State Ex Rel. Morris v. BulkeleyState Ex Rel. Morris v. Bulkeley
- That the declaration of the result of an election of governor is an indis
pensable adjunct to the choice by the electors, and furnishes the only authentic evidence of what the choice is. - That the constitution contemplates the making of the declaration in all cases by the General Assembly, and that the declaration when thus made shall be final and conclusive.
- That the declaration is to be made by both houses of the Assembly, acting jointly or concurrently. A declaration by one house without the other could have no effect.
- That there having been no legal election in this case, the defendant remained the de jure as well as the de facto governor of the state.
The constitution provides for no evidence of the election of a governor from the examination of which the General Assembly is to make the finding and declaration, except the “fair list” prepared by the treasurer, secretary and comptroller and the “returns” of the presiding officers. In the absence of all legislation and in all ordinary cases the intent of the constitution would seem to be that the General Assembly should declare that result which is shown by this list and these returns. If there should hereafter be legislation providing that other evidence should be admitted, the intent would seem to be equally clear that the Assembly should also examine that evidence.
The wisdom of the General Assembly is left unfettered as to the laws by which it shall prescribe a manner for the determination of questions concerning the election of governor. It may require other and more complete returns and from other officers, or may create other tribunals to hear and report on such matters, but such returns or reports must be laid before the General Assembly on the first day of the session, to the end that it may itself make the final examination and declaration as required by the constitution.
Sections 239 and 240 of the General Statutes are such further provisions on the subject, and appear to be a compliance with the direction of the constitution in this behalf; and what the General Assembly was commanded by the constitution to prescribe, it would be its duty to examine. The examination required should be sufficiently full to determine who is legally chosen governor, so that the person who is declared to be chosen shall have an unimpeachable title to the office.
The time and manner of examining must be determined by a consideration of the means provided or which may hereafter be provided for its performance, and with reference to that condition of things which will exist when the General Assembly shall, by suitable laws, have directed as to the mode of performance.
The constitution requires that the list and returns shall be laid before the General Assembly on the first day of its session, and that, if it shall find that there has been no choice of governor it shall proceed to make choice the second day. This would seem to make it necessary that the examination of the list and returns should be made by at least the second day of the session. But whether the General Assembly has power to act in the matter after the second day: Quære. The precedents, and the general rule of a strict observance of constitutional requirements, are against the existence of such a power.
Whether, in the entire collapse of the legislative department, it is not possible that the Superior Court may make an investigation, and, on finding that the relator received a majority of all the votes lawfully cast for governor, establish his title by some judgment that shall be legally equivalent to the declaration which should have been made by the General Assembly: Quære.
The Superior Court cannot make the declaration which the constitution says shall be made by the General Assembly. The utmost that it can do in such a case as this, is, by some judgment which it can lawfully make, to supply an omission or heal a defect.
It is a general and indisputable rule that where there is a legal right there is a legal remedy by suit whenever it is invaded.
The Superior Court is a court of general jurisdiction, and has jurisdiction of all matters cognizable by any law court, of which exclusive jurisdiction is not given to some other court.
To decide what person is lawfully elected to any office is a judicial process, and where there is no tribunal specially authorized to make such decision, the courts must decide. And the courts always have jurisdiction where the decision of the special tribunal is not final and conclusive; and where such special tribunal refuses, or from any cause fails to act, the court, upon general principles and to prevent a failure of justice, and perhaps to prevent anarchy and misrule, would seem to be authorized to make the decision.
The writ of quo warranto is the form of action specially adapted to try the right to an office. But it tries only the real title. It can never be used to try a merely apparent title.
The present information held insufficient in not alleging that the relator had a majority of all the votes, but only the majority as it appeared by the returns of the presiding officers, while other parts of the information showed that such apparent majority was in dispute.
Also insufficient in not alleging facts which showed that the General Assembly had become unable to decide upon the relator‘s right to the office.
And held that if the relator should, by an amendment of the information, or by a new one, allege that he received a majority of all the votes lawfully cast for governor, and should state such facts as showed that the General Assembly was without the power to make any declaration in respect to the election, a case would be presented of which the Superior Court might take jurisdiction.
The provision of the constitution that the governor should hold office until his successor is duly qualified, was designed to cover exigencies supposed to be brief.
The constitution is a limitation of the powers of the General Assembly in all cases covered by its provisions; leaving its powers unimpaired in other respects.
[Argued November 23d and 24th, 1891—decided January 5th, 1892.]
INFORMATION in the nature of a writ of quo warranto; brought to the Superior Court in New Haven County. The information was as follows:—
“To the Honorable Superior Court for New Haven County, now in session in said New Haven; comes Tilton E. Doolittle, attorney for the state within and for the county of New Haven, who in this behalf prosecutes in his own proper person and in behalf of the state of Connecticut, at the relation of Luzon B. Morris, of the town and county of New Haven, and gives this court to understand and be informed:
“That on Tuesday, the 4th day of November, 1890, being the Tuesday after the first Monday of November in that year, a general election for a governor of the state was held in the several towns of this state, as required by the constitution, and that said Luzon B. Morris was one of the persons voted for at said election for governor.
“That lists of the persons voted for at the meetings of the electors in the respective towns of the state, so held for such purpose, and of the number of votes received and counted at such meetings as given for each, were made and certified by the presiding officers of said several electors’ meetings respectively, and were by such presiding officers transmitted, together with the returns of said election, to the secretary of the state, as required by the constitution and by the laws, and as appears in detail by such lists and returns hereinafter set forth in detail.
“That the votes so returned by the presiding officers of the said several electors’ meetings to the secretary, as received and counted for the office of governor, were within the month of November, 1890, counted by the treasurer, secretary and comptroller of the state, by which count it appears that the number of 67,662 of said votes, so as aforesaid returned as received and counted, had been given for said Luzon B. Morris, and the number of 67,636 of said votes, so as aforesaid returned as received and counted, had been received and counted for all other persons voted for for said office of governor. Said count in the said several electors’ meetings of the votes counted, and said count of the votes
“That the General Assembly of this state holden next after the counting of said votes by the treasurer, secretary and comptroller as aforesaid, met in stated session at Hartford, on Wednesday, the 7th day of January, 1891, being the Wednesday following the first Monday of January of that year.
“That on the first day of said session of said General Assembly, namely, the 7th day of January, 1891, the said treasurer, secretary and comptroller, by whom the votes returned as aforesaid as received and counted for governor had been counted, as hereinbefore stated, laid before the General Assembly a fair list by them made of the persons returned as voted for for said office, and the number of votes returned as aforesaid as received and counted for each at the general election held as aforesaid, as such result appeared by such count of the votes by them made, together with the returns of the said presiding officers of the said several electors’ meetings. Copies of such fair lists by them made of the persons returned as voted for for said office, and the number of votes returned as received and counted for each at said election, together with the returns of the presiding officers of the said electors’ meetings, are hereto affixed, and are made part hereof as fully as if embodied herein.*
“‘Whereas, the treasurer, secretary and comptroller have made a fair list of the persons voted for at the election held on the fourth day of November, 1890, and of the number of votes given for each person, and have laid before the General Assembly said list, together with the returns of the presiding officers of all the electors’ meetings, of the votes for governor, lieutenant-governor, secretary, treasurer and comptroller, made and certified by said presiding officers at said election; and ;
“‘Whereas, after an examination of said lists and said returns it appears that Luzon B. Morris has a majority of the whole number of votes given for governor, and that Joseph W. Alsop has a majority of the whole number of said votes given for lieutenant-governor, and that Marvin H. Sanger has a majority of the whole number of said votes given for treasurer, and that John J. Phelan has a majority of the whole number of said votes given for secretary, and that Nicholas Staub has a majority of the whole number of said votes given for comptroller; and the constitution in such case directs the General Assembly, by imperative command, to declare the persons who have respectively received a majority of said votes to be legally chosen. Therefore—
“‘Resolved by the Senate that the General Assembly hereby declares Luzon B. Morris to be legally chosen governor. * * *’
“The Senate transmitted said resolutions to the House of Representatives; and thereupon adjourned to January 8th, 1891, and from that day to January 13th, 1891, when the Senate passed the following resolutions:
“‘Whereas, the Senate, pursuant to the provisions of the constitution, has duly examined the returns made by the presiding officers of the several electors’ meetings held on the 4th day of November, 1890, for the election of governor, lieutenant-governor, treasurer, secretary, and comptroller, and has also examined the fair list of votes relating thereto
“‘Whereas, a select committee of the House of Representatives has been appointed in relation to said election, fair list of votes and returns made by said presiding officers; and
“‘Whereas, the Senate, upon full and deliberate consideration, has determined that the constitution does not invest the General Assembly with revisory jurisdiction over the judgment of the presiding and other officers of such electors’ meetings, nor give to the General Assembly inquisitorial power in reference to the conduct of such electors’ meetings by the regularly appointed and qualified officers; and
“‘Whereas, the Senate has declined to revise the judgment of the duly chosen and qualified officers of such electors’ meetings in reference to said election; and
“‘Whereas, the resolution appointing said House select committee is so worded as to permit the inquiry by and opinion of said committee upon the question whether the ballots cast at said electors’ meetings should have been counted as and declared to be votes, thus substituting the judgment of said committee and House of Representatives in place of the judgment of the duly chosen and qualified officers of said electors’ meetings:—Now therefore—
“‘Resolved by the Senate:—
“‘First. That the “ballots” cast at an election for state officers in the several electors’ meetings do not become “votes” until such ballots have been counted and declared in the presence of the electors, and returned as votes by the officers duly appointed to that duty.
“‘Second. That the General Assembly has no constitutional jurisdiction to revise the judgment of the officers duly appointed to conduct the several electors’ meetings.
“‘Third. That neither the Senate nor the House of Representatives can by its authority substitute the judgment of
“‘Fourth. That as the Senate has taken decisive action in reference to said fair list of votes and returns of said presiding officers, and has declared the result of said election as a finality based upon a construction of the constitution which prohibits the proposed investigation by the said House select committee, extrinsic of said fair list of votes and returns of presiding officers, therefore no such investigation and no such finding by said House select committee based upon such investigation can possibly alter the result of said election as declared by the Senate.
“‘Fifth. That said Luzon B. Morris, Joseph W. Alsop, Marvin H. Sanger, John J. Phelan and Nicholas Staub having been duly chosen on the 4th day of November, 1890, by the electors of the state to be governor, lieutenant-governor, treasurer, secretary, and comptroller, respectively, as fully appears from the fair list of votes submitted to the General Assembly by the duly constituted authorities, and the returns of the presiding officers of the several electors’ meetings accompanying the same, no refusal by the House of Representatives to perform its constitutional duty to declare said fact, and no declaration contrary thereto based upon evidence extrinsic to said returns of said presiding officers of the several electors’ meetings, can affect or impair the right of the persons so chosen to the several state offices to enter upon the duties, and to exercise the powers, of their respective offices, and that it is the duty of the persons severally chosen as aforesaid to enter upon the performance of their several official duties as soon as may be.
“‘Sixth. That Senators Twitchell, Butler and Clark be, and they hereby are, appointed a committee to wait upon the Hon. Luzon B. Morris, and notify him of his said election, and request him to attend before the Senate immediately, to take the oath provided by law for governor, and at once to enter upon the duties of said office. * * *’
“And thereupon, afterwards and on said last mentioned
“The House of Representatives convened on the Wednesday after the first Monday of January, 1891, being the 7th day of January, 1891, and on said day adopted the following rule: ‘Rule 44. It shall be the duty of the clerk to enter on each page of the journal, at the top thereof, the ordinal number indicating the legislative day of the session. Whenever the House shall order that a recess be taken to some subsequent calendar day, such subsequent calendar day shall be treated as a part of the same legislative day, and the clerk shall make the proper journal entries and indorsements on legislative files to conform to this rule.’
“And on said 7th day of January, 1891, the report of the board of canvassers, being the said fair list of votes and persons voted for and the said returns of the said presiding officers, hereinbefore referred to, was received by said House of Representatives and transmitted to the Senate, and аfterwards said House of Representatives voted to ‘take a recess until 10 o‘clock A. M. on Thursday next,’ that being the 8th day of January, 1891. Said House of Representatives was thereupon in session on said 8th day of January, 1891, and had before that body said fair list of votes and persons voted for and returns of said presiding officers duly received from the Senate, together with the action of the Senate there
“‘Whereas, this House, in accordance with a custom and practice which has been unbroken for more than fifty years, passed a resolution providing for the appointment of a joint committee to examine the returns and canvass the votes given by the electors for state officers, and referred to such committee the returns of the presiding officers of the electors’ meetings held on the fourth day of November, 1890, and transmitted such resolution and the returns so referred to the Senate; and
“‘Whereas, that branch of the General Assembly has refused to concur with this House in such action, but has referred said returns to a special committee of the Senate; and
“‘Whereas, the Senate has refused to examine the said returns to determine whether the same are true, legal and regular, or contain a correct statement of the votes legally cast by the electors on the fourth day of November, 1890, or to hear any evidence relating to the same; and
“‘Whereas, the Senate has returned the said original returns of the electors’ meetings to this House, without having made the examination required by the constitution, together with sundry joint resolutions relating to the same subject matter:—
“‘Now, therefore, in order that the constitutional duty imposed upon the General Assembly may be duly performed, and to the end that every ballot legally cast at the election held on the fourth day of November, 1890, may be duly counted, and that no person shall be declared elected to any office to which he was not legally chosen:—
“‘Resolved by this House; that the report of the state canvassers, together with the returns of the presiding officers of the electors’ meetings, and the resolutions received from the Senate relating to the election of state officers, and declaring sundry persons to be duly elected, be referred to a House select committee of eight members, to be appointed forthwith by the speaker.
“‘Resolved, that said committee be, and it is hereby au
“‘Resolved, That all resolutions, bills, petitions, and other papers and documents hereafter introduced in this House, and relating to the election of state officers, be referred without debate to the select committee herein provided for.’
“And on said day the committee provided for in said resolution was appointed, and afterwards the House voted a recess until Tuesday, January 20th, 1891, at ten o‘clock A. M.; and said House was again in session on said January 20th, 1891, at ten o‘clock A. M., and on said day proceeded to vote for a senator in the Congress of the United States, and then said House voted a recess until eleven o‘clock A. M., Wednesday, January 21st, 1891, when said House was again in session, and on that day suspended its session while the joint assembly of the members of the Senate and House of Representatives convened for the election of a senator in the Congress of the United States; and after said joint assembly had dissolved, said House of Representatives voted a recess until Tuesday, January 27th, 1891, at one o‘clock P. M.; and on said January 27th, said House was again in session, and voted a recess to January 28th, 1891; when said House of Representatives again convened in session, at which time the House select committee, to whom had been referred the report of the state board of canvassers, made the following report:
“‘The House committee on the canvass of votes for state officers respectfully beg leave to report that they have had before them the lists of persons voted for for state officers, and number of votes given for each, together with the returns of the presiding officers, and the other documents
“‘That the first object of their investigation has been to find whether upon the face of the returns any person was legally chosen to either of the state offices. That they have examined said lists and returns, and find the following facts :
“‘It appears from the face of the returns that there were in the whole state 1289 general ballots rejected; 458 for being “double,” which, since the passage of the so-called secret ballot law, is no longer, in the opinion of the committee, legal cause for rejection; and 831 for all other causes. Of said 831, 111 general ballots were rejected for the following causes, none of which assignments of cause, in the opinion of the committee, justifies the rejection of a ballot, to wit: Illegal, New Britain, 15; Illegal, Killingworth, 4; For having on the word, “For,” Brooklyn, 7; Because of word “For,” Waterbury, 43; Prohibition votes not printed in conformity with the law, Norwalk, 30; Not printed according to law, Stratford, 11; Not as prescribed by law, Wolcott, 1; Total, 111.
“‘To call a ballot “illegal” is not to give a cause for rejecting it. The law requires a specific statement of what the illegality consists in. It also appears that eleven general ballots were rejected with the following statements, in lieu of any assignment of cause whatever, to wit: Not known, Meriden, 4; Not counted, Lebanon, 3; Not stated, Haddam, 4; Total, 11. It further appears that 110 general ballots were rejected and no cause assigned.
“‘Your committee further find from the face of said returns that in many towns throughout the state the number of votes for state officers counted and returned by the counters and moderators exceeds the number of votes cast in said towns respectively, as will appear from schedules attached to this report.
“‘In considering the returns your committee have recognized the principle that in finding whether a candidate has a majority of a certain number of ballots, where the investiga
“‘Therefore from the face of the returns the committee are unable to determine that any person was legally chosen to either of the following offices at the last election, to wit: the offices of governor, lieutenant-governor, treasurer, and secretary, as it appears from the face of said returns that more than a decisive number of votes were illegally rejected, or rejected without specifying legal causes of rejection; but the face of the returns indicates the election of Nicholas Staub to the office of comptroller.
“‘When your committee, in pursuance of their duties, proposed to examine evidence explanatory of said returns, which was called for by questions arising on the face of the returns, the Democratic minority refused to sit with the committee, on the ground that neither the committee nor the General Assembly had power to take any extrinsic evidence regarding the returns.
“‘At the same sitting counsel representing Democratic interests appeared before the committee, and stated that if the ballot-boxes were to be opened he could and would tender to the committeе for its use the fact that about 2500 Prohibition, Labor and Republican ballots were illegally cast, counted and returned, and he requested that if any boxes were to be opened he should have an opportunity to be present and examine the ballots; which request was granted. Counsel representing Republican interests afterwards appeared before the committee and stated that if the ballot-boxes were to be opened he could and would tender to the committee for its use the fact that several thousand Democratic and Prohibition ballots were illegally counted and returned.
“‘Your committee, in pursuance of their duties, examined the evidence explanatory of said returns, and find that in the fourth district of the town of Norwich thirty-eight general ballots were returned as counted in excess of the number of general ballots cast in that district, and in excess of the number of names checked as voting in said district.
“‘Your committee further find that 126 Republican general ballots were rejected in the fifth district of Bridgeport for having an alleged distinguishing mark, and that said distinguishing mark was merely a minute speck made by defective printing, was also found on numerous ballots used in other places at said election, and was not a distinguishing mark in the meaning of the law.
“‘Your committee further finds that 103 general ballots, which are part of the class of 111 hereinbefore referred to as rejected, were rejected solely because the word “For” was printed thereon as part of the title of each officer voted for, and that therefore the said ballots were illegally rejected.
“‘We therefore report upon the evidence taken by us :—
“‘1. That no person has a majority of the whole number of votes lawfully cast for governor; and that the names of the two persons having the greatest number of votes for governor are Samuel E. Merwin and Luzon B. Morris. * * *’
“Your committee found referred to it a resolution, introduced by Mr. Hotchkiss of New Haven, concerning the investigation to be made by them, the broad and sweeping provisions of which would require the opening of many and perhaps all the ballot-boxes in the state, and the examination of many and perhaps all of the general ballots in said boxes. Your committee have no doubt that it is within the proper functions of a joint committee of both branches of the General Assembly to institute and carry on such an investigation, acting under instructions contained in a joint resolution. But, in the opinion of your committee, it would be a waste of time to pursue the investigation to the extent required by
“‘Your committee are confident in the correctness of the conclusions at which they have arrived as the result of their investigation; but, in view of the aforesaid resolution introduced by Mr. Hotchkiss, the Democratic member from New Haven, calling for a thorough investigation of ballot-boxes, and in view of the aforesaid claim made by counsel that great numbers of ballots have been illegally counted, your committee is of the opinion that the House ought not to refuse to enter into any investigation of the election to the most thorough extent which may be desired by the Senate; and that, until the Senate have expressed their decision with regard to the question of such an investigation, no declaration of the result of the election should be made by this House.
“‘We therefore recommend the passage of the accompanying resolution:—
“‘Resolved by this House:—Sec. 1. That the facts reported by the House select committee on canvass of votes are found to be true.
“‘Sec. 2. That a copy of the report of the committee and of this resolution shall be immediately transmitted to the Senate.
“‘Sec. 3. That if the Senate shall decide to investigate the said election to the extent called for by said Hotchkiss resolution, this House will join in said investigation to the furthest extent to which the Senate will consent.
“‘Sec. 4. That the House will 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 examination of all the returns of presiding officers, including those made under
“And thereupon the said House of Representatives voted to take a recess until January 29th, 1891; and on said 29th
“‘Resolved by this House:
“‘That the following be, and they hereby are, adopted as rules of this House.
“‘Rule 47. In the absence of a quorum the speaker may, at his option, pronounce a recess until the afternoon, or to the next sitting day, or to a calendar day within one week.
“‘Rule 48. The provisions of the resolution adopted by this House on the 8th day of January, providing that all resolutions, bills, petitions, and other papers and documents hereafter introduced in this House, and relating to the election of state officers, be referred without debate to the Select committee upon the canvass of votes for state officers.’
“And then said House took a recess to February 24th, and from then to February 25th, then again to February 26th, and being in session on said day, passed the following resolution:
“‘Resolved by this House:
“‘That the following be, and it hereby is, adopted as a rule of this House:
“And then voted a recess to March 3d, * * * and the House was again in session on March 17th, 1891, when the House of Representatives acted upon the report of the House committee on the canvass of votes for state officers, on resolutions declaring Luzon B. Morris elected governor, Joseph W. Alsop, lieutenant-governor, John J. Phelan, secretary, and Marvin H. Sanger, treasurer, recommending the rejection of the resolutions; * * * and the resolutions were rejected and the report of the committee accepted; and from thence said House has voted to adjourn until November 11th, 1891. None of the acts hereinbefore recited have been rescinded or repealed, and said General Assembly has not yet adjourned without day.
“Morgan G. Bulkeley, the defendant, was one of the persons voted for for governor at the general election held in November, 1888, but did not receive a majority оf the whole number of votes given for governor; and a committee of the General Assembly held on the Wednesday after the first Monday of January, 1889, on the first day of the session of said General Assembly, did find and report to the said General Assembly as follows: * * *
“And thereupon, afterwards, and on the said 10th day of January, 1889, the said joint convention was held, and the said convention did proceed to choose by ballot a person to fill the office of governor of the state of Connecticut from a list of two persons found to have the greatest number of votes for the office of governor at the electors’ meetings held on the Tuesday after the first Monday in November, 1888, with the result that Morgan G. Bulkeley by said convention was duly chosen to such office; and thereupon said Bulkeley duly qualified and proceeded to discharge the duties of his said office.
“Said Morgan G. Bulkeley was not a candidate for gover
“And now said attorney says that by reason of the facts hereinbefore stated in detail, Luzon B. Morris was, at the general election held on the 4th day of November, 1890, chosen by the electors to be the governor of the state, and upon and since said first day of the session of the said General Assembly held in January, 1891, said Luzon B. Morris has been, upon taking the oath provided by law, entitled to said office, and to all the rights, privileges, dignities and emoluments appertaining thereto.
“And said attorney further gives this court to understand and be informed:
“That said Morgan G. Bulkeley claims the right to act as governor, and said claimed right is not admitted by the Senate, but is denied by said body, and he is not recognized by said Senate as the lawful governor of this state, and said Senate refuses to acknowledge his claim to act as governor. And said claimed right of Morgan G. Bulkeley to act as governor is admitted by the House of Representatives, and he is recognized by said House of Representatives as the lawful governor of this state.
“And said attorney further avers that said Morgan G. Bulkeley continues to use and exercise, and to the time of exhibiting this information has used and exercised, and still does use and exercise, the said office of governor, and continues to have, use and enjoy all the liberties, dignities, privileges and franchises to said office belonging and appertaining; all of which acts on the part of Morgan G. Bulkeley, the said attorney, upon the facts hereinbefore alleged, avers to be wrongful and without law or right.
“And the said attorney further gives this court to understand and be informed:
“That said Morgan G. Bulkeley has used, continues to use, and threatens and intends to continue to so use said office, its privileges, dignities, liberties and franchises belonging and appertaining thereto, which said use the said attorney avers, upon the facts herein alleged, to be an usurpation and
Whereupon the said attorney prays the consideration of this court here in the premises, that due process may be awarded against him, the said Morgan G. Bulkeley, to compel him to answer hereto, and to show to this court by what warrant or authority he claims to have used and enjoyed the office, liberties, dignities, privileges and franchises aforesaid.
Dated at New Haven, this 13th day of October, 1891.
TILTON E. DOOLITTLE,
Attorney for the State for New Haven County.
The defendant demurred to the information, on the following grounds :
- That the same, and the facts therein alleged, are insufficient in the law to entitle the plaintiff to the relief and judgment asked for.
- The supreme executive power of the state is vested by the constitution in the governor, as a member of one of the co-ordinate branches of the government, and this court will take judicial notice and recognition of the person entitled to that office without inquiry, and has no power or authority under the constitution to make the inquiry or render the judgment asked for.
- It was and is the constitutional right and duty of the General Assembly to examine, find and declare what person, if any, was legally chosen governor at the general election held in November, 1890, as alleged in the information, and give him notice accordingly; and if no person was legally chosen at said election, then it was and is the constitutional duty of the General Assembly by joint ballot of both houses to choose a governor, and this court has no power or authority under the constitution to perform those duties for the General Assembly.
- That it appears from the information that on January 10th, 1889, this defendant was duly and legally chosen governor of the state of Connecticut, and thereupon duly qual
ified and proceeded to discharge the duties of said office, and ever since has continued in and now continues in said office, and that no successor to him has been duly chosen and qualified to fill said office; wherefore he says that his continuance in office is not a usurpation, but is in performance of his constitutional duties and the obligations of his oath, which require him to continue in office and take care that the laws be faithfully executed until his successor shall be duly and legally chosen and qualified. - That it appears from the information and from all the facts therein set forth in detail, that at the general election for governor of the state, held on November 4th, 1890, as therein alleged, no person had a majority of the whole number of votes lawfully cast for governor, and that the General Assembly has not found nor declared that any person was at said election duly and legally chosen to said office, and has not since that time, by joint ballot of the two houses or otherwise, chosen any person to fill said office; wherefore the defendant says that it appears that no successor to him in said office has been duly chosen and qualified.
The case was reserved upon the demurrer for the advice of this court.
H. C. Robinson, W. C. Case and C. J. Cole, in support of the demurrer.
The main propositions upon which the case for the defendant stands are the following:—(1) The information in the nature of quo warranto does not lie to test the title to the office of governor. (2) The jurisdiction of the General Assembly is full, final, complete and exclusive.
First. These proceedings cannot be maintained. This information, in the nature of quo warranto, was brought to the Superior Court for New Haven County to test the title of Governor Bulkeley. This is not a case of contested election between rival candidates asserting and defending their respective claims to the office, nor is it a case in which all questions concerning the election of governor can be determined,
within the meaning of the last clause of
The questions here pending are not before this court as a court of original jurisdiction, but as an appellate court having power to advise or review the court below upon the questions of law only. The court below must find and pass upon all questions of fact conclusively, and over the decision of that court upon the questions of fact this court has no power of review. That consideration is one of the most important and conclusive reasons against the power of the court below to summon the governor of the state before it for trial or inquest as to the title to his office.
The immediate question now is,—can the Superior Court within and for the County of New Haven, upon the information of the state‘s attorney for that county, require the governor of the state to appear before it and defend his title, and, if it shall find the fact against him, depose him from office? This question cannot be avoided by the claim that the information runs against the man and not against the office. If that court can try the title of a mere usurper, it can try the title of a de jure and de facto governor upon an allegation that he is a usurper. If the court can judge, it may misjudge.
State ex rel. Brooks v. Baxter, 28 Ark., 129. So that in the last analysis the claim against us here is that a judge of the Superior Court has power to depose a governor if he shall find the fact against him, whether in so finding he judge or misjudge
the fact.
It is for this cоurt to say whether the constitution and the laws intended to place such vast power in the hands of a single judge upon the information of a local prosecuting officer—to subject the governor to the possibility of being led out by a constable at the summons of a judge of the Superior Court to defend his title in any corner of the state.
State v. Marlow, 15 Ohio St., 135. Whenever inquiry into the title to the office of governor has been made
The nature of the information considered historically, excludes the idea that it can be made use of to try the title of the supreme executive officers of the state. The information by writ of quo warranto was established and regulated in England by statute 9 Anne, ch. 20. For some of the limitations upon the use of the ancient writ, before this statute, see 3 Black. Com., 262, clause 5, and especially the note by Chitty, and cases there cited, showing that the information did not issue to try title to offices of all kinds. The statute of Anne permitted an information to be brought by leave of court, at the relation of any person desiring to prosecute the same against any person usurping, intruding into, or unlawfully holding, any franchise or office in any city, borough or town corporate, and the limitations expressly made in this statute are the same in substance as those which existed in practice under the ancient writ. It thus appears that both the common law before the statute and the statute of Anne itself limited the operation of the writ and information to certain inferior offices. It was never claimed that the information could be made use of to set up or pull down a government or chief magistrate of a state. The theory of the process then was that it issued from a superior power or authority to an inferior one, and not otherwise. That was the course of the common law. All jurisdiction implies superiority of power.
1 Black. Com., 242; Mauran v. Smith, 8 R. Isl., 192. In this state, before the adoption of the statute relating to quo warranto, the information was made use of. State v. Tudor, 5 Day, 329. The statute of Anne formed a part of the common law of this state. Baldwin v. Walker, 21 Conn., 181. From these illustrations it is manifest that at common law quo warranto would not lie to try the title to the office of governor.
in the county where the cause of action arises.
Thus it is evident that the intention was to reach local offices only.—(3.) Jurisdiction over quo warranto is given to the Superior Court, presided over by a single judge. It is preposterous to claim that the constitution and laws intended to subject the governor of the state to such a proceeding, especially in view of the formalities provided by the constitution for examining and declaring his title, and the high and composite tribunal provided for his impeachment.
Our position upon this point is strengthened by the numerous decisions of the highest courts of many of the states, that mandamus does not lie to compel the governor to perform his duties. Atty.-Gen. v. Barstow, 4 Wis., 567; Thayer v. Boyd, a case from Nebraska just decided by the Supreme Court of the U. States, and not yet reported; Ex parte Smith, 8 So. Car., 495; Royce v. Goodwin, 22 Mich., 496; State v. Marlow, 15 Ohio St., 114; State v. Harmon, 31 id., 250; Collin v. Knoblock, 25 Louis. An., 263; Rogers v. Johns, 42 Texas, 339; Batman v. Megowan, 1 Metc. (Ky.,) 533; State v. Mason, 77 Mo., 189; State v. Baxter, 28 Ark., 129; Baxter v. Brooks, 29 id., 173; Goff v. Wilson, 32 W. Va., 393; Carr v. Wilson, id., 419; Robertson v. The State, 109 Ind., 79.
Second. No man can be the governor of Connecticut until he has been duly declared governor by the General Assem-
- Let us look at the matter historically. The framers of the constitution considered the supreme executive power to be a co-ordinate department of the government, and the office so important and of such consequence to all the people, that as to the title there should never be any question or possibility of question or doubt. Hence they provided one, and only one, method of ascertaining and determining that title,—the declaration and notice made and given by the General Assembly, the legislative department of the government, to the end that all the people and all public officers throughout the state should at all times know who was governor.
public tranquility and to the consciences of private men that this rule should be clear and indisputable
in Connecticut, as it is in England.
The governor‘s assent to the laws enacted by the General Assembly is required. He is commander-in-chief of the militia. All commissions issue from him. It is his duty to take care that the laws be faithfully executed. His are the highest and most important of the executive functions, and upon him the welfare, peace, and good order of the state depend. The framers of the constitution placed upon him those high duties, and thus it must have been clear to them that, whatever doubt there might be as to the title to other offices, there must be no doubt as to the title of governor. They therefore embodied in the constitution itself that certain and absolute muniment of title, to be known by all men and disputed by none, the finding, declaration, and notice by the General Assembly.
Under the charter the freemen were privileged to elect or choose one of their own number for governor in the said General Court and Assembly to be held from that day or time, newly chosen for the year ensuing, by such greater part of the said company for the time being then and there prеsent.
See Charter in Rev. Statutes, 1808, p. 3. With the increase in the numbers of people and extent of settled country, all the freemen could not actually assemble in the General Court to elect officers; hence the adoption of a preamble and public act in May, 1670, reciting the great difficulty and expense which the freemen of the Colony had in their personal attendance at the election at Hartford, and ordering that they should or might on the second Thursday in May, yearly, either in person or by proxy, at Hartford attend and consummate the election of governour;
and further ordering that the election by proxies may be so managed that there be no fraud or deceit used therein,
and that all the freemen in the respective towns shall be warned by the constable, or one deputed by him, to meet where he shall appoint upon the last Tuesday in March or April annually, where they shall read to them the freeman‘s oath and a law which puts a penalty upon disorderly voting, and the names of those appointed to stand for nomination, out of which number the freemen may bring in to the said constable the name of him whom they would have for governour for the year ensuing, fairly written upon a piece of paper, which the said constable shall receive, and, in the presence of the freemen, put them up in a piece of paper and seal them up, and write upon the outside of the paper the name of the town and these words,
etc.; and The Votes for the Governour.
In like manner they shall bring in their votes for the deputy governour,the constable that receives the votes, and seals them up as aforesaid, shall by himself or one of the deputies of the court, convey the said proxies to Hartford, and deliver them at the election,
and at the time of election, those that stand for nomination shall be
etc. * * * And the constables of each town shall take an account of the names of all those that shall vote in their several plantations, and send them with their proxies.
General Laws, 1673, p. 22. That law in substance remained in force until 1803, and all the votes or proxies cast in freemen‘s meeting were sent up to the General Court, where, in theory, the election was held, there to be counted and declared in order that the election might be consummated. The names of the freemen casting the votes were also sent up. The election 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 repealed, and a new act was passed, (Rev. of 1808, p. 253,) by which, instead of sending up the votes or proxies themselves, they sent up an abstract of them to the General Court, intending to place before it exactly the same information which the votes would have conveyed, saving to the General Court, however, the time and trouble of counting, and nothing more. Still in theory the election was consummated only when the General Court had acted upon the votes which had been given in freemen‘s meeting. In 1808, (Rev. of 1808, p. 256,) the provisions for counting and returning votes were still further enlarged and provision also made to supply omitted returns and correct defective returns. The General Assembly shall by law prescribe the manner in which
The votes cast by the electors in the electors’ meetings were returned to the General Assembly as votes,
and the intent still was that the General Assembly should have before it all the information which it would have if the votes themsеlves were sent up. And the intent of the constitution was that the election should not be consummated until the General Assembly had examined the synopsis and returns of all the votes cast in the electors’ meetings, and from such examination, carried to their source, had found and declared the result.
2. Having thus far considered, historically, the relations of the General Court and the General Assembly to the election of state officers, we now proceed to inquire what is the power of the General Assembly in regard to the election of governor. It is the fundamental principle of a republican form of government that every qualified elector shall have the right and power to cast his ballot for whom he pleases, within such necessary limitations as the law establishes. It is the right of every such elector, and the right of him for whom he casts his ballot, that such ballot shall be received and counted as cast. It is indispensable for the protection and preservation of the privilege of free suffrage that for all denial of its lawful exercise, and for all fraud and mistake which defeat its purpose and result, there shall somewhere be a remedial power ample and absolute. It is certain that in the beginning this power was in the legislature, for the legislature was practically supreme from the charter of Charles to the constitution of 1818. See 1 Swift‘s System, 72; also sec. 4, chap. 10, of the Rev. of 1808, p. 256. How did the adoption of the constitution affect this power?
The constitution of the United States is a grant of powers where they did not before exist; the constitution of this state is a limitation of powers already existing.
Pratt v. Allen, 13 Conn., 125; Starr v. Pease, 8 Conn., 547. As the constitution is a mere limitation on the powers of the legislative department, nothing should be regarded as pro-
Lowrey v. Gridley, 30 Conn., 458.
It will hardly be contended that the constitution anywhere expressly forbids the legislature to fully examine the proceedings at general elections and declare, the results in accordance with such examination. Does it so by fair and reasonable implication? For answer we must go to the constitution itself. See the ballots have been received and counted, duplicate lists of the persons voted for, and the number of votes given for each, shall be made and certified by the presiding officer.
What is to be done if he does not make and certify such lists?—3. These lists shall be made and certified by the presiding officer. What is to be done if he was not the presiding officer, but a mere usurper? Shall his own certificate to his own official character be conclusive?—4. One of the
These steps taken, the constitution proceeds:—Said General Assembly shall, after examination of the same, declare the person whom they find to be legally chosen.
The purpose of the examination—to find out who is legally chosen—indicates unmistakably its character and practically its scope. The language is not declare the person who shall appear to have a majority of the votes so returned.
That would be appropriate language if the examination were to be a mere inspection of the papers. After examination of the same.
Is there here a fair and reasonable implication that this examination may not trace these returns to their source for the purpose of determining every question of their authenticity, reliability and legality? The constitution requires a finding as to whether there is a legal choice; it provides with great plainness the legal prerequisites of that finding. Can it be claimed that in this language there is a fair and reasonable implication that the General Assembly may not determine whether the legal prerequisites have finding
will be the discovery of a legal choice? But on this question of implied prohibition the entire article must be considered, and the concluding sentence is: The General Assembly shall by law prescribe the manner in which all questions concerning the election of governour or lieutenant-governour shall be determined.
And this prescription by law manifestly may be made either before or after the questions have arisen; may be by general or special law, as the General Assembly sees fit. Selleck v. South Norwalk, 40 Conn., 359. This is not restrictive or prohibitory. On the contrary, it would be an enlargement if the constitution were a grant and not a limitation. As it stands it is simply a confirmation of the original power of the legislature. Upon these considerations, it is submitted that the constitution does not by fair and reasonable implication prohibit to the General Assembly the exercise of any of its original power in examining, consummating and declaring the result of the election for governor.
It is not an answer to say that an examination conducted on the principles we have indicated is an exercise of judicial functions, and as such prohibited, for it is long past argument in this court that the General Assembly can and does exercise judicial functions. Wheeler‘s Appeal from Probate, 45 Conn., 306. And beyond this, while it is true, doubtless, that this power has some of the elements of a judicial character, it is essentially a political power, and with the exercise of its political power by the legislature the courts cannot legally interfere. Rogers v. Johns, 42 Texas, 339; Collin v. Knoblock, 25 Louis. An., 263; State v. Harmon, 31 Ohio St., 250; People v. La Salle Co., 100 Ill., 495; Goff v. Wilson, 32 W. Va., 403; Carr v. Wilson, id., 426; Luther v. Borden, 7 How., 1; Georgia v. Stanton, 6 Wall., 50, and cases there cited.
Third. But it is insisted that the constitution expressly, as well as by fair and reasonable implication, limits the General Assembly in making its examination to the fair lists they shall be lists of the persons voted for and the number of votes given for each.
This clearly means that every vote given by every qualified elector, with the name of the person voted for, shall be included in the return of the presiding officers for the information of the General Assembly. Here we are met with the claim that the constitution requires a list of the votes given, not of the ballots cast, because ballots are not votes until they have been not only given and received but also counted and returned, so that all that is necessary to prevent the ballot of a qualified elector from becoming a vote is to throw it out in the count, and the return of the presiding officer which makes no account of the transaction is constitutionally unimpeachable. This distinction between vote
and ballot
is purely fanciful. A vote is a suffrage; the formal expression of a will, preference, wish, or choice, in regard to any measure proposed, in which the person voting has an interest in common with others, either in electing a person to fill a certain situation or office, or in passing rules, laws, regulations,
etc. 6 Cent. Dict., 6790. A ballot, by the same authority, (vol. I, p. 432,) is a slip of paper on which the voter‘s expression of his will is written or printed. A vote is an expression of the voter‘s will in any way; it may be orally, by rising, by raising the hand, or by a written or printed word or words, according to the method of voting required, and when the method is by a written or printed slip of paper, the words vote and ballot and suffrage are synonyms, and are used indiscriminately, the only distinction being that vote is generic and ballot specific. These citations sustain this view:—Deliver his vote or suffrage.
Acts of 1818, p. 312. Same expression. Acts of 1820, p. 454. See also Gen. Statutes, ballots
is used to describe the votes counted and preserved in the ballot-boxes, as well as the ballots rejected. See also Opinion of the Judges, 30 Conn., 597, 599, where the word vote
is used as descriptive of a ballot before it has been counted. But the constitution itself furnishes ample evidence that no such distinction was ever contemplated. The electors present shall be called upon to bring in their written ballots for senators. The presiding officer shall receive the votes of the electors, and count and declare them in open meeting.
In all elections of officers of the state, or members of the General Assembly, the votes of the electors shall be by ballot.
And each elector present at such meeting, qualified as aforesaid, may thereupon bring in his ballot or suffrage for such person or persons as he shall choose to be senators for such district, not exceeding the number by law allowed to the same, with the name or names of such person or persons, fairly written on one piece of paper. And the votes so given in shall be received, counted, canvassed, and declared,
etc. ballots
and then of the word votes,
is easily explained without resorting to the notion of any such distinction as the one claimed. One of the causes of complaint which led to the constitutional convention of 1818 was the tyrannical restraints placed upon the exercise of the elective franchise; notably the odious stand-up law,
which required voters to stand up at elections; and so the constitution, votes,
and they were the votes given,
within the meaning of the constitution requiring a list of the number of votes given for each.
These are the constitutional returns, and when made, as the constitution expressly requires they shall be made, they carry out the fundamental idea of this commonwealth from its earliest days, which the constitution did not discard, that all the votes which the qualified electors cast shall be before the
The claim of Mr. Morris to the office of governor stands solely upon the evidence of returns of the votes counted and not returns of the votes given. By the evidence of these unconstitutional and defective returns he had twenty-six majority of all the votes cast.
Fourth. But again the constitution provides that the General Assembly shall, by law, prescribe the manner in which all questions concerning the election of a governor or lieutenant-governor shall be determined. Acting under this mandate, the General Assembly enacted secs. 239 and 240 of the returns,
and (§ 251,) that the original returns of the presiding officers are required to be laid before the General Assembly on the first day of its session. The purpose of the General Assembly, at least in enacting the provisions of § 240, is too plain for argument. It meant to prescribe by law the manner in which questions concerning the election of governor might be intelligently and fairly determined, by providing itself with sufficient information, if possible, to find out what person, if any, had been legally chosen. It meant itself to be the tribunal, as the constitution meant it should be. It meant this legislation to facilitate and make sure the performance of that duty of determining all questions arising about the election of governor which the mandate of the constitution had devolved upon it.
To state briefly what is claimed here as to the character of the certificates required in § 240:—1. They are returns of the presiding officers, and the only returns which show the number of votes given
as the constitution requires.—2. They are returns of the presiding officers required by the legislature in pursuance of that mandate of the constitution which requires the General Assembly to provide methods by which all questions concerning the election of a governor shall be determined.
Upon the evidence of these returns in the present case no
The question now recurs, what is the extent of the legislative power of examination which the constitution requires the General Assembly to make for the purpose of finding out who is legally chosen? An answer to this question is really contained in that mandate of the constitution which requires it to make an examination of the returns to the point of finding out who is legally chosen. Such an examination to terminate in such a result must necessarily have scope to include all questions of forgery, falsehood and mistake. It is not simply an examination of the face of the returns to find out who appears therefrom to be legally chosen, but an examination thorough and exhaustive and resorting to extrinsic explanatory evidence, if that is necessary to find out who is legally chosen. No general proposition is better settled by authority than the proposition that whenever and however it is apparent that returns are unreliable, their value as evidence is gone, and other evidence may and must be resorted to. McCrary on Elections, §§ 540 to 544, and authorities there cited; High on Extr. Leg. Remedies, § 638, and authorities there cited; Paine on Elections, § 596 et seq., and cases there cited; Cooley on Const. Lim., (6th ed.,) 788, 789.
But it is the confident claim of our opponents that the certificate of the presiding officer is final upon the question he certifies to, and that the aggregate of these certificates returned is the only evidence upon which the General Assembly can act. The true dimensions of this claim can best be seen by inquiring what exactly that certificate is, and an analysis of the number of votes counted for each candidate and office respectively;
the moderator indorses this certificate as showing the result of the official count, and passes it over to the presiding officer, who certifies the counters’ count to be the vote of the electors’ meeting over which he to be opened and the ballots examined only by those authorized to make an official examination of them.
This section further provides that if such boxes are opened under authority of a judge of the Superior Court, charged with inquiring into an election, the said judge shall see that all the ballots and the accompanying certificates are returned to the box, and the same effectually sealed up again.
There can be no doubt to what end all these provisions point. Ballots to be preserved under lock and seal. What for? Ballots to be preserved for the definite period of six months. Why that time? Boxes to be opened for official examination.
By whom? Boxes to be opened only by those authorized.
Who authorizes? If a judge opens the box he must return the votes to the box and effectually seal it up again. Why? The General Assembly requires the ballots to be kept for the purpose of official examination, and it fixes a period of time for this keeping long enough to extend from any election beyond a stated session of the General Assembly. The boxes are to be opened only by the authority of the constitution or the General Assembly. A judge of the Superior Court may open the boxes in the discharge of his statutory duty of inquiry into an election, but when he is through with the votes he shall see that all the ballots and the accompanying certificates are returned to the box, and the same effectually sealed up again.
There is no explanation of this last part of the section; no other construction possible than that the legislature means that when the Superior Court has finished with the ballots, still the great purpose of their preservation is not accomplished. The legislature contemplates an official examination, beyond the Superior Court, as a possibility, and the only power beyond the Superior Court which can open the boxes and conduct this examination is the General Assembly or either branch thereof, in pursuance of its constitutional rights and duties. These elaborate provisions of the law were made in support of
were made to the end that this privilege shall never be at the mercy of ignorance or fraud. What more effectual safeguard could this privilege have than the promise of the General Assembly that what is done darkly at the polls shall be exposed to the sunlight of legislative inquiry?
The limitation of this power of examination is the ascertained will of the qualified electors of the state legally expressed, and it has no other limitation.
On two occasions the General Assembly has exercised this power without question and without interference:—in Gov. Jewell‘s case in 1871; in Gov. Waller‘s case in 1884. In the first of these cases the legislature exercised this power, in the matter of election for governor, by tracing the returns to their source—going to the ballot-boxes themselves and to the men who cast the ballots which were or ought to have been found in them, to trace out and correct illegalities of voting and counting and returning which could not otherwise be detected, because of the defective and deceptive character of the returns of the presiding officers. In the second case the General Assembly exercised this power by going behind the returns of the presiding officers to take cognizance of certain irregularities and passed a validating act to heal the defects of certain votes which were decisive, when healed, of Gov. Waller‘s election. This power of examination which the General Assembly has exercised, it has never abdicated and can never abdicate; it has never delegated it to any other tribunal and it cannot delegate it. Brown v. O‘Connell, 36 Conn., 432, 447. This case would seem to be of large value to the court because it defines the meaning of the words manner prescribed by law,
which are common to two articles of the constitution, the one under discussion, and the one construed in that case.
That the General Assembly possesses the power for which we contend is not only evidenced by the fact that the constitution requires it, and it alone, to find out who is legally chosen, but, we submit, it is conclusively established by the
Fifth. Having discussed these intervening questions, to wit, what are the returns? and what is the extent of the legislative power of examination for the purpose of finding out who is legally chosen? we come to the inquiry as to whether the General Assembly now in session has made the indispensable declaration of some other person to be governor since it declared Gov. Bulkeley to be the governor?
Has the General Assembly made any declaration that any person has been legally chosen? This question can be answered briefly by stating what the General Assembly has done. The Senate, without examination of the returns, its committee refusing the respectful request of citizens and electors to be heard in the premises, has indeed made declaration that Mr. Morris was legally chosen governor in November, 1890; but the Senate is not the General Assem-
To sum up all we have urged upon the failure of the General Assembly to make a declaration and the results of that failure:—1. The defendant is holding the office of governor because he was duly declared governor by the General Assembly at its January session, 1889.—2. The General Assembly, which the constitution invests with the sole power of declaring who was legally chosen governor at the election in November, 1890, has not declared any person to have been legally chosen.—3. That branch of the General Assembly which has alone made a constitutional examination of the returns, has declared and still does declare that no person was elected.—4. The action of the General Assembly in examining the votes cast and declaring the result was, and is, an integral part of the election, and such examination and declaration are as much a necessary part of the election as the casting of the votes by the electors.—5. The General Assembly is still in session, and has the power and the sole power at any time to make such declaration.
Sixth.—In conclusion we respectfully submit that, upon and for the foregoing considerations, the defendant, Morgan G. Bulkeley, “is by right the governor of Connecticut. If the tenure of an office be fixed for a prescribed term, and until a successor shall be elected or appointed and qualified, neither a resignation, nor the expiration of the term, nor the election or appointment of a successor, will vacate the office or impair the power of the incumbent until the successor is duly qualified.” Paine on Elections, § 199. See also—People v. Supervisor, 100 Ill., 332; Badger v. U. States, 93 U. S. R., 599; People v. McKinney, 52 N. York, 374; State v. Jarrett, 17 Md., 309; State v. Seay, 64 Mo., 89, 105; People v. Lord, 9 Mich., 227; Com. v. Hanley, 9 Penn. St., 513. In Badger v. United States, above cited, the court held that an officer elected to hold until his suc-
The exclusive investigations of all questions of every nature pertaining to the chief executive have always been made by the General Court and General Assembly. No abdication or delegation of this high service, call it as we please, duty or prerogative, has ever been made, nor have they been conceived of, so far as is known, until the present suit was brought. Under all of the organic acts, the fundamental orders, the charter, which is little more than the fundamental orders enlarged and assented to by the Crown, the state declaration of its independence and adoption of the charter in 1776, and the constitution of 1818, this political duty of declaring and notifying the chief executive of his calling to office has been exercised by the General Court and the General Assembly, which has ever been and is the supreme political magistracy of our government. Of this department of government our court says, in the modern case of State v. Lewis, 51 Conn., 127:—“The legislature, in whom all sovereign power is vested, is limited only by the Constitution.” And any judicial interference with the General Assembly, while it is in the uncompleted performance of its constitutional duties, would be a nullity. It appears that one branch of the General Assembly has found a certain result of the election, after examination to its satisfaction; that the other branch has found a certain other and opposite result of the election, after examination to its satisfaction. The duty of harmony is yet before them. And
But it is said that the constitution contemplates a declaration upon the first day of the session, and, if there is no majority candidate, then a choice by the Assembly upon the second day of the session. We submit that this assignment of dates is but a direction. In general, where a statute requires an official act to be done by a given day, for a public purpose, it must be construed as merely directory in regard to time. Ex parte Heath, 3 Hill, 42. This doctrine has been uniformly maintained by the courts, and nothing is better settled. People v. Allen, 6 Wend., 486, and cases there cited; Colt v. Eves, 12 Conn., 242, 253, 255, and cases cited; McCrary on Elections, § 88. It may be said that this rule is less universal in the construction of constitutional than statutory law, which is true, but there is no such inflexibility of construction of a constitution in this regard as to defeat the very ends of popular government. These directions are not like a provision of law for a certain number of days’ notice to quit possession of a house, or of grace given to the maker of a piece of commercial paper. They were not enacted to be the foundation of a lawsuit or of a defense to one. They were put into the constitution to make it the first duty of the General Assembly to ascertain and declare the will of the people at the election, and if the Assembly should find, after a fair examination, that the people had not elected their state officers by a majority vote, then, at once, on discovery of the fact, to proceed to select them from the leading candidates. With the proprieties or improprieties of the methods of examination pursued by the General Assembly, with their compliance or non-compliance with the directions of the constitution, as to when to make the constitutional declaration and notification,
C. R. Ingersoll and H. Stoddard, with whom were T. E. Doolittle and L. H. Bristol, contra.
The question is, whether the defendant is the rightful and lawful governor of the state of Connecticut. If he is such governor this action must necessarily fail, but if he is not the governor of this state, this action must succeed and a proper judgment be rendered accordingly. The case presents no question of jurisdiction. An unlawful, unfounded and pretended claim of title to the office of governor cannot oust this court of jurisdiction to determine whether in truth and in fact the defendant is by law entitled to such office. Whoever intrudes into any office, it matters not what that office may be, with or without the final evidence of title, may be ousted on proper judicial inquiry, as was decided in the leading case on this subject of Attorney General v. Barstow, 4 Wis., 567, where, notwithstanding the incumbent had been declared governor by the proper authorities, the court upon quo warranto adjudged him to be an intruder, and ousted him from the governorship which he had unlawfully usurped. The question of jurisdiction thus disposed of, the single
The following are conceded facts in the case:—
—(1.) A general election for governor and other state officers was duly held by the electors of this state on the 4th day of November, 1890, pursuant to the provisions of the constitution.—(2.) The relator, Luzon B. Morris, received a clear majority of all the votes received and counted at the several electors’ meetings.—(3.) Lawful returns of such votes were made to the treasurer, secretary and comptroller of the state, and these officials counted the votes so returned, and therefrom it appeared and still does appear that the relator, Luzon B. Morris, had 67,662 votes, and that all other candidates had 67,636 votes; showing a majority for the relator of 26 votes, and if an amended return of votes from Milford is considered, a majority of 44.—(4.) A fair list of such votes so returned was made by the treasurer, secretary and comptroller, as provided by the constitution, from which fair list of votes the above result appeared, to wit, that the relator, Luzon B. Morris, had a majority of 26 votes, received and counted in the presence of the electors and returned as provided by law.—(5.) Said fair list and return of votes, made by the presiding officers of the electors’ meetings, were duly laid before the General Assembly on the first day of its session.—(6.) The Senate, after examining the fair list and the returns of the presiding officers of the electors’ meetings, thereupon found the vote to be as above stated, and in obedience to the constitution declared the relator to have been elected governor by the electors.—(7.) The House of Representatives had before it the same fair list and the returns of the several presiding officers of the votes received, counted and declared in the presence of the electors, and from these documents the House found that the democratic vote for governor “as returned” was 67,662, and for other candidates “as returned,” was 67,636, leaving a democratic majority of 26 for governor “as returned.”
It is not denied that the local election officers acted fairly, honestly and according to their best judgment. It is not claimed that there were any errors in the count except in Norwich, which error, if any there was, did not affect the result. It is not claimed that any mistake intervened in the return of votes. All was concededly regular and fair, and the only claim made on the part of the defendant is, simply, that mistakes of judgment on the part of the local authori-
First. The relator contends—1st. That the election was held and consummated by the electors of the state in the electors’ meetings held on the 4th day of November, 1890, and that the General Assembly does not participate in the election of governor, but only declares the result as that result appears from certain figures.
2d. That the fair list and the returns of the presiding officers of the vote actually counted and by the board of canvassers laid before the General Assembly are primâ facie and presumably correct, and must necessarily stand until altered, amended or set aside by some competent authority.
3d. That under our constitution and practice there is no power on the part of the General Assembly, much less of either house composing it, to alter, vary or amend said list and returns, and that the duty of said Assembly and of each constituent house is simply ministerial, to wit., to ascertain from said fair list and returns the result of the election and then to declare that result.
4th. That no unlawful and unconstitutional refusal on the part of the House of Representatives to formally declare the result, as shown by the documents and found by the House, can deprive the electors of the state of their constitutional right to elect a governor, or deprive the relator of the office to which he has been lawfully chosen.
5th. That in the present case both branches of the General Assembly have ascertained the fact to be that the relator received a clear majority of all the votes cast as shown by the list and returns, which are the sole evidence of the fact, but that the House of Representatives, in violation of its duty
6th. That if there is power existent anywhere to alter, amend or vary the fair list and the returns of presiding officers, (which we utterly deny), such power can exist only in the General Assembly, which body can act only through the co-ordinate action of the two houses which compose it; that neither house can of its own motion alter or amend said list and returns, because that can be done only by the General Assembly, and that a refusal on the part of either house to change the list and returns necessarily involves a refusal on the part of the General Assembly, because the assent of both houses is indispensable to such change.
7th. That this court will not allow a mere matter of form to stand in the way of an election completed in substance and essence, but will, to prevent a failure of justice, adjudge the relator to be lawfully elected to the office of governor in spite of the refusal of one branch of the General Assembly to perform a ministerial duty by passing the customary formal declaration.
Broadly stated, the position for which the relator contends is, that the right to the gubernatorial office depends upon the election to that office by the electors, and does not depend upon a declaration of the result of that election by the legislature; that the General Assembly does not participate in the election of governor, but only declares the result as it appears from certain figures and papers laid before it; and that the action of the General Assembly in examining the votes and declaring the result is not judicial but ministerial, and is not, therefore, an integral part of the election.
The essence of the relator‘s claim is, that the action of the General Assembly in examining the returns and declaring the result is wholly and purely ministerial; that it is not in the power of the General Assembly, by neglecting or refusing to make a proper declaration, to defeat the will of the people as expressed by the votes of the electors in their meetings in the respective towns; that the act of declaring the result
It is upon the issue thus made up, whether the duty devolved on the General Assembly is judicial in its character or ministerial only, that the substance of the controversy turns. From that issue as presented by the record there is no escape. Either the duty of the General Assembly is ministerial, purely and wholly, or else it is judicial, with all that judicial power implies,—the right by all proper methods and with the aid of all legitimate evidence and proofs to conduct the inquiry to a conclusion which shall finally determine the rights of the parties. Less than this is to make the granting of judicial power a farce.
The underlying, essential question to be determined is, whether the declaration is an element or only evidence of title. If the latter, then it necessarily follows that it is no part of the title itself—that the right is perfect without it; and to
“If one not legаlly elected is erroneously declared to be elected, the will of the people is disregarded. A usurper holds an office to which he has no right. ‘The usurpation of an office is not an invasion of the executive prerogative,’ observes NOTT, J., in State v. Deliesseline, 1 McCord, 52, ‘but of the rights of the people, and the only method by which those rights can be protected is through the instrumentality of the courts of justice.’ In accordance with these views it has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is only primâ facie evidence that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board.” (Citing People v. Cook, 8 N. York, 67; People v. Judson, 55 N. York, 525; People v. Vail, 20 Wend., 12; State v. Governor, 1 Dutch., 348.) Per APPLETON, C. J., in Prince v. Skillin, 71 Maine, 371. And it matters not that the body is so constituted that mandamus will not lie to enforce its duty. The true
If, on the other hand, the declaration is an element of title, it is evident, no matter whether it is termed “an integral part of the election” or “an indispensable adjunct,” the title is not and cannot be complete without it, and no right exists which the claimant can assert in the courts or elsewhere. There is no failure of justice, because no legal right has been perfected; no denial of justice, because the right to demand justice does not come into existence. There is simply a failure to elect, which it is impossible for the courts to supplement or remedy. Is this so? Can it be that the constitution intended to place in the hands of either house or of the whole General Assembly the power to thus defeat the will of the people, and to thrust upon them, for a succession of terms it may well be, a hold-over executive whose only title is found in the “sic volo, sic jubeo; stet pro ratione voluntas,” of a partisan majority? Did the framers of our constitution intend to open the courts to all other suitors, no matter how insignificant the office, and to close them only to those whom the people have elected to the highest offices of the state?
In proceeding to the consideration and discussion of those matters which, as we think, bear upon the fundamental issue thus stated, it is well, at the outset, to recall the language of the Supreme Court of Maine in a similar case—In Re Gov. Garcelon, 70 Maine, 561, 599. “In a case like the present the remark of Chief Justice MARSHALL, in Cohens v. Virginia, 6 Wheat., 404, is peculiarly applicable. ‘It is
Second. The relator insists that the electors have reserved to themselves the exclusive right to elect the governor in the electors’ meetings assembled, and that, considered historically, this is true in a high and emphatic sense peculiar to the people of this commonwealth.
1st. The freemen of this colony in the beginning gave, in all else, well nigh unlimited power and jurisdiction, legislative, executive and judicial, to the General Court, but in the single particular of election of governor and other magistrates they excluded the General Court by express, negative words, and hаve always insisted by practice, by law and by constitution, that this privilege should never be parted with. Hooker‘s Sermon, Johnston‘s Conn., pp. 71, 72; Fundamental Orders of 1639. The 10th order is as follows:—“In said General Courts shall consist the supreme power of the commonwealth, * * * and (they) may deal in any matter that concerns the good of this colony except election of magistrates, which shall be done by the whole body of freemen.” See Laws of 1750, p. 29; Laws of 1774; Laws of 1796, § 5, p. 125; Laws of 1808, p. 202. See also laws relating to proxy voting, appearing in 1 Colonial Records, 346; 2 id., 131; 3 id., 11, 12, 223; Revision of 1750, p. 46; Laws of 1784, p. 45; Act of 1803, (p. 253 of Laws of 1808;) which last cited act continued to be the law until the adoption of the constitution in 1818. Down to the adoption of that constitution the practice was uniform to appoint a committee under oath to receive and sort the votes and de-
2d. In 1818, when the constitution was adopted, there was no return to be made by the moderators under the law, other than of the votes that were received, counted and declared in the presence of the electors and in open meeting. The rejected ballots were not, and at that time could not, be returned. Ballots rejected were not votes; they formed no part of the return, and by no possibility could they go before the General Assembly. The certificates now sent to the secretary of the state, under
3d. By the constitution each house of the General Assembly is made the final judge of the election returns and qualifications of its own members, but no such power is given to the General Assembly in reference to the election of state officers. This difference is significant. The omission was deliberate and intentional, and is consistent with the entire theory of our form of government, showing a clear intent that the election of a governor should in no wise be dependent upon the will of the General Assembly.
4th. An examination of the journals of the Senate and House since the adoption of the constitutiоn shows that the result of the election has been uniformly declared upon the examination of the fair list and returns of votes; except in 1871, when the General Assembly, by the conjoint action of both houses, (and even then against the protest of the minority,) upon an allegation of fraud, proceeded, not to revise the action of the local authorities, but to do that which the presiding officers might have done. And the whole history of legislation in this state (Acts 1844, 1849, 1859, 1860, 1868, 1871, 1874, 1875) shows that the conduct of electors’ meetings is by law committed to the local authorities.
An analysis of the provisions of the constitution demonstrates that the duty devolved on the General Assembly by that instrument is ministerial and not judicial.
1st. It is unquestioned and unquestionable law that the governmental process of election, when once begun, must go on without stoppage to its completion and conclusion. Each agent must perform his duty as it comes to him, and has no power to hold back because some other agent has not
2nd. Under the constitution the governor is the person chosen by the electors to coöperate with the legislative department in the operation of government, by making laws and otherwise; therefore, it is necessary that who such executive is to be should be ascertained and declared concurrently with the opening of the legislative session, and to that end and for that purpose the constitution provides that the returns shall be laid before the General Assembly on the first day of the session thereof, and that the Assembly, after an examination of the same, shall declare the person whom they shall find to be legally chosen; but if there is no choice then said Assembly shall, on the second day of the session, proceed, without debate, to choose a governor. Neither discussion nor consideration is permitted, much less a judicial examination extending over weeks and possibly months, because in that event the machinery of the constitution would fail to carry out its plain intent to provide an executive chosen by the electors to coöperate with the legislature in the transaction of the business of the state. The only course consistent with our fundamental notions concerning frequent elections, or consistent with the language of the constitution, is to accept the fair list and the returns
3d. By the provision of the constitution, the governor is chosen by the electors at their meetings in their respective towns, and all subsequent proceedings are simply to preserve and perpetuate the evidence of the result. The constitution first provides that the supreme executive power shall be vested in the governor, “who shall be chosen by the electors,” and then provides that at the meetings of the electors in their respective towns, “the presiding officers shall call upon the electors to bring in their ballots for him whom they shall choose to be governor.” By this language the whole power of choosing a governor is entrusted to the freemen of the state. It is by their ballots, received and counted in the presence of the electors, that the election is to be determined, and over these meetings the General Assembly has and can have no power. Within that sphere the meeting of the electors is supreme, and determines by its own proper authority what ballots shall be received, what ballots rejected, and what ballots counted as votes. It is a most significant fact that the constitution contains neither mandate, direction nor instruction of any sort as regards the conduct of the election by the electors in electors’ meeting assembled. That is confined to
4th. As a part of the machinery to perpetuate the evidence of the result of the choice made by the electors in the electors’ meetings, the constitution provides that duplicate lists, not of the ballots cast but of the votes counted, certified to by the presiding officer shall be made; one of which shall be sent to Hartford within such a period of time that the canvassing board provided by the constitution shall have a whole month to canvass the votes returned by the presiding officers, while the legislature is given but a single day, the first day of the session, to declare the result. Is it possible to suppose that the constitution intended the General Assembly to make a judicial scrutiny, when the time for such scrutiny is limited to one day only?
5th. The constitution provides that duplicate lists of the persons voted for, and of the number of votes given for each, shall be made and certified by the presiding officers, one of which lists shall be deposited in the office of the town clerk. Under the act of 1803 only one list was made
6th. The constitution provides that the fair list and the returns of the presiding officers shall be laid before the General Assembly on the first day of the session thereof. Now what was the object of laying these lists of returns before the General Assembly? Simply to furnish that body with evidence as to whether it could exercise the power to choose a governor by reason of the failure of the people to elect, and to show it who were the two having the highest vote, from which choice must be made. If a plurality elected there would be no occasion to send the returns to the legislature. And note the language of this section of the con
Third. The journal of the constitutional convention of 1818 demonstrates the soundness of the preceding positions. The first draft of the constitution presented to the constitutional convention gave the General Assembly power to determine contested elections for the governor (see p. 83 of the journal); but the convention was unwilling to give the General Assembly this power, and adopted Judge Lanman‘s amendment, which reads as follows: “And said Assembly shall after examination of the same, declare the person who has a majority of the votes returned as aforesaid to be legally chosen, and give him notice accordingly.” The draft of the constitution thus amended was referred to an engrossing committee for the purpose of correcting verbal inaccuracies and errors in phraseology (Journal, p. 67); and that committee, acting under the authority of that resolution, made a few changes in language, among others using the phraseology of the constitution in place of the words of Lanman‘s amendment. The two forms of phraseology were, however, intended to be and are identical in substance and meaning, from which it appears that the language of the constitution, as it now reads, can only mean that the General Assembly must declare that person elected whom they shall find, by an inspection of the votes so returned, to be legally chosen.
Fourth. The question now before the court has been settled by the authoritative exposition of the law of this state embodied in the opinion of the judges of this court as to the constitutionality of the Soldiers Voting Act, 30 Conn. 591. The court there held that the mandate of the constitution fixed all the essential details of time, place and manner of elections, as follows:—(1.) The time—the first Monday in April.—(2.) The place—the meetings of the electors.—(3.) The voting—to be at the call of the presiding officers, in the presence of the electors, and in such order and manner as the General Assembly should direct.—(4.) The votes to be received, counted and declared in the presence of the electors.—(5.) Lists of votes so given, received, counted and declared, to be made and certified by the presiding officers of the electors’ meetings.—(6.) One of those lists to be returned to the secretary of the state, and the other to the town clerk.—(7.) The lists so certified and returned to the secretary, to be canvassed by the treasurer, secretary and comptroller and an aggregate list made therefrom.—(8.) The lists so returned, with those made by the canvassers, to be presented to the General Assembly on the first day of its session.—(9.) The General Assembly to
Fifth. An unbroken series of decisions by the courts of last resort in other states is conclusive in the relator‘s favor. Those cases state that the electors elect, and that the persons or body having the duty to declare cannot look beyond the returns of votes. Such bodies act in a ministerial capacity only, and are subject to and must be governed by the law. In re Governor Garcelon, 70 Maine, 561. In this case the Supreme Judicial Court of Maine say:—“The governor and council must act upon the returns forwarded to the secretary. If they purport to be made, signed and sealed up in open plantation or town meeting, they constitute the basis of the action of the canvassing board. No provision is found in the constitution, or in any statute of this state, by virtue of which they will be authorized to receive evidence to negative the facts therein set forth. They therefore have no such power. The presiding officers are to determine whether the ballot offered has a distinguishing mark or figure. * * * But if the ballots have distinguishing marks or figures, it is no part of the duty of the officers of the town to make any report in reference thereto. * * * The governor and council have nothing to do with the question. Their duty is to count the votes, regardless of the fact improperly set forth in the return. They are nowhere
So in Prince v. Skillin, 71 Maine, 361, the court say:—“The real title to an elective office depends upon the votes cast. The underlying principle is, that the election and not the return is the foundation of the right to such an office. It has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is one of primâ facie evidence, that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board.”
“It is settled by the decision of the court in 53 N. Hamp., 473, 641, that the constitution of New Hampshire requires the governor and council to ascertain, not who are chosen, but who appear by the returns to be chosen state senators; to find the apparent results of the election, not by acting as judges of the election, but so far as the result appears in the returns to find it by arithmetic; to make a computation, not of the votes which would have been cast in a fair election, nor of the legal votes that were cast, nor of the votes, legal and illegal, that were cast, but of the votes which the returns show were declared by the moderators. The duty of making this computation being imposed upon the governor
Sixth. If we are right in our contention, that the duty devolved on the General Assembly by the constitution is ministerial only, to hold that the declaration is essential to constitute an election is revolutionary. If the General Assembly can refuse to perform a mere ministerial duty in the present case, it can equally well refuse to perform it in a case where the successful candidate has 10,000 majority and not onе of the returns is in controversy. Such a doctrine is monstrous. It says in substance and effect that the neglect of a plain constitutional duty, ministerial in its character, may be made the weapon to destroy not only the will of the people but to overthrow the express provision of the consti-
Seventh. Waiving, for the moment, all preceding contentions, we further insist that a substantial finding and declaration of the relator‘s election by the votes as returned was in fact made by the House of Representatives. The committee of the House reported that the democratic vote for governor “as returned” was 67,662, for other candidates “as returned” 67,636, leaving a democratic majority of 26 for governor “as
Eighth. In any possible aspect of the matter, the fair list and returns of the presiding officers, laid before the General Assembly, are primâ facie and presumably correct, and must necessarily stand as the sole evidence of the result until altered, amended or set aside by some competent authority. Such power, if existent anywhere, can under the language
Ninth. To the defendant‘s contention in the matter we reply—1. The argument that the General Assembly has judicial power to alter and change the fair list and returns laid before it, because such power is not prohibited by the constitution in express terms or by necessary implication, is abundantly refuted by the full analysis of the provisions of the constitution which form part of the relator‘s contention. 2. It is also contended by the defendant‘s counsel, that if the examination of the General Assembly is to be confined to the fair lists and returns of votes, it would place it in the hands of the moderators of the respective town meetings to thwart by their action the will of the people. A sufficient and conclusive answer to this claim is found in the language of the Supreme Court of Maine:—“If that officer (the moderator) should make a declaration differing from the count, it would be a failure of his official duty, and, if the act is willful, a clear breach of his official duty. The injunction upon him is to declare the vote truly according to the count, and no provision is made for his disobedience of the mandate, such derelictions of duty being left to the remedies furnished in one way or another by the law. The modera-
It is far better that we should endure, until corrected in court, the small temporary evils and effects of the mistakes or even frauds of town and local officers in an election, than that the public should be subject to the evils and effects of the ignorance, partisanship and unscrupulousness of a legislative majority acting through a partisan legislative committee, and were there no other consideration this one ought to be conclusive. But in our freemen‘s elections no ballot can be rejected without the concurrence of two counters of different politics, nor except by the decision of the moderator made in open meeting in the presence of the electors, before any contest has arisen and before it is known what the effect of his ruling is to be upon the result of the election. Should he decide wrongfully the courts are open to give ample and prompt redress. The chances of willful error are
The Senate and House of Representatives cannot agree as to the duty of the General Assembly under the constitution, relative to the formal declaration of the result of the last election for state officers. For many months persistent and continuous efforts have been made by both branches of the General Assembly to find some peaceful solution of the difficulty, but the disagreement is radical and final. The people of the state are also divided into two great sections, holding the same discordant views. The machinery of our government has broken down, the business of the state is paralyzed, the public peace is seriously menaced, and the fair fame of the commonwealth is threatened. The only existing remedy for these evils is now sought. The judicial department of the government is appealed to. A suit at law is brought to obtain an authoritative, judicial, and final exposition of the constitution from the only tribunal invested by law with the peculiar jurisdiction of construing our fundamental charter. The people of the state with entire unanimity are anxiously awaiting the decision of this court. Both the Senate and the House, recognizing that the judgment of this court in the case now here ought to determine the difference and put an end to the present unfortunate condition of public affairs, have adjourned their sittings to await the promulgation of the opinion of this court. That opinion is also awaited with just solicitude by the people, as well as by both branches of the General Assembly, not only because of the present relief to the existing state of affairs, but in a high degree because of the great and manifest difficulties, doubts and dangers that may otherwise be involved in our next and succeeding state elections.
ANDREWS, C. J. This is an information in the nature of a writ of quo warranto. It alleges that the respondent since the tenth day of January last has used and exercised the office of governor of this state, and threatens and intends to con-
The questions reserved are attended with serious difficulties. These, as well as the novelty of the circumstances recited in the information, the condition of legislation as applicable to those circumstances, the public interests involved, and the delicacy which the court cannot but feel lest it be thought to infringe upon authority belonging to the other co-ordinate branches of the government, have led us to hold the case under deliberation for a somewhat longer time than is usual, and require a careful expositiоn of the principles upon which the advice to be given is founded. The case was argued at the bar with great force and ability. The view taken by the court departs considerably, in form, from the claims made by either side in their briefs. It is believed, however, that in essential principles there will be found no real difference between the counsel and the court.
The case finds that the respondent, Morgan G. Bulkeley, was legally elected governor by the General Assembly on the 10th day of January, 1889, (there having been no election by the people,) and entered at once upon the duties of that office. The term for which he was elected was till the Wednesday following the first Monday of January, 1891, and until his successor was duly qualified. If then no successor to him has been chosen, or being chosen has not become duly qualified, the respondent still holds the office of governor. He holds that office since the said Wednesday in January, 1891, by the same warrant that he held it prior to that date, and continues to be the de jure governor of the state. It is admitted that no person has been chosen to be the successor of the respondent, unless the facts set forth in the case show that the relator has been so chosen; and there
The election of a governor is the selection of some person to fill that office. The selection must be of one who possesses the required qualifications, and must be made by those who possess the right to vote, and at a time and place and in the manner prescribed by law. The election of state officers in this state is a process. It includes the preliminary registration, by which those persons who have the right to vote are determined; the time when, the place where, and the manner in which the votes are to be given in, and also the manner in which the votes are to be counted and the result made known. Each of these steps must be taken in pursuance of the law existing at the time the election is had. That part of the election process which consists of the exercise by the voters of their choice is wholly performed by the electors themselves in the electors’ meetings. That part is often spoken of as the election. But it is not the whole of the election. The declaration of the result is an indispensable adjunct to that choice; because the declaration furnishes the only authentic evidence of what the choice is. The right to choose any state officer, unless the result of the choice can be published in some way so as to be obligatory on the whole state, would be no better than a mockery; it would be to give the form of a choice without the reality. The declaration is the only evidence by which the person elected can know that he is entitled to the office, or the previous incumbent know that his term has expired. The courts can take judicial notice of the fact of an election, but never of the result of an election or of who is elected until some declaration is made. The declaration is the only evidence by which the other departments of the government and the citizens generally can know whom to respect as such officer. And in order that a declaration shall be made of the result of an election for governor in a way to be obligatory upon everybody, the constitution has fixed the time and manner in which the General Assembly shall make that declaration.
This however is far from deciding the real question that is reserved for consideration. That real question is this:—The relator claims to have received a majority of all the legal votes cast for governor at the electors’ meetings held on the fourth day of November, 1890, and that he is entitled to be declared elected to that office. Is there any way known to the law by which he can now establish the fact of such majority and secure his right to the office?
In considering this question the attention of the court has been fixed on a subordinate one. Is the present General Assembly without the power to make any declaration as to the election of a governor? It is conceived that the present Assembly may be without such power, either because it has become impossible for it to do so by reason of the attitude of the two houses towards each other on that matter, so that as to such a declaration the Assembly is in the same condition that it would be if an adjournment without day had been taken; or because the time within which the General Assembly may declare a governor to be elected is limited by the constitution, and that limit is passed as to the present Assembly. And if the General Assembly is without the power to make such a declaration, may the Superior Court make an investigation, and on finding that the relator did in fact receive a majority of all the votes lawfully cast for gov-
That part of the constitution which must be kept in mind is
“At the meetings of the electors in the respective towns in the month of April (now November,) immediately after the election of senators, the presiding officers shall call upon the electors to bring in their ballots for whom they would elect to be governor, with his name fairly written. When such ballots have been received and counted in the presence of the electors, duplicate lists of the persons voted for and of the number of votes given for each shall be made and certified by the presiding officer, one of which lists shall be deposited in the office of the town clerk within three days, and the other within ten days after said election shall be transmitted to the secretary, or to the sheriff of the county in which such election shall have been held. The sheriff receiving said votes shall deliver or cause them to be delivered to the secretary within fifteen days next after said election. The votes so returned shall be counted by the treasurer, secretary and comptroller within the month of April, (now November.) A fair list of the persons and number of votes given for each, together with the returns of the presiding officers, shall be by the treasurer, secretary and comptroller made and laid before the General Assembly, then next to be holden, on the first day of the session thereof. And said Assembly shall, after examination of the same, declare the person whom they shall find to be legally chosen, and give him notice accordingly. If no person shall have a majority of the whole number of said votes, or if two or more shall have an equal and the greatest number of said votes, then said Assembly on the second day of their session, by joint ballot of both houses, shall proceed without debate to choose a governor from a list of the names of the two persons having the greatest number of votes or of the
names of the persons having an equal and highest number of votes so returned as aforesaid. The General Assembly shall by law prescribe the manner in whiсh all questions concerning the election of a governor or lieutenant-governor shall be determined.”
It is undoubtedly true that the constitution contemplates that the declaration of the election of a governor—and perhaps of all the state officers—shall be made in all cases by the General Assembly; and that the declaration when made in accordance with the provisions of the constitution shall be final and conclusive. The declaration is that the person declared is legally elected governor. When the people, speaking in their sovereign capacity by the constitution, appoint a single tribunal to ascertain and declare a certain result, and that tribunal does so ascertain and declare, there is no other authority that can interfere with or revise such declaration and change the result. The declaration of the result of an election is to be made by the General Assembly, and must be made by both houses acting jointly or concurrently. A declaration by one house without the other would have no effect.
The constitution by its own terms provides no evidence of the election of a governor from the examination of which the General Assembly is to make the finding and declaration, except the “fair list” prepared by the treasurer, secretary and comptroller, and the returns of the presiding officers. In the absence of all legislation on the subject, and in all ordinary cases, the intent of the constitution would seem to be that the General Assembly should declare that result of the election which is shown by the fair list and those returns. The constitution commands the General Assembly to prescribe by law the manner in which all questions concerning the election of governor and lieutenant-governor shall be determined. If there already has been or hereafter there shall be legislation pursuant to that command and other evidence thereby made admissible, the intent of the constitution seems to be equally clear that the General Assembly shall also examine that evidence in
The word “return” is a word known in the law and had the same meaning seventy years ago that it has now. 3 Blackstone‘s Com., 273. When a command has been issued from some superior authority to an officer, the “return” is the official statement by the officer of what he has done in obedience to the command or why he has done nothing. Whatever thing the superior authority may require the officer to do, of the doing of that thing it may require him to make return. The return made by the presiding officer of an electors’ meeting is his official statement of what was done at that meeting. If the General Assembly can require of the presiding officers no return of things other than such as were required by the constitution itself, then it must follow that the General Assembly can require the presiding officers to do no other thing than such as they were required to do at the time the constitution was adopted.
If this is so, then every election law that has been passed since that time is unconstitutional; for there has been hardly one of them that has not in some way changed the method of the choice or the duties or the powers of the presiding officers. A construction so narrow and literal as this cannot be successfully maintained.
It appears from the information that certificates conformable to the requirements of both these sections were sent to the General Assembly and were laid before it on the first day of the session; that the Senate had examined the fair list made by the treasurer, secretary and comptroller, and the certificates sent by the presiding officers from all the towns, so far as they fall within the requirements of
The House of Representatives, on the other hand, has examined said certificates,—as well that part which is required by
The fourth section of a resolution of the House is—“that the House will take no action declaratory of the result of the late election for state officers until the Senate shall have taken action in the matter of an examination of all the returns from the presiding officers, including those made under section 240 of the Revised Statutes of 1888, by a joint select committee on canvass of votes.” The attitude of the two houses of the Assembly is that of complete and total opposition; on the one side the Senate declaring that it is forbidden by the constitution to examine the certificates made under
The unpleasant suggestion contained in the briefs that either house of the Assembly is acting from partisan motives, can find no place in the mind of this court. Every presumption is that the legislature is solicitous to obey the constitution in its true spirit and that neither house will intentionally violate it. So when each house has spread upon its journal a conclusion radically antagonistic to the conclusion of the other upon the same subject, it can only be regarded as an announcement that they are unable to agree.
In the process of the election of a governor the constitution intended that the General Assembly should perform the closing part. That the present General Assembly seems to be unable to perform that part in respect to the last election this court is compelled reluctantly to admit. But as the Assembly has not adjourned, and as it is legally possible for either house to recede from the position it has taken, the court is not now prepared to hold that it has lost the powеr on this ground of acting further in the matter of the declaration of the election of a governor.
Prior to the adoption of the constitution under the operation of the charter of 1662, the General Assembly possessed all the power, legislative, executive and judicial, which it is
The constitution of this state is such a limitation in all cases covered by its provisions, leaving the power of the Assembly unimpaired in other respects. Whatever limitation there is upon the Assembly in respect to the time within which it must make the declaration of the election of governor, is to be found in the language of the constitution above quoted. That language is to be read, in order to get its true meaning, in the light of the conditions and circumstances existing at the time the constitution was framed. Up to that time the governor had in all cases been elected or declared to be elected by the General Assembly on the first day of its session. The sessions were then short, rarely exceeding ten days. There was no reason then apparent why the sessions should become longer. Under the constitution there was necessity to have a governor at the very beginning of the session, in order that he might approve the acts of the Assembly and the business of legislation go on. And so the instrument provided that the fair list made by the treasurer, secretary and comptroller, together with the returns of the presiding officers, should be laid before the General Assembly on the first day of its session holden next after the electors’ meetings, and that the Assembly should examine the same, and find who, if any one, was elected, and make the declaration accordingly. Immediately following it provides that the Assembly, on the second day of the session, shall, in case no person has a majority of the whole number of votes, proceed to elect a governor. Here the time is fixed by affirmative words—“the second day.” Af-
In an instrument which is a limitation of power this rule of interpretation applies with more force than in a statute that confers power. To what end did the constitution command the General Assembly to proceed to elect a governor on the second day of its session, if notwithstanding such command the Assembly is at liberty to proceed to elect on any other day? If the command to proceed to elect on the second day is not a prohibition to elect on any other day of the session, then the command has no force, and the instrument which was intended to be a limitation of power, in one of its most important particulars fails to be a limitation at all. When the constitution commands a certain course to be pursued that course must be pursued strictly. It is not a proceeding which may be varied for another deemed to be equally eligible except by disregarding the constitution itself. And when the constitution directs the General Assembly to proceed to choose a governor on the second day of its session, it in effect forbids any choice of a governor by the Assembly at any later day of the session. But the Assembly can never proceed to the choice of a governor unless there has been a previous determination that no person has a majority of all the votes. The power of the Assembly to choose a governor depends upon a previous examination, finding and declaration that no person has received such majority, and as this finding and declaration must
This opinion is not now for the first time advanced. In 1831 there was no choice by the people of a lieutenant-governor. The two houses of the General Assembly were unable to unite in a joint ballot on the second day of its session, and there was no lieutenant-governor chosen that year. It seems to have been taken for granted that any choice at a later day would be invalid. In 1871, the General Assembly, both houses concurring, upon information that a fraud had been committed in one of the cities of the state, sufficient to change the result in the choice for governor as it appeared by the returns of the presiding officers, by its committee investigated the matter and found that a great fraud had been committed, and thereupon declared that person to be elected who was found to be rightfully elected, although it was contrary to the result which appeared by the returns of the presiding officers. The Assembly that year contained many members who were lawyers of distinction and ability. It is known that the opinion of almost every other eminent lawyer in the state was obtained, and while there was great difference in their opinions as to the power of the General Assembly to make the investigation, there was
It may be urged that the necessity resting upon the General Assembly to examine the fair list and the returns of the presiding officers is inconsistent with the duty to make the declaration so early in the session. The words of the constitution on which this argument rests are found in the section already quoted, as follows: —“And said Assembly shall after examination of the same declare the person whom they shall find to be legally chosen, and give him notice accordingly.” An examination may be very general or it may be very particular. Whether it is to be the one or the other in a given instance must be largely determined by the purpose for which the examination is made. The examination which the Assembly is directed to make is for the purpose of finding who, if any one, is chosen governor; and not only that, but who “is legally chosen. To find,” in the meaning of the law, is to ascertain by judicial inquiry. And the command to find and declare who is legally chosen, means that the examination shall be sufficiently full and careful to determine the title, so that the person declared to be chosen shall have an unimpeachable title to the office. It is doubtless highly desirable that there should be a governor at the very beginning of the session of the Assembly. But it is still more desirable that there shall be no question about the title of the governor. To induct a person into the office of governor whose title was open to dispute and who might be adjudged not to have been elected, would be to invite discord and delay. Those who were dissatisfied with his title
It is a high tribute to the sobriety and to the respect for law which pervades the people of this state that for almost a century no disputed election has happened which imperatively called on the General Assembly to enact laws for the determination of the questions that arise in election contests. Such a disputed election has now come. It is perhaps not too much to hope that the General Assembly will make haste to put an end to the anomalous condition of our election laws.
The certificates, or returns, for both words are used, prescribed by section 240 of the statutes to be sent to the secretary by the several presiding officers, appear to be a compliance by the General Assembly with the direction of the constitution in this behalf. No argument can be needed to prove that what the General Assembly was commanded by the constitution to prescribe it was its duty to examine. The uncertainty attending these certificates is that the secretary is not directed to lay them before the Assembly on the first day of its session, nor is it by any specific words made the duty of the General Assembly to examine them, or to act on them if examined, and so it is claimed that either house is at liberty to disregard them if it chooses to do so.
This topic and some of the others considered have perhaps received more attention than their importance demanded. Every occasion for their application will doubtless be speedily removed by further legislation.
It has seemed to some of the members of this court that the General Assembly has no power subsequent to the second day of its session to make a declaration that any person is elected governor, or that no person has received a majority of all the votes and so that no person is elected; and that therefore the present Assembly has no power to declare the relator to be elected governor. But as this
From the facts spread out in the information it appears not only that the election process has broken down, so that there is a failure to elect a governor, but that all legislation has ceased. Owing to the difference between the branches of the Assembly an entire collapse in the legislative department has ensued. Whether this condition has resulted from one or the other of the causes we have mentioned it is not necessary to decide. In these circumstances is it not possible that the Superior Court may make an investigation, and on finding that the relator received a majority of all the votes lawfully cast for governor on the fourth day of November, 1890, (whatever the returns of the presiding officers may show,) establish his title to that office by some judgment that shall be legally equivalent to the declaration which should have been made by the General Assembly?
It must be carefully kept in mind that the courts have no function to perform in the process of an election. They disclaim any such power. The Superior Court cannot make the declaration which the constitution says shall be made by the Assembly. The utmost that the court can do in a case like this is, by some judgment which it can lawfully make to supply an omission or heal a defect. In the life of a state it may often happen that an occasion arises calling for the application of remedies which in the ordinary current of affairs would not have been thought to exist.
Whatever view of the workings of the constitution may be taken, no one can suppose that it intends to afford opportunities for any state officer to hold office longer than the term for which he has been specifically elected. The constitution provides for regular biennial elections for governor. There is the provision that the governor shall hold office until his successor is qualified. This was designed to cover exigencies always supposed to be brief. Until the present instance it was never imagined that the practical
It might be argued that it would bring deserved obloquy on the jurisprudence of this state if there was no way in which the relator could establish the right which he claims. It is of the very essence of civil liberty that every individual shall have the protection of the laws whenever he receives an injury. At page twenty-three of the third volume of Blackstone’s Commentaries two cases are mentioned in which a remedy is afforded by the mere operation of the law. “In all other cases,” says that author, “it is a general and indisputable rule that where there is a legal right there is a legal remedy by suit or action at law whenever the right is invaded.” As a general proposition this rule is not denied. But it is urged that the General Assembly is the
The Superior Court of this state as a court of law is a court of general jurisdiction. It has jurisdiction of all matters expressly committed to it and of all others cognizable by any law court of which the exclusive jurisdiction is not given to some other court. The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction over that matter.
A trial by the Superior Court of the questions presented in the information would not be an infringement upon the powers of the co-ordinate branches of the government. Not of the legislative, if it has been made to appear that the present legislature is wholly unable to act in the case. It is no infringement upon the executive powers to decide who is chosen governor. To decide what person is lawfully elected to any office is a judicial process, and where there
The contention made in this case in behalf of the respondent is, that his right to hold the office of governor continues till the title of a successor to that office is established. The converse of this is admitted —that if the title of the relator to the office of governor is established, his right to hold that office would cease. It seems then that there can be no interference with the executive power in this case.
Such arguments would come with great force and present a very strong case. But if the court was fully convinced by them, and even if it should decide that the present Assembly was without power to make any declaration of the election for governor for either of the reasons discussed, still judgment could not be rendered on this information. It does not contain the necessary averments.
In point of form, in the present action, it is the right of the respondent to exercise the office of governor that is in question. But as the right of the respondent depends upon the election of the relator to that office, it is really the title of the relator that is on trial. If the relator has been completely elected then the right of the respondent to hold the office is ended. If the relator has not been elected then the right of the respondent continues. The claim made in behalf of the relator is that he ought to have been declared elected by the General Assembly, because, as appears by the returns from the presiding officers, he received a majority of all the votes cast for governor; and as the Assembly did not do so, the court ought now to declare him elected or to regard him as having been elected by such apparent majority. This claim admits that if the General Assembly had declared
The writ of quo warranto is the form of action specially adapted to try the right to an office. But it tries only the real title. It can never be used to try an apparent title. It gives judgment on that title alone which cannot be afterwards called in question. The information does not allege that the relator had the majority of all the votes, but only the majority as it appeared by the returns of the presiding officers; while other parts of the information show that such apparent majority is in dispute. Nor does the information contain any allegation of facts which show that the General Assembly has become unable to decide upon the relator’s right to the office he claims.
If the relator shall hereafter, by an amendment of the present information, or by a new one, allege that he received a majority of all the votes lawfully cast for governor on the 4th day of November, 1890, and it shall also appear from the facts therein stated that the General Assembly is without the power to make any declaration in respect to the election for governor, a case would be presented of which the Superior Court might take jurisdiction.
The Superior Court is advised that the information is insufficient, and to sustain the demurrer.
In this opinion SEYMOUR, TORRANCE and FENN, JS., concurred.
I did hope that the court would consider more fully, and decide, whether the legislature has the right to consider the statutory returns in determining the result of the election, as that is in the case, was fully discussed, and could not have been regarded as obiter. Moreover that is the rock on which the legislature split.
Another important question might, and I think should, have been considered. That is this:—Should or should not the returns as they stand, inasmuch as the legislature has not corrected or changed them, (assuming that it has the power to do so,) be regarded as final and conclusive, and as indicating the legal result of the election?
I am aware that the opinion intimates, perhaps was intended to decide, that the Superior Court would have the power to determine for itself the result. I am not prepared to concur in that view. As I remember, that question was not argued. I should prefer to hear it fully argued before deciding it.
Notes
The report of the canvassing board, appended to the complaint as an exhibit, was as follows:
To the Honorable General Assembly of the State of Connecticut, to be holden at Hartford, in said State, on the Wednesday after the first Monday of January, A. D. 1891:
The undersigned, being designated by law to canvass the votes for Governor given in by the electors at their meetings in the several towns of this state on the Tuesday after the first Monday of November, A. D. 1890, respectfully report:
That the whole number of votes returned and counted for Governor is one hundred and thirty-five thousand two hundred and ninety-eight, of which number sixty-seven thousand six hundred and fifty-eight are for Luzon B. Morris, four are for L. B. Morris, sixty-three thousand nine hundred and seventy-five are for Samuel E. Merwin, one for S. E. Merwin, and the residue are for sundry persons whose names are specified in the statement accompanying this report, with the number of votes given for each.
The official returns show also that in certain voting districts a large number of ballots were cast which were not counted for the following reasons, namely: “Prohibition votes not printed in conformity with the law,” “Not printed according to law,” “the word ‘For’ was printed before the name of the office voted for,” “Marked,” “Illegal,” and for other causes which are not specifically stated. No return of the names of the persons for whom these ballots were cast has been made.
It also appears from evidence presented to the canvassers that there is a clerical error in the return of the vote of the town of Milford.
The election returns are herewith submitted for inspection.
Dated at Hartford, November 26th, A. D. 1890.
R. JAY WALSH, Secretary.
E. STEVENS HENRY, Treasurer.
JNO. B. WRIGHT, Comptroller.