State ex rel. Norton v. Van Camp

• Decision Date: 17 January 1893
• Citation: 36 Neb. 91,54 N.W. 113,36 Neb. 9
• Parties: STATE EX REL. NORTON v. VAN CAMP, COUNTY CLERK, ET AL.
• Court: Nebraska Supreme Court

36 Neb. 9

36 Neb. 91

STATE EX REL. NORTON

v.VAN CAMP, COUNTY CLERK, ET AL.

Supreme Court of Nebraska.

Jan. 17, 1893.

Syllabus by the Court.

[54 N.W. 113]

1. While each house of the legislature is by the constitution made the judge of the election and qualification of its members, the courts will by mandamus compel the proper canvassing officers to discharge their duties, and issue certificates of election to the parties who, from the returns, appear to have been elected thereto; but the awarding of a certificate of election in obedience to the mandate of the court will not conclude the legislature in determining the question in proceedings by contest.

2. An interpretation given to a statutory or constitutional provision by the court of last resort becomes a standard to be applied in all cases, and is binding upon all departments of the government, including the legislature.

3. It is contemplated by our constitution, and the election laws enacted in pursuance thereof, that every qualified elector of the state shall be entitled to vote at some precinct or voting place for the respective state and county officers at each election. Hence a construction will not be adopted which would have the effect to disfranchise a considerable number of voters, or to deprive a county of representation in the legislature, unless such construction is rendered necessary by express and unequivocal language of the statute or constitution.

4. B. county was organized in 1891, at which time it was unorganized territory, and has never by general apportionment law or special act been attached to any representative district. It is a narrow strip lying between H. county and the northern boundary of the state, eight townships long from east to west, and less than three townships in width. It adjoins K. county along its entire eastern boundary, although further west it extends north to the forty-third parallel, about 10 miles beyond the northern boundary of K. county, at which point it is bounded on the east by the state of South Dakota. Held, that it is directly west of K. county, within the meaning of section 146, c. 18, Comp. St., and was, while unorganized territory, attached to said county for election purposes. Maxwell, C. J., dissenting.

5. The legislature never having attached it to any representative district, it remains a part of the twentieth district, notwithstanding its organization as a county. Maxwell, C. J., dissenting.

6. In 1883 an act was approved, extending the boundaries of H. county directly north so as to include the unorganized territory which is now B. county, but providing that it should not take effect until a majority of the legal voters of said county should give their assent at the next general election. At the general election in 1883 there were cast in said county 1,821 votes, of which 878 only were in favor of said proposition. Held, that the proposition was defeated, and an order entered by the county board in 1885, declaring it adopted, is a nullity.

7. The boundaries of H. county being clearly defined by law, and not including any part of the territory subsequently organized as B. county, held, there could be no de facto attachment

[54 N.W. 114]

of the latter to the former, so as to entitle the voters thereof to participate in elections in H. county. Maxwell, C. J., dissenting.

8. It is settled by a long line of decisions of this court that a canvassing board has no authority to go behind the returns, and inquire into the legality of the votes. Their duty is to canvass the votes as certified to them, and a certificate of election issued upon a canvass of a part of the vote of a representative district is without authority of law, and void.

9. Neither a canvassing board nor the court in a mandamus proceeding can inquire into the regularity of the nomination of the candidates or the sufficiency of their certificates of nominations. Maxwell, C. J., dissenting, so far as it applies to courts.

10. Held, on the proofs, that the nomination of the relator was regular and sufficient in form and substance. Maxwell, C. J., dissenting.

11. Provisions of the election law which are not essential to a fair election will be held to be formal and directory only, unless declared to be mandatory by the law itself.

12. The vote of B. county for the relator should not be rejected for the reason that his name was written on the sample and official ballots by the clerk after they had been printed and were ready for distribution. Maxwell, C. J., dissenting.

13. Votes for representative will not be rejected because the number of the district is not designated upon the official ballot in counties included in one district only.

Mandamus by the state, on the relation of Chester A. Norton, against Charles Van Camp, county clerk, and others, to compel defendants to compare the votes cast in the counties of Knox and Boyd for representative, and issue a certificate of election to the person appearing from the abstracts to have the highest number of votes. Writ allowed.

A. W. Agee, for relator.

A. J. Sawyer and Thos. H. Matters, for respondents.

POST, J.

It is an elementary rule that the writ of mandamus will be denied unless the right of the petitioner to the relief demanded is clear. That rule applies with especial force to cases like the one under consideration, where the subject of the controversy is the office of representative in the legislature. It is a fact known to all, and to which we cannot close our eyes, that in like cases, particularly in times of unusual political excitement, partisan bias and prejudice is liable to be imputed to judges on account of the soundest decisions, and by men who would without hesitation submit to their judgment controversies involving their fortunes and their honor. It is not my purpose to comment upon this peculiarity of our national character, or to condemn it as existing without sufficient qause; but attention is directed to it as an additional reason why the courts of the country should refuse to interfere except in cases where the right is clear, and the duty plainly enjoined by law. I have, however, no hesitation in saying that this case is clearly within both the letter and the spirit of the rule. In fact, there is no question of law involved herein but has been settled by repeated decisions of this court, to which I will hereafter refer. But before discussing the case upon its merits I will notice the argument against the jurisdiction of the court, on the ground that the house of representatives is made the exclusive judge of the election and qualification of its members, and that the judgment of the court would tend to forestall action by the lawmaking power, although that argument is too trite to call for especial notice at this time. The courts have jurisdiction in such cases, fortunately for the cause of constitutional government. That fact is too well settled to admit of controversy. As said by Judge McCreary in his work on the Law of Elections, (page 350:) “The courts will not undertake to decide upon the right of a party to hold a seat in the legislature, where by the constitution each house is made the judge of the election and qualification of its own members, but a court may by mandamus compel the proper certifying officers to discharge their duties, and arm the parties elected to such legislative body with the credentials necessary to enable them to assert their rights before the proper tribunal.” It is contemplated that each house of the legislature shall be organized by the persons who are prima facie members thereof. It requires no argument to prove the disastrous consequences of a different construction of the constitution. An illustration is quite sufficient for the purpose. In State v. Stein, 53 N. W. Rep. 999, and two other cases involving the same issues, (Id. 1005,) recently decided by this court, the controversy was who, upon the face of the returns, were entitled to certificates of election. Suppose the respondent, the clerk of Clay county, had issued certificates to the relators therein; will it be contended that the court would have been powerless to afford relief, and that the relators must have been permitted to participate in the organization of the legislature to which they were not elected, simply because the canvassing officer had been guilty of misfeasance or malfeasance in office? Yet the case at bar is much stronger on its merits than the imaginary one. Here the question of the relator's right to a certificate of election is but an incident to the more important question of the rights of the people of Boyd county to representation in the popular branch of the legislature, for it is too plain for argument that, unless said county is included within the twentieth representative district, the people thereof are disfranchised, so far as representation in the house is concerned, and that such anomalous condition must continue until 1899, which will be the first legislature elected under the next apportionment law. It is also argued against our jurisdiction that the house of representatives will not be bound by the judgment of the court, and may entirely ignore or defy its authority. It must be confessed that legislative bodies frequently fail to distinguish clearly between the power and the right in questions involving party supremacy. This is a weakness common to parties, and of which

[54 N.W. 115]

all have furnished conspicuous illustrations. But our duty, as well as our responsibility, ends with a determination of the controversy submitted to us. It may be suggested, however, in this connection, that there are some things which are conclusively presumed, and which no court will permit to be questioned in advance, among which is that a co-ordinate branch of the government will not resort to revolutionary methods. A careful examination into the subject will prove that there can be no conflict of jurisdiction between the legislative and...