Allen v. Burrow

• Decision Date: 07 July 1904
• Docket Number: 14,011
• Parties: HENRY J. ALLEN v. J. R. BURROW
• Court: Kansas Supreme Court

77 P. 555

69 Kan. 812

HENRY J. ALLEN v. J. R. BURROW

No. 14,011

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Original proceeding in mandamus.

Motion to dismiss denied.

SYLLABUS

SYLLABUS BY THE COURT.

1. ELECTIONS -- Provision for State Contest Board Upheld --Case Affirmed. The provision of the Australian-ballot law creating a special tribunal for the settlement of disputes regarding nominations for public office, and making its decisions final, is not unconstitutional as granting judicial powers to executive officers, or as impairing the original jurisdiction of the supreme court. The case of Miller v. Clark, 62 Kan. 278, 62 P. 664, is affirmed.

2. ELECTIONS -- Determination of Contest Board Final unless Prior Corrupt Agreement be Shown. A dispute over which of two persons is the regular nominee of a political party for a public office can ordinarily be settled only by the special tribunal to which the statute commits the determination of such questions, but if it be established that a majority of the members of such tribunal have entered into a corrupt agreement with one of the parties to give him the decision, regardless of the merits of the case, the courts will take jurisdiction of the controversy, and decide it, in a proceeding in mandamus to compel the certification of the proper name for printing on the official ballot.

W. S Jenks, O. L. Miller, A. L. Berger, W. D. Wood, and D. R. Hite, for plaintiff.

H. G. Larimer, C. C. Coleman, attorney-general, F. R. Ogg, G. J. Barker, and C. W. Trickett, for defendant.

MASON J. All the Justices concurring.

OPINION

MASON, J.:

This is an original proceeding in mandamus by which it is sought to require the secretary of state to certify to the various county clerks of the counties comprising the second congressional district the name of Henry J. Allen as the republican nominee for congressman from that district. The affidavit for the writ discloses that two certificates of nomination have been filed with the secretary of state, each purporting to be authenticated by the officers of the regular republican congressional convention, one naming plaintiff as the nominee, the other naming J. D. Bowersock; that the question of which of them should be recognized has been considered by the officers to whom the statute (Gen. Stat. 1901, § 2703) commits the determination of such matters; and that a majority of them have decided in favor of the latter. To obviate the effect of that decision three contentions are made: (1) That the statute creating such tribunal and making its decision final is unconstitutional in that it devolves judicial functions upon executive officers and in that it impairs the original constitutional jurisdiction of the supreme court in mandamus; (2) that the certificate filed with the secretary of state on behalf of Bowersock was insufficient to be the basis of any inquiry, and that on account of certain matters of procedure the decision was without jurisdiction; (3) that the decision was wrong in fact and in law, and was made in pursuance of a fraudulent plan to prevent the placing of plaintiff's name upon the ballot, to which fraud the officers making the decision were parties.

An alternative writ has been issued and an answer has been filed denying its material allegations. The defendant, however, by a motion to dismiss the proceeding, which is equivalent to a motion to quash the alternative writ, challenges the jurisdiction of this court to grant the plaintiff any relief, even assuming the facts to be as stated by him. The determination of this preliminary question is the purpose of the present inquiry.

The statute, the benefit of which is invoked by defendant and the validity of which is denied by plaintiff, reads as follows:

"The certificate of nomination and nomination papers being so filed, and being in apparent conformity with this act, shall be deemed to be valid, unless objection thereto is duly made in writing within three days from the date said papers are filed with the proper officers. Such objections or other questions arising in relation thereto, in the case of nominations of state officers or officers to be elected by the voters of a division less than a state and greater than a county, shall be considered by the secretary of state, auditor of state, and attorney-general, and a decision of a majority of these officers shall be final."

The constitutionality of this statute was upheld by this court in Miller v. Clark, 62 Kan. 278, 62 P. 664, against the very attack now made upon it, supported by substantially the same arguments now urged upon our attention. In the brief of the plaintiff in that case it was said:

"The power attempted to be conferred on the secretary of state, auditor and attorney-general by section 144 of chapter 36, General Statutes of 1899 (Gen. Stat. 1901, § 2703), is clearly a judicial one. These officers belong to the executive branch of the government and judicial power cannot be conferred upon them."

This contention was held not to be well founded, and we are satisfied with the conclusion there reached. In the opinion the power conferred upon the officers named was described as quasi-judicial. In Meffert v. Medical Board, 66 Kan. 710, 72 P. 247, this term was applied to the functions of the state board of medical registration and examination, which was said not to be a judicial body, although by its determination a physician might be deprived of his means of livelihood. Executive officers are often charged with duties so far judicial in their nature that they require the investigation and decision of questions involving valuable rights. The principle requiring the separation and independence of the three departments of government, the executive, legislative, and judicial, does not demand the absolute isolation of each from the others. One person may exercise different duties not clearly assignable to the same department, where there is no inconsistency between them. But the same officer or body may not act in different capacities with respect to the same subject-matter. (The State v. Johnson, 61 Kan. 803, 60 P. 1068, 49 L. R. A. 662.)

Speaking of the law imposing upon probate judges the duty of issuing permits for the sale of liquor, Justice Brewer said, in Intoxicating-liquor Cases, 25 Kan. 751, 760, 37 Am. Rep. 284:

"It may be conceded that it would be more logical and less objectionable to say that the legislature may create an office with specified duties, and then make the person holding the position of probate judge the incumbent of such office, than to hold that certain duties may be cast directly upon the person holding the office of probate judge. But substance is above form. That which may properly be done in one way ought to be upheld, if possible, though done in another way; and an act of the legislature should be sustained whenever by any reasonable construction the act can be brought within the scope of the legislative power. If in this case the legislature had created the office of commissioner of licenses, and provided that the probate judge should ex officio be such commissioner, there could be little doubt of the constitutionality of such an act. Substantially the same thing is accomplished by casting upon him the duties named in this act. And having in view the duty of upholding an act of the legislature wherever possible, the past decisions of this court, the general recognition by all departments of the government--executive, legislative, and judicial--of the correctness of such exposition of constitutional limitations, and the substance rather than the form of this proceeding, we think the casting of this duty respecting permits upon the person holding the office of probate judge must be adjudged within the power of the legislature."

Applying this reasoning to the present case, it may be said that the legislature, having in mind the necessity of providing for the settling of disputes as to the nominations of political parties in a summary way, has created a special tribunal for that purpose, having a membership of three; that, instead of providing for the appointment or election of the members of such board, it has enacted that it shall be made up of the individuals who at the time hold the offices of secretary of state, auditor of state, and attorney-general. These officers, in exercising the duties devolved upon them by this statute, do not, in any sense important to this discussion act in their respective capacities of secretary of state, auditor, and attorney-general, and would not in such capacities be chargeable with any dereliction of which they might be guilty as members of such tribunal. (The State, ex rel., v. Brown, Probate Judge, 35 Kan. 167, 10 P. 594.) Other officers, instead of those selected, might have been designated for the purpose with equal propriety. They were not chosen for any supposed connection between their respective departments and the matters to come before the new board. It is true that the secretary of state happens to be the officer who has custody of the certificates of nomination and who is required to transmit to the county clerk the names of the persons found to have been duly nominated, but this duty is purely ministerial and can be controlled by mandamus. It is in no way involved with the matter of passing upon the question of who are the regular nominees. The attorney-general is the constitutional adviser of the other two officers who are associated with him upon this contest board, but only in their respective capacities as secretary and auditor of state, not as members of the board. Upon questions of law arising before that body he has no more authority than either of the others. There is no possible interference or...