State, ex rel. Benton v. Elder

• Decision Date: 14 January 1891
• Parties: STATE, EX REL. THOMAS H. BENTON v. S. M. ELDER
• Court: Nebraska Supreme Court

47 N.W. 710

31 Neb. 169

STATE, EX REL. THOMAS H. BENTON v. S. M. ELDER

Supreme Court of Nebraska

January 14, 1891

ORIGINAL application for mandamus.

WRIT ALLOWED.

John D Howe, J. C. Cowin, Chas. L. Hall, and E. E. McGintie, for relator.

Lamb Ricketts & Wilson, Allen, Robinson & Reed, and V. O Strickler, contra.

No briefs filed.

COBB CH. J. MAXWELL, J., NORVAL, J., concurring.

OPINION

COBB, CH. J.

The relator made his formal application for a writ of mandamus to compel the speaker of the house of representatives to open and publish the returns of the general election held on November 4, 1890, in the presence of a majority of each house of the legislature, before proceeding to other business, alleging that he is a citizen of the United States, and an elector of this state, and that he was, at the time of the last general election, and for more than two years prior thereto had been, of the age of thirty years, and was eligible for election as auditor of public accounts, and at said election was the regular nominee of the republican party, receiving 73,912 votes, being the highest number of votes cast for any candidate for said office, and a plurality of all the votes so cast at said election; that the returns showing the result of the election have been heretofore delivered to the secretary of state, and by him delivered to the speaker of the house of representatives, showing the vote cast for said office as stated; and that the house of representatives of the twenty-second session of the legislature has been duly elected and organized by the election and qualifying of S. M. Elder as speaker; that George D. Meiklejohn is the lieutenant governor and presiding officer of the senate, which is duly organized, and on January 7, 1891, both houses of the legislature were assembled in the hall of the house of representatives at 3 P. M., as required by section 4 of article 5 of the constitution of this state, for the purpose of witnessing the opening and publishing of the returns of the election of executive state officers at the last general election; that at said joint assembly the lieutenant governor presided, and demanded of the speaker of the house of representatives that he open and publish the returns of said election which had been then and there placed in his possession, sealed and unopened, together with an abstract of such returns by the secretary of state, as required by law, and that said speaker of the house of representatives then and there neglected and refused to open and publish said returns, and still neglects and refuses so to do; for the reason that contests over the several executive state offices have been instituted, and evidence therein has been taken and returned to the secretary of state, which the speaker assumes to claim should be heard and determined first by the legislature before opening and publishing the said returns.

The relator alleges that, upon the face of the returns and upon the general abstracts thereof, he is duly elected auditor of public accounts of this state, and that certain others have received the greatest number of votes for various other executive state offices, and for representatives in congress; and that if said speaker would duly perform his duties under section 4 of article 5 of the constitution of this state, in opening and publishing the returns of said election, the relator would be declared duly elected to the office of auditor of public accounts, and that certain others having received the greatest number of votes for various other executive state offices would be declared duly elected thereto; but that by reason of his neglect and refusal the relator is greatly damaged, and is without adequate remedy at law, and wholly without remedy, as well as certain others elected to various other offices, except by the interposition of the highest judicial authority of the state, by its writ of mandamus, enforcing the provisions of the constitution in this exigency, with prayer for that relief.

Notice of application for the writ of mandamus and a copy of the relator's information were duly served on the speaker of the house of representatives on January 7, 1891, who answered, as respondent, that he appeared at the bar of the supreme court from courtesy and not in recognition of its jurisdiction over him as the speaker of the house of representatives and the presiding officer of the joint convention of the senate and house of representatives.

The respondent set up that as such speaker and presiding officer he represents an independent and co-ordinate branch of the government, and that over his acts, or his failure to act in such capacity, the court has no jurisdiction; that the matters charged in the information relate wholly to the political branch of the government of the state, and are not within the jurisdiction of the court.

Second--That he denies that George D. Meiklejohn was the presiding officer of the joint convention of the two houses of the legislature on January 7, 1891, but that he, the respondent, was, and is, under the constitution and laws of this state, the sole presiding officer of such convention, and presided on January 7, 1891; that within twenty days after the last general election, and within the time required by law, John Batie contested the election of the relator to the office of auditor of public accounts, a notice of which he herewith exhibited; that in pursuance of which a large volume of evidence has been taken tending to impeach the integrity and validity of the returns of said general election, which evidence is now in the office of the secretary of state; that on January 6, 1891, a copy of the notice of such contest was filed with the respondent notifying him of all the important facts and circumstances therein; that on January 7, 1891, by agreement between the two houses, the legislature assembled in the hall of the house of representatives in joint convention, pursuant to the provisions of the constitution of this state, for the purpose of opening and canvassing the returns of the last general election, and of hearing and determining the contests pending therein, and among others that of the relator, and, in pursuance of his duties as speaker, the respondent presided over said convention of the two houses and announced to a majority of the members thereof that he held the returns of the last general election, together with the notices of contest thereon, and asked directions as to the disposition thereof; that a resolution was adopted referring the election returns, with said notices of contest, and the evidence thereunder, to a joint committee of nine members of the house of representatives and six members of the senate to canvass the returns and hear the contests, and make report thereon, which committee respondent appointed, and the matter of opening and canvassing the returns, as well as that of contest pending, was taken out of the power and control of respondent by the resolution of the joint convention which is herewith exhibited; that while respondent did not open and publish the returns of said election, he did not refuse to do so, as the only body having authority to make such request or demand was the joint convention, which made no such request, but, on the contrary, duly passed the resolution referred to; that the relator has never made any demand on respondent to open and publish said returns, and respondent expressly denies that he refused to open the returns, but alleges that the joint convention took the matter out of his hands in the manner and by the means stated, the record of which is herewith submitted.

To this answer the relator demurred, alleging that it is not a sufficient defense to the complaint laid in the information; and the respondent electing to stand on his answer, the issues joined were argued to the court and submitted.

Preliminary to the defense, set up by the respondent to this application, he objects to the jurisdiction of the court, and appears at the bar from courtesy only, and not in recognition of its jurisdiction over him as speaker of the house of representatives, and the presiding officer of the joint convention of the two houses.

The second section of the sixth article of the constitution of this state, after providing that the supreme court shall consist of three judges, a majority of whom shall be necessary to form a quorum, or pronounce a decision, further provides that "it shall have original jurisdiction in * * * mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law."

Section 645 of the Civil Code of Procedure, of this state, provides that "The writ of mandamus may be issued to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station." * * *

Section 646 declares that "the writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law," but "may issue on the information of the party beneficially interested."

It will be observed that the respondent's serious ground of objection to the jurisdiction of the court rests on the allegation that he is the speaker of the house of representatives and the presiding officer of the joint convention of the two houses. The letter of the statute makes no exception in mandamus, in favor of the functions of such officer; so that if he is a person upon whom the law has specially enjoined the performance of an act, or acts, as a duty resulting from an office, trust, or station, he is, in the face of all cavil, within the letter of the Code, subject to mandamus, and to the jurisdiction of the court therein. But this...