State ex rel. Husting v. State Bd. of Canvassers

• Decision Date: 13 January 1915
• Parties: STATE EX REL. HUSTING v. STATE BOARD OF CANVASSERS ET AL.
• Court: Wisconsin Supreme Court

159 Wis. 216

150 N.W. 542

STATE EX REL. HUSTING

v.STATE BOARD OF CANVASSERS ET AL.

Supreme Court of Wisconsin.

Jan. 12, 1915.

Dissenting Opinion, Jan. 13, 1915.

Syllabus by the Judge.

It is the duty of the court to firmly maintain its own function, but not trespass upon that of the legislature. The former requires solution of doubts respecting legislative purpose intended to be embodied in an enactment and the pronounced result becomes, in effect, written into such enactment.

If by judicial construction a legislative enactment embodies a purpose which is unconstitutional it must be condemned.

If part of an enactment is unconstitutional and the remainder is not, and is reasonably complete by itself, and the former was not such inducement to the entirety but what the latter might, within reasonable probability, have been enacted by itself, to that extent it should be approved and otherwise disapproved.

If a legislative enactment is so uncertain that the court cannot determine with any reasonable degree of certainty, what its purpose was, or if it be so incomplete that it cannot be executed, it must be condemned as void.

In construing an ambiguous legislative enactment some established rules are to be observed as unwritten law with all the force of written law, and among them:

(a) No attempt to read a legislative enactment different from its plain words and evident meaning on its face is legitimate, if so read it “leads to no absurd consequences.”

(b) There should be real uncertainty of meaning found in a legislative enactment before resorting to reading it by aid of rules for judicial construction.

(c) Whether the meaning of words of an enactment are plain is to be determined with reference to the connection in which they are used, the subject dealt with, the circumstances at the time and the object in view.

(d) The term “and leads to no absurd consequences” requires the rule that ambiguity requiring judicial construction may as well arise from applying the literal sense of words to the subject dealt with as from uncertainty of the words themselves.

(e) An intent, however apparent, which cannot reasonably be read out of a legislative enactment should not be adopted, but an intent however absurd, which can be so read and shows clearly the legislative purpose beyond reasonable doubt, must be adopted regardless of the effect upon validity.

(f) The very letter of an enactment may be violated to carry out a manifest legislative intent, so long as it can be found expressed within the reasonable scope of the language used.

(g) Where there is irreconcilable conflict between a legislative enactment and an earlier law, a presumption arises of a purpose to modify or repeal the latter; but that is rebuttable by circumstances, and, among them, that the existing law constitutes an entire system and the later enactment would render the entirety unconstitutional or absurd.

Under section 1, art. 13, of the state constitution, the political year of the state commences on the first Monday of January of such year and all constitutional officers elected at the November election in any year are required to be circumstanced to take up their respective offices at such time.

The legislative plan for accomplishing the requirement mentioned in the last foregoing paragraph, as embodied in chapter 5, Stat. 1913, undisturbed by chapter 328, Laws of 1911, inserted in said chapter at section 861, does not admit of any change which would, or might probably, prevent such accomplishment.

Such legislative plan contemplates a fixed limit of time for a county clerk to complete the canvass of election district returns, to decide upon the result, to issue certificates of election to county officers found elected, and to make returns of the result of the election as to state officers to the secretary of state.

The statute requires the entire result of the county canvass to be covered by a single decision and the result, as to the state officers, to be included in a single return.

The duty of the county canvassing board, independently of the law of 1911, is purely ministerial; it is required to obtain possession of the district returns within the time specified; it may have a remedy by mandamus to enable it to do so, if necessary, and may be compelled by mandamus, if necessary, to complete its work within the required time.

The statute requires the secretary of state and state canvassing board to obtain possession of the county results by the time fixed by statute for commencement of continuous work of making the state canvass, to complete it, file the decision and issue certificates of election in the time limited by statute.

Section 86, Stat. 1913, cannot be restrained so as to affect some officers and not others; it includes all so plainly as to preclude any different meaning being adopted by construction.

Section 86, Stat. 1913, cannot be given such effect as to prevent making the county canvasses and state canvass within the time required by law, as that would be liable to prevent newly elected officers from taking their respective offices on the first Monday of the political year.

If the legislative purpose was as indicated in section 86 in its letter so far as it, if executed, would prevent a county canvass and the state canvass from being completed within the time fixed by statute, it is unconstitutional.

If the legislature did not intend the law of 1911 to be restrained so as not to impair the efficiency of the existing law, the purpose is too much involved in obscurity to be discoverable with the reasonable degree of certainty essential to effect being given thereto.

No effect can be given to a legislative enactment, however broad its provisions, further than to harmonize it with existing law which is necessary to a constitutional requirement, and if a law be held to have been intended otherwise the court must declare it void for uncertainty or unconstitutionality.

The statute requiring the state canvassing board to complete its work within a specified time is directory, to the extent that it may continue to a finality after expiration of the time, but it has no discretion to delay by adjournments or for anything but proceedings to compel transmission of the county returns, and, in case of delays otherwise, it may be coerced by the mandamus remedy.

Under section 94e, Stat. 1913, the state board of canvassers must make its decision from the county returns mentioned in subsection 1, § 87, and from such returns only. The statute contemplates but one return and that to be an entirety.

Winslow, C. J., and Barnes, J., dissenting.

John A. Aylward and M. B. Olbrich, both of Madison, and W. H. Timlin, Jr., and Timlin, Dean & Nebel, all of Milwaukee, for plaintiff.

W. C. Owen, Atty. Gen., and A. C. Umbreit and L. G. Wheeler, both of Milwaukee, for defendants.

This was a mandamus action instituted by an alleged successful candidate, at the November election, 1914, for the office of United States Senator for Wisconsin, to compel certain Boards of County Canvassers to complete the canvass of original returns from the several election precincts in their respective counties without waiting upon the result of recount proceedings under section 86. 1, of the Statutes, and to deliver the duly certified results to their respective county clerks; and to compel such county clerks to, thereupon, transmit such certified results, in due form, to the Secretary of State as required by statute; and to compel the State Board of Canvassers and Secretary of State to perform their duties as to acquiring possession of such certified results, and such state board of canvassers to proceed, diligently, to canvass such returns and complete the duties prescribed by section 94. 1 to section 94e, Stats., inclusive, as therein prescribed, without waiting upon termination of proceedings under said section 86. 1, Stats.

Such proceedings were duly had in the action that, as to each of the defendants, the question was raised of whether a county board of canvassers, under section 81, Stats., and the State Board of Canvassers, under section 93, Stats., are required to perform their respective duties without awaiting the result of proceedings under said section 86. 1, Stats. If the affirmative should prevail peremptory writs of mandamus should issue as prayed for.

The cause was submitted to the court for determination and because of the exigency involved the following decision reached by the court was rendered without delaying for the purpose of preparing an opinion, resting the matter in præsenti by a brief statement of reasons, that to be followed later by an opinion.

The court considers that the several challenges of the claim that the various boards of canvassers should proceed to perform, diligently, their respective duties as contended on behalf of the relator, should be overruled, basing such decision on this, in detail:

Section 87. 1, Stats., requires the result, as to any county, of the election therein of officers mentioned in such section to be sent by the county clerk of such county, duly certified, to the Secretary of State within the time specified in such section, and it cannot be delayed to wait upon the result of proceedings under section 86. 1, Stats., and if such duty shall be omitted the right to a remedy by mandamus arises to compel performance; though reasonable time may be allowed to comply with the writ--but not delaying to complete proceedings under such section so as to prejudice reasonable performance under said section 87. 1, Stats. Such undue delay would not be legally justifiable.

Under section 94e, Stats., the canvassing board must make its determination from the returns mentioned in section 87. 1, Stats., and from such returns only. The statute contemplates but one return from each county and not returns in sections.

Section 94. 2, Stats., requires the Secretary of State to secure returns to be made as contemplated by section 87. 1, and...