Higgins v. Berg

• Decision Date: 17 October 1898
• Docket Number: Nos. 11,490 - (261).,s. 11,490 - (261).
• Citation: 74 Minn. 11
• Parties: GEORGE W. HIGGINS and Others v. ALBERT BERG.
• Court: Minnesota Supreme Court

74 Minn. 11

GEORGE W. HIGGINS and Others v. ALBERT BERG.

Nos. 11,490 - (261).

Supreme Court of Minnesota.

October 17, 1898.

George W. Higgins, A. H. Gilmore, Archibald A. Stone, Delbert U. Weld and Daniel W. Doty petitioned the supreme court for an

order requiring the respondent Berg, as secretary of state, to place the names of petitioners, as candidates of the Prohibition party for the offices of governor, lieutenant governor, secretary of state, state auditor and attorney general, respectively, in the second place in the list of candidates for each office instead of in the third place in such list. The proceedings mentioned in the opinion were had therein. Order to show cause discharged.

Daniel W. Doty, for petitioners.

H. W. Childs, Attorney General, for respondent.

START, C. J.

The petitioners are the candidates of the Prohibition party for the offices of governor, lieutenant governor, secretary of state, state auditor and attorney general, respectively, to be voted for at the next general election. The party made no nominations for justices of this court, hence all of its candidates are united in the petition herein. The petition alleges that at the last general election the Republican party polled the highest number of votes and the Prohibition party the next highest number of votes, 7,000 in all, therefore it is entitled to the second place on the official ballot, but that the respondent as secretary of state in making up the sample ballot had made a mistake which he refuses to correct, in that he has assigned to the petitioners the third place in the list of party candidates on the ballot.

Upon the presentation of the petition to a justice of this court pursuant to the provisions of G. S. 1894, § 48, an order was made directing the respondent to make the correction or show cause before the court why he should not do so.

The respondent appeared by the attorney general, who suggested to the court that it had no jurisdiction in the premises, for the reason that the respondent belonged to the executive department of the state government as defined by the constitution, and therefore was not subject to the direction and control of the judiciary, a co-ordinate department of the state government, as to any duties imposed by law upon him as secretary of state. After making the suggestion the respondent filed his return to the order, with the statement that he submitted the whole matter to the court and was ready to make any corrections in the official ballot the court might direct, but further suggested that unless such directions, if any, were promptly given, he would be unable to comply with the law as to the printing and distribution of the official ballots. The petitioners admitted the facts stated in the return, and the cause was submitted to the court for its decision upon the record.

The question of jurisdiction is one of great importance, and it must be admitted that the decisions of this court prior to the case of Hayne v. Metropolitan Trust Co., 67 Minn. 245, support the suggestion of the attorney general, but in that case it was intimated that this court had gone to the extreme length in holding executive officers of the state, especially those other than the governor, exempt from the control of the court, and refused to apply the doctrine to a case against the state auditor where it was sought to compel him to perform an official act that in no manner affected the interest of the state, but the performance of which was essential to the protection of the legal rights of individuals. Whether the case at bar falls within the principle announced in that case, and if not, whether the earlier cases should be so modified as to exclude this case from the general doctrine therein held, is a grave question involving a careful re-examination of the whole subject and a definite and accurate statement of the exceptions to the general doctrine, if any are to be made. The absolute necessity of a speedy decision of this case makes it impracticable to enter upon such an examination of the question. We therefore assume, without so deciding, that the statute, by virtue of which this proceeding was instituted, is constitutional. It is the mandate of the legislature and presumed to be constitutional.

Touching the merits of the case the facts are briefly these: Prior to the general election of 1896 the Democratic party and the People's party were separate political parties; each of them at the then last general election polled more than one per cent. of the entire vote cast in the state; each party separately nominated the same candidates for the several state offices to be voted for at the general election of 1896, and their names were placed on the official ballot for that year. The average vote polled at such election by the two parties for the candidates so nominated by them exceeded 140,000, while the average vote...