State v. Bulkeley

• Decision Date: 05 January 1892
• Parties: STATE ex rel. Morris v. BULKELEY.
• Court: Connecticut Supreme Court

23 A. 186

61 Conn. 287

STATE ex rel. Morris

v. BULKELEY.

Supreme Court of Errors of Connecticut.

Jan. 5, 1892.

Case reserved from district court, New Haven county.

Information in the nature of a quo warranto by Luzon B. Morris against Morgan G. Bulkeley. Case reserved for supreme court.

C. R. Ingersoll, H. Stoddard, and T. E. Doolittle, for relator.

H. C. Robinson, W. C. Case, and C. J. Cole, for defendant.

ANDREWS, C. J. This is an information in the nature of a quo warranto. It alleges that the respondent, since the— day of January last, has used and exercised the office of governor of this state, and threatens and intends to continue to use said office, its dignities, liberties, and franchises, and prays that he may be required to show by what warrant he claims to use and exercise said office. The respondent demurred to the information. The superior court made a finding of certain facts other than such as are set forth in the information, which includes the senate house journals, to which the parties agreed and reserved the case for the advice of this court. The questions reserved are attended with serious difficulties. These, as well as the novelty of the circumstances recited in the information, the condition of legislation as applicable to those circumstances, the public interests involved, and the delicacy which the court cannot but feel lest it be thought to infringe upon the authority belonging to the other co-ordinate branches of the government, have led us to hold the case under deliberation for a somewhat longer time than is usual, and require a careful exposition of the principles upon which the advice to be given is founded. The case was argued at the bar with great force and ability. The view taken by the courts departs considerably, in form, from the claims made by either side in their briefs. It is believed, however, that in essential principles there will be found no real difference between counsel and the court. The case finds that the respondent, Morgan G. Bulkeley, was legally elected governor by the general assembly on the 10th day of January, 1889. (there having been no election by the people,) and entered at once upon the duties of that office. The term for which he was elected was till the Wednesday following the first Monday of January, 1891, and until his successor was duly qualified. If, then, no successor to him has been chosen, or, being chosen, has not become duly qualified, the respondent still holds the office of governor. He holds that office since the said Wednesday in January, 1891, by the same warrant that he held it prior to that date, and continues to be the de jure governor of the state. It is admitted that no person has been chosen to be the successor of the respondent, unless the facts set forth in the case show that the relator has been so chosen; and there is no claim but that, if so chosen, he is duly qualified. The inquiry, then, is, has the relator been chosen governor according to the constitution and the laws? The election of a governor is the selection of some person to fill that office. The selection must be of one who possesses the required qualifications, and must be made by those who possess the right to vote, and at a time, place, and in the manner prescribed by law. The election of state officers in this state is a process. It includes the preliminary registration by which those persons who have the right to vote are determined; the time when, the place where, and the manner in which the votes are to be given in; and also the manner in which the votes are to be counted and the result made known. Each of these steps must be taken in pursuance of the law existing at the time the election is had. That part of the election process which consists of the exercise by the voters of their choice is wholly performed by the electors themselves in the electors' meetings. That part of it is often spoken of as the election. But it is not the whole of the election. The declaration of the result is an indispensable adjunct to that choice, because the declaration furnishes the only authentic evidence of what the choice is.

The right to choose any state officer, unless the result of the choice can be published in some way so as to be obligatory on the whole state, would be no better than a mockery; it would be to give the form of a choice without the reality. The declaration is the only evidence by which the person elected can know that he is entitled to the office, or the previous incumbent know that his term has expired. The courts can take judicial notice of the fact of an election, but never of the result of an election, or of who is elected, until some declaration is made. The declaration is the only evidence by which the other departments of the government and the citizens generally can know whom to respect as such officer. And, in order that a declaration shall be made of the result of an election for governor in a way to be obligatory upon everybody, the constitution has fixed the time and manner in which the general assembly shall make that declaration.¹ Unless the declaration is made in the way so provided, the process of the election is not complete. No other authority than the general assembly is empowered to make such declaration. It is found in the case that there had been no declaration by the general assembly that the relator had been elected governor, and it is not claimed that there has been any equivalent act by any other authority. It follows that the relator—whatever any future inquiry may show —cannot now be said to have been elected to the office of governor; and that the respondent remains the de Jure as well as the de facto governor of the state. It is therefore the duty of all citizens, of the courts, of all departments of the state government, and of both houses of the general assembly to respect and obey him accordingly.

This, however, is far from deciding the real question that is reserved for consideration. The real question is this: The relator claims to have received a majority of all the legal votes cast for governor at the electors' meetings held on the 4th day of November, 1890, and that he is entitled to be declared elected to that office. Is there any way known to the law by which he can now establish the fact of such majority, and secure his right to the office? In considering this question, the attention of the court has been fixed on a subordinate one: Is the present general assembly without the power to make any declaration as to the election of a governor? It is conceived that the present assembly may be without such power, either because it has become impossible for it to do so by reason of the attitude of the two houses towards each other on that matter, so that as to such a declaration the assembly is in the same condition that it would be if an adjournment without day had been taken, or because the time within which the general assembly may declare a governor to be elected is limited by the constitution, and that limit is passed as to the present assembly. And, if the general assembly is without the power to make such a declaration, may the superior court make an investigation, and, on finding that the relator did in fact receive a majority of all the legal votes cast for governor, give him a title to that office? The grounds upon which the power of the assembly to make any declaration respecting the election of a governor are supposed to be lost, will be examined separately, although at the risk of some little repetition.

That part of the constitution which must be kept in mind is section 2, art. 4: "At the meetings of the electors in the respective towns in the month of April, [now November,] immediately after the election of senators, the presiding officers shall call upon the electors to bring in their ballots for him whom they would elect to be governor, with his name fairly written. When such ballots shall have been received and counted in the presence of the electors, duplicate lists of the persons voted for and of the number of votes given for each shall be made and certified by the presiding officer, one of which lists shall be deposited in the office of the town-clerk within three days, and the other within ten days, after said election shall be transmitted to the secretary, or to the sheriff of the county in which such election shall have been held. The sheriff receiving said votes shall deliver or cause them to be delivered to the secretary within fifteen days next after said election. The votes so returned shall be counted by the treasurer, secretary, and comptroller within the month of April, [now November.] A fair list of the persons and of the number of votes given for each, together with the returns of the presiding officers, shall be by the treasurer, secretary, and comptroller made and laid before the general assembly, then next to be holden, on the first day of the session thereof. And said assembly shall, after examination of the same, declare the person whom they shall find to be legally chosen, and give him notice accordingly. If no person shall have a majority of the whole number of said votes, or if two or more shall have an equal and the greatest number of said votes, then said assembly, on the second day of their session, by joint ballot of both houses, shall proceed, without debate, to choose a governor from a list of the names of the two persons having the greatest number of votes, or of the names of the persons having an equal and highest number of votes, so returned as aforesaid. The general assembly shall by law prescribe the manner in which all questions concerning the election of governor or lieutenant governor shall be determined."

It is undoubtedly true that the constitution contemplates that the declaration of the election of a governor, and, perhaps, of all the state officers, shall be made in all cases by the general assembly, and that the declaration, when made in...