State, ex rel. Oldham v. Dean

• Citation: 121 N.W. 719,84 Neb. 344
• Decision Date: 07 May 1909
• Docket Number: 16,073
• Parties: STATE, EX REL. WILLIS D. OLDHAM, RELATOR, v. JAMES R. DEAN, RESPONDENT
• Court: Nebraska Supreme Court

121 N.W. 719

84 Neb. 344

STATE, EX REL. WILLIS D. OLDHAM, RELATOR, v. JAMES R. DEAN, RESPONDENT

No. 16,073

Supreme Court of Nebraska

May 7, 1909

ORIGINAL application in the nature of quo warranto to determine the right of respondent to the office of judge of the supreme court. Judgment for respondent.

JUDGMENT FOR RESPONDENT.

T. J Mahoney and Joel W. West, for relator.

Irving F. Baxter, James H. Van Dusen, C. C. Flansburg and W. W Morsman, contra.

REESE C. J. ROSE and DEAN, JJ., not sitting.

OPINION

REESE, C. J.

This is an action in the nature of a quo warranto, instituted by the relator, Willis D. Oldham, and against the respondent, James R. Dean, for the purpose of testing the right of said Dean to the office of judge of the supreme court. Sufficient facts are alleged in the information and answer to show the eligibility and competency on the part of both relator and respondent to hold said office if legally appointed thereto, and the only question is as to which of the parties received the legal appointment. So far as the facts involved in the case are concerned, there is practically no dispute. It is shown by the pleadings and the agreements of counsel made on the argument of the case at the bar of the court, as well as by the public history of the state, that the legislature of 1907 duly submitted to the electors of the state a proposition to amend the state constitution so as to increase the number of judges of said court from three to seven members. At the general election of 1908, held November 3 of that year, the amendments submitted by the action of the legislature were duly adopted by the vote of the people, the returns duly certified to by the several county clerks and forwarded to the state board of canvassers, and the said board, of which the governor was a member, canvassed the vote, the result being announced by proclamation by the governor, who, soon thereafter, appointed four members of the court, all of whom accepted and duly qualified and entered upon the duties of the office. One of the appointees resigned the next day after his qualification, and the respondent was appointed to fill the vacancy.

The amendment made it the duty of the governor making the appointment to appoint two judges for one year and two for three years. Doubts having arisen as to the authority of the state canvassing board to canvass the votes upon the subject of the adoption of the amendments, the joint convention of the legislature of 1909 made a demand upon the secretary of state that the returns sent the state canvassing board be submitted to that body in order that the vote be there canvassed, but which the secretary refused to furnish, claiming that the returns were required to be kept in his office as a part of the records thereof. A copy of the tabulated returns, as issued by his office in printed form, was procured with his certificate attached showing that it was practically a correct copy of the result of the vote as canvassed by the state canvassing board. A canvass was made by the joint convention, the result declared, and the newly elected governor issued his proclamation declaring the amendments adopted. He then appointed four members of the court, two of whom were of those appointed by the former governor. The relator was appointed for the term of one year, who took the required oath and demanded the office of respondent. It will be seen, therefore, that it is conceded that the constitutional amendments were duly and legally adopted by the necessary majority of the votes cast at the election in November, 1908, and that the amendments submitted are now, and have been since the casting of the votes on election day, a part of the constitution. It is also admitted that the judges holding under the first appointment are, and have been since their qualification, officers de facto, and that their acts are not void; but it is claimed that while the office existed they were irregularly and illegally appointed, and relator, having received his appointment after the canvass in the joint convention, is now entitled to the office. The whole case turns upon the question as to which was the legal canvass, proclamation and appointment. During the year 1908 Honorable George L. Sheldon was the duly elected and acting governor of the state. At the November election of that year Honorable Ashton C. Shallenberger was duly elected to said office and entered upon the discharge of the duties thereof on the 7th day of January, 1909.

Section 1, art. XV of the constitution, provides that either branch of the legislature may propose amendments to that instrument, and, after due publication of the required notice, the same shall be voted upon at the next election for members of the legislature, and, if a majority of the electors voting at said election adopt such amendments, they shall become a part of the constitution. In the year 1877 the first session of the legislature after the adoption of the constitution passed an act entitled "An act to provide the manner of proposing amendments to the constitution, and submitting the same to the electors of this state." Laws 1877, p. 114. The provisions of that act followed those of the constitution, except that it dealt more in detail with procedure, and we are not interested in its provisions, except as to the fourth and fifth sections thereof, which are as follows:

"Section 4. Public notice that the proposed amendment or amendments is, or are to be voted upon, shall be given in each county in the same manner as is or may be required by law regulating general elections, and the returns shall be made and the votes canvassed in the same manner and by the same officers as is or may be required by the law in the case of electing the executive officers of the state.

"Section 5. If a majority of the votes cast at the election herein provided for, be for the proposed amendments, the governor, within ten days after the result is ascertained, shall make proclamation, declaring the amendments to be part of the constitution of the state."

It will be observed that by section 4 it was provided that the votes upon a proposed amendment should be "canvassed in the same manner and by the same officers as is or may be required by the law in the case of electing the executive officers of the state." As the votes cast for such officers are canvassed by the speaker of the house in the presence of a majority of the members of each house, it is clear that by that section the votes cast upon the proposed amendment should be canvassed in the same way. Section 4, art. V of the constitution, requires the returns of every election for the officers of the executive department to be "sealed up and transmitted by the returning officers to the secretary of state, directed to the speaker of the house of representatives, who shall, immediately after the organization of the house, and before proceeding to other business, open and publish the same in the presence of a majority of each house of the legislature, who shall, for that purpose, assemble in the hall of the house of representatives." This provision of the constitution was elaborated by the act of 1877 (laws 1877, p. 143), and, so far as returns for election of state executive officers are concerned, was practically a restatement of the provisions of the constitution above quoted. Section 4 of this act created the state canvassing board, consisting of the governor, secretary of state, auditor of public accounts, treasurer and attorney general, and provided that they should within 20 days next succeeding an election "proceed to open and canvass all returns directed to the secretary of state." The governor was made ex officio president of that board, and it became his duty to "open and publish the returns made, and the person having the highest number of votes cast for either of the offices voted for, shall be declared duly elected, and the governor shall immediately issue certificates of election to the persons thus elected." (Sec. 5.) So far as we are able to ascertain, the law remained unchanged upon these subjects until the year 1895, when Senate File No. 287, being "An act to amend section four (4) of chapter three (3) of the Compiled Statutes of Nebraska," was passed and, as claimed by respondent, became a law. As this act was intended as an amendment of section 4 of the act of 1877, above herein copied, we give the amendatory section in full.

"Section 4. Public notice that the proposed amendment or amendments are to be voted upon shall be given as provided in section 1 of article 17 (15) of the constitution of this state and the returns shall be made and the votes canvassed in the same manner and by the same officers as now required by law in the case electing of presidential electors, judges of the supreme court and district courts and regents of the state university." Laws 1895, p. 69.

As by the act of 1879 (laws 1879, p. 240), and which is still the law, the canvass of votes cast for presidential electors, judges of the supreme and district courts and regents of the university is to be made by the board of state canvassers, the act of 1895, if valid, took away from the speaker of the house the duty of canvassing the vote on constitutional amendments and cast it upon the state canvassing board. The section (Comp. St. 1893, ch. 3, sec. 4) was the same section as section 4 of the act of 1877.

It is contended by relator that the act of 1895 was not constitutionally passed by the legislature, and that therefore it was void, and the law of 1877 requiring the vote on constitutional amendments to be canvassed by the speaker of the house is still in force. The record of the passage of the act of 1895 may be briefly stated as follows: The bill (...