State Ex Rel. Morris v. Bulkeley

23 A. 186 | Conn. | 1892

Lead Opinion

This is an information in the nature of a writ of quowarranto. 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 continue to use said office, its dignities, liberties and franchises, and prays that he may be required to show by what warrant he claims to use and exercise said office. The respondent demurred to the information. The Superior Court made a finding of certain facts other than such as are set forth in the information, which includes the senate and house journals, to which the parties agreed, and reserved the case for the advice of this court.

The questions reserved are attended with serious difficulties. Those, 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 exposition 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 is no claim but that, if so chosen, he is duly qualified. The inquiry then is: — Has the relator been chosen governor according to the constitution and the laws?

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 he 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. Unless the declaration is made in the way so provided, the process of the election is not complete. No other authority than the General Assembly is empowered to make such declaration. It is Found in the ease that there had been no declaration by the General Assembly that, the relator had been elected governor, and it is not claimed that there has been any equivalent act by any other authority. It follows that the relator — whatever any future inquiry may show — cannot now be said to have been elected to the office of governor; and that the respondent remains thede jure as well as the de facto governor of the state. It is therefore the duty of all citizens, of the courts, of all departments of the state government, and of both houses of the General Assembly, to respect and obey him accordingly.

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

That part of the constitution which must be kept in mind is section 2, art. 4, which is as follows: —

"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 which 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 making its finding and declaration as to the result of an election.

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.

Section 239 of the General Statutes repeats the duties required by the constitution to be performed by the presiding officers of the electors' meetings, and adds certain others as follows: — "The presiding officer of each electors' meeting in every town * * * shall make out triplicate lists of the votes given in their respective towns for each of the following officers, viz.; governor, lieutenant-governor, treasurer, secretary, comptroller, senator, judge of probate, sheriff and representatives in Congress; * * * two of which lists he shall seal and deposit in the post-office in said town, the postage being paid thereon, directed to the secretary of the state at, Hartford, one within two days, the other within not less than five nor more than ten days after said meeting, and the third he shall deliver to the town clerk of said town within two days after said meeting."

Section 240 of the statutes is as follows: — "The presiding officer shall, with the certificates upon the result of the electors' meetings which he is required to send by mail to the secretary of the state, send to the secretary his certificate of the whole number of names on the registry lists, the whole number checked as having voted at such election, the whole number of names not checked, the number of ballots found in each box, namely, `general' and `representative,' and the number of ballots in each, box not counted as in the wrong box, and the number not counted for being double, and the number rejected for other causes, which other causes shall be stated specifically in the certificate. The secretary shall enter said returns in tabular form in books kept by him for that purpose, and present a printed report of the same to the General Assembly at its next session." These sections are claimed to have been enacted in obedience to the commands of the constitution.

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 section 239 of the statutes, and has declared those persons to be elected to the several offices who appear to be elected by that examination; but that the Senate has refused to examine said certificates so far as they are required by section 240 of the statutes, and declares that it has no constitutional power so to do; indeed, declares that it is forbidden by the constitution to do it.

The House of Representatives, on the other hand, has examined said certificates, — as well that part which is required by section 240 as that part required by section 239 — and declares that it is unable to find that the relator is elected governor, or that any other of the officers named therein, except the comptroller, is elected.

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 section 240; and on the other side the House declaring that it will take no action till the Senate shall have recognized those certificates. Their positions seem to be wholly irreconcilable.

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 power 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 possible for any civilized government to possess. As expressed at the time, it was King and Parliament. Its acts and decrees bound the people as fully as though every person was present within the four walls where its deliberations were carried on and had expressly consented to them. Such power could hardly fail at times to operate harshly. Many motives may have contributed to the formation and adoption of the constitution, but they all centered in, or rather sprang out of, the one idea to limit the power of the General Assembly.

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 bad 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. Her the time is fixed by affirmative words — "the second day." Affirmative words are often in their operation negative of other things than those affirmed. Thus a statute which provides that a thing shall be done in a certain way carries with it an implied prohibition against doing that thing in any other way. An enumeration of powers in a statute is uniformly held to forbid the things not enumerated. When Congress gave the Supreme Court of the United States appellate jurisdiction in certain specific cases, it was held to forbid that court from exercising appellate powers in all other cases than those specified. When national banks were empowered to make loans on personal security, it was holden that such a bank could not make loans on the security of a mortgage on real estate.

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 precede the right of the Assembly to choose the governor, it cannot be later than the second day of the session. The constitution provides that the fair list made by the treasurer, secretary and comptroller, and the returns from the presiding officers, shall be laid before the General Assembly on the first day of its session, and that the Assembly shall, after an examination of the same, find and declare. When examine? and when declare? It would seem that it must be done at once, and that the direction so to do is included in the very words used. It is obvious that the declaration of the result cannot be delayed so long as to prevent the Assembly, in case no person is chosen, from proceeding on the second day to choose a governor. The power to declare that no one is elected governor implies necessarily the power to declare that some one is elected. If the former is out off by the words of the constitution after the second day of the session, the latter is also cut off after that day.

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 no difference in their opinion as to the time when the result of the investigation, if one was made, must be declared, and the result in that case was declared on the second day of the session. In 1883 a somewhat similar case happened in the General Assembly. In each of these cases the opinion prevailed that the declaration in respect to the election of governor could not be made so late in the session as to prevent the Assembly, in case there was no choice, from proceeding on the second day to choose a governor. So far as usage can be relied upon to afford a correct interpretation of the constitution in this particular, it is uniform in one direction.

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 lull 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 would refuse to go on with legislation, animosities might be provoked, the public business would be neglected, and a condition of things alike discreditable to the participants and the state would be likely to be produced. Such a course would bring about the very evils which the examination that the General Assembly is directed to make was intended to prevent. The time and manner of the performance by the General Assembly of the duty to examine and find, must be construed in connection with the means provided, or which may be provided, for its performance, and as applicable to that condition of things which will exist when the General Assembly shall have prescribed suitable laws for its performance. That condition of things, which now exists solely because of the neglect of the General Assembly to prescribe suitable laws in this respect, cannot properly be urged as a reason for holding that the General Assembly should have a wider authority or a longer time for the examination, finding and declaration. The concluding sentence of that section of the constitution above quoted is, that "the General Assembly shall by law prescribe the manner in which all questions concerning the election of governor and lieutenant-governor shall be determined." By this direction the wisdom of the Assembly is left unfettered as to the laws by which it shall prescribe a manner for the determination of questions concerning the election of a governor and lieutenant-governor. It may require other and more complete returns from the presiding officers of the electors' meetings, or from the other officers of the election, as the registrars, counters and the like; or it may empower existing tribunals, or create other tribunals, to hear and report upon or decide all matters and questions which may arise at any electors' meeting in any voting district; only it would seem to be necessary that all such returns, or reports, or decisions, must be laid before the General Assembly on the first day of its session, to the end that it may itself make the final examination, finding and declaration, as required by the constitution. When the Assembly shall have performed this duty and shall have prescribed adequate laws for the determination of these questions, then the examination, the finding and the declaration will be a matter of no intricacy or doubt, and can readily be done on or before the second day of the session.

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 point was not fully argued at the healing, and as a decision upon it might affect other persons than those who are parties to this proceeding, the court does not now attempt to decide it.

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 operation of that provision would be to require or permit any governor to hold over for a large part of the term in tended for a successor. It is only because of the singular omission on the part of the General Assembly to prescribe suitable laws by which all questions concerning the election of governor shall be determined, that the present instance has been made possible. On the 4th day of November, 1890, the voters of this state expressed their choice for him whom they would elect to be governor. They intended to choose a governor to hold office from the Wednesday following the first Monday of January, 1891, to the corresponding Wednesday in January, 1893. The respondent was not one of the persons voted for. At the same election they also chose members of the General Assembly, to whom they committed the duty of examining the results of their choice for governor, and declaring the person who was elected, and of choosing a governor in case they had made no choice themselves. By the defects in legislation already mentioned, the will of the people in this respect has failed to be accomplished. A very great wrong is being done to them. The relator claims to have received a majority of all the votes cast for governor at said election. If his claim is correct a great wrong is being done to him. He has come into court seeking to establish his right to that office and to obtain redress for that wrong.

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 exclusive tribunal which has cognizance of the election of a governor. If, however, the General Assembly refuses to act, or if it be so that the General Assembly has jurisdiction of the election of a governor only in the manner and at the time pointed out by the constitution, then the relator is remediless unless the court may intervene. When the time is past within which the General Assembly may act its jurisdiction is gone. To hold that the Assembly has such exclusive jurisdiction, and that the court in no case can have the right to act, would be to afford an instance where a flagrant wrong was without a remedy. That such a result might follow is a powerful reason why that construction ought not to be adopted. Blackstone, at page 109 of the same volume cited above, speaking of what injuries are cognizable by the courts of the common law, adds: — "And herein I shall for the present only remark that all possible injuries whatsoever that do not fall within the exclusive cognizance of either the ecclesiastical, military or maritime tribunals, are for that very reason within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England that every right when withheld must have a remedy and every injury its proper redress."

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 is no tribunal specially authorized to make such decision, the courts must decide. And the courts always have jurisdiction unless the decision of the special tribunal is final and conclusive. And where such special tribunal exists, if it refuses to act, or from any cause fails to act, then the courts upon general principles, to prevent the failure of justice, and perhaps, to prevent anarchy and misrule, would seem to be authorized to make the decision.

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 relator elected upon the returns the declaration would give him only a primâ facie title to the office; and that if inducted into it upon such declaration, he might be ousted therefrom upon its being shown that he did not in fact have the real majority of the votes cast for governor. If the court should declare the relator elected upon the same returns it could give him no stronger title to the office than a declaration by the General Assembly. He could still be ousted upon a proper proceeding. It would be most un-seemly for the court to occupy itself in putting the relator into the office of governor, if by any possibility it might happen that the court would be required to remove him from that office as soon as he began to exercise it.

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 in-sufficient, and to sustain the demurrer.

In this opinion SEYMOUR, TORRANCE and FENN., Js. concurred.

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Addendum

I agree that the demurrer should be sustained and mainly for the reasons expressed in the foregoing opinion. But I cannot concur in all the views expressed on other matters; especially those relating to the power of the General Assembly to examine the returns and declare the result after the second day of the session. Neither do I wish to be understood as wholly dissenting. I think it wiser to say nothing, as the court is not called upon to express any opinion on that subject for several reasons: — 1st. The case lays no foundation for it. The record does not present that question. — 2d. It has not been discussed by counsel on either side. — 3d. The question relates to the constitutional power of the General Assembly in a matter within its jurisdiction. As a co-ordinate branch of the government it has the power and it is its privilege to determine that question for itself, subject possibly to the power of the court to declare the legislative action void, if it clearly violates the constitution and does injustice. — 4th. If at any time the legislature should ask our advice, then the question will properly arise.

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.

If the question as to the conclusive character of the returns had been decided in one way, perhaps the court might have retained jurisdiction and have disposed of the case. But I think on the whole that it is well to let the legislature have another opportunity to settle the matter.