it was chosen said then of both houses ballot of the General Assembly by joint duty or au- no has and this court choose governor, for duties those the constitution perform under thority the General Assembly. January that on information from the

4. That appears chosen gov- and 10th, 1889, legally defendant was duly Connecticut, duly qual- and thereupon of the state of ernor office, and of said the duties discharge ified proceeded 1892. ex rel. Morris v. of- now in said has in and continues ever since continued fice, that no him has chosen duly successor to been office; con- fill that his wherefore he says said qualified not a but is performance tinuance officeis usurpation, oath, of his constitutional duties and the his obligations him to and take care continue office require until the laws be executed his successor shall faithfully chosen duly legally qualified. all the That it from the information from appears detail, that at election

facts therein set forth the general state, 4th, held on for November num- had of the whole a majority therein alleged, person cast and that the General ber of votes lawfully governor, found nor declared that person office,and to said at said election chosen duly legally time, two has not since that ballot of the houses by joint otherwise, office; fill said wherefore chosen any that it him the that no successor to defendant says appears been in said officehas chosen duly qualified. the for advice The case was reserved demurrer the upon of court. Robinson, Cole, C. and C. J.

H. C. W. Case of support the demurrer. main which the case for upon

The the de- propositions the stands are The fendant information following: (1)— the nature of warranto does lie to test the title to quo the The office governor. (2) jurisdiction final, full, exclusive. complete These cannot be maintained. in-

First. proceedings This warranto, formation, nature quo brought for New Haven Court test the title County Superior not a This is case of Bulkeley. of Governor contested elec- tion between rival candidates their asserting defending office, nor is claims to it case which all respective the еlection can be deter- concerning governor questions mined,” art. 4 within the last clause of meaning the constitution. ex rel. Morris can call Court for New Haven

If the County Superior title, to defend his then the only before itself the governor considered, is the thereafter question question to exercise the office main- of Governor Bulkeley right tain title of governor. here are not

The before this court as pending questions but as an court a court of appellate original jurisdiction, or the court to advise review below upon power having court of law below must find and only. questions pass all of fact conclusively, over decision upon questions of that court fact this court has no upon questions That consideration is one of im- review. the most power and conclusive reasons portant against to summon the court below of the state before it governor trial for the title to his office. inquest is, now The immediate Court question Superior —can Haven, within and for the of New County the infor upon mation of the state’s attorney county, require title, of the state to it and before defend appear his him, and, find if it shall the fact him against depose from ? cannot office This be avoided the claim question runs man and not the information agai'nst against that court can title of a office. If mere try it usurper, jure the title of de and de can try governor facto that he is a “If the court can usurper. allegation judge, Baxter, Ark., State ex rel. Brooks v. may misjudge.” last the claim 129. So that us analysis here against Court has to is that a of the Superior power judge depose him, a if shall find the fact he whether in against governor ” or he fact. so finding misjudge “judge It for this court to whether constitution say to such vast the laws intended hands of place of a local a information upon prosecuting single judge of officer—to subject governor possibility being at the summons of led out constable by judge “ to his title in Court defend corner of the any Superior Marlow, St., Ohio 135. v. 15 Whenever in- state.” State to the office been made into the title quiry 310 1892. rel. Morris v. ex it

in other states warranto has been made under their by quo state, constitution laws attorney-general state, court with proceeding originally highest Baxter, Ark., the case of State v. 28 single exception 129, which case was overthrown the case of Bax- finally Ark., Brooks, ter 29 v. 173.

The nature information considered ex- historically, idea that it cludes the can be made use of to the title of try officersof executive the state. The informa- supreme writ of warranto tion was established and quo regulated Anne, statute 9 ch. 20. For some of the limi- England writ, statute, tations the use of ancient before this Com., 262, see 3 Black. clause especially note by cited, there cases did Chitty, showingthat information title to of all issue offices kinds. The try statute of an information Anne to be permitted leave of brought by court, at the relation any person desiring prosecute the into, same against any person or usurping, unlaw- intruding or fully holding, any or city, borough franchise office town and'the limitations corporate, expressly made statute are the same in substance as those which existed in under the ancient writ. Ut practice thus appears both the commonlaw before the statute the statute of Anne itself limited the of the writ and operation information to certain inferior offices. It was never claimed that the in- formation could be use of to made set or up pull down a or chief of a state. government magistrate theory then was it issued from a process superior power one, to an inferior authority not otherwise. That course the common law. All jurisdiction implies Com.,242; 1 Black. power.” Smith, superiority Mauran v. Isl., State, 8 R. 192. In this before the adoption stat- warranto, ute the information relating quo was made use Tudor, of. State v. Day, The statute of Anne formed of the common part law this state. Baldwin Walker, Conn., 181. From thеse illustrations is manifest that at common law warranto would not quo lie the title try the officeof governor. 311 v. ex rel. Morris

State our own law common by of the nowas Tilere enlargement Court the Superior which will permit ivarranto statute quo means by title of the governor into the to inquire Stat., is no more sec. 1300,) This statute (Gen. process. law, and the following of the common than a re-enactment in- that the exclude idea therein contained limitations It runs ac- run could against governor: (1.) formation — law. Hence it runs of the common course cording idea of the statute The (2.) superiors not against office. — local, to a it would be if limited is is, that the usurpation informa- Hence, the writ is issued upon office. subordinate for the for the county attorney punish state’s of the tion Court “in the the Superior and is issued by usurpation, of action arises.” Thus is evident cause where the county Ju- was to reach local offices only. (3.) intention that the — Court, warranto is to the Superior given risdiction over quo It claim preposterous single judge. over by presided laws intended subject constitution gov- in view state to such proceeding, especially ernor the constitution for of the formalities provided examining title, tribunal composite his the high and declaring for his impeachment. provided the nu point strengthened

Our position states, courts of many merous decisions highest mandamus does not- lie compel per governor 567; stow, Wis., 4 v. Bar his duties. Atty.-Gen. Thayer form a case from Nebraska decided just v. Supreme Boyd, States, and of the U. Ex yet reported; Court parte 495; Goodwin, 496; Smith, Car., Mich., 22 v. 8 So. Royce Marlow, St., id., 114; Harmon, State v. 15 Ohio 31 State v. Johns, Knoblock, An., 263; 250; 25 Louis. Collinv. v. Rogers 533; Texas, 339; Batman 1 Metc. 42 v. Megowan, (Ky.,) 189; 129; Mo., Baxter, Ark., Mason, 28 77 v. State v. Va., 173; Brooks, id., Wilson, 32 Baxter v. v. W. Goff 419; 393; Wilson, id., State, Robertson Carr v. Ind., man of Connecticut until No can be governor

Second. Assem- he has been declared duly JANUARY, 1892. 312 ' Bulkeley. ex v. rel. Morris State holds the office until and whoever is so declared his bly, The defendant successor be was de- duly duly qualified. clared General its the January governor session, 1889, and was and entered thereupon duly qualified of the the office. A upon of duties .the discharge general held on the election for was next after governor Tuesday November, the first of as the constitution re- Monday no been declared but has since quires, person governor by' the and therefore General the defendant still Assembly, holds the office. The General rightfully Assembly, upon of and the duty of the examining power declaring result of election held in No- governor general vember, T890, devolved, session, and is still still clothed who, with if was person, declaring legally chosen One branch of the General Assembly— governor. the House its constitu- Representatives performed —has examination, tional that duty examination has declared, declare, still does no legally chosen at that election. These state propositions deféndant, for the the case suggest comprehensive question of this wit:—What is to controversy, power of over questions the elec- concerning tion of We submit governor? jurisdiction full, final, and exclusive, complete, will lie and that to or judicial process test determine a of Connecticut. title the governorship 1. look at the Let us matter The historically. framers considered the constitution supreme executive power be a co-ordinate department government, of such office so to all important consequence the peo- title that as there should never be ple, any question or doubt. Hence possibility question they provided one, one, method ascertaining determining title, declaration and notice made and given by —the the General Assembly, legislative department that all the the..end and all government, people public officers state throughout should at all times know who was governor. ex rel. Morris as to at all times certainty absolute importance Blackstone, Com., is discussed executive supreme аnd to It tranquility important “public clear rule should be

the consciences of that this private men ” in Connecticut, as it is and in England. indisputable The the laws enacted General by assent to governor’s is commander-in-chief He Assembly required. him. It is his to duty

militia. All from commissions issue His are the take that the laws be executed. care faithfully functions, and and of the executive most highest important welfare, of him and order the state peace, good upon him of the constitution placed upon framers depend. duties, been clear to those and thus it must have them high that, there be as to the title to whatever doubt other might offices, as to there must be doubt the title governor. in the constitution itself that embodied cer- They therefore title, of- to tain and absolute muniment be known all men by none, declaration, and and notice disputed finding, Const., 4, 2. art. sec. That declara- the General Assembly. of office taken in and the oath public, tion followed by custom the and thus public inauguration, long-established in doubt know and are not the office. To the people all constitution proceeds cover possible contingencies further, that and shall one hold provides governor step term, and until for a fixed his successor be his office duly Const., 4, 1; Const., art. 27th amendment to see. qualified. was, is, and duty sec. 2. Under Gov- provision in office. The article of the to continue con- Bulkeley ernor to find and stitution requires chosen has been care- what governor, declare person of historical and ful analysis, light knowledge from the early days governor manner choosing that the and declaration finding shows Colony, conclusively to be were intended absolutely who should person dispute, final beyond office must remain until that title possession hold title of the with a later same indisputar other some 1892. State ex rel. Morris ble office, character should claim the that is appear say, until his successor be qualified. duly Under the charter the freemen were elect or privileged choose one their own number said General Court and or be held from that day time, chosen for the newly year ensuing, by greater of the said for the part time there company then being Statutes, 1808, present.” See Charter in Rev. With p. the increase in the .of numbers extent of settled people all country, the freemen could not assemble actually ; General Court to elect officers of a hence the pre- adoption amble act in diffi- public May, reciting great had which the freemen culty expense Colony Hartford, personal their attendance at the election should thejr on the second ordering might Thursday in either in or at May, Hartford yearly, by proxy, ” “ and of attend consummate the- election and governour; “ further that election the be by proxies so ordering may therein,” that there be no fraud or used deceit managed and “ all that the in towns shall freemen the respective warned constable, him, the one meet where he deputed by shall the last in March or appoint an- upon Tuesday April the where shall read to them freeman’s oath they nually, and law which and upon puts disorderly the penalty voting, nomination, of to stand for out appointed names thosé of in to which number freemen the said consta- may bring ble the name of him whom would for they for governour of piece written year fairly upon ensuing, paper, receive, and, shall said constable presence freemen, in a and seal them them put up piece paper up, and write the outside name of the upon paper ‘ words, town and these The Votes for Governour.’ In like manner shall in for their votes they bring deputy “ etc.; and the constable receives the governour,” votes, aforesaid, shall seals them himself or up court, one of the the said deputies convey proxies Hartford, election,” “at them deliver election, ,be that stand for nomination shall time those

State ex rel. Morris to election in the sаme order put are they propounded,” * * * etc. And the constables of each town shall an take account of the names of all those shall vote their several and send them with their plantations, proxies.” Laws, 1673, General 22. That law in substance p. re- 1803, mained in force until and all the votes or cast proxies Court, freemen’s were sent to the General meeting up where, held, the election was theory, there be counted and declared in order the election be consum- might mated. The names of the freemen the votes were casting also sent The election up. was not consummated until all those votes had been counted in the General Court and the result declared.

In 1803 that law was in part and a repealed, new act 1808, passed, which, (Rev. p. 253,) by instead of the votes or sending up themselves, proxies sent they up abstract of them to the Court, General intending place before it the same exactly information which the votes would have Court, conveyed, however, saving the time and trouble counting, more. Still nothing the election was theory consummated only when the Gen- eral Court had acted votes which had been given 1808, in freemen’s In 1808, meeting. (Rev. p. 256,) provisions counting votes were still returning fur- ther also enlarged provision made to supply omitted re- turns correct defective 4, returns. Article sec. constitution, in the first and second paragraphs, substan- follows the statutes of tially 1670 and 1803. And so on 2, 4, sec. constitution, article of the throughout which was intended to the laws embody then and preserve to existing, the General all the Assembly powers which the General had Court exercised in relation previously to the election and choice of governor. And the which the power General had 1808, embodied in Assembly the act of for the purpose of omitted returns supplying and correcting defective returns, was intended to be retained and preserved section, means the last clause of that viz.:—“The Gen- shall law eral Assembly prescribe manner in which JANUARY, 1892. 316 ex rel. Morris v. all the election governour questions concerning cast lieutenant be determined.” votes shall governour in the electors’ were returned the electors meetings “ votes,” and the intent still was the General as Assembly it all the in- the General should before that have if which it would themselves formation have w.ere And the intent of the constitution was that the sent up. until As- not be election should consummated of all the votes had examined the returns sembly synopsis examination, and from in the electors’ such cast meetings, source, had found and declared the result. carried to their considered, 2. far historically, thus relations Having General to the elec- of the General Court officers, tion of state we now what is the inquire proceed election regard power It is the fundamental of a principle governor. republican that form elector shall government every qualified cast his ballot for whom he right power pleases, limitations within such as the law necessary establishes. It elector, is the of him every for right right ballot, casts his whom he such ballot shall be received and counted as cast. It for the indispensable protection of free all preservation privilege for suffrage exercise, lawful of its and for all fraud denial and mistake result, defeat its there shall purpose somewhere be a remedial It power absolute. is certain ample this inwas power beginning legislature, from legislature practically supreme the charter of Charles to constitution of 1818. 1See Swift’s System, 72; 4, 10, also sec. chap. Rev. p. How did the the constitution affect adoption ? “ The constitution of the UnitedStates is a grant powers exist; where did not before they constitution of this ais limitation of state powers already Pratt existing.” v. Allen, 125; Conn., Pease, Conn., Starr 547. “As the constitution is a mere limitation on the powers should be legislative department, nothing regarded pro- ex rel. Morris v. hibited which not so or and either fair reason expressly by Conn., able implication.” Lowrey Gridley, It will hardly be contended constitution anywhere forbids the expressly legislature fully examine pro- declare, and ceedings elections in ac- general results cordance with such examination. Does it so fair and reasonable implication? For answer we must go 6, 6; 4, 2; constitution itself. See art. sec. art. and sec. 3, of art. sentence sec. 6. The constitution no- closing to, tribunal, where confers or upon, prohibits any class body, men, man, or over the results of elec- any power general tions what is conferred except these extracts prohibited instrument, is, from that and the now is there inquiry any- which, therein contained fair and thing reasonable impli- cation, from prohibits fully examining the results of election for general governor, declaring result in accordance with its such examina- finding upon tion? If there is no prohibition so clear aud implied broad as to prevent correction of most any legislative glaring —the then, mistake, submit, and notorious —fraud or we the ques- ended, tion is for the occasion for interference is legislative 4, a matter of discretion Article legislative judgment. section on the General imposes duty the election but consummating governor, declaring are steps there several constitution presupposes duly have been taken before the General As- legally work, commences its before can make sembly certainly That declaration. —1. the ballots the electors have and counted in the of the electors. presence been received if all ?—2. be done been counted When What counted, ballots have been lists duplicate received for, number and the of votes voted persons given each, shall be made certified officer.” if be he does not make and certify is to done What made and certified ?—3. These lists shall be lists pre- done if he was not the What is to be siding presid- officer. officer, Shall his own certificate but mere usurper? ing ?—4. One character conclusive to his own official JANUARY, State ex rei. Morris within the town clerk lists the officeof shall be deposited the election within ten after three and the other days, days or to the shall of the state be transmitted to the secretary shall have been sheriff of in which such election the county such, or more held. list from one What is to done if be or to the sheriff? towns is not transmitted to the secretary —5. deliver cause The sheriff votes shall receiving them to within fifteen days be delivered to the secretary if the sheriff next after be done the election. What to who secretary them not them receives does deliver does so shall be not ?—6. The returned receive them within treasurer, counted comptroller secretary month, not so counted? done if are they etc. What is be of votes —7. A fair number given list persons officers,’ each, for with returns of together treasurer, made shall and comptroller be secretary holden, and laid then next be before the General Assembly on the first If such list should session thereof. it not made and not laid be before the General Assembly, ? omission powerless remedy taken, :—“ Said These the constitution- steps proceeds same, shall, de- after examination clare the chosen.” The whom they legally find ,is out cho- the examination-—-to find who legally purpose its sen—indicates character unmistakably practically who its is not the person “declare scope. language so shall to have a of the votes returned.” appear majority That would be if the examination appropriate language “ exam- to be a mere After were inspection papers. of the same.” Is a fair reasonable ination there here returns this examination trace these implication may their source every question purpose determining consti- of their f Thе aud authenticity, reliability legality choice; tution as to whether there is requires legal finding with provides plainness legal great prerequisites Can it be claimed that there finding. language ais Assem- fair reasonable implication not determine whether the bly legal may prerequisites Bulke.iev. ex rel. Morris ? If the cannot deter- General Assembly been performed mine, can, If what reasonable assurance nobody who can? ” result of such a will be the dis- is there that the finding ? of a choice But on this of implied legal question covery considered, and the entire article must be prohibition “ lato sentence is: The General shall by concluding Assembly the elec- the manner which all concerning prescribe questions or tion shall be determined.” governour lieutenant-governour And law be either may made prescription manifestly arisen; before or after questions bybemay general law, as the General fit. sees Selleck v. special Assembly Norwalk, Conn., 40 South 359. This not is restrictive or theOn it would an be prohibitory. contrary, enlargement if the constitution awere and not a As it limitation. grant it a stands is of the confirmation simply power original considerations, it Upon these is submitted legislature. that the constitution does not and reasonable bj impli- fair cation to the General prohibit the exercise any of its original power de- examining, consummating the result for claring election governor.

It an is not answer to examination say conducted we have indicated is an principles exercise of judicial functions, and as such for it is prohibited, long past argu ment in this court that the General can does exercise functions. Probate, judicial Wheeler's Appeal from Conn., true, doubtless, 45 And this, while beyond that this has some of the elements of power char judicial acter, it is essentially with the exercise political power, of its power the courts cannot political legislature Johns, 339; Texas, interfere. v. 42 Rogers Collin legally v. Knoblock, An., 263; Harmon, St., 25 Louis. State v. 31 Ohio 250; Co., Ill., 495; Salle Wilson, La 100 v. v. People Goff id., 403; ; Va., Wilson, Borden, 32 Carr 426 W. Luther v. 1; How., Stanton, Wall., 50, 6 Georgia v. eases there cited.

Third. But it is insisted constitution expressly, as well as fair aud reasonable limits the implication, fair its examination to the lists making ex rel. Morris fl. board officers’ certifi- canvassing presiding eounted, votes this is material

cates .that restric- tion of the of the General are What Assembly. officers which the returns constitution re- shall be furnished to the General' quires Assembty, and it shall examine for the purpose who, out finding if person, chosen? The legally constitution says lists voted shall .they persons number for votes each” This given means that clearly vote every for elector, with the by every qualified name of given the per- for, shall be son voted included the return presid- officers the information of the General ing Assembly. are Here we met with the claim that the constitution re- cast, a list of the ballots given, quires because ballots are not votes until been not they have and only given returned, but received also counted so that all that is a the ballot necessary of elector from prevent qualified count, a vote is to throw it in out the the becoming re- turn of the officer which makes no account of presiding is transaction unimpeachable. This constitutionally dis- ” ” “ “ tinction between vote ballot is fanciful. purely “ ; will, is a A the formal expression vote of suffrage pref- wish, erence, choice, in or measure regard any proposed, which the an in interest in common person voting with others, to fill a either certain electing person situation office, rules, laws, or in regulations,” or etc. 6 passing Cent. Diet., ballot, 6790. A same I, by authority, (vol. is a voter’s 432,) slip paper expression of p. will is written or A vote his is printed. expression will in be voter’s any way; may orally, by rising, by hand, or or written or words, word raising printed method according and when voting required, is method a written or printed words slip paper, vote and ballot and are and are used suffrage synonyms, distinction that vote indiscriminately, is being gen- and ballot eric These citations sustain this specific. view:— 1818, his vote “Deliver or Acts of 312. Same suffrage.” p. Acts, 1820, Statutes, See 454. also Gen. expression. p. 1892. Morris ex rel. ” “ is to describe the votes used 247, word ballots where the § ballot-boxes, as well as the counted preserved Conn., also Judges, See Opinion ballots rejected. ” “vote used as of a 599, word 597, descriptive where the But the constitution counted. it has been before ballot that no such distinction was evidence furnishes itself ample “ shall electors be called present ever contemplated. for written ballots in their senators. The bring electors, the votes of the shall receive officer 3, 5, Art. them secs. 6. open declare meeting.” count “ state, or all of officers members In elections votes of the electors shall Assembly, “ 6, sec. And each elector Art. such present ballot.” aforesaid, as may thereupon his qualified meeting, bring or he person ballot or shall persons suffrage district, senators for such choose to be exceeding same, with number law allowed to the the name or names written on of such one persons, fairly piece received, And votes so shall be counted, paper. given canvassed, declared,” etc. 3d Amendment. In this ” in art. the use first of the word ballots and then light “votes,” the word without easily explained resorting notion of such distinction as the one claimed. One which led to of the causes complaint constitutional of 1818 convention was the restraints tyrannical placed upon franchise; exercise elective the the notably odious law,” which voters stand at “stand-up required up elec- ; constitution, 4, 2, and so the art. tions sec. provided that officer the called presiding vote, when the upon electors to ballot, call them to upon he should vote when these “ votes,” cast were were they they ballots were the “votes within the of the constitution meaning given,” requiring “ number of votes for list each.” given These are returns, made, constitutional when as the consti- made, tution shall be expressly requires they they out carry fundamental idea of this commonwealth from its earliest discard, which constitution did not that days, all the which the qualified electors cast votes shall be before lxi. — 21

Yol. JANUARY, 1892.

State ex Moms rel. General to find out le- when examines who is Assembly chosen. gally

The claim of to the office of Mr. Morris stands governor the evidence of returns of the upon votes counted and solely not returns of the votes given. evidence of these By unconstitutional defective returns he had twenty-six of all the cast. majority vptes Fourth. But the constitution provides the Gen- again shall, eral the manner in Assembly bylaw, prescribe which all the election of a questions governor lieutenant- concerning mandate, shall determined. under this Acting governor the General enacted secs. 239 and 240 of the of 1888. It will'be Gen. Statutes observed that the certifi- and 240 “returns,” are alike called cates required §§ that the returns of offi- 251,) original (§ presiding to be laid cers before General are required its session. The the first purpose least Assembly, provisions of enacting § It meant to too prescribe by law the plain argument. in which questions manner the election concerning of gov- determined, ernor be intelligently fairly might by pro- information, itself with sufficient if find possible, to viding if had been out what chosen. It person, any, legally meant tribunal, to be as the constitution meant it itself should meant this facilitate and be. It make legislation sure the all duty determining aris- performance questions which about election the mandate of ing had devolved it. constitution what is claimed To state here briefly character . in 240 :—1. the certificates are required They returns of § officers,and the returns which show the presiding ” as the constitution given number requires.— are returns officers They required by mandate of the constitution legislature pursuаnce which methods provide requires all election of a concerning questions gov- ernor shall be determined. of these returns ease present evidence

Upon 828 v. Morris State ex rel. cast, have a of all the can be found to

person majority and no can be found to be chosen. legally question recurs,

The now what is the extent of the legis- lative examination which the constitution requires to make for the purpose finding who ? out chosen An answer to this is is question legally contained that mandate of constitution which really it to make an examination the returns requires out who chosen. Such exam- point finding legally ination to terminate in such' a result must necessarily to include all scope falsehood and mis- questions forgery, take. It is not an examination of the simply face returns to find out who therefrom to be cho- appears legally sen, but an examination exhaustive resort- thorough evidence, to extrinsic if that is ing explanatory necessary to find out who is chosen. No legally proposition general is better settled authority than when- proposition ever and however it unreliable, that returns are apparent their value evidence is and other evidence gone, may Elections, must 544, be resorted to. on McCrary §§ cited; Remedies, authorities there on Extr. High Leg. cited; Elections, and authorities there Paine on § § sea., cited; Cooley Lim., (6th et and cases there Const. 788, 789. ed.,)

But it is the confident claim of our that the opponents certificate of the officer is final upon the presiding question to, he certifies that the of these certificates aggregate returned is the evidence which As- can act. The true of this sembly dimensions claim can best be seen by is, what exactly certificate inquiring and an of 237 of General analysis Statutes shows what it § is. officer’s certificate way is made is presiding deliver this: —the counters to the moderator a certificate “ the number of votes counted each showing candidate ” and office the moderator indorses this respectively; certifi- count, cate as the result of the official showing passes officer, it over to the who certifies the counters’ count to vote electors’ over he meeting Bulkeley.

State ex rel. Morris hands; The whole business is in the counters’ presides. to re- count what what reject they they they please, agree as show- and the moderator must indorse their doings ject, result, his who cast correct elector ing qualified and has been without rem- vote disfranchised is practically certificate, and it Such is the officer’s edy. goes final, that it and it is not. without to be saying ought branch of the General confessedly, may Either Assembly, returns, decisions, mis- his behind his reverse his correct go takes, has rejected, count as votes the votes which he legal the result of the election as declared entirely change And in case of question him in case of its own members. election sheriff or probate, judge about the judge these Court review may proceedings Superior have and reverse the results which they officials election any And the is true case of question same reached. town office. So that we this state things: any about that a vote shall officer’s decision —the election given with require- for an some non-compliance alleged rejected far law be reversed ‍​​​​‌​‌​‌​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​​​​‌​​‌‌‌​‌​​​​‌​‍so as ment of the may representatives concerned, If as to all state officers. are but it must stand it may for constable is rejected, elector’s vote unjustly court —and into in court —even be inquired him deprive but a counter at the polls may righted; wrong reason, and for this without just of his vote officer’s the presiding there is no because remedy, wrong final. This cannot count is of the counters’ indorsement known to no such creature In a state there is be. free des- final, however arbitrary, whose act is law or possible, must stand be. The state even it corrupt may potic, The constitu- sure foundation of free suffrage. exercising of this. takes care The General tion the constitu- been of which has never deprived by instru- too, tion, mandate of the express following, could ment, foresight has made such legislative provision Section of free suffrage. the privilege support suggest meet- cast at electors’ that all the ballots 247 provides box, counted, shall, be returned after are they ing (cid:127) ex rel. ». Morris moderator, which shall be locked sealed up by office, in the town with seal clerk’s the kept deposited “ months, for six to be and the ballots opened unbroken ex- an those authorized official exami- amined make only by of This section “if nation them.” further provides of a are under such boxes opened authority judge Court, election, with into an the inquiring Superior charged that all the shall see ballots the said judge accompany- box, returned the and the are same effect- certificates ing can be no doubt to There what end sealed ually up again.” Ballots be under point. preserved all these provisions for ? Ballots to What be for lock and seal. the preserved of ? six months. that time Boxes to Why definite period “ examination.” whom ? By be Boxes to opened official “ those authorized.” Who ? authorizes opened be box must return he If a opens judge it ? seal Why The General effectually up again.

box and the ballots to be for the requires kept purpose examination, fixes of time for official this period from extend election enough long beyond keeping Assembly. the General The are to stated session boxes of the constitution or the only by authority be opened A Court Assembly. judge Superior may of his of in- statutory boxes duty discharge open election, when he but with the through into quiry “ that all ballots and the see accompany- shall votes he box, and the same are returned to effect- certificates ing There is this last explanation up sealed ually again.” section; than no other construction possible part that when Court means has Superior that the legislature ballots, of their still great purpose with the finished is not contem- accomplished. legislature preservation Court, examination, beyond Superior an official plates the only beyond Superior power possibility, and conduct this examina- the boxes which can open Court thereof, or branch either General Assembly tion is the and duties. These of its constitutional rights pursuance were made law support provisions elaborate 1892. ex Moms rel. ” free were made to the end privilege suffrage; at the shall mercy never ignorance privilege could this fraud. What more effectual privilege safeguard of the General that what than the promise shall is done be exposed darkly polls sunlight ? inquiry legislative of this of examination is the ascer- The limitation electors of the state ex- tained will qualified legally and it has no other limitation. pressed, On two occasions exercised and without without interference:— this power question 1871; in Gov. Waller’s case Jewell’s ease in-Gov. of these cases the exercised this In the first legislature of election for in the matter governor, by tracing'the power, their ballot-boxes them- returns to going source — the ballots and to the men who cast which were or selves them, found in to trace out and to have been correct ought and and which counting returning illegalities voting detected, be because of the could otherwise defective character returns of the offi- deceptive presiding In cers. the second case the General exercised behind the returns of the power by going officers to take certain cognizance irregularities act to heal passed the defects certain votes validating decisive, healed, which were when Gov. Waller’s election. This of examination which the General has power abdicate; exercised, it has abdicated and can never never it has and it cannot never it to other tribunal any delegated Conn., O'Connell, 432, it. 36 This Brown 447. v. delegate it case would seem to be of to the court because value large defines the of the words “manner prescribed by meaning constitution, (cid:127)law,” which áre common to two articles of the discussion, and construed in that the one under the one case. n That for which the General the power Assembly possesses we the fact that the con- contend is not evidenced by it, alone, out is and it to find who legally stitution requires submit, chosen, but, it is established by we conclusively 827 v. State ex rel. Morris with the it consideration that has invested the constitution and by sole who chosen power governor, declaring he until that no can be further consideration man 393; Wilson, Va., Carr v. is so 32 declared. v. W. Goff 124; York, North, Wilson, Va., 419; 32 N. v. 72 W. People 616; Elections, id., v. 91 on Crissey, McCrary People §§ 274. pro- The Court has no power compel Superior duction of evidence alone these proceedings sustained, is still warranto could for the quo legislature session, control. and the returns its are still exclusive Guthrie, Va., 32 1. Court has Fleming v. W. Superior no to make declaration as who is power governor, enforce it if should. the court Suppose chosen, finds out who is who makes declaration legally what is to still governor, prevent Assembly, in session, from a different declaration the next making day, Baxter, Ark., its 129. enforcing declaration? And we submit further that the court will take judicial notice the action of' the General in the matter what finding declaring been chosen person legally will take notice of governor, entitled judicial Ev., exercise duties of that office. 1 Greenleaf ; Skillin, Maine, 36 Prince v. § discussed Having these intervening questions, Fifth. wit, what are the returns? and what of the extent the of for examination legislative power the purpose finding out who is legally chosen? we come to the as to inquiry whether the General now in session has made the declaration of some indispensable other to be since declared Gov. governor be the Bulkeley governor? the Has made declaration that been has chosen ? any person This can legally question answered briefly what the General by stating has Senate, done. The returns, without examination of the its committee the refusing of citizens’ respectful request electors to be heard in has indeed made dec- premises, laration that Mr. Morris was chosen in legally governor November, 1890; but the Senate is not the General Assem-

328 ex rel. Morris i>. without The House whose concur- Representatives, bly. Senate amounts rence declaration nothing, of examination, its constitutional so performed duty having Senate, could without far as it concurrent after action.of reason, an for necessarily examination incomplete that it find that cannot any person voted chosen. legally that declaration. Just what "the It still makes exactly did is House discovered an analysis report discloses, first, an committee. This examination report returns; second, an the face examination of aid of extrinsic evidence. On the first returns part examination it that in of this the whole state 1289 appeared had that ballots been these ballots were general rejected'; electors; that all cast had all been received by qualified they ; that in box had they been from the placed rejected closed; count after boxes were that the authority upon did which were that 458 of they these rejected appear; double; had for ballots been rejected 121 being these ballots had been for no cause rejected rejection addition, in that 111 ballots were and a assigned; rejected, cause for which was neither nor suf- rejection given specific law; ficient and that 536 more ballots had been counted than for were actually cast. the second Upon found, addition, of the examination the committee part 38 more had ballots been counted in general the town cast, of Norwich than the whole number of ballots 20 of were for Luzon B. Morris for governor; ballots republican were for general Bridgeport rejected mark, which the committee having alleged distinguishing found was a minute merely made speck by defective print- and not a mark within the ing, distinguishing meaning law; and that 103 of those ballots herein- general referred before cause neither rejected nor specific law, sufficient were because solely rejected word ” for was thereon as part title of printed each for, that, therefore, and office voted ballots were illegally these facts the committee no rejected. Upon that reported has votes majority cast person lawfully governor. 329

State ex rel. ». Morris it de- report House This adopted, upon report for it to clared, declare, and still does is impossible been find and whatever has legally declare any person chosen governor.

To all we the failure sum upon up urged General make declaration the results of Assembly that failure: —1. The defendant office holding he declared because the' duly governor governor session, at General its 1889.—2. The Assembly January which General the constitution with Assembly, invests sole who was chosen power declaring at legally governor November, 1890, the election in has not declared any per- son have been That chosen.—3. branch legally General has alone made aPconstitutional returns, examination of the has declared and still does de- clare was elected.—4. The action General the votes cast and examining declaring is, was, the result election, part integral such examination and are as declaration much a necessary of the election as the part elec- casting session, tors.—5. The is still power and sole time to make power declaration. that,

Sixth.—In conclusion we submit respectfully considerations, defendant, and for the foregoing Morgan Bulkelejr, G. by right Connecticut. If term, tenure an office be fixed for a prescribed until a successor shall be elected or appointed qualified, term, neither a nor the nor expiration resignation, successor, the election or of a will vacate the appointment office impair the incumbent until the suc- Elections, cessor is 199. duly Paine qualified.” See § 332; Ill., v. 100 v. U. People Supervisor, Badger also — States, R., 599; 93 York, U. S. v. 52 N. People McKinney, 374; Jarrett, Md., 309; State Mo., v. 17 64 v. Seay, 105; 227; Lord, Mich., v. Com. People Hanley, St., States, In cited, Penn. above Badger v. United the court that an held officer to hold until his sue- elected

830 v. Bulkeley. ex rel. Morris State at pleasure could not cessor was duly resign qualified, submit Hence we gov- leave the office vacant. examine the elec- ernor of cannot be required the state man whether one or tion himself returns ascertain him. A case to succeed might another has been chosen in the He is mistaken result. arise which he would be declaration, official its entitled to have a finding down the office character, be lay he shall required before him to de- An attempt by or turn it to a successor. over not would made or had been cide whether choice in the department legislative vested usurpation government. of all questions every The exclusive investigations executive have been to the chief always nature pertaiííing General Court-and General No Assembly. made service, call it as of this we abdication or high delegation made, has ever been nor duty prerogative, please, known, of, until far as is been conceived so present they acts, Under all of the the funda- suit was organic brought. charter, orders, is little more than mental Crown, fundamental orders assented enlarged of its declaration independencе adoption state 1776, and the constitution of charter in polit- the chief executive of ical of declaring notifying duty to office has been exercised General Court his calling which has been and is and the General ever Assembly, of our Of this magistracy government. supreme political court our the modern says, government department Lewis, Conn., :—“ The 127 of State v. legislature, case vested, is all is limited whom sovereign power only by And interference with the Gen- any judicial Constitution.” while eral Assembly, uncompleted performance duties, would be a It its constitutional nullity. appears has found a cer- branch of that one election, after examination to its satisfac- tain result ; has found a other braneh certain other and tion election, after examination to its sat- result of opposite before them. And harmony yet isfaction. The duty Morris ex rel. within, is if is no to from there there he harmony organized to without. To no be from harmony possible organized its command the General constitu- Assembly complete direction, a the is tional duties from by emanating judiciary, a absurdity. constitutional and The General legal Assembly If whom is the it represents. responsible only people branch to fulfil it either fails its constitutional then is duty, it alone whom must answer. the Until the people a General certified candidate Assembly the supreme office, idle, it would than it executive be worse would abe the and the constitution contempt put upon supreme legis- branch of the for a lative member political government, Court to to bestow upon the him suita- Superior attempt title, him an ble execution for by credentials ouster giving incumbent, an to a a addressed constable of town single a sheriff of a A or to clearer single county. instance than the of constitutional that of confusion could magistracies be created. That the declaration hardly General act, is a with incidents, essentially political judicial is it so under constitution, is our Especially apparent. where, in a to find a event failure vote for majority candidate, constitution imposes upon legislature function of itself possible political highest choosing Nor it to bar, is be overlooked in the case at governor. but, that the General has not by neglected, branches, of one of its the action constituent has absolutely to ask declined assistance judiciary settling Can it these controversies. be the Superior Court by warranto will fulfill the judgment quo high functions who is by declaring governor, constitution was left General where with the it has Assembly, been for nearly centuries, a half two and which that can body delegate submit, then, that an nobody? We unsolicited interfer- with the judiciary ence the' constitutional duties of the while its two branches Assembly, them- put other, to each as, selves opposition unreasonable than, more much unhistoric interference would be In executive. between the two controversy representa- Morris v. rel.

State ex tive branches of the as to whether Luzon B. legislature, Morris received majority vote last Novem- popular ber, not, and if whether he or E. Samuel shall Merwin constitution, chosen under is no more for the to intervene fitting judiciary department than it would be for the executive itself to department intervene.

But it is said the constitution dec- contemplates and, session, laration the first if there day candidate, then a choice majority Assembly upon session. second We submit this assignment dates is but a a re- direction. In where statute general, a for a official act to be done public by given day, quires as regard must construed merely directory purpose, Heath, Hill, 42. Ex 3 doctrine has to time. This parte courts, maintained been uniformly nothing 486, Allen, Wend., 6 and cases better settled. People cited; Eves, Conn., 253, 255, there Colt v. cases cited; Elections, It be said that may McCrary §88. construction of constitu- this rule is less universal in the law, true, no such which is but there is tional than statutory in this of a constitution regard of construction inflexibility These ends popular government. to defeat the very law for a num- a certain not like provision are directions house, of a or of grace notice to possession ber of quit days’ of commercial They to maker of piece paper. given or of a lawsuit not to be foundation were enacted into the to constitution to were put They defense one. to ascertain General Assembly it the duty make first election, and if at the and declare the will people examination, find, a fair after should a majority officers by their state had not elected people fact, to to once, then, proceed oh vote, discovery With the proprie- candidates. them from leading select of examination pursued of the methods ties or improprieties non- compliance with their Assembly, constitution, as to directions of with the compliance notification, declaration the constitutional when make State ex rel. Morris v. successor,

and when choose or his whether choose defendant, on this or that the executive of day, state, has no That would constitutional to interfere. right be an He can do but offensive confusion magistracies. one order to be true to his oath and to the solemn thing him He can- trusts his call to his office. put upon high him not abdicate. wait until a comes to He must successor clothed and the with the certification which the constitution traditions of aud two hundred have made fifty years of a suc- evidence of succession. For the appearance waited, cessor and much more so certified he has willing, comes, than time he his trust. Until that willing, resign follow, has but it met course of whether single duty or criticism. When a successor by applause appears, then, and not till will his he have filled the sanctities of up oath, and will of his discharged high obligation trust.

O. R. Stoddard, T. E. H. with were Ingersoll whom Bristol, Doolittle and L. K. contra. is,

The question whether the defendant is the rightful lawful If he is such the state Connecticut. fail, is not this action if he must but governor necessarily state, and a this action must succeed of governor case The pre- be rendered proper judgment accordingly. unlawful, unfounded sents no An question jurisdiction. cannot claim of title to the office of pretended governor in truth court of oust this to determine whether jurisdiction office. and in fact the defendant to such law entitled by office, what that of- intrudes into it Whoever matters title, be, may fice with or without the final evidence may decided in the be ousted on was as proper judicial inquiry, Barstow, case on this General v. leading Attorney subject Wis., 567, where, had been the incumbent notwithstanding authorities, court declared governor by proper intruder, and ousted warranto him to be adjudged quo him had usurped. from the which he unlawfully governorship of, the single The thus disposed question jurisdiction rel. State ex Morris v. is, to the who is

issue court for its determination presented relator, of the state of Connecticut? Is it the governor is it the defendant ?

The are conceded facts in the case:— following A for and other state election —(1.) general officerswas held the electors of-this state on the duly November, 1890, 4th day pursuant provisions relator, Morris, Luzon B. re- The (2.) constitution. — ceived a clear of all the counted votes received majority Lawful the several electors’ returns of meetings. (3.)— treasurer, made to secretary votes were comp- state, troller of the officials counted the so these votes returned, and therefrom it and still does appeared appear Morris, votes, relator, 67,662 Luzon B. had votes; 67,636 all other candidates had showing major- votes, of 26 and if an return of the relator amended ity considered, from votes Milford is A majority (4.) 44.— treasurer, fair list of such votes so returned made constitution, as secretary comptroller, provided by fair from which list оf the above result appeared, Morris, wit, relator, Luzon B. had a of 26 majority votes, and counted in the received presence electors and returned as Said fair list and provided (5.) law. — votes, return of made officersof the elec- presiding laid, tors’ were before the General duly meetings, Senate, on the first of its after ex- (6.) session. — fair list and the returns of the officers amining presiding of the electors’ found the vote meetings, thereupon stated, above and in obedience to the constitution declared the relator to have been elected the electors. governor by The House of had before —(7.) Representatives fair and the list returns the several same officers received, counted of the votes declared the presence electors, and of the from these documents the.House found ” “ for that the democratic vote as returned was governor “ 67,662, returned,” 67,636, for other candidates was “ a 26 democratic for as re- leaving majority turned.”

JANUARY, State ex rel. Morris the refusal forward to excuse facts put alleged in substance a are

the House to make formal declaration that they The House committee reported (1.) these: — and were not counted found that 1289 ballots were general and in the the electors’ rejected presence meetings electors, and that that some these gen- they “thought” for some eral ballots so should been counted rejected one, but made no nor as to investigation any finding cast, for whom these ballots were actually rejected inference, and in relation to 159 except by only ballots, a of at least 1130 of balance rejected leaving ballots, one of which for every rejected may, aught relator, have borne the B. name Luzon appears, Morris, for The committee also governor. (2.) reported — that 126 were in ballots electors’ rejected open meeting mark, and, a without Bridgeport, bearing distinguishing ballots, one of said further seeing single reported rejected that in their the mark which the local election judgment authorities, themselves, ballots held inspection mark, declared to be was such a distinguishing mark as to invalidate the ballots within distinguishing The committee also meaning (3.) reported law.” — were, the 1289 some of ballots error through rejected authorities, on the the local election re- judgment part without sufficient The committee jected legal (4.) cause. — further that in a number of towns the reported officers,in amake certificate under section 240 attempting Statutes, in of the General relation to variety facts election, had connected with the conduct of the blundered in some particulars.

It not denied that the local election officersacted fairly, to their best It is not honestly according judgment. there were claimed that errors the count any except Norwich, error, was, if there did not affect any It is not claimed that mistake result. intervened fair, All return of votes. concededly regular is, claim on the of the defendant made part simply, that mistakes on the of the local authori- part judgment JANUARY, 1892. Morris u.

State ex rei. exist, which, did certain ballots were whereby ties rejected committee, in of the should been have counted. opinion now claimed the House of And therefore Repre- sentatives, Senate, of the protest itself against the constitutional revise right judgment authorities, and such revision has local election juris- to determine whether the should rejected diction ballots counted, and to count them if it so been thereupon decide. That the

First. The relator contends—1st. election was electors of and consummated the state held by November, 1890, held on 4th electors’ meetings does not participate and that the General Assembly but declares the result as that election of governor, from certain figures. result appears fair list and the returns offi- That the 2d. counted the board of can- the vote actually cers the- General are laid before primd vassers facie correct, and stand until must'necessarily and presumably altered, dr aside some competent authority. set amended there is no under constitution practice That our

3d. much of the General less of Assembly, on part alter, it, to or amend said list vary house composing either and of of said returns, and that the duty ministerial, wit., to ascer- is simply house constituent each and returns the result of election fair said list from tain that result. declare then and unconstitutional refusal unlawful That 4th. de- to formally House of Representatives the part and found result, the documents as shown clare the state their electors of House, can deprive the rela- or deprive to elect governor, right constitutional chosen. lawfully has been which he officeto tor branches of both case the present That 5th. that the relator fact to be have ascertained as shown by cast all the votes a clear majority

received fact, but returns, the sole evidence which are list of its duty violation the House Representatives, Bulkeley. State ex rel. Morris v. constitution, is a

under the to declare what neces- refuses wit, inference from such to that the relator sary finding, was elected. alter,

6th. That if there is existent power anywhere amend fair list and the offi- or'vary returns cers, we can exist in (which only utterly deny), power the General can act Assembly, body only through it; co-ordinate action of the two houses which that compose can neither house own amend its motion alter or said returns, list and because that can be done the Gen- only eral a that refusal on of either Assembly, house part the list and returns a change involves refusal necessarily on the of the General part because the assent of Assembly, both houses is to such indispensable change.

7th. That court will not allow a mere matter of form to stand in the of an election way completed substance essence, will, but a failure of prevent justice, adjudge the relator to be elected to the office of lawfully of the refusal of spite one branch of the General Assem- bly perform ministerial duty by passing customary formal declaration. stated, the

Broadly which the relator position contends is, that office right gubernatorial depends upon electors, the election to that office and does not de- a declaration of that pend the result election by ; that the General legislature does not Assembly partici- in the election but pate declares the result governor, it; as it from certain laid appears before figures papers and that the action of the General Assembly examining the votes the result is not but minis- declaring judicial terial, not, therefore, is of the election.' part integral is, essence of the claim that relator’s the action of the General returns Assembly examining declaring ministerial; the result is that it wholly is not in the purely or Assembly, by neglecting refusing declaration, to make to defeat the will of proper people of the electors in their as expressed meetings towns; that the act of respective result' declaring Yol. lsi. — 22 rel. Morris ex.

as shown by the returns is an duty imposed upon imperative constitution; the General that the duty Assembly by than, in this no other or the General is regard from, that on any different in similar cases other devolving board; that is im- returning canvassing though duty on the General of the act to be posed quality Assembly, the General altered because performed by it; it is perform one, is ministerial it does not and cannot become duty or a reason of the nature the judicial political duty by tribunal to which it remains and sim- is entrusted —it purely ministerial that if the General can ply always; refuse to a declare the returns show to be whom chosen, it an to constitute ex- power legally practically suit еcutive to its own thus and over- purposes, strangling will; the and that such a doctrine robs public the throwing chosen, of the executive people may force they them one who not even candidate for their upon suf- defendant, hand, The on the other contends frages. that the devolved on the the constitution duty is legislature by that, not ministerial but in such judicial, acting judicial examine, alter, the has the to capacity, legislature amend the fair list of returns laid before it. vary It is the thus made issue whether the de- up, duty upon volved on the General is judicial its character or ministerial that the substance of the only, controversy turns. From that issue as the record presented by there is Either' the escape. duty Assembly is ministerial, with purely or else it is all wholly, judicial, all judicial power implies, methods right by proper —the with aid all evidence and legitimate proofs ato conduct the which shall conclusion deter- inquiry finally mine the of the parties. Less than this rights is make judicial power farce. granting is, essential underlying, tó be question determined an whether declaration is element or evidence title. latter, If the then it follows that it is no necessarily part it; the title itself —that without perfect right State ex rel. Morris ». failure that no

prevent justice, without wrong may must, its the courts will and remedy, upon production of such evidence be deemed may make satisfactory, good omission of declaration adjudication office; who has thus his title is entitled proved made, when has all the force of adjudication, substituted, declaration which it is and is promulgated with the same which that declaration was publicity intended authorities, And so it subserve. is that all the unless rule, this case to be the one prove exception from down, Lord Coke hold that the election foundation, is the return; and title to an right elective election, office and is not depends upon contingent or manner the existence degree non-existence of a or declaration certificate of election. Lim., on Const. Cooley 787; 785, 786, Elections, 625, 626, Paine on 634; §§ 639a; Rem., 638, 639, on Extr. 6 Am. & High Eng. §§ Law, 422, 423, and cases Encyclopedia there cited. “ If one not elected is legally erroneously declared to be elected, will of A people disregarded. usurper ‘ an to he holds office which has no The right. usurpation an not an office is invasion executive prerogative,’ J., Deliesseline, McCord, State v. 1 52, observes Nott, ‘but of the the and the rights people, method only those can be is protected the rights instru through of the courts of In mentality justice.’ accordance with it these views has been held this and all uniformly other arisen, where the has that question courts the decision of board is the canvassing only evidence prima, the facie cast, an title to office real the depends upon and that before which the tribunal arises will question investi election, cast, the facts the votes and the gate legality of the action board.” canvassing (Citing v. People 67; Cooke, York, Judson, N. 8 v. York, ; 55 N. People 525 Vail, Wend., 12; Governor, 20 v. State v. 1 Dutch., People J., Skillin, C. Maine, Per Prince v. 348.) 71 Appleton, it matters not that And 371. is so body constituted will not lie mandamus to enforce its duty. true n 1892. ex rel. Morris v.

State and the act is is, lawby rule if the is duty imposed the title to ministerial, affect a to act cannot refusal Petitioner, Dennett, 32. office in warranto proceedings. quo 508; Elections, “The Maine, presump- 378. McCrary § and declare its duty tion is that will perform legislature therefore, a who been If, has party the result. rights refusal of a can- to an elected office are imperiled by board, it whose duty that case vassing legislature), (in result, and declare the he is to with the canvass proceed and enforce courts protect confidently appeal may Elder, N. W. his Rep., rights.” title, If, hand, .an element declaration is on the other evident, it “an it whether is termed no matter integral ” “ or title adjunct,” of the election indispensable part it, and nо without ex- not and cannot be complete right in the courts or elsewhere. which the claimant can assert ists no is no failure of because legal right There justice, no denial of because been justice, right perfected; into does not come existence. There is demand justice elect, which it is for the courts impossible failure Simply ?so Can it be that Is this remedy. to supplement in the hands either house intended place constitution to thus or of the whole General defeat them, and to thrust for a suc- will of the people, be, well of terms hold-over executive whose may cession volo, sie jubeo; sic stet ra- title is found only pro voluntas,” Did the framers of tione majority? partisan to all intend to the courts other suit- constitution' open our office, ors, and to them matter how close insignificant to those whom the have elected people highest ? of the state offices and discussion of to the consideration those

In proceeding think, which, the fundamental we bear issue matters outset, stated, well, to recall it is language thus e Re of Maine in similar case —In Court the Suprem Maine, 561, “In a case Garcelon, 599. like Gov. 70 in Cohens Justice of Chief remark Marshall, present ‘ 404, It is Wheat., applicable. 6 peculiarly v. Virginia, 341 ex rel. Morris ‘ not true,’ will take he that this court jurisdiction most says, not, it it true must if it should but take equally cannot, if it The as the should.’ judiciary jurisdiction it a measure avoid because approaches may, legislature cannot it confines of the constitution. We because pass it diffi- is doubtful. With whatever. doubts or whatever attended, a case we must decide if it be culties may to before us. have no more decline the ex- right We brought which is than to jurisdiction ercise which is given usurp The one or the other will he treason to the consti- given. tution,

Second. The relator insists that the electors have reserved themselves the exclusive elect the right governor assembled, that, the electors’ and considered his- meetings true in a this is sense torically, high emphatic peculiar of this commonwealth. people 1st. The freemen this colony beginning gave, else, in all well unlimited nigh power jurisdiction, leg- islative, Court, executive but judicial, election particular other single excluded the General Court they magistrates by express, words, and have insisted always by practice, by negative constitution, that law and should never be privilege Sermon, Conn., 71, with. Hooker’s Johnston’s parted pp. 72; Fundamental Orders of 1639. 10th order is as In follows: —“ said General Courts shall consist supreme ** * commonwealth, deal (they) may matter that concerns the of this good colony except election of shall he done the whole hy magistrates, body 1750, 29; 1774; See Laws Laws p. Laws offreemen.” 1796, 5, 125; 1808, Laws of See also laws p. p. § Records, in 1 Colonial relating proxy voting, appearing 346; id., 131; id., 11, 12, 223; 1750, ; 46 Revision of p. 45; 1803, 253 of Laws of Laws of Act of 1808;) p. (p. law until which last cited act continued be the adop- in 1818. Down to adoption tion of the constitution uniform to that constitution practice appoint under oath to sort de- committee receive 342 1892. ex rel. Morris v. result, result to be

clare the who caused that pro- thereupon Records, 4 claimed before 'the General Colonial Assembly. 1749; 1708; session, session, id., 414, 41, 9 May May p. p. session, 1750; 3, id., 501, session, id., 10 May p. May p. id., 572, 1751; id., session, 1768; 4, 13 May May p. p. session, 1772; id., session, 73, From the p. May constitu- of our down to the earliest institution government where to find a tion of 1818 instance impossible single had by action as the election was whatever regards such, com- or made where canvass by was other than mittee appointed purpose formal and ministerial. 1818,

2d. In the constitution was when there adopted, to be made law, no return moderators under the received, than of that were other the votes counted and de- and in clared in the of the electors presence open meeting. not, not, and at that The were time could rejected ballots votes; Ballots be returned. wеre not formed rejected they return, and no could no possibility part they go before the General certificates now sent to Assembly.. state, under section never either secretary go or of canvassers the General before board Assembly, and the board canvassers have relation whatever legal The earlier 2d to those certificates. section of part the 4th article of the constitution defines the returns to be lists of the for and of persons voted the num- duplicate for each. A ber of votes ballot which given pretended authorities have decided to be local does not becomea illegal, vote, and it is those ballots which are local received, counted and authorities declared open meeting returned as votes. It that can be is perverted ingenuity which finds the clause shall law the manner which all prescribe concern- questions the election of the shall ing lieutenant-governor determined,” a constitutional warrant for the substitution and different other evidence returns from those which constitution express language makes the sole evi- dence the result. On the contrary, very language, Bulkeley.

State ex rel. Morris in a if it has any meaning, emphasizes peculiarly emphatic of our contention. If soundness the the constitution way to the General full Assembly intended ex- power give and examine determine the title judicially haustively offices, an it would be utter a sheer contra- absurdity, state terms, to that the same provide diction shall ” some other tribunal to law hear and prescribe determine identical questions. those the constitution each

3d. house of the General By As- the final is made of the election sembly returns and judge members, of its own but no such qualifications power is to the General in reference election given This state officers. is of difference significant. omis- intentional, was deliberate sion is consistent with of our entire form of theory government, showing intent that election of a clear should in no wise the will of dependent upon Assembly. An of 4th. examination journals the Senate and since the adoption House the constitution ‍​​​​‌​‌​‌​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​​​​‌​​‌‌‌​‌​​​​‌​‍shows that the of the election has result been uniformly declared upon returns, of the fair votes; list and examination except 1871, when the General Assembly, action conjoint houses, (and even both then against protest mi- fraud, allegation not to nority,) proceeded, re- authorities, the action of local vise but to do officers done. And the might whole this state history legislation 1849, 1859, (Acts 1871, 1874, 1860, 1868, shows that 1875) the conduct of law electors’ committed to meetings the local au- thorities.

An analysis provisions constitution demon- that the devolved duty strates

that instrument ministerial and not judicial. It is 1st. unquestioned unquestionable law election, when process once governmental must begun, on without to its stoppage completion conclusion. go him, Each must it perform his agent duty comes to to hold back some because other has Dot agent JANUARY, ex rel. Morris v. acted, In lawful or has not acted to his satisfaction. can be no exercise of the there orderly process stoppage declared, its until the result is ascertainedand progress claim axiomatic truth is idle to light in-, authorize the constitution intended to legislature to make a of election it power process by giving terrupt of the returns. There are three mandates judicial scrutiny officers must send the of the constitution: the presiding. board, the must list to the canvassers canvass canvassing them, on the must declare the result the day.. legislature first The can these interest of processes. lawfully stop Nothing filled, shall be and no is af- the state is that the office time trial of a election forded contested by and therefore the General must de- Assembly; clare the of the fair list and election after returns inspection and counted. of votes received actually 2nd. Under the constitution the is the governor person, electorsto with the chosen legislative by cooperate depart- ment laws and government, operation making of otherwise; therefore, it is that who such execu- necessary be ascertained and declared tive is to be should concur- session, with the of the and to rently legislative opening and for that the constitution end purpose provides be laid before the General the returns shall and that thereof, the session day Assembly, of after first same, shall declare the examination whom of chosen; but if shall find to be there is no they legally choice shall, session, then on the second of said debate, without to choose Neither dis- proceed, governor. is much less a cussion nor consideration judicial permitted, months, examination weeks over extending possibly of the machinery because that event constitution fail intent to would out its an ex- carry plain provide the electors to with ecutive chosen cooperate legis- of lature in the of the business the state. transaction fundamental consistent with our notions con- course elections, with the or consistent frequent cerning language constitution, fair is to list accept returns. Bulbeley. State ex rel. Morris result, face, votes as declare their they appear upon a contest to leave which arise every question may tribunals. A confirmation of this is judicial view striking J., found in the recent Ne- language Maxwell, Elder, braska case State v. cited. “The before legisla- a lawful ture is elected body, organized pursuance of the constitution and laws for a lawful and while purpose, within the limits it restrictions constitution may it measure deem pass any may proper, morally yet bound the same considerations fairness and justice which control the and it courts is its of elec- duty dispose tion contests in this manner. This infrequently requires evidence, investigation weeks or require may even months in connection with the other duties members, and is irreconcilable with the that the wholly theory declaration the result the election should be postponed until the termination the contest.” constitution, 3d. By provision towns, chosen the electorsat their their meetings respective all are subsequent preserve proceedings simply the the evidence of result. The constitution first perpetuate that the executive shall be provides supreme power vested “ electors,” in the who shall be chosen the governor, by that at then the of the electors in their provides re- meetings towns, the shall call the elec- spective presiding officers tors to in their ballots for him whom shall bring choose they the be whole choos- governor.” By language to the freemen of the a is entrusted state. It ing governor ballots, is their received counted by presence determined, electors, to be that the election is the and over the has and can these General have no meetings that of the Within the electors sphere meeting is power. and determines its own what by supreme, proper authority received, what ballots and what shall be bal- rejected, ballots It is most fact that lots counted votes. the significant mandate, neither direction nor contains instruc- constitution the sort as the conduct of tion of election the any regards by That is in electors’ assembled. confined to. electors meeting Morris v. ex rel. is the election the electors It after wholly only entirely. counted in in a town is the ballots been completed, votes, electors, the the the made that thereby presence of what state first time directs steps intervenes of the re- shall be taken to the official evidence preserve sult, votes, lists of such that means so by duplicate world elec- declare to the whom the Assembly may their idea of tors have chosen to be The central governor. is, the constitution in this that choice governor regard and not be made the whole by by body freemen of-the It is the election that decides. . This representative body. Puritan, of the our was Ark brought by Covenant very to the New. As chose ancestors from Old they England man whole to be one from the body congregation not a natural their ruler in spiritual, things almost a sequence but necessary things political alike, rule so that both church and same should apply; man, state, be ruled one should chosen -they by by rep- in his own the whole of the freemen body resenting of the commonwealth. As

4th. evi- machinery perpetuate part made the electors in dence the result choice the constitution provides duplicate electors’ meetings, counted, lists, cast votes the ballots but of the certified made; one which officer shall be shall presiding within of time that sent to Hartford period constitution shall have a board provided canvassing returned month to canvass whole officers, but a while legislature given single day, session, to the result. Is it declare possible first day intended the constitution the General As- to suppose a when the time for make scrutiny, sembly judicial to one ? only is limited day scrutiny The constitution lists provides duplicate 5th. for, number of votes voted given persons officers, each, made certified shall be presiding shall be the office of which lists deposited one the act of 1803 one list was clerk. made only town Under State ex rel. Morris clerk in the of the town

out and that was office deposited result, and a and sole o£ the copy as the evidence primary of in- of that list sent to Hartford for purpose Genera] When, was. what the result Assembly forming substituted, its of such list was instead copy, duplicate function was not The thereby original, proper changed. evidence of the result still remained primary clerk, office of the town confessedly beyond power control of the General Can it be the con- Assembly. stitution meant authorize the to alter and legislature one record of the result and leave the other rec- change yet result, ord of same equal verity, unimpeached inviolate ?

6th. The constitution fair list provides returns of the shall laid officers before the Gen- eral on the first of the session Assembly thereof. Now what was the these lists of returns object before laying the General ? to furnish that Assembly with Simply body evidence as to whether it could exercise the to choose reason of elect, the failure of governor by people and to show who vote, were the two having highest from which choice must be made. If a elected plurality there would be no occasion to send the returns to the legis- lature. And note the of this section of the con- language “: stitution If no shall then majority, shall wií7í0mídebate to proceed choose a governor from a list of the names of the two persons having votes, number of or of the names greatest of the persons having number so equal highest returned as aforesaid

Third. The journal the constitutional convention of 1818 demonstrates the soundness of the preceding positions. draft of

first the constitution presented constitutional convention gave Assembly power determine contested elections for the governor (see p. jour- ; but the convention was nal) the unwilling give Lanman’s power, adopted amend- Judge ment, which reads as follows: And said shall JANUAKY, 1892. Morris ex rel. same, after examination of the declare who has a person of the votes returned as aforesaid to be majority legally chosen, him notice draft The of the accordingly.” give constitution thus amended was referred to an engrossing committee for verbal purpose inaccuracies correcting in and that p. errors com- phraseology (Journal, 67); mittee, resolution, of that under made authority acting a few others language, among changes rising phrase- of the of the constitution words of Lanman’s ology place were, however, amendment. The two forms phraseology are intended to identical substance and meaning, constitution, that the from which it appears language reads, can now mean General find, whom elected shall must declare they returned, so to be the votes chosen. legally inspection of now before court has Fourth. The been question of the law of this the authoritative exposition settled by of the of this court as opinion judges state embodied Act, of the Soldiers 30 Conn. constitutionality Voting that the there held mandate of the con- K,., 591. The court time, all the essential details fixed place stitution elections, as The time—the first manner of (1.) follows: — of the The place meetings April. (2.) Monday —the — be at the call of the The presid- voting (3.) —to electors. — ing electors, officers, and in such in the presence should direct.— the General Assembly and manner as order received, counted and declared in the to be The votes (4.) Lists of so re- (5.) given, presence electors. — declared, to be made and certified ceived, counted of the electors’ One officers meetings. (6.) the presiding — state, to be returned secretary those lists The certified town lists so (7.) other clerk. — the treas- be canvassed by to the secretary, returned and an made urer, list and comptroller aggregate secretary returned, with made The lists so those (8.) therefrom. — canvassers, to the General be presented its (9.) the first session. — canvassers, officers and the lists examine 319 1892. ex rel. Morris Bulkeley. them, and the by notify the choice evidenced declare words, the court holds other several elected.—In persons mode; exclusive other above any the procedure must be examination General con- by to lists laid provisions pursuant before fined constitution; that it of the is the As- duty same,” to after an of the declare that examination sembly, choice in the evidenced election resulted them. by Court was This of the into and Supreme adopted opinion made the constitution of the state part by subsequent by constitutional amendment two' passed legisla- vote, tures and soldiers approved by to people, allowing but the amendment provisions should providing cease and become and void inoperative upon termination (cid:127)war. of the then civil existing An unbroken series of decisions the courts of Fifth.

last resort other states is conclusive in the relator’s favor. elect, that the Those cases state electors and that the persons or duty declare cannot look having body beyond returns of Such act in a votes. bodies ministerial capacity and are subject must be only, governed the law. Garcelon, Maine, In re Governor In this case the Judicial Court Supreme Maine say: governor —“The must council act returns forwarded to the secre made, to be If tary. they purport signed up sealed or town open plantation they constitute the meeting, basis of the action of the board. No provision is canvassing constitution, or found state, statute of this any will they virtue of be authorized to receive evidence the facts therein forth. set negative They therefore no such The have power. officers are to deter mine whether the ballot offered has mark distinguishing * * * But if the ballots have figure. distinguishing marks or it is no figures, part officers of duty * * * the town to make reference report thereto. and council governor to do with the nothing ques tion. Their votes, is to count duty regardless fact set forth in the return. are improperly They nowhere

State ex rel. Morris v. constituted a with tribunal determine judicial authority what shall constitute mark or nor figure, distinguishing ‘ can re refuse to and count they legally open turned.’ An election has had the electors of this been state. The up of several voted for rights persons depend on the votes cast. It was the duty * ** council thus declare it. council The governor no have to summon and his a to attend take right seat Senate or who House of Representatives by for, returns them was not for was voted voted or being before defeated. To had been summon one for whom votes would a To cast deliberate violation official duty. summon those not whom were elected returns show would be such violation. Either would be intruders equally without into a right legislative body.” Skillin, 361, :— Maine,

So Prince v. the court say title to an “The real elective office the votes depends upon is, cast. The not that the and election underlying principle the return is foundation of the such an office. right It has been held this and all courts uniformly by other where arisen, that the of the question decision canvassing board is evidence, one real title to primd facie an office cast, the votes and that the tribunal depends upon before which the arises will the facts question investigate election, cast, the and the action legality board.” canvassing

“It is settled the decision of N. by the court in 53 Hamp., 641, that the constitution of New Hampshire requires chosen, ascertain, council to not who are governor senators; who but the returns by to be appear chosen state election, results of the not as apparent by acting find election, but far so as the result judges appears arithmetic; returns to to make a computation, find election, the votes which would been fair cast a nor of cast, votes, votes that were nor of the legal legal cast, illegal, were but of the re- the votes which (cid:127) turns show were declared the moderators. The duty making computation being imposed upon

State ex rel. Morris v. constitution, council cannot be authorized they is, to violate it. Their a of the re- not to count duty part ** * turns, but all. It count them has been argued conclusive, to hold the declaration so far as the record concerned, is is the hands of the moderator placing great liable to abuse. This doubtless dangerous power, true ato certain extent.” on to The court then say goes somewhere, that the must be : This power adds lodged seen the framers of the necessity recognized by constitution, as well- abuse of the possibility to be power for that We there- necessary granted purpose. fore find that when the the mod- was conferred erator it was attended with a and at as simple, safeguard effectual, the same time as as'human sagacity prudence could well devise. This that the declaration of safeguard the moderator shall vote The framers of be public. the constitution did probably not look forward to time when state should indifferent people become so to their and the of their political purity rights govern- Jones, ment that this would not be sufficient.” v. Osgood 60 N. 621. can be clearer Hamp., supra, “Nothing than that the the and the ma votes counting ascertaining result, and certificates of the are mere minis jorities giving acts. in terial have no discretion which They determining of the candidates shall be elected. It must be the result of inflexible, Peti mathematical calculation.” Strong, pure, 498; Clark tioner, Examiners, Pick., 484, 497, 20 Board v. of Mass., 283. See also ex v. Board rel. Noyes People of Canvassers, Boone, York, 392; Car., 126 N. 98 N. v. Gatling Id., 573; Calvert, of State v. Roberts v. 580. The case Elder, cited, law on is before the latest exposition The constitution of Nebraska provides this subject. shall, imme of the House of

the speaker Representatives before of and after the House organization diately returns business, and to other open publish proceeding a of of each house of legisla majority presence houses two The court This effect makes say: ture. —“ of board with the speaker legislature canvassing rel, State ex Morris In the House no sense is the canvass Representatives. It have been imposed votes legislative duty. might other officers the duties wоuld have any body (cid:127) bar, been the samé as the case namely, precisely add cast for the several candidates up the number is, that the result. The rule each declare board is form, it, if in receive the returns transmitted to due cor- rect, and to ascertain and declare as it the result appears by rule all Such returns. This boards applies canvassing without what shall the courts dis- exception. By authority board criminate we will to do its say, compel duty In a is but that one ? free above government law; all are its bound provisions. legislature a lawful body, elected organized pursuance while, a lawful constitution and laws for purpose; constitution, it within the limits and restrictions may bound it deem it is pass may measure proper, morally same considerations fairness justice courts, of election control the and it is its to dispose duty assumed, that in this manner. It seems to be contests and that at its option has the therefore legislature power, the candidates voted whomsoever it declare may pleases, for, people, elected. This government and laws The constitution pro- people people. shall ascer- people will a mode which the vided tained, a canvass of votes.” namely, by contention, that in our If we are duty Sixth. right the constitution is Assembly by devolved' on the General essential to hold the declaration is only, ministerial If General As- is revolutionary. constitute election ministerial duty a mere to can refuse perform sembly it in a case, perform it well refuse can present equally 10,000 majority the successful candidate case where a Such doctrine is controversy. is in not one of returns effect that the neglect It monstrous. substance says character, in its ministerial constitutional plain duty, not the will of the destroy only made the .weapon be may of the consti- the express provision to overthrow but people ex rel. Morris v. order is at an If indeed then our social tution. be so, us, end, men is is substituted anarchy upon government law, it that of remains force force oppose for by all the in a which must subvert institutions conflict or In the Garcelon case certain oaths affirmations state. the constitution for elected were by prescribed persons mentioned; the offices therein but that those appeared before whom the oaths were to be prescribed administered But refused to act. the court said: —“ The oath is pre- essential; ; the terms are scribed its force binding depends terms, its not on the whom it magistrate by is admin- is council, If there istered. or governor being and council refuse to they administer the oath to governor all, one or to for can there be a representative refusal to all one, as to what result? Is equally to tri- anarchy Can the be umph? government its action destroyed par- because there is no or council alyzed governor before whom oath is to prescribed be taken? We think not. The oath, case, from the prescribed necessity bemay taken “ before a authorized to administer magistrate oaths.” It will contended,” J., be C. hardly says his opinion Appletopt, “ that, Skillin, Prince if errors of computation throw- out ones, returns or ing legal counting illegal a candidate not elected is duly declared to elected, wrongfully there should not be some for the remedy provided party actually elected which done wrong be corrected. may If the error correction, subject then the board canvassing in the exercise of irresponsible full power have and abso- lute control of the and may government, stifle effectually the voice to their people according will and sovereign pleasure.” moment,

Seventh. for the all Waiving, conten- preceding tions, we that a further insist substantial and declara- finding tion of the relator’s election votes as returned was in fact made the House of Representatives. The committee of the House that the democratic vote reported for governor ” ” “ 67,662, as returned was for other candidates as returned 67,636, a democratic leaving of.26 majority “as lxl — 23

Yol. JANUARY, 354 State ex rel. Morris v.

returned,” the It was by was House. report accepted such of the House to make constitutional plain duty declaration and and the force efficacy finding, world can and its resolution by promulgation finding or not lessened or further any impaired by that no additional statement House could finding House, would be made or that certain other facts ap of other documents. It pear by inspection being is, of the House make such duty finding, question Heath, so done In whether Ex substantially. parte Hill, 42, couit return is say: 3 special; —“That ‘ returns from the received several districts of the we have ward, etc., of which returns certified us are copies said That it is annexed. for us to impossible hereunto declare were, votes, wbát number of elect greatest persons * * * elected, declare who To ed.’ ward inspectors done competent. they were doubtless Have so ? substantially an election on the return, have shown whole If they gives * * * have, statute, They words set right. offices, the names candidates down respective each; of votes for and it with the number is admitted that more, was, had effect, if done nothing they legal ii;* * declaration of the as same express majority. We that the declaration of are of opinion impossibility by * * * awas The ward case nullity. inspectors was the same certified, at first in so words, as if had they many an elec tion, statute, ail the words of the according and had then expression. added the latter must qualifying obviously been See also surplusage.” cases rejected relating evidence, and returns offered in to certificates to in referred Ev., & Notes to Phil. Cowen Hill’s 1083, 4. matter,

JEighth.In possible aspect the fair list officers,laid and returns of before correct, are and must presumably facie Assembly, primd as the stand sole evidence until al- result necessarily or set tered, aside some amended competent authority. can if under the anywhere, Such existent power, language JANUARY, Bulkeley. ex rel. Morris v. Assembly, in General the constitution exist only action the co-ordinate

which can act through only body A part it. refusal two houses compose involves list necessarily either house change because Assembly, on the of the General refusal part the concurrent can assent to a body only change through action If that a measure of of both houses. it be assumed is by to the General judicial power Assembly given declare,” and words the General shall find and Assembly under the fair and returns such lists power is ex- may be words such yet power these changed, by very limited to be exer- pressly the General and cannot cised one it. fair and returns of branch of The lists by result, votes remain the unimpeached evidence until joint the General unimpeachable, Assembly,by houses, and dif- action of fact its two other establishes some ferent from that which those returns import.

Ninth. To the defendant’s contention in matter we The reply that the argument ju- —1. dicial to alter fair list and laid power returns change it, before because is the con- prohibited by stitution terms or is express by necessary implication, refuted abundantly full analysis provisions the constitution which form of the relator’s contention. part 2. It counsel, also contended the defendant’s that if examination tois confined to the fair lists and votes, returns of it would it place hands moderators of the town respective meetings thwart their action the will of the A people. sufficient and conclusive answer claim found the language Court Supreme of Maine: —“If that officer mod- (the should erator) count, make a declaration from the differing and, would be a failure of his official if duty, the act is willful, a clear breach of his official duty. injunction him is to declare the count, vote truly according and no is made for his provision disobedience of the man- date, such derelictions of duty left to the remedies being furnished in one or another way law. The modera- 1892.'

State ex rel. Morris u. officer, tor is thus made an important is accordingly clothed with commensurate to powers the duties he has to It has been that to hold the perform. declaration argued conclusive, concerned, so far as the record is is placing hands of a. the moderator great dangerous power, extent, liable to abuse. This is doubtless true to a certain and it is that an possible or even a suppose unscrupulous careless and moderator incompetent cause consider- might and able mischief a declaration vari- wrong making with ance the count.” But the court on to goes say somewhere, must he : lodged adds This power necessity constitution, was seen of framers recognized by well as the as of an abuse possibility power necessary to be for that granted We therefore find that purpose. when the conferred the moderator it was upon with attended as and at safeguard the same time simple, effectual, as human as prudence well sagacity could is, devise. This that the declaration of safeguard the vote shall moderator The public. framers the'con- stitution did not look probably forward to time when the of the state should people become so indifferent to their and the political of their rights purity government would not be sufficient.” far endure,

It is better that we should until corrected in court, the small evils and effects of temporary the mistakes election, or even of town and frauds local in an officers than that the should be and effects public evils subject of a ignorance, partisanship unscrupulousness legis- lative majority com- acting through partisan legislative mittee, and were there other consideration this one ought But to be conclusive. in our freemen’s elections no ballot- can be without the concurrence of two counters of rejected different nor politics, decision the moder- except by electors, ator made in open meeting presence before contest has arisen before it is known what the effect of his is to be the result the elec- ruling tion. Should he decide to give courts are wrongfully open redress. The chances of willful error are ample prompt Morris ex rel. minimum, and mistakes and all errors to a reduced thus can be corrected by legal process. cannot agree Senate and House Representatives

The the constitu- of the General under to the duty of the result tion, to the formal declaration relative months For many persistent election for state officers. last both branches efforts have been made and continuous find solution some peaceful radical final. The is but difficulty, disagreement sections, are into two of the state also divided great people The of our same discordant views. machinery holding down, the business the state is broken government menaced, and seriously paralyzed, public peace fame of the commonwealth is threatened. The fair remedy for these is now evils existing judicial sought. to. A suit at appealed government department authoritative, to law is obtain an and final brought judicial, of the constitution from the tribunal in- exposition only with the of vested lawby peculiar construing jurisdiction our fundamental charter. The with state en- people tire the decision are of this unanimity anxiously awaiting House, court. Both Senate and the that recognizing of in this court the case now here judgment ought determine the difference and end to the un- present put affairs, of fortunate condition their public adjourned to await the of this promulgation sittings opinion That is also with court. awaited solicitude opinion just by as well as both of branches peoplе, by because relief Assembly, present affairs, but in state because existing high degree difficulties, and manifest doubts and great dangers may be in our next and otherwise involved state succeeding elections. C. J. This an information the nature of a

Andrews, writ of warranto. It since the quo alleges respondent last has used exercised the office day tenth January state, threatens intends con- governor n State ex rel. Morris v. office,

tinue to use said its liberties and dignities, franchises, that he prays bemay to show required what by warrant he claims to use and exercise said office. The respondent demurred to the information. The Court Superior made a of certain facts other than such finding as are set forth in information, which includes the senate and house jour- nals, to which the parties agreed, reserved the case the advice of this court. reserved are attended questions with serious difficul- These,

ties. as well as the novelty the circumstances information, recited the condition of legislation circumstances, to those applicable the public interests in- volved, and the delicacy the court cannot but feel lest it be thought infringe upon authority belonging the other co-ordinate branches of the government, have led us to hold the case under deliberation for a somewhat longer, usual, and time than is a careful require exposition which the advice to be upon principles is founded. given The case was at the bar with force and argued great ability. The view taken the court form, departs considerably, from the claims made either side their It briefs. believed, however, that in essential there will principles no real difference found between the counsel and the court. The ease finds G. respondent, Morgan Bulkeley, elected legally the 10th January, been no (there elec- having tion entered once people,) duties that office. for The term which he was elected was till the 1891, Wednesday the first of following Monday January, until his successor was If no then suc- duly qualified. chosen, to him has been or cessor chosen has not be- being come the still holds duly respondent the office of qualified, He holds that office since the said governor. Wednesday that the same warrant he held it January, to prior date, to jure continues be the de of governor the state. It is admitted that no has been to chosen be person facts the successor of the unless the set forth in respondent, ; the case show that relator has been so chosen and the there rel. ex Morris v. chosen, The is that, if he duly qualified. but so no claim is ac- been chosen the governor then :—Has relator is inquiry ? and the laws to constitution the cording of the selection some is per- The election of governor must be of one fill who to that office. The selection son be the and must made by possesses required qualifications, vote, and at a time and who to those the possess right place law. The election of state in the manner prescribed by It the preliminary officers is includes process. state have the which those who registration, by persons right determined; when, where, and are the vote time the place in, manner in the are to be and also the which votes given the manner in which the are be counted and the must be result made known. Each of these taken steps had. of law at the time the election is pursuance existing That exer- the election which consists process part the voters of their is cise choice wholly performed by That is electors themselves electors’ part meetings. But it not the often of as election. is whole spoken fhe the election. The declaration of result indispens- choice; fur- able because the declaration adjunct authentic of what the nishes evidence choice is. only officer, The choose unless the result of the any state right can be to be chоice some so as published way obligatory state, than a the whole would be better mockery; be to form of choice without would give reality. The declaration is evidence office, can that he or elected know is entitled the pre- know that vious incumbent his term The courts expired. election, of an take notice the fact but never can judicial who result an election is elected until some declaration made. declaration is only evidence which the departments other government can know whom to as such citizens officer. generally respect in order that a declaration shall be made the result And in a of an election way obligatory upon constitution has fixed time manner everybody, shall make declaration. in which 1892; State ex rel. Morris the declaration is Unless made in the so way provided, of the election is not process No other complete. authority than the General is to make such dec- Assembly empowered laration. It is found in that the case there had been declaration relator had been elected it is not claimed that there governor, has been act other It any equivalent any follows authority. that the relator —whatever future show— any inquiry may cannot be said to now have been elected the office of gov- ; and ernor that the remains the de jure well respondent as the de of the state. It is therefore governor facto citizens, courts, of all of all duty departments and of state both houses of the General Assem- government, him to respect bly, obey accordingly. far

This from however real deciding question reserved consideration. That real is this: —' question The relator claims to have received all the majority votes cast for at the electors’ held legal governor meetings November, 1890, on-the fourth and that day he is entitled to be to that declared elected office. Is there way known any can now the law he establish the fact of ? secure his the office right majority In attention the court has question considering been fixed on a subordinate one. Is the General As- present without the to make declaration as to sembly power election of a ? It is conceived that present be without such either because power, may for it to do become so reason impossible attitude matter, each other on that of the two houses towards so is in condi- as to such a declaration the same if an had that it would be without adjournment tion taken; within the tirne which the General been because to be elected is limited by declare governor Assembly may constitution, and that limit is as to passed present is without And if the General Assembly Assembly. declaration, Court may to make such Superior did in and on that the relator finding make an investigation, cast for all the votes lawfully gov- fact a majority receive Bulkeley. State ex rel. Morris v.

ernor, him a title to that ? give office The grounds upon which the of the to make Assembly declaration the election lost, of a respecting are to be governor supposed Will be examined at the separately, risk some although little repetition.

That of the part constitution which must be in mind kept 4, is section art. which is as follows:— “ At the electors meetings towns respective in the month of April (now November,) after immediately senatoi’s, the election of officers shall call presiding the electors to in their ballots bring for whom would they elect to be with his governor, name written. When fairly such ballots have been received counted the presence electors, duplicate lists voted for and persons of the number of votes for each shall given be made and certified officer, one of which presiding lists shall be deposited office the town within clerk three days, and the other within ten after said election shall days transmitted to the or to the sheriff of secretary, the county in which such еlection shall have been held. The sheriff said votes shall receiving deliver or cause them to be de- livered to the within secretary fifteen next after said days election. The so votes returned shall be counted treasurer, within the secretary comptroller month A fair April, (now list of the November.) persons each, number of votes with given the returns together officers, treasurer, shall be secretary made laid comptroller before the General Assem- holden, then bly, next to be on the first of the session day shall, And thereof. said after examination of the same, declare the whom find person shall to be they legally chosen, and him notice If give accordingly. votes,

shall the whole majority number of said or if two or more shall have an and the number equal greatest votes, said then said on the second of their session, houses, ballot of both shall without by joint proceed debate to choose from a list of the names governor two number of or of the persons having greatest ex rel. Morris v. number

names of the equal highest persons having The General returned as aforesaid. votes so all in which law the manner questions shall prescribe of a the election lieutenant-governor concerning shall be determined.” that the constitution contemplates

It is true undoubtedly a per- that the declaration the election governor—and in all cases all made by the state officers—shall be haps when made and that the the General declaration Assembly; shall with of the constitution accordance provisions the. is that the final and The declaration be conclusive. When people, elected declared legally governor. constitution, capacity by their sovereign speaking a certain tribunal to ascertain declare appoint single declare, there result, and' tribunal that doesso ascertain that with or revise such no other can interfere authority declaration of the the result. The declaration change of an election is to be made General by Assembly, result or con- and must be made both houses jointly by acting house without the other A declaration one currently. by would have effect. its own terms no evidence provides

The constitution by from the examination of which of the election of governor is to make the and declara- the General finding Assembly treasurer, tion, “fair list” except prepared by and the returns of the comptroller, presiding secretary In absenceof all on the officers. legislation subject, cases, in all of the constitution would the intent ordinary that be that General should declare seem fair is shown list and of the election which by result commands ‍​​​​‌​‌​‌​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​​​​‌​​‌‌‌​‌​​​​‌​‍the returns. The constitution those in which all law the manner prescribe ques- lieutenant- the election governor tions concerning If has been determined. there already shall be to that com- pursuant hereafter there shall be legislation admissible, the in- made thereby mand and other evidence clear that seems equally of the constitution tent also examine evidence shall General Assembly State ex rel. Morris result of declaration as its finding

making election. in the law and is a word known “return” word it now. has

had the same seventy years ago meaning Com., is- command been Blackstone’s 273. When ” officer, to an the “return sued from some superior authority is the officer of what he has done in official statement he obedience command or has done why nothing. Whatever the superior may require thing authority do, officer to of that him doing may thing require to make return. The return made officer presiding of an electors’ is his official statement what meeting done at If can re- meeting. officers no return quire other than things such as were required itself, the constitution then it must follow that the General can the require pre- do officers to no other than such as siding thing were they to do at the time required the constitution was adopted. so, If then election law that every has been passed unconstitutional; since that time is for there has been hardly one of them that in has not some way the changed method the the choice or duties or the powers the presiding A officers. construction so narrow and literal as this can- not be successfully maintained.

Section 239 of the General Statutes repeats the duties the constitution to required by be performed the presid- officers the electors’ and ing meetings, adds certain others follows: —“ The officer of each presiding electors’ meet- * * * in town shall every make out ing triplicate lists of in the their respective for given towns each of fol- the viz.; officers, lowing governor, treasurer, lieutenant-governor, senator, comptroller, secretary, judge sheriff probate, * * * in representatives two Congress] of which lists he seal deposit shall in post-office town, said the thereon, paid directed being postage of secretary Hartford, at one within state two days, other within than five nor less more than ten after said days meeting, JANUARY,

State ex rel. Morris the third he shall deliver to the town clerk town of said within two after said days meeting.”

Section 240 of the is as follows:—“ The statutes presiding shall, officer with elec- certificates result of the tors’ which he is send mail to meetings required state, secretary send to' the his certificate secretary lists, number of whole names on the registry election, whole checked as at number voted having checked, whole number of names not of ballots number ’ ‘ ‘ box, found in each namely, representative,’ general and the box not number ballots each counted as double, box, and the number not counted wrong being causes, and the other number for other causes rejected shall be stated certificate. The secretary specifically form in shall enter said returns tabular books kept by him for that purpose, present printed report next same the General its session.” These sections claimed to been enacted in obedience are of the constitution. the commands conform- It from the information certificates appears these sections sent both were able requirements the first laid before were fair session; had examined the Senate treasurer, and comptroller, made secretary list all the from sent officers the certificates of section towns, fall so far as within the requirements they statutes, those to be has declared persons 239 to be elected by several officeswho appear elected to the examination; has that refused exam- but the Senate that far are section required by so as they said ine certificates statutes, it has no constitutional that declares 240 ; indeed, it is that forbidden by declares so to do do it. constitution hand, the other has ex- on

The House of Representatives, certificates, which is required that part well said —as amined 239—and section that part section 240 as required the relator is elected find that unable it is that declares JANUARY, ex rel. Morris therein, named the officers or that other of governor, is elected. comptroller, except is—“that of the House

The fourth section of a resolution result of will action declaratory the House take no until the Senate shall the late election state officers all taken of an examination of action the matter officers, made returns from those including 1888, under joint section of the Revised Statutes select The attitude of the committee canvass votes.” two houses of the that of total complete Assembly on the one that it is opposition; side Senate declaring forbidden the constitution to examine the certificates 240; made under section and on the other side the House’ that it will till the Senate shall have take no action declaring those certificates. seem to be recognized Their positions irreconcilablе. wholly that contained the briefs unpleasant suggestion

either house of the from mo- Assembly acting partisan tives, can find no in the mind of court. place Every is that the is solicitous to presumption legislature obey constitution in its true and that neither house will in- spirit violate it. house So when each tentionally spread upon its a conclusion to the con- journal radically antagonistic clusion of the other it can same subject, anas announcement regarded are unable to they agree. In the election of the constitu- process tion intended should perform That the seems part. closing present to be unable to to the last elec- perform part respect tion this court is to admit. But as compelled reluctantly has not and as it is possible adjourned, legally taken, for either house to recede from the it has position court is not now to hold that it has lost prepared the power on this further the matter of ground the declar- acting ation of the of a election governor.

Prior to the of the constitution adoption under the opera- tion of the charter of the General Assembly possessed all the power, executive and it is legislative, judicial,

State ex rel. Morris any civilized As ex- possible government possess. time, it at the was Parliament. pressed Its acts King and decrees bound the as fully though people every per- within was the four walls son where its deliberations present had were carried on consented to Such them. expressly could fail times to hardly operate power harshly. Many contributed motives to the formation and may adop- constitution, in, all tion of the' but they centered or rather of, idea to limit out the one of the Gen- sprang power eral Assembly. constitution of this state is such a limitation in all its of the

cases covered provisions, leaving in limita- other respects. Whatever Assembly unimpaired to the time with- tion there is Assembly respect in which it must make the declaration of the election of is to be found constitution governor, language read, That is to be in order to above quoted. language get its true the conditions circum- meaning, light at the time the constitution was framed. stances existing in all that time bad eases been elected the governor Up to be declared elected Assembly short, The sessions were then of its session. day rarely first There was no reason then ten days. apparent exceeding become Under the consti- longer. the sessions should why to have a at the very tution there was necessity session, he order that approve beginning might on. acts business legislation go the instrument that the fair list made by And so provided treasurer, with the secretary comptroller, together officers, should be laid before returns on the first holden next its session day electors’ and that should after the meetings, elected, same, who, one, and find if examine the declaration follow- Immediately make accordingly. that the on the second Assembly, ing provides shall, session, in case no has a whole majority votes, to elect a number of Here the proceed governor. fixed Af- time is affirmative words—“ the second day.”

JANUARY, 1892. ex rel. Morris State Bulkeley. firmative of words are often their operation negative affirmed. Thus a statute other than those which things that a shall a certain be done carries provides way thing with it an implied prohibition against doing thing other An of in a any enumeration statute is way. powers held to forbid enumerated. When uniformly things Court the United States Congress gave Supreme ap- cases, it certain was held to pellate jurisdiction specific forbid that court from in all exercising appellate powers other cases than those When national banks were specified. to on empowered make loans was holden security, personal that such a bank make on the could not loans a security on real estate. mortgage

In an a instrument which is limitation rule of power with in a interpretation more force than statute that applies confers To what end did the constitution command power. to a to elect on Assembly proceed governor session, second if day its such command notwithstanding the Assembly is at to to elect on liberty other proceed any If the day? command to to on proceed elect the second a is not day to prohibition elect on other any day session, force, then the command no has and the instrument which a was intended to be limitation in one of power, its most a important fails be limitation all. particulars at When the constitution a commands certain course to be that course must be It pursued pursued is not strictly. a proceeding be varied for another may deemed equally eligible except by constitution disregarding itself. And when the constitution directs the General As- to choose a sembly proceed governor second day session, it in its effect forbids of a choice any governor later But day session. can never choice a proceed governor unless there has a been determination that no previous per- of all son has The majority votes. the As- choose sembly depends previous exam- ination, and declaration that finding received and as this and declaration majority, must finding rel. Morris x>. ex

precede choose the right governor, it cannot be later than the second of the session. constitution that the fair list made the treas- provides urer, and the returns from the secretary comptroller, officers, shall be laid before the General Assem- presiding session, on the first of its and that bly day Assembly shall, same, after examination of the find and declare. When examine? when It would that it declare? seem once, must he done at and that to do is in- the direction so cluded in the words used. It is that the dec- veiy obvious laration of the result cannot be as to so delayed prevent long chosen, in case no is from Assembly, person proceeding on the second to de- day choose The power governor. clare that no one is elected necessarily governor implies to declare that If former is some one is elected. cut off the words of the the second constitution after session, that the latter is also cut off after day day. This In now for the first time advanced. opinion 1831 there no was choice 'of a lieutenant- people The were two houses of the General governor. Assembly its unable to unite in a ballot on the second joint day session, and there was that no chosen lieutenant-governor It seems to been taken for that year. granted choice at a later would be In the Gene- invalid. da}' ral both houses information that Assembly, concurring, upon state, had a fraud been committed in one of the cities of the sufficient to the result the choice for as change officers, it the returns of the its appeared by presiding committee and found that a the matter great investigated committed, fraud had been declared that thereupon elected, to be elected who was found to be rightfully tp it was the result which although contrary appeared by returns of the officers. year contained members who were many of distinction lawyers It of almost ability. known opinion every obtained, other eminent was state while lawyer was there difference their as to great opinions theipower to make the there investigation, Morris, Bulkeley. rel. ex as to the time when in their the result difference opinion made, declared, if one was must be investigation, declared on the in that case was second result day a somewhat similar case In 1883 session. happened In each of these cases the General Assembly. opinion pre- declaration vailed election of' respect gov- made so late in the ernor could not be session as to prevent choice, in case there was no from Assembly, proceeding on the second choose So far governor. can usage afford a be relied correct interpretation the con- stitution in this is uniform in one particular, direction. It that the bemay urged necessity resting upon Gen- the fair eral examine list and the returns of officers is inconsistent with to duty make so the session. the declaration early words of the this constitution which rests are found argument in the as follows: —“And section said already quoted, Assembly examination of the same shall after declare the person whom chosen, find shall to be they legally him give notice An examination be accordingly.” may very or general be Whether it is may very particular. to be the one or in a the other instance must be given largely determined for which the examination purpose is made. The examination which the Assembly directed to make is for who, if purpose one, is finding ; chosen governor that, and not but who chosen. legally find,” To law, is to meaning ascertain by judicial inquiry. And the command find and declare who chosen, is legally means that the examination shall be full and sufficiently title, careful to determine the so that the person declared to be chosen shall have unimpeachable title to the office. It is doubtless desirable that highly there should be a governor at the very the session of beginning But it Assembly. is still more desirable that there shall be no question about title the governor. To induct a person into the office whose title was open and who dispute might be not to elected, adjudged been would be to invite discord and Those delay. who were dissatisfied with his title lxi. —24

Vol. ex. rel. Morris would refuse to on with go animosities be legislation, might provoked, the public business would and a con- be neglected, dition of alike discreditable to the and the things participants state would be to be Such a course would likely produced. bring about the evils which the examination very that the General is directed to 'make intended Assembly to pre- vent. The time and manner of the performance by General find, Assembly examine duty must be construed in connection with the means provided, be may its provided, performance, applica- ble that condition of which will exist when the things shall have Assembly suitable laws for prescribed its That condition performance. which now things, exists because of the solely of the General neglect Assembly suitable prescribe laws this cannot respect, properly aas reason for that the General urged holding should have wider or a time for the authority ex- longer amination, and declaration. The finding sen- concluding tence that section of is, the constitution above quoted that “the General shall law man- prescribe ner in which all questions election concerning gover- nor and shall be determined.” lieutenant-governor By direction the wisdom of the is left unfettered as to the laws which it shall manner for the de- prescribe termination of a questions election concerning gov- ernor and It lieutenant-governor. may other require more returns from the complete officers of the presiding electors’ or from election, the other officers of the meetings, like; as the counters or it registrars, may empower tribunals, tribunals, other or create to hear and re- existing or all decide port upon matters which questions may district; arise at any electors’meeting voting returns, it would seem to that all be or re- necessary decisions, or must laid before the General ports, Assembly session, on the first of its to the end that it day may examination, declaration, make final itself finding constitution. When the shall by required Assembly shall have performed duty prescribed adequate State ex rel. Morris for then the

laws determination of these questions, examination, the declaration will be a mat- finding doubt, ter of no or and can be done on or intricacy readily before the second of the session. day respect

It ais and to the tribute to the sobriety high law which that of this state for almost pervades people a no century election has disputed happened impera- called on to tively the General enact laws for the Assembly determination of the arise election contests. questions Such election It has now come. disputed perhaps too much to will make hope Assembly haste to an end to the condition of our put anomalous elec- tion laws. certificates, returns,

The used, for both words are pre- scribed section 240 of to the statutes be sent officers, secretary by several to be appear compliance the General with the direction Assembly the constitution in this No can behalf. be needed argument that what prove the General was commanded Assembly constitution to it was its to examine. prescribe duty these certificates is that uncertainty attending is not directed secretary them before the lay on the session, first of its nor day words by any specific them, made the of the General duty examine examined, or to act on them if and so it is claimed either house is if them it liberty chooses to disregard do so.

This and some of topic the others considered have perhaps received more attention than their importance demanded. occasion for their will Every doubtless application be speed- removed further ily legislation.

It has seemed to some of the members of this court that has no power subsequent second of its session to make a declaration that any is elected or that person governor, received person of all ; the votes and majority so that no is elected and that therefore the no to present Assembly has the relator declare to be elected But as this governor. ex rel. Morris v. not at the a decision fully argued

point hearing, it than affect other are those who persons par- might to court does not to ties this now proceeding, attempt décide it.

From the facts out the information it spread appears down, that the election has broken that not so process there is a failure elect but that all governor, legislation has the difference ceased. between the branches Owing an entire collapse depart- legislative ment has ensued. Whether condition resulted we from or the other the causes have mentioned it one is it not not decide. In these circumstances necessary make an may investigation, Court possible Superior all and on received a the relator majority finding cast for the fourth votes lawfully November, 1890, the returns (whatever title to that office some officers establish his show,) may be that shall the declaration judgment equivalent legally ? been should have made which mind that courts It be must carefully kept an election. They function to perform process Court cannot make The power. disclaim any Superior made which the shall be says constitution the declaration do in a The that the court can utmost Assembly. is, which can lawfully like this some case judgment a defect. In the life of make omission or heal to supply that an occasion arises calling a state it often happen may current ordinary remedies for application to exist. have been thought of affairs would of the constitution view workings may Whatever it intends to afford taken, no one can op- suppose than to hold office for state officer longer portunities he elected. term for which has been specifically for biennial elections gov- constitution provides regular shall hold is the that the governor There provision ernor. This was designed until his successor is office qualified. Until to be brief. always cover supposed exigencies that the practical it was never imagined instance present JANUARY, 1892. Bulkeley.

State ex rel. Morris v. pf that be to permit would operation require provision term in- for a part hold over any governor large tended for a successor. It is because singular omission on of the General Assembly the part prescribe suitable laws all the election questions concerning determined, that shall be instance governor present November, 1890, has been 4th made On the possible. the voters this state their for him choice whom expressed would elect to be they They intended choose governor. a to hold office from the governor Wednesday following the first Monday January, corresponding 1893. The Wednesday January, respondent was not one of the voted for. At the same persons election they also chose members of the General to whom Assembly, they committed the the results of duty their examining choice elected, who was governor, declaring and of a in case had governor made no choosing they choice themselves. the defects By mentioned, legislation already the will people has failed to respect be accom- A is plished. very great done' them. wrong being relator to' a claims have received of all the majority cast for at said election. If his claim is correct a done to him. great wrong He has being come into court to establish his to that seeking office right obtain redress for that wrong.

It that it would argued might bring deserved obloquy if this state there was no jurisprudence inway which the relator could establish the which he right claims. It is of the essence of very civil liberty every individ- ual shall of the laws protection whenever he re- ceives At of the third injury. page twenty-three volume of Blackstone’s Commentaries two cases are mentioned in which a is afforded the mere remedy operation “ cases,” author, law. In all other is a says general rule that where there is indisputable legal there right is a suit or action at law legal remedy by whenever is invaded.” As this rule right general is not proposition B ut it is denied. urged

State ex rel. Morris ». exclusive tribunal which has election of cognizance If, however, the General refuses to governor. act, or if it be so that the General jurisdiction of the election of a in the manner and at governor only constitution, time out pointed then the relator is remediless unless the court intervene. When the time may is within past act its Assembly may is To jurisdiction hold that the has such gone. exclusive and that the court in no jurisdiction, case can have act, afford an would be to right instance where a fla- a grant was without That wrong remedy. such a result follow is might reason that powerful why construction pf Blackstone, not to be ought adopted. the- page above, same volume cited of what speaking are injuries cog- law, nizable the courts of the common adds: —“And herein I shall for the remark that all present only possible that do not whatsoever fall within injuries the exclusive ecclesiastical, of either the cognizance military maritime tribunals, that are for reason within the very cognizance the common law courts of is a settled justice; invariable the laws principle that England every right when must withheld have remedy its every injury redress.” proper

The Court of this Superior state as a court of law ais court of It has general jurisdiction. of all mat- jurisdiction ters committed to it and of all expressly others cognizable law court of which the by any exclusive is not jurisdiction to some court. other The fact that no other court given has exclusive matter is sufficient to jurisdiction any give Court over matter. Superior jurisdiction

trialA Court of the Superior questions presented in the information would be an infringement upon of the co-ordinate branches of the powers Not government. if it has been made to legislative, appear present is unable to It legislature act the case. wholly is no the executive to dеcide who infringement upon powers is chosen To decide governor. what is lawfully elected office is and where there any judicial process, ex rel. Morris decision, to make such authorized specially no tribunal And the courts always must decide. juris- the courts tribunal final the decision special diction unless exists, And tribunal if it where such special conclusive. act, fails act, then or from cause the courts refuses to the failure of principles, prevent justice, general misrule, would seem to prevent anarchy perhaps, to make the decision. be authorized in this case in The made behalf contention of the re- is, that to hold the office of his right spondent of a continues till the title successor to estab- office is of this is admitted —that if the lished. converse title established, of the relator to the office of his governor that cease. hold office would It seems that to then right interference with the there can executive this case. would with come force and great

Such present arguments ifBut the case. court was fully a convinced very strong them, if that it should decide the and even present Assembly to make declaration of the election was without power any discussed, for of the reasons still either for governor judg- not on this information. It be rendered does ment could the not contain averments. necessary action, form, it is In the point present right to office of that the exercise the is in respondent the But as the respondent right depends upon question. office, it is of the relator to the title the election really If the the is on 'trial. relator has been com- relator that hold elected then the right respondent pletely has not been If the relator elected then the officeis ended. The claim made in be- continues. of the respondent right been that he to have declared relator is ought half because, as appears by General Assembly, elected by officers, he a received majority returns presiding from did not all the cast governor; re- him or to so, now to declare elected court do ought been such majority. him as elected by apparent having gard had declared that if admits the General This claim State ex rel. Morris v.

the relator elected the returns the upon declaration would him office; title to the only and that if give print'd facie it declaration, into such inducted upon he be ousted might therefrom its shown that he did being fact have the real of the votes cast for If majority governor. should court declare the relator elected same re- upon the turns it could him no title than give office stronger declaration could He still be Assembly. ousted upon It would be un- proper most proceeding. for the court to itself the relator seemly occupy putting if into the officeof governor, any possibility might hap- that the court would be him from pen required remove that officeas soon as he to exercise it. began warranto

The writ is the of action form quo specially an office. But it try tries adapted right only It title. can real never be used to title. try apparent on that title It alone which cannot be after- gives judgment called The information wards does not question. allege votes, the relator had the all but majority as it returns of the majority appeared officers; while other the information show parts is in dispute. Nor does the information apparent majority of facts which show that contain allegation has become unable decide the relator’s Assembly upon he claims. to the office right hereafter,

If the relator shall amendment of the information, one, or a new that he received allege present of all for 'cast on the lawfully a majority November, 1890, and it also shall from 4th appear day that the therein stated is with- the facts declaration respect to make any out power a case would be for presented election governor, Court take might jurisdiction. the Superior that the information is in- Court is advised The Superior sufficient, and to sustain the demurrer.

In this opinion Fenn., Seymour, Js., Torrance concurred.

State ex rel. Morris n ». J. I that the demurrer should be sus- agree Cabpenteb, tained and for the reasons mainly expressed foregoing But I opinion. cannot concur in all the views expressed matters; on other those to the especially relating power to examine the returns and declare the result after the second of the session. do Neither J wish to be understood as I think it wholly dissenting. wiser to as the say court is not called nothing, opinion on that express any for several reasons:— subject 1st. The case lays foundation for it. The record does not that present question. It has not been discussed by —2d. counsel on either side.—3d. The relates to the question constitutional of the General power in a matter within its As a jurisdiction. co-ordinate branch of the gov- ernment has the and it is its power to determine privilege itself, that question subject possibly power court to void, declare the action if it legislative vio- clearly lates the constitution and does If at injustice. —4th. time the advice, ask our legislature.should then the question will arise. properly

I did that hope court would consider more fully, decide, whether the has the legislature right consider the returns statutory election, result ‍​​​​‌​‌​‌​‌​‌‌‌‌​‌​‌​​​‌​‌​‌‌‌​​​​‌​​‌‌‌​‌​​​​‌​‍determining case, as discussed, and could fully have been as obiter. regarded Moreover is the rock on which the legislature split. should,

Another and I important question think might, have been considered. That is this: —Should or should not stand, the returns as they inasmuch as the legislature them, not-corrected that it changed has the (assuming to do conclusive, final power so,) as regarded result of the indicating legal election ? am intimates, I aware that the opinion was in- perhaps decide, tended Court Superior would have the to determine for itself the result. I am not prepared in remember, to concur that view. As I was question I should to hear it argued. prefer before fully argued it. deciding 1892. Appeal

Orcutt’s from Probate. If the of the re- as to character the conclusive question turns had been decided the court might one way, perhaps have case. retained jurisdiction disposed But I think on the whole that it to let the is well legislature have another matter. to settle the opportunity Appeal Orcutt’s from Probate.

John P. .Andbews, T., J., Cabpenteb, Seymoub, Dist., Hartford Oct. 1891. C. Eenn, Tobbance Js. January 5th, 1885, probate passed allowing an adminis- a decree on A court state, O, residing was not an heir in another tration account. at law and, present legal present, had as the law then had notice was, years. appeal the right to take an three Later in had within passed Statutes, §642,) limiting year (now an act same was Gen. right January 4th, 1888, appeal in cases On to twelve months. appeal Superior Court, appeal O took from the decree to the an Court; Superior allowed the Probate Court and entered appeared. 1888, appellant parties September, filed where all In made, appeal objection remained without the cause his reasons appellees September, filed a motion on the till when docket appeal ground that had not it the docket be erased from required by denied time statute. The court taken been within appeal— the motion. Held on appeal stat- the time limited That to take within the failure ute, only, and not void. made voidable appellees the ob- must be held on the facts have waived 2. That jection. 7th, January 30th, [Argued 1892.] 1891 decided October Appeal accepting allowing from decree probate account; Court Superior taken administration from the A to erase appeal motion Tolland County. court, was denied docket for want jurisdiction (J. on its merits Hall, judg- M. and the case heard J.,) for the Appeal by appellees. ment rendered appellant. stated The case is fully opinion.

Case Details

Case Name: State Ex Rel. Morris v. Bulkeley

Court Name: Supreme Court of Connecticut

Date Published: Jan 5, 1892

Citation: 23 A. 186

Court Abbreviation: Conn.