Prince v. Skillin

• Citation: 71 Me. 361
• Parties: WILLIAM L. PRINCE v. WILLIAM B. SKILLIN.
• Decision Date: 10 August 1880
• Court: Supreme Judicial Court of Maine (US)

71 Me. 361

WILLIAM L. PRINCE v. WILLIAM B. SKILLIN.

Supreme Judicial Court of Maine.

August 10, 1880

The opinion states the case.

Ardon W. Coombs, for the petitioner, cited: High on Ex. Leg. Rem. § § 624, 625, 638, 639; People v. Holden, 28 Cal. 123; People v. Cook, 8 N.Y. 67; People v. Vail, 20 Wend. 12; People v. Jones, 20 Cal. 50; Commonwealth v. Co. Com. 5 Rawle 75; Opinion of the Justices, 54 Me. 602; Morgan v. Quackenbush, 22 Barb. 77; People v. Van Slyck, 4 Cow. 297; Ex parte Heath, 3 Hill 47; Thompson v Ewing, 1 Brewst. 77; State v. Governor, 1 Dutch. 348; Brower v. O'Brien, 2 Ind. 423; State v. Jones, 19 Ind. 356; People v Hilliard, 29 Ill. 422; State v. Cavers, 22 Iowa 343; Opinion of the Justices, 25 Me. 568; Id. 38 Me 597; Id. 54 Me. 602; Id. 64 Me. 591, 596; Id. 68 Me. 587; Bacon v. Co. Comr's, 26 Me. 494; Dennett, Pet'r, 32 Me. 508; Jones v. State, 1 Kan. 279; Strong, Pet'r, 20 Pick. 484; People v. Cook, 14 Barb. 293; People v. Schemerhorn, 19 Barb. 540; Dickey v. Hurlburt, 5 Cal. 343; McCrary's Law of Elections, § 166; Skerrett's Case, 2 Parsons 509; Commonwealth v. Meeser, 44 Pa.St. 343; Juker v. Commonwealth, 20 Pa.St. 493; Piatt v. People, 29 Ill. 72; Taylor v. Taylor, 10 Minn. 107; People v. Bates, 11 Mich. 362; R. S., c. 3, § 8; Low v. Dunham, 61 Me. 566; Milford v. Orono, 50 Me. 529; Blake v. R. R. 39 N.H. 437; Rogers v. Bowen, 42 N.H. 102; 1 Greenl. Ev. c. 2, § 6.

Bion Bradbury, L. D. M. Sweat and Clifford & Clifford, for the respondent.

The constitution is that instrument agreed on by the people as the absolute rule of action and decision for all departments and officers of the government, in respect to all the points covered by it. By it, the legislature holds all the powers of the people, except those expressly withheld; but the executive and judiciary, none except those expressly given. Cooley Con. Lim. 139, n. 1.

We deny the doctrine that the provisions of the constitution are directory and not mandatory. If mandatory then the Portland return was fatally defective as it did not contain the names of all persons voted for as county commissioners.

The counsel contended in a very elaborate and able argument that the act, by the authority of which this proceeding was brought, has not the force of law because it was not enacted by a lawful legislature, nor approved by a lawful governor, and cited: Hon. Geo. F. Hoar, U. S. senator from Massachusetts, in the Kellogg-Spofford debate in U. S. senate; the decision of the quo warranto to the House in 1604, in the dispute between King James and the British House of Commons; Fischel's British Constitution, 442; Haversham Cox on Institution of the English Government; Goodwin v. Fortescue, 2 State Trials; Cæ sar Griffin's Case, Chase's Decisions, 364; Fitchburg Co. 1 Allen 557; Coolidge v. Brigham, Id. 333; Denny v. Mattoon, 2 Allen 384; Hooper v. Goodwin, 48 Me. 79; Opinion, KENT, J., 58 Me. 572; Opinion of Justices, 126 Mass. 556; Opinion of Justices, 120 Mass. 602; 16 Me. 483; State v. Brown, 5 R. I. 1; High, Ex. Rem. § § 620, 625, 627, 638, 639; State v. Hunton, 28 Vt. 594; People v. Cook, 8 N.Y. 67; People v. Pease, 30 Barb. 588; Cooley's Con. Lim. pp. 786, 787, 623; 35 Me. 590; 38 Me. 599. Opinion of Majority of Electoral Commission on the Louisiana Electoral Vote; Hadley v. Mayor of Albany, 33 N.Y. 603; Clarke v. Buchanan, 2 Minn. 346.

A certificate or summons coming from the canvassing board, held by a member, to attend and take a seat, entitles him to the seat until he is ousted on contest. Dennett, Petitioner, 32 Me. 508; Opinion, 117 Mass. 600; People v. Miller, 16 Mich. 56; Ross v. Baxster, 35 Penn. St. 263; Hulseman et al. v. Rems et al. 41 Penn. St. 401; Kerr v. Trego, 47 Penn. St. 292; People v. Cook, 4 Selden 68; Headly v. Mayor, 33 New York, 606; State v. Clerk Passaic, 1 Dutcher's Reports, (N. J.) 354; Briggs v. Churchill, 15 Minn. 455; State v. Wharton, 25 La. 3; Collins v. Knobloch, 25 La. 263; Bonner v. Lynch, 25 La. 267; Overseers v. Yarrington, 20 Vt. 473; Morgan v. Quackenbush, 22 Barb. 72; Coolidge v. Brigham, 1 Allen 335; Patterson v. Miller, 2 Met. (Ken.) 497.

His title is so far good that a court, in absence of proof to the contrary, is bound to presume him to be a de jure incumbent. Poell v. McDonald, 7 Kans. 426; Willis v. Sproule, 13 Kans. 257; Eiggs v. State, 49 Ala. 32.

It is settled in numberless cases, that in quo warranto, the court will go behind a certificate and ascertain the fact of election. People v. Van Slyck, 4 Cow. 297; People v. Ferguson, 8 Cow. 102; Jeter v. State, 1 McCord, 233; People v. Vail, 20 Wend. 12; Bashford v. Barstow, 4 Wis. 567; Hill v. State, 1 Ala. (N. S.) 559.

The entire body of authorities is an admission that the possession of a certificate is a legal title which requires judicial investigation to set aside. It never was contradicted till now. This is too great an oversight to be allowed to stand.

The summons is a title to the seat, coming from the authorized body who issue it in the first instance. A title, it is true, capable of being overthrown, but the legal title till overthrown, and in the prescribed way. The way is, the question being judicial in its nature, that the appointed judges must try it, the house.

It has never been tried, for there can be no trial, in a legal sense, where there is no hearing. All that has taken place has occurred by an opinion. And it can never be said that there were never any members legally placed in the disputed seats except those certificated by summons. They have never been legally ousted. Com. v. Jones, 10 Bush. 726. When the inquiry to be made involves questions of law as well as fact, when it affects a legal right, and the decision may result in terminating or destroying that right, the power to be exercised and the duties to be discharged are essentially judicial. A summons is issued by the constitutional authority to take a seat. By means of it, the holder acquires a legal title till disputed. The disposal of this right is, in its nature, a judicial proceeding, by trial of fact and law. The house tries it. The court never, anywhere, but if it could, not in an opinion; yet under this advisory process, the court did adjudge seats to persons and against others by means of questions, numbers three and four of second series.

Any process to try right of office is essentially similar to quo warranto. Jury trial, 22 How. 182. Incumbent properly elected, but not being sworn into office may be ousted. High's Extraordinary Legal Remedies, § 760. In re Mayor of Penryn, Stra. 582. Office cannot be held at the same time by a de jure and a de facto incumbent. Boardman et al. v. Halliday, 10 Paige, Ch. 223; Morgan v. Quackenbush, 22 Barb. 79; King v. Mayor of Colchester, 2 Term R. 260; Gardner v. Collector, 6 Wallace 499. Act of passing and of approving a law in an official capacity.

APPLETON C. J.

The plaintiff, claiming to have been duly elected county commissioner for the county of Cumberland, brings this bill against the defendant whom he alleges to have been wrongfully declared elected to that office, when, in fact, he was not so elected.

This proceeding is under and by virtue of c. 198 of the acts of 1880, entitled " an act providing for the trials of causes involving the rights of parties to hold public offices."

The processes by which rights are to be established and wrongs redressed are within and subject to legislative control. Old forms and modes of procedure may be abolished and new ones established.

All offices, except when legislative authority is limited or restricted by constitutional provisions, are subject to the will of the legislature. There is, with the above exception, no vested right in an office or its salary. The office may be abolished. The mode of appointment may be changed. The length of time of official existence may be shortened. The compensation for official services may be diminished. Farwell v. Rockland, 62 Me. 298; Butler v. Pennsylvania, 10 How. (U. S.) 403; Parker v. Pittsburgh, 4 Barr. 51; Connor v. New York, 1 Selden 291; Taft v. Adams, 3 Gray 126.

The act, c. 198 of the acts of 1880, was passed to enable parties duly elected to office but not declared to be so elected, to contest their rights before a judicial tribunal. The defendant was declared elected to the office in controversy by the canvassing board of the State. The allegations in the bill are, that errors occurred in the doings and proceedings of the board, and that upon a fair and honest count the plaintiff was duly elected, but that the defendant has usurped the office to which he was so elected. " When one is charged with usurping an office in the commonwealth, there must be," remarks the court in Com. v. Fowler, 10 Mass. 290, " authority in this court to inquire into the truth of the charge." This act gives a remedy in case of an erroneous or fraudulent count by the canvassing board. It will hardly be contended that if by errors of computation, throwing out legal returns or counting illegal ones, a candidate not duly elected is wrongfully declared to be elected, there should not be some remedy provided for the party actually elected, by which the wrong done may be corrected. If the error is not subject to correction, then the canvassing board, in the exercise of irresponsible power have full and absolute control of the government and may effectually stifle the voice of the people, according to their sovereign will and pleasure.

Before the passage of the act under consideration, the only existing process by which right of one unlawfully holding an office could be inquired into, was by quo warranto. This writ issues in behalf of the State against one who claims or usurps an office to which he is not entitled, to inquire by what authority he...