84 Neb. 344 | Neb. | 1909
This is an action in the nature of a quo warranto, instituted by the relator, Willis D. Oldham, and against the respondent, James R. Dean, for the purpose of testing the right of said Dean to the office of judge of the supreme court. Sufficient facts are alleged in the information and answer to show the eligibility and competency on the part of both relator and respondent to hold said office if legally appointed thereto, and the only question is as to which of the parties received the legal appointment. So far as the facts involved in the case are concerned, there is practically no dispute. It is
The amendment made it the duty of the governor making the appointment to appoint tAVo judges for one year and two for three years. Doubts having arisen as to the authority of the state canvassing board to canvass the votes upon the subject of the adoption of the amendments, the joint convention of the legislature of 1909 made a demand upon the secretary of state that the returns sent the state canvassing board be submitted to that body in order that the vote be there canvassed, but which the secretary refused to furnish, claiming that the returns were required to be kept in his office as a part of the records thereof. A copy of the tabulated returns, as issued by his office in printed form, was procured with his certificate attached showing that it was practically a correct copy of the result of- the vote as canvassed by the state canvassing board. A canvass Avas made by the joint convention, the result -declared, and the newly elected governor issued his proclamation declaring the amendments adopted. lie then appointed four members
Section 1, art. XY of the constitution, provides that either branch of the legislature may propose amendments to that instrument, and, after due publication of the required notice, the same shall be voted upon at the next election for members of the legislature, and, if a majority of the electors voting at said election adopt such amendments, they shall become a part of the constitution. In the year 1877 the first session of the legislature after the adoption of the constitution passed an act entitled “An act to provide the manner of proposing amendments to the constitution, and submitting the same to the electors of this state.” Laws 1877, p. 114. The provisions of that act followed those of the constitution, except that it dealt more in detail with procedure, and we are not
“Section 4. Public notice that the proposed amendment or amendments is, or are to be voted upon, shall be given in each county in the same manner as is or may be required by law regulating general elections, and the returns shall be made and the votes canvassed in the same manner and by the same officers as is or may be required by the law in the case of electing the executive officers of the state.
“Section 5. If a majority of the votes cast at the election herein provided for, be for the proposed amendments, the governor, within ten days after the result is ascertained, shall make proclamation, declaring the amendments to be part of the constitution of the state.”
It will be observed that by section 4 it was provided that the votes upon a proposed amendment should be “canvassed in the same manner and by the same officers as is or may be required by the law in the case of electing the executive officers of the state.” As the votes cast for such officers are canvassed by the speaker of the house in the presence of a majority of the members of each house, it is clear that by that section the votes cast upon the proposed amendment should be canvassed in the same way. Section 4, art. Y of the constitution, requires the returns of every election for the officers of the executive department to be “sealed up and transmitted by the returning officers-to the secretary of state, directed to the speaker of the house of representatives, who shall, immediately after the organization of the house, and before proceeding to other business, open and publish the same in the presence of a majority of each house of the legislature, who shall, for that purpose, assemble in the hall of the house of representatives.” This provision of the constitution was elaborated by the act of 1877 (laws 1877, p. 143), and, so far as returns for election of state executive officers are concerned, was practically a restatement of the provisions of the constitution above quoted.
“Section 4. Public notice that the proposed amendment or amendments are to be voted upon shall be given as provided in section 1 of article 17 (15) of the constitution of this state and the returns shall be made and the votes canvassed in the same manner and by the same officers as now required by law in the case electing of presidential electors, judges of the supreme court and district courts and regents of the state university.” Laws 1895, p. 69.
As by the act of 1879 (laws 1879, p. 240), and which is still the law, the canvass of votes cast for presidential electors, judges of the supreme and district courts and regents of the university is to be made by the board of state canvassers, the act of 1895, if valid, took away from the speaker of the house the duty of canvassing the vote on constitutional amendments and cast it upon the state canvassing board. The section (Comp. St. 1893, ch. 3, sec. 4) was the same section as section 4 of the act of 1877.
The question here is: Does the failure of the senate journal to show any action by that body upon the amend
It is contended by the respondent: (1) That the mere silence of the senate journal upon the matter referred to, when considered in connection wfith the report of the senate committee on engrossed and enrolled bills,' the signing of the bill by the presiding officers of the tAVO houses and the approval by the governor raises no presumption that the bill was not legally passed, nor that this amendment was not concurred in by the senate, but that the well-recognized presumption groAviiig out of
A brief review of the cases decided by this court discloses the following: In State v. McLelland, 18 Neb. 236, it was held that, where an act was passed by both houses providing that in counties of 15,000 inhabitants the office of register of deeds should be created, and the bill as enrolléd and signed by the governor caused the change to be made in counties containing 1,500 inhabitants, the act was invalid because the bill signed by the governor had never been passed by the legislature, and the one passed had not been signed by the governor. The opinion is of considerable length and shows that at common law the bill as signed furnishes conclusive evidence that it was regularly passed, but that the provisions of the state constitution permit an investigation of the journals for the purpose of ascertaining if the requirements of that instrument have been complied with.
In State v. Moore, 37 Neb. 13, where a bill appropriating $15,000 for a specified purpose passed both houses, but by a clerical error of an enrolling clerk the figures were changed to $25,000, for the purpose named, and in that condition signed by the presiding officers of both houses and approved by the governor, it was held that the bill appropriated $15,000, and that the journals might be consulted for the purpose of ascertaining the facts, and that the enrolled and engrossed bills as signed by the presiding officers and the governor constituted prima facie evidence that they were duly passed in the condition in which they appear. In the opinion, while discussing the question of the right of the house to amend a bill which it had passed and which had been sent to the senate where it was amended and returned for concurrence, it is said: “We do not understand, however, that, as to the mere routine of parliamentary business, courts are required to interfere with legislative proced
In In re Granger, 56 Neb. 260, it was held that it was not competent to impeach the proceedings of the legislature by contradicting the journals of the house and senate and the facts proper to be inferred from the approval of the governor and the attestation of the bill by the officers of both branches of the legislature, and, in writing the opinion, Commissioner Ryan quotes with approval the following from State v. Francis, 26 Kan. 724: “In our opinion, the enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and that it is conclusive evidence of such regularity and validity, unless the journals of the legislature show clearly, conclusively, and beyond all doubt that the act was not passed regularly and legally. * * * If there is any room to doubt as to what the journals of the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid.”
In Webster v. City of Hastings, 56 Neb. 669, Commissioner Ryan, in writing the opinion, reluctantly followed the rule theretofore adopted in this state that the certificate of the presiding officer of the house over which he presided is merely prima facie evidence of the fact, and that evidence may be received to ascertain whether or not the bill actually passed; but Commissioner Ibvine presented a strong dissenting opinion, concurred in by Judge Sullivan, holding that “the enrolled act deposited with the secretary of state and bearing the certificates of the presiding officers of the two houses and the approval of the governor is the final and unimpeachable evidence
In State v. Abbott, 59 Neb. 106, it was held that the enrolled bill, authenticated by the proper officers of the house and approved by the governor, and the journals of the houses are the only competent' evidence in a controversy in regard to the due passage of the bill. This precise question here does not appear to have arisen in that case.
In Webster v. City of Hastings, 59 Neb. 563, it was held that the due authentication and enrollment of a statute affords only prima facie evidence of its passage; that the legislative journals may be examined for the purpose of ascertaining, -whether a measure was enacted in the mode prescribed by the constitution; that, if the entries found in such journals explicitly and unequivocally contradict the evidence furnished by the enrolled bill, the former will prevail; and that such journals kept in obedience to the command of the constitution are the best evidence of what affirmatively appears in them regarding the enactments of a law.
In State v. Frank, 60 Neb. 327, one of the questions presented was as to whether the silence of the journal was conclusive evidence of the non-existence of a fact which ought to be recorded therein regarding the enactment of the law, and Judge Sullivan, in writing the opinion, after citing the cases above referred to, says: “These cases hold that the records of the lawmaking body may be looked into for the purpose of ascertaining whether a statute has been constitutionally enacted; but they do not decide, or give countenance to the claim, that the silence of the journals, or either of them, is .conclusive evidence of the non-existence of any fact which ought to be recorded therein. What they decide is that the journals are unimpeachable evidence of what they contain; not that their silence convicts the legislature of having violated the constitution. Ew-ry presumption is in favor of the regularity of legislative proceedings, and it is rather
In State v. City of Wahoo, 62 Neb. 40, one of the questions presented was whether the silence of the senate journal upon the matter of the concurrence by that body, in an amendment by the house, would render the act invalid. The court, by Commissioner Hastings, say: “It is next asserted that the act of March 10, 1885, was not constitutionally passed, because it was amended in the house by inserting a repealing clause, and this was not concurred in by the senate. The journals of the house and senate are appealed to in order to sustain this contention. It is not claimed that the senate journal shows a non-concurrence in this formal amendment. It is merely claimed that an inspection of the journal fails to show a concurrence, and this is sought to be helped out by a showing that the message of the house to the senate stating the passage of the act calls attention to no amendment. We think that this condition of tilings hardly calls for a reversal of the lower court’s finding. The holding in State v. Frank, 61 Neb. 679, is that the silence of the journal is not to be taken as conclusive that the act was not passed. The rehearing opinion rests that decision chiefly upon the doubtful and mutilated condition of the journal. Hull v. Miller, 4 Neb. 503, dwells upon the distinction between mere silence of the journals and an affirmative shoAving that the constitution has not been complied with. The evidence in this case certainly shows a degree of carelessness in the journals that would amply justify the court in refusing to take their mere silence against the affirmative evidence of the signed and certified acts.”
In Hull v. Miller, 4 Neb. 503, referred to in State v.
In Colburn v. McDonald, 72 Neb. 431, it was held that the enrolled bill, signed by the officers of both houses and approved by the governor, as found in the office of the secretary of state, is prima facie evidence of its due enactment; that the journals may be looked into for the purpose of ascertaining whether the law was properly enacted, but the silence of the journals is not conclusive evidence of the non-existence of a fact which ought to be recorded therein regarding the enactment of a law; and that it must be made to affirmatively appear by such journals that the act did not pass. The same rule is clearly stated in Stetter v. State 77 Neb. 777, and in Stratton v. State, 79 Neb. 118, where it is said: “But, where the legislative journals are silent, this will not be taken as evidence that the constitutional requirements were not observed.”
Other cases, no doubt, might be cited from the reports of this state, and many more from those of .other states, but we deem it unnecessary to do so. From these cases we deduce the rule that the duly certified act of record in the office of the secretary of state raises the prima facie presumption that all steps required by the constitution in its passage have been duly observed and followed; that the journals of the houses may be resorted to for the purpose of showing affirmatively that such was not the fact, but that the mere silence of the journal, aside from
The law as it then stood was again amended in 1897, by chapter 5 of the laAvs for that year, and the act of 1895 Avas thereby repealed. By that act (1897) it was made the duty of the county clerks to make return of the vote on constitutional amendments to the board of state canAmssers “provided for in section 53 of chapter 26 of the Compiled Statutes of 1895, in fie same manner and within the same time that they are, required to make return of votes cast for officers mentioned in said last-named section and all such returns shall be directed to the secretary of state and transmitted to him in a separate envelope from the one containing the abstract and return of votes cast for the officers named in said section. The returns from the election officers shall be canvassed by the county canvassing board which canvasses the other election returns in the county. The said canvassing board of the county shall foot up from the returns made by the judges and clerks of election, (1) the number of electors voting at the election, (2) the number of electors voting at said election for the amendment or amendments, (3) the number of electors who voted against the amendment or amendments, (4) the number of electors voting at said election who voted for senators, (5) the number of electors voting at said election who voted for representatives, (6) the number of electors voting at such election who voted for both senators and representatives, and shall enter their findings in the book wherein the canvass of other election returns is made and
The condition of the law is that the returns from the different counties upon the subject shall be sent to the state canvassing board, and from thence they go no further. There is nothing requiring them to be sent to the speaker óf the house, as in the case of the executive state officers, members of congress and United States senators, and Ave find no proAdsion requiring the secretary of state or other officer to forward them to him. They are required to be sent to the state canvassing board, and there they must rest. In this condition of the law, Ave are driven to seek the intention of the legislature, to be derived from what it has said as to the canvass of those returns and by whom. There can be no doubt but that it was intended that they should be canvassed by some one in order that the result of the election and choice of the people should be made known. The creation of the state
The claim of relator to the office in dispute is based upon the proceedings of the joint conventions of the two houses of the legislature held on the 6th and 12th day of January, 1909, and our attention is urgently directed to those proceedings. On the 6th of January (the first session) the following announcement was made by the president: “Gentlemen of the joint assembly: In accordance with the provisions of section 4, article 5 of the constitution of this state, we have met in joint convention to witness the opening and listen to the publishing by the speaker of the house of representatives of the returns of the votes cast at the general election held on the 3d day of November, 1908, for officers of the executive departments, members of Congress, railway commissioner and the vote on the constitutional amendments.” Section 4, art. Y of the constitution, is as follows: “The returns of every election for the officers of the executive department shall be sealed up and transmitted by -the returning offi
Just where or how the president obtained his authority for declaring that the convention had met for the purpose of listening to the opening and publishing of the returns of votes cast “on constitutional amendments,” we are not informed. It is clear that no such authority is given in the section of the constitution referred to or elsewhere, and it must be equally clear that the declaration of the presiding officer could not confer such authority. The record recites: “Whereupon the speaker directed the secretary and chief clerk to open the seals of returns from the several counties of the state.” . It is plain that the returns of the vote on constitutional amendments were not then before the convention or in its. possession, for one of the members offered the following motion: “I move that the secretary of state be required to forthwith lay before this joint convention the returns made to his office by the county clerks of the votes cast at the election in November, 1908, on the proposed amendment to the constitution of the state in reference to the' judiciary.” Another member moved to amend “by moving that we proceed to canvass the vote on state officers and congressmen.” The convention then took a recess until 3 o’clock P. M. It reconvened at that hour, when the following amendment to the last motion was offered by another
A resolution was then offered which, notwithstanding its length, we here copy: “Whereas, the legislature of the state of Nebraska, in its thirtieth session, to wit, in the year 1907, submitted to the electors of the state two proposed amendments to the constitution of the state to be voted on by the electors at the election to be held on the 3d day of November, 1908, to wit; a proposed amendment to sections two (2), four (4), five (5), six (6) and thirteen (13) of article six (6) of the constitution of the state of Nebraska relating to judicial powers, which proposed amendment was made in a bill known as Senate File No. 386, and another proposed amendment to section nine (9), article eight (8) of the constitution of the state of Nebraska, relating to the investment of funds of the state for educational purposes, which last mentioned amendment was made in a bill known as Senate File No. 163, both of which bills were duly passed by said legislature, and said amendments thereby submitted to the electors of the state to be voted on at said election on November 3, 1908; and Whereas, said election was held and the said amendments Aroted on at said election and the canvass thereof made by the election officers in the several counties, and the county canvassing boards of the several counties canvassed the votes on said amendments in their respective counties, and the county clerks of the several counties transmitted the returns to the state board of canvassers as provided by law; and Whereas, said returns on said amendments are now on file in the office of secretary of state as required by law and are in his custody as such secretary of state; and Whereas, there was no authority in the state board of canvassers to canvass the returns of the votes on said two proposed amendments to the constitution of the state; and Whereas, this
“The following motion was offered: ‘I move the foregoing be entered of record as the judgment of this joint convention.’ Upon request of representative Nettleton the roll was called. Twenty senators voted in the affirmative, thirteen in the negative. Fifty-four representatives voted in the affirmative and thirty-six in the negative. Ten members of the house were absent or excused. Mr. Taylor of Custer explained his vote as follows: ‘The returns are not here. This canvass is not in accordance ¡with section four (4) article five (5) of the constitution.
These proceedings lead us to inquire as to the duties and powers of the joint convention. For this purpose we again refer to the section of the constitution above quoted. The whole duty of opening and publishing returns is devolved upon the speaker. The only obligation upon the members of the two houses, in so far as that duty is concerned, is that they (a majority of each house) shall be present. The person having the highest number of votes for either of said offices shall be declared duly elected; but, if two or more have an equal and the highest number of votes, the legislature shall, by joint vote, choose one of such persons for said office. This appears to be the sole active duty of the convention. It is the duty of the speaker alone to open and publish the returns. The act is especially enjoined upon him by law as a duty resulting from his office as speaker. It is a ministerial duty positively imposed by law, in regard to which he is vested with no discretionary power. The joint convention has no power or authority to postpone the discharge of his duty to another or later time. He can be compelled by mandamus to proceed at once to discharge the duty imposed upon him. These propositions are fully settled and determined in State v. Elder, 31 Neb. 169, and dispose of the contention that the act of opening and publishing the returns is legislative, and not ministerial. It is true that the conferring of the power or authority to open and pdblish the returns is legislative, that is, there must be some law first enacted by the people or legislature conferring that power, but that must be general in its application, and is no part of the opening and publishing of the returns, which all authority holds to be ministerial.
It must also be clear to every one who reads that the
It must be conceded by all that the returns of the vote on the constitutional amendments were never in the hands of the speaker. If it had been the duty of the secretary of state to put them there, the courts were open, and the discharge of the duty could have been compelled. The evidence which the speaker had was a certificate of the secretary of state that the printed abstract of votes upon Avliich the speaker acted was “practically a true copy of the abstract as canvassed by the state canvassing board.” Not the returns, nor indeed a copy thereof, but “practically” a copy of the result of the work of the state board of canvassers. If their canvass was void, their abstract would be equally so and furnish no basis upon which the speaker could act. If the abstract was not void, it was because the board of canvassers had the right to make it, and their acts were legal. When the speaker had opened and published the returns which by law it was his duty to open and publish, and had declared the persons elected to the several executive offices, his duties were at an end, and nothing further was to be done. The adjournment at that time terminated the work of the convention.
For the reasons here stated, and many others not necessary to be here noted, we are forced to concede the truth of the statement of representative Taylor of Custer, when casting his vote, that the canvass was not in accordance
The relation is dismissed, and the judgment will be in favor of the respondent.
Judgment for respondent.