In re Quære of The Procedure of the Two Houses of the Legislature in Contests of the Election of Executive Officers

• Citation: 31 Neb. 262,47 N.W. 923
• Parties: IN RE QUÆRE OF THE PROCEDURE OF THE TWO HOUSES OF THE LEGISLATURE IN CONTESTS OF THE ELECTION OF EXECUTIVE OFFICERS.
• Decision Date: 27 January 1891
• Court: Supreme Court of Nebraska

31 Neb. 262

47 N.W. 923

IN RE QUÆRE OF THE PROCEDURE OF THE TWO HOUSES OF THE LEGISLATURE IN CONTESTS OF THE ELECTION OF EXECUTIVE OFFICERS.

Supreme Court of Nebraska.

Jan. 27, 1891.

Syllabus by the Court.

1. The last clause of section 4, and section 15 of article 5 of the constitution, and the last clause of section 77 of chapter 26 of Compiled Statutes construed, and held, that the passage and adoption, by the legislature, in the manner provided by law, of a concurrent resolution fixing a day for the uniting of both houses to determine by joint vote contested elections for officers of the executive departments, its signing by the presiding officer of each house, its presentation to and approval by the governor, or, in case of his return of the same with objections within five days, Sundays excepted, its reconsideration and approval by three-fifths of the members elected to each house, are indispensable proceedings to the legality of a joint meeting of the two houses to determine contested elections.

2. Held applicable to the procedure contesting the election of persons declared elected to the offices of governor and lieutenant governor, who have qualified and entered upon their duties, and applicable to all other executive officers.

3. A casus omissus in a statute cannot be supplied by a court of law, for that would be to make laws. BULLER, J., in Jones v. Smart, 1 Term R. 51.

Application by the house of representatives for a construction of an article in the constitution.Lamb, Ricketts & Wilson, Allen, Robinson & Reed, and V. O. Strickler, for the constitutionality of contest proceedings under a joint resolution without the signature of the governor and lieutenant governor.

Charles L. Hall and J. C. Cowin, opposed.

COBB, C. J.

The following resolutions were presented to the court by a committee of the joint session of the two houses of the legislature, requesting the opinion of the court therein:

“Whereas, there are certain members of this joint convention in doubt as to the constitutionality of our procedure, without the signature of the de facto governor and lieutenant governor of the state to the joint resolution by which we are convened; and whereas, there is a general desire among such members to have the construction of the honorable supreme court upon the matter; therefore, be it resolved, that the speaker of the house appoint a committee of three to wait upon the honorable judges of the supreme court, and ask for an immediate opinon upon the following questions, to-wit:

‘To the Honorable the Supreme Court of the State of Nebraska: Be it resolved by the senate and house of representatives of the state of Nebraska, sitting at a joint convention under section 4, article 5, of the said state, to try certain contests for the executive officers named in section 1, article 5, of the constitution, as follows: Whereas, a question has arisen as to the constitutional right of this joint convention to proceed with the trial of certain contests for the several executive officers named in section 1, article 5, of the constitution of Nebraska, without the joint or concurrent resolution therefor being first signed by the governor of the state; therefore be it resolved, that the opinion of the supreme court of the state of Nebraska be, and the same is hereby, asked upon the following questions: First. Where a contest is pending before this joint convention, convened in the manner and for the purpose aforesaid, for the office of governor of the state of Nebraska, and the contestee therefor is the acting or de facto governor of the state, is it necessary to the constitutionality or validity of the resolution therefor named in section 77, chapter 28, of the Compiled Statutes, that such resolution shall first be signed or approved under section 15, article 5, of the constitution of this state by said acting or de facto governor? Second. If such resolution should be presented to the acting or de facto governor of this state, he at the time being a contestee for the office of governor, which is to be determined by this joint convention acting under said resolution and under the constitution and the statutes, and he should withhold such resolution or veto the same, would this joint convention, notwithstanding that fact, by a majority vote have the legal power to proceed and determine said contest under such resolution? Third. Where the office of lieutenant governor is also being contested before this joint convention as provided by the constitution and the statutes of the state, would it be necessary to the legality of the proceeding of this joint convention that the resolution for a joint convention to try the contested election for said office at the same time that the contest for the office of governor is to be tried should be presented to the acting or de facto lieutenant governor for his signature, and, if the acting or de facto lieutenant governor should withhold his signature from said resolution or veto the same, would this joint convention, notwithstanding that fact, have a right to proceed to try said contests? Fourth. Where all of the executive officers named in section 1, article 5, of the constitution are being contested, and the senate and house of representatives have duly passed a concurrent or joint resolution fixing the time and place for the trial of said contests, as provided by the constitution and the statutes, is it necessary to the validity of such resolution or the proceedings in such contests that such resolution be presented to either the acting or de facto governor or de facto lieutenant governor, each of whose offices are being contested, and are mentioned and are embraced in said resolution? We respectfully ask an early answer to these questions.’

Whereas, this joint convention is meeting by virtue of separate motions fixing the time thereof, passed by the senate and house of representatives, as well as by virtue of a concurrent resolution, and whereas, other questions may arise thereunder in the minds of many members which may require the opinion of the honorable supreme court; therefore be it resolved by this joint convention that copies of said motions and this resolution be transmitted to said court, and under said motions the court be requested to answer the following question, to-wit: ‘Has this joint convention the right to sit and determine the various contests for executive state officers under said motions, regardless of any provisions of a joint or concurrent resolution?’ Attest: C. H. PIRTLE, Secretary of the Senate.

Whereas, the house of representatives has been officially notified that a contest for each of the several executive officers of the state of Nebraska for the term commencing on the first Thursday after the first Tuesday of January, 1891, is now pending, wherein John H. Powers is contestant and James E. Boyd is contestee for the office of governor of the state of Nebraska; W. H. Dech is contestant and T. J. Majors is contestee for the office of lieutenant governor of the state of Nebraska; C. N. Mayberry is contestant and John C. Allen is contestee for the office of secretary of the state of Nebraska; John Batie is contestant and T. H. Benton is contestee for the office of auditor of public accounts of the state of Nebraska; J. V. Wolf is contestant and J. E. Hill is contestee for the office of treasurer of the state of Nebraska; J. W. Edgerton is contestant and George H. Hastings is contestee for the office of attorney general of the state of Nebraska; W. F. Wright is contestant and A. R. Humphrey is contestee for the office of commissioner of public lands and buildings of the state of Nebraska; and A. d'Allemand is contestant and A. K. Goudy is contestee for the office of superintendent of public instruction of the state of Nebraska; and that a large amount of testimony has been taken in said several contests which is awaiting the consideration of the senate and house of representatives in joint convention; therefore, be it resolved, that Tuesday, the 20th day of January, 1891, at the hour of 10 o'clock A. M., is hereby fixed for a meeting of the senate and house of representatives in joint convention to hear and determine said several contests, with power to do everything in the premises necessary to the full and final determination thereof, and that the senate be asked to concur in this resolution.

S. M. ELDER, Speaker.

Attest: Eric Johnson, Chief Clerk.

In senate, January 19, 1891, read the third time, on separate days, and passed.

C. H. PIRTLE, Secretary.”

The following opinion, delivered extemporaneously from the bench by the chief justice, was reported, and, upon revision, became the opinion of the court:

Upon the adjournment of this court last night I was of the impression, and, I believe, so intimated, that we would immediately commence and write out an opinion in the regular way upon the propositions submitted. I did not expect then to deliver our decision in the manner in which it is now proposed to do it; but there are reasons deemed imperative why we should announce extemporaneously the decision we have come to now, and perhaps take a longer time in the preparation of the final opinion than we feel at liberty to withhold our decision from the parties interested, especially the members of the legislature. I may say that we find it a larger question than we, or perhaps the public, supposed it to be. While this matter has been agitating the public of the state, and attracting a great deal of attention, for a month or six weeks,--since shortly after the election,--busy people have not had the opportunity of giving it any of that technical and special examination which law questions of importance demand, and especially one of this magnitude. It will be conceded, I think, universally, that the right of contest of an election otherwise than by legal proceedings in the proper court is a creature of the constitution and statutory laws. It...