State ex rel. Caldwell v. Peterson

• Decision Date: 09 December 1950
• Docket Number: No. 32964,32964
• Citation: 153 Neb. 402,45 N.W.2d 122
• Parties: STATE ex rel. CALDWELL v. PETERSON et al.
• Court: Nebraska Supreme Court

Page 122

45 N.W.2d 122

153 Neb. 402

STATE ex rel. CALDWELL v. PETERSON et al.

No. 32964.

Supreme Court of Nebraska.

Dec. 9, 1950.

Syllabus by the Court.

1. By Article III, section 1, of the Constitution, the conditions and restrictions of the Constitution and statutes relative to the former Bicameral Legislature in the State of Nebraska, so far as they may be applicable, attach to the present Legislature of one chamber.

2. The words and terms of a constitutional provision are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense.

3. Where the words of the Constitution are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning; a mere reading will suffice.

4. Within the contemplation of Article IV, section 1, of the Constitution the Attorney General of the State is an executive officer.

5. Within the contemplation of Article IV, section 21, of the Constitution, if the office of Attorney General should be vacated by resignation, it is the mandatory duty of the Governor to fill the same by appointment, and the appointee shall hold such office until his successor shall be elected and qualified in such manner as may be provided by law.

6. Article IV, section 4, of the Constitution requires the returns of every election for officers of the executive department of the state to be sealed up and transmitted by the returning officers to the Secretary of State, directed to the Speaker of the Unicameral Legislature.

7. The duty of a Speaker of the Unicameral Legislature, under a constitutional provision requiring him to open and publish the returns in an election for executive officers of the state and to declare the result of such election, is an administrative duty.

8. Article IV, section 4, of the Constitution governs the canvass of votes and declaration of election of executive officers. Unless the declaration is made in the way so provided, the process of the election is not complete.

9. The Legislature, the executive officers, and the judiciary cannot lawfully act beyond the limitations of the Constitution.

10. Section 32-928, R.S.1943, which provides: 'The board of state canvassers shall make an abstract stating the number of ballots cast for each office, the names of all the persons voted for, for what office they respectively received the votes, and the number of votes each received, in words at length, and stating whom it declares to be elected to the office, which abstract shall be signed by the canvassers in their official capacity, and as state canvassers, and have the seal of the state affixed,' applies only and solely to the canvass of those votes for the offices for which the Board of State Canvassers is authorized by law to canvass, and does not apply to state executive offices.

11. A person elected to an executive office in this state, to fill a vacancy or otherwise, cannot qualify for such office, receive a certificate of election, and take office until Article IV, section 4, of the Constitution is complied with.

C. L. Clark, Lincoln, Charles F. Barth, Seward, for relator.

Clarence A. Davis, Lincoln, for respondents.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an original action in mandamus, instituted in this court by the relator Harold P. Caldwell, against the members of the Board of State Canvassers as respondents, to require them to immediately proceed to a canvass of the votes cast at the general election held November 7, 1950, the returns of which are now in the possession of the Secretary of State; that upon the conclusion of the canvass the respondents declare the relator to be the duly elected Attorney General of the state until January 4, 1951; and that the Governor of the state as chairman of the Board of State Canvassers issue to the relator a certificate of election instanter.

The relator's application for a writ of mandamus alleges in substance the following, which is admitted by the respondents' answer: At the regular general election held in this state in November 1948, James H. Anderson was elected Attorney General. He legally qualified for the office and served as Attorney General until he resigned in March 1950. Thereafter the Governor appointed Clarence S. Beck to serve as Attorney General until January 4, 1951, or until his successor should be elected and qualified. The appointee qualified by taking the oath and filing the bond, entered upon the duties of the office, and is still serving. On June 29, 1950, Harold P. Caldwell, the relator, filed on the Democratic ticket for the nomination for office of Attorney General to fill vacancy. He was the sole candidate to file. On August 8, 1950, the primary election was held in this state. The relator received practically all the votes cast on his party ticket for 'Attorney General to Fill Vacancy.' Thereafter the Board of State Canvassers, the respondents herein, did issue to the relator a certificate of nomination. Subsequent thereto the Secretary of State, in instructions to the various county clerks and election commissioners, directed that they should place upon the ballot for the general election of November 7, 1950, the relator's name as a candidate for the office of 'Attorney General to Fill Vacancy.' The instructions were complied with. The various county clerks and election commissioners did, in the official returns submitted to the Secretary of State, show the number of votes the relator received. There were no other candidates at the general election for Attorney General to fill vacancy. On November 27, 1950, the respondents, as members of the Board of State Canvassers, did meet in the office of the Secretary of State as required by law, and then and there did inspect the returns of the various county clerks and election commissioners, and determined that the relator received 285,131 votes for the office as designated on the ballot. The respondents herein constituting the Board of State Canvassers thereafter informed the relator, on advice of counsel, they would not issue a certificate of election to the relator for the office for which he had been a candidate, refused to canvass said votes and to declare the relator elected to any office, and refused to issue to the relator a certificate of election as Attorney General to fill vacancy. (Apparently offer was made by the relator to qualify so that certificate of election might be issued to him.)

Respondents in their answer waived the service upon them of any process and summons or alternative writ of mandamus, and consented to the immediate hearing of the said cause.

No one at any time contested the relator's filing for nomination and the placing upon the ballots of the name of the relator.

The question to be determined is as follows: Is the Board of State Canvassers vested with the legal authority to canvass the votes of officers of the executive department of the state, to declare the officers elected, and to issue to them certificates of election?

There are certain sections of the articles of the State Constitution involved in this cause. In approaching a determination of this cause it is well to have in mind certain rules of law applying to the Constitution.

'The language of the Constitution is to be interpreted with reference to the established laws, usages, and customs of the country at the time of its adoption, * * *.' In re Hammond, 83 Neb. 636, 120 N.W. 203, 23 L.R.A.,N.S., 1173. See also, State ex rel. Central Realty & Inv. Co. v. McMullen, 119 Neb. 739, 230 N.W. 677; State ex rel. Johnson v. Chase, 147 Neb. 758, 25 N.W.2d 1; State v. Sheldon, 78 Neb. 552, 111 N.W. 372.

The words and terms of a constitutional provision are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense. See, Elmen v. State Board of Equalization and Assessment, 120 Neb. 141, 231 N.W. 772; Mekota v. State Board of Equalization and Assessment, 146 Neb. 370, 19 N.W.2d 633, 638; State ex rel. Johnson v. Chase, supra.

'Where the words of [the Constitution] are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning; a mere reading will suffice.' Mekota v. State Board of Equalization and Assessment, supra.

The relator raises the point that Article IV, section 4, of the state Constitution relates to the former Bicameral Legislature and for that reason is not applicable to the present Unicameral Legislature. In this connection the relator asserts that Article IV, section 4, of the state Constitution was not amended when the Unicameral Legislature was established in this state and that accordingly there is no Speaker of the House of Representatives, and no 'each house' of the Legislature, so the section and article of the Constitution cannot in any event be literally followed and complied with.

By the terms of Article III, section 1, of the Constitution, the restrictions and limitations of Article IV, section 4, of the document apply with the same force and effect to legislative proceedings under the unicameral system as it would to the bicameral. The portion of the section so declaring is the following: 'All authority vested by the constitution or laws of the state in the Senate, House of Representatives, or joint session thereof, in so far as applicable, shall be and hereby is vested in said Legislature of one chamber. All provisions in the constitution and laws of the state relating to the Legislature, the Senate, the House of Representatives, joint sessions of the Senate and House of Representatives, Senator, or member of the House of Representatives, shall, in so far as said provisions are applicable, apply to and mean said Legislature of one chamber hereby created and the members thereof.'...