Laxalt v. Cannon

• Decision Date: 22 December 1964
• Docket Number: No. 4847,4847
• Parties: Paul LAXALT, Contestant, v. Howard W. CANNON, Defendant.
• Court: Nevada Supreme Court

Page 466

397 P.2d 466

80 Nev. 588

Paul LAXALT, Contestant, v. Howard W. CANNON, Defendant.

No. 4847.

Supreme Court of Nevada.

Dec. 22, 1964.

Cameron M. Batjer, Peter D. Laxalt, Robert List, and John Tom Ross, Carson City, John W. Diehl, Fallon, Clark J. Guild, Jr., Reno, H. Russell Thayer, Carson City, on the brief, for contestant.

Harry E. Claiborne, Foley Brothers, and George Rudiak, Las Vegas, Woodburn, Forman, Wedge, Blakey, Folsom & Hug, Reno, for defendant.

THOMPSON, Justice.

This is an election contest for the office of United States Senator. It was commenced originally in this court. Paul Laxalt and Howard W. Cannon were opposing candidates for that office in the general election held November 3, 1964. In accordance with NRS 293.395(2) this court met with the Secretary of State on November 25, 1964, to canvass the vote. The Canvass showed Cannon to have won the election by a narrow margin. Laxalt made timely demand for a recount of the vote (NRS 293.403), and a statewide recount was conducted over a three day period and completed on December 2, 1964. The recount also showed Cannon to have won the election by a narrow margin, though slightly greater than before. On December 3, 1964, Laxalt filed a statement of contest with this court (NRS 293.407). On December 4, 1964, Governor Sawyer issued a certificate of election to Senator Cannon (NRS 293.395(3)). Subsequently, Senator Cannon filed a motion to dismiss this election contest, contending that this court does not have jurisdiction to decide it. Arguments on the motion to dismiss were presented December 10, 1964. As the need for an early decision was pressing, we departed from normal practice and decided the controversy that day, granting the Senator's motion to dismiss. This opinion is in explanation of that decision.

Senator Cannon's motion to dismiss the election contest is bottomed upon the express language of the Constitution of the United States, Art. I, § 5, stating that, 'Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members; * * *.' Because of that language it is his position that only the Senate of the United States has the power to judge the election and returns of a United States senatorial election. A fortiori, a state court is precluded from doing so. On the other hand, Laxalt, relying upon Art. I, § 4 of the United States Constitution which provides that the 'Times, Places and Manner of Holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; * * *' argues that an election contest pursuant to a state statute is part of the total election process contemplated by Art. I, § 4. While conceding that the ultimate power to judge and determine the winner of a senatorial race rests with the Senate, Laxalt finds no dilution of that power by permitting a state court first to decide the controversy as an aid to the final decision of the Senate. Authority overwhelmingly supports Senator Cannon's position. Belknap v. Board of Canvassers, 94 Mich. 516, 54 N.W. 376; State ex rel. Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504; Smith v. Polk, 135 Ohio St. 70, 19 N.E.2d 281; In re Opinion to The Governor, 41 R.I. 209, 103 A. 513; State v. Crawford, 28 Fla. 441, 10 So. 118, 14 L.R.A. 253; Odegard v. Olson, 264 Minn. 439, 119 N.W.2d 717; In re Williams' Contest, 198 Minn. 516, 270 N.W. 586; Burchell v. State Board of Election Com'rs, 252 Ky. 823, 68 S.W.2d 427; Sutherland v. Miller, 79 W.Va. 796, 91 S.E. 993, L.R.A.1917D, 1040; Annot., 107 A.L.R. 205. Indeed we find no contrary holding. The contestant's point of view is supported only by the obiter dicta of a concurring opinion in Odegard v. Olson, supra. The jurisdiction of the Senate to judge an election contest for the office of United States Senator is supreme and exclusive. In exercising such jurisdiction the Senate acts in a judicial capacity with full power to ascertain facts, compel the attendance of witnesses, examine witnesses, issue warrants of arrest, etc., and its determination is beyond the authority of any other tribunal to review. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867. The constitutional grant of judicial power to the Senate in this limited area, precludes a state court from judging an election contest involving a Congressional office. Smith v. Polk, supra; Burchell v. State Board of Election Commissioners, supra.

The general scheme of the federal constitution finds its counterpart in our state constitution, Art. 4, § 6, providing that 'Each House shall judge of the qualifications, elections and returns of its own members * * *.' It is equally well settled that such a state constitutional provision deprives the state courts of jurisdiction to decide election contests for state legislative offices. See Annot., 107 A.L.R. at 209. Of course, in Nevada the legislature has provided that such a contest shall be tried in either the state assembly or the state senate, depending upon the office in controversy. NRS 293.427. Because of the federal and state constitutional demands, it is doubtful that the legislature, by enacting NRS 293.407 (pursuant to which the instant contest was filed), ever intended that it embrace a contest for a seat in the United States Senate or House of Representatives. However, we need not decide the question of legislative intent.

We believe it appropriate to add an additional comment. Implicit in the concept of jurisdiction is the power to make a binding determination of the case or controversy before the court. Traditionally a court will not render an advisory opinion unless emplowered to do so by the organic law of the jurisdiction in which it sits. The contestant concedes that the United States Senate has the final authority, but argues that it is not exclusive. For this additional reason, we do not hesitate to declare that Art. I, § 5 of the United States Constitution invests the Senate of the United States with the supreme and exclusive jurisdiction to judge the election contest here presented. ...