McConaughy v. Secretary of State

• Decision Date: 08 January 1909
• Docket Number: 15,823 - (25)
• Parties: SAMUEL G. McCONAUGHY v. SECRETARY OF STATE
• Court: Minnesota Supreme Court

119 N.W. 408

106 Minn. 392

SAMUEL G. McCONAUGHY v. SECRETARY OF STATE

Nos. 15,823 - (25)

Supreme Court of Minnesota

January 8, 1909

By chapter 168, Laws 1905, the legislature proposed an amendment to article 9 of the constitution to take the place of sections 1, 2, 3, 4 and the amendment added in 1896, the proposed amendment being commonly called the tax amendment. By chapter 212, Laws 1905, the legislature proposed an amendment to section 16 of article 9 of the constitution commonly called the good roads amendment. These amendments were submitted to popular vote at the general election in November, 1906. The state canvassing board found from the returns that 156,051 votes had been cast for the tax amendment and declared that amendment carried, and the Governor made his proclamation thereof. The same board found that 141,870 votes had been cast for the good roads amendment and declared this amendment failed of adoption. On December 31, 1906, Samuel G. McConaughy served notice of appeal to the district court for St. Louis county, with points of contest upon the secretary of state, and on the same day F. A Watkins served notice of appeal to the district court for Carlton county, with points of contest, upon the secretary of state. The ground of the McConaughy contest was that the order in which the amendments named were printed in small type on the official books and tally sheets was not the same as the order in which they were printed on the official ballot, and that in consequence of such inverted order the votes were erroneously canvassed and returned, and that if corrected the tax amendment was lost. The ground of the Watkins contest was the same, and he alleged that in consequence the good roads amendment was carried. This contest was transferred to the district court for St. Louis county, and the two proceedings were consolidated and tried together.

Inspectors were appointed to inspect the ballots and they counted the ballots in 654 election districts and in all about 141,000 ballots; they found the ballots in 71 additional election districts had been lost or destroyed; in 65 election districts ballots counted by the inspectors were withdrawn at the trial, and it was stipulated that 470 ballots not received in evidence should be counted as that many votes in favor of the tax amendment and as that many votes against the good roads amendment. The inspectors counted some ballots from 73 out of the 83 counties in the state, but not all the ballots in any one county were counted.

Both proceedings were heard before Dibell, J., who made findings of fact that because the two amendments did not appear in the same order on the tally sheets and the official ballot many mistakes and errors were made by the election officers in reporting and recording the votes upon the amendments whereby more votes were counted for the tax amendment than were cast therefor and fewer votes were counted for the good roads amendment than were cast therefor. As conclusions of law he found that a majority of all electors of the state voting at the election of November, 1906, did not vote for or ratify the tax amendment, and that a majority of such electors did vote for and ratify the good roads amendment. "No record of the proceedings in the lower court has been made," and the case was "submitted solely on the findings of the trial judge." From the judgment entered pursuant to the order for judgment, the state appealed. Reversed.

SYLLABUS

Amendments to Constitution.

The legislature of 1905 proposed to the people of the state for their approval or rejection two amendments to the constitution, one commonly known as the "tax amendment," and the other as the "good roads amendment." The two amendments were voted on at the general election held November 6, 1906. On December 21 the state canvassing board found from the returns submitted to it, and certified, that the tax amendment had been adopted and the good roads amendment defeated. The Governor, as required by law, then proclaimed that the tax amendment had been duly adopted and become part of the constitution of the state.

Thereafter a contest of the declared result was instituted in the district court by an elector, as authorized by the statute, and inspectors were appointed, who inspected the ballots cast on the two amendments in 654 of the 2,670 voting districts in the state. No effort was made to inspect the ballots in 1,945 districts. The court found that the tax amendment had been lost and the good roads amendment adopted. In order to reach this conclusion it was assumed that a uniformity of error had been established, due to the transposition of the amendments on the ballots and tally sheets, whereby votes cast for the good roads amendment were counted for the tax amendment, and votes cast for the tax amendment were counted for the good roads amendment, and that the errors disclosed in the recounted districts would continue throughout all the districts in the state.

On appeal it was also contended that the contestant, after having recounted the ballots in certain districts and disclosed errors sufficient to overcome the declared majority in favor of the tax amendment, might rest and rely upon the declared vote in the remaining districts. Held:

Decision not Supported by Findings.

(a) That the conclusions of law are not justified by the findings of fact.

Jurisdiction of Courts.

(b) The courts of this state have jurisdiction to determine whether a constitutional amendment has been legally submitted to and adopted by the people.

Political Question -- Legal Question.

(c) Whether a constitution shall be amended is a political question. Whether it has been legally amended is a judicial question.

Certificate of State Canvassing Board not Conclusive.

(d) The statement and certificate of the state canvassing board and the proclamation of the Governor that a proposed amendment to the constitution has been adopted is not final and conclusive upon the judicial department of the government.

Statutory Procedure Adequate.

(e) The statutory procedure for contesting the declared result of a popular vote on the adoption or rejection of a proposed amendment to the constitution is adequate for the purpose.

Contest a Search for Truth.

(f) A contest of this character is not in a strict legal sense an adversary proceeding. It is more in the nature of an investigation for the purpose of discovering the truth, in which no one individual has any direct personal interest antagonistic to the general public. It must be conducted in the manner required by the statute, and an orderly proceeding requires that the general rules regulating the production of evidence shall be observed. But it is not necessary or desirable that every technical rule of evidence shall be observed with extreme nicety, nor should the result, in a matter of such public importance, be determined by a nice balancing of presumptions and probabilities.

Evidence Insufficient to Warrant Presumption.

(g) In this proceeding the contestant sought to overthrow the result of the election in the state as declared by the state board of canvassers and proclaimed by the Governor. He alleged errors in every voting district in the state, due to a cause which operated in every district, and offered evidence which overthrew the declared result in certain precincts only. The findings of fact made by the trial court did not justify the inference that the errors against the tax amendment would continue throughout the uncounted districts.

Certificate of State Canvassing Board -- Presumption.

(h) The controlling presumption in this proceeding is that which arises from the statement and certificate of the state canvassing board. In a collateral proceeding this certificate is conclusive, and in a direct attack it can be overthrown only by very clear and satisfactory evidence. The burden throughout was upon the contestant. The correctness of the certificate of the state board depended upon the result of the total vote in the state, regardless of the shifting results in particular precincts. It could be determined only by a recount of the entire vote, or of such a proportion thereof that, even if all the remaining votes were counted one way, it could not affect the final result.

Edward T. Young, Attorney General, and George T. Simpson, Assistant Attorney General, for the State.

The adoption of a constitution or an amendment thereto is a political act performed by the people as a body politic. Neither the courts nor any other branch of the government can question the action of the people in adopting their constitution. The thing created cannot in the very nature of things pass upon the existence of its creator. Luther v. Borden, 7 How. 1, 34; Miller v. Johnson, 15 L.R.A. 524; Andrews v. Page, 50 Tenn. 653, 659.

The district court erred in making and filing its order and judgment herein for the reason that the statute under which it assumed so to do is void for vagueness, incompleteness and uncertainty: (a) There are no adversary parties; the application to the district court by the contestant is ex parte, and there is no provision for representation by the people of the state. (b) No provision is made therein for the preservation of the ballots cast on the constitutional amendments either before or after the statutory inspection thereof. (c) The district court in such a contest has no one before it as contestee upon whom its judgment can operate.

H. H. Phelps, C. O. Baldwin, and William W. Billson, for respondents.

The judiciary is the proper authority to determine whether the proposed amendment is part of the constitution. Luther v Borden, 7 How. 1; Miller v. Johnson, 15 L.R.A. 524, and note; Koehler v. Hill, 60 Iowa 543; Dayton...