State v. Thayer

• Decision Date: 02 January 1891
• Citation: 31 Neb. 82,47 N.W. 704
• Parties: STATE v. THAYER ET AL.
• Court: Nebraska Supreme Court

31 Neb. 82

47 N.W. 704

STATE

v.THAYER ET AL.

Supreme Court of Nebraska.

Jan. 2, 1891.

Syllabus by the Court.

1. T. L. N., district judge of the sixth district, whose official term would have expired January, 1892, resigned December 12, 1889, on which date the governor appointed J. H. S. to the vacancy, who qualified and entered upon the office. The general election of 1890 was the first general election held more than 30 days after the occurrence of such vacancy. Thirty days previous to the time of holding said election the governor issued his proclamation under section 11, c. 26, Comp. St., but inadvertently omitted to insert and designate the office of judge of the sixth district as a vacancy to be filled at said election. At least 20 days previous to the election the county clerks of the respective counties of the district made out and delivered to the officer or officers provided by law for the counties, respectively, notices of such election, duly posted up 10 days prior to the election, which notices, among the offices to be filled, contained and designated that of judge of the sixth judicial district to fill the existing vacancy. The whole number of votes cast within the district, for any office, was 12,734, of which 7,612 were cast for the relator and 4,841 for the incumbent, both being candidates for the office at said election. The votes so cast were by the judges of the election of the several townships, precincts, and wards of the several counties of the district duly returned to the county clerks within the time and in the manner provided by law, and were by the county clerks duly canvassed, and abstracts thereof were duly made on separate sheets, and directed and forwarded to the secretary of state. The governor, secretary of state, auditor of public accounts, treasurer of state, and attorney general having failed to meet as the state board of canvassers at the office of the secretary of state on the third Monday after said election and canvass the votes so cast for judge of the sixth judicial district, and returned to the office of the secretary of state, upon an application for a writ of mandamus against them to compel the performance of such duty, held, that mandamus will lie against the governor to enforce the performance of a ministerial duty enjoined upon him by law.

2. The appointment of J. H. S. as judge of the sixth district was temporary to terminate upon the qualification of a judge to be elected to fill the vacancy occurring upon the resignation of T. L. N. 3. The general election of 1890 was an election at which a vacancy in the office of district judge, occurring in December, 1889, could be filled, although the vacancy was then temporarily filled by appointment.

4. The provision of law, requiring the governor, 30 days previous to an election at which any state officer is to be chosen, to issue his proclamation therefore, is directory merely.

5. Under our constitution and laws the elective franchise is vested in the electors, and its exercise regulated by law. It is not deposited in the executive to be doled out by proclamation.

Mandamus.

George B. France, for relator.

Wm. Leese, Atty. Gen., and E. J. Hainer, for respondents.

COBB, C. J.

Edward Bates, the relator, presented his information on November 25, 1890, applying for a peremptory writ of mandamus to compel the state board of canvassers, created by section 53, c. 26, of the Compiled Statutes, to canvass certain votes claimed to have been cast for the relator, as judge of the sixth judicial district of this state, at the general election held November 4, 1890. The relator and the attorney general agreed to the following stipulation of facts:

(1) That the defendants, John M. Thayer, governor, Benjamin R. Cowdrey, secretary of state, Thomas H. Benton, auditor, John E. Hill, treasurer, and William Leese, attorney general, compose the state board of canvassers of the votes for electors, judges, and regents in this state.

(2) That on November 4, 1890, a general election was held for state officers and members of the legislature.

(3) That on September 23, 1890, the governor issued his proclamation for a general election to be held on November 4, 1890, calling upon the electors of the state to elect the several officers in his proclamation enumerated, and duly sent the same by mail to the several county clerks, as required by law, and that the same is the only proclamation issued by the governor for said election, to-wit:

“Election Proclamation. Under and by virtue of the authority vested in me by section eleven (11) of chapter twenty-six (26) of the Compiled Statutes of Nebraska, entitled ‘Elections,’ I, John M. Thayer, governor of the state of Nebraska, do hereby issue my proclamation, declaring that on Tuesday, the 4th day of November, A. D. 1890, there will be an election held at the usual places of voting in said state for the purpose of electing the following officers, to-wit: One member of congress from the first congressional district; one member of congress from the second congressional district; one member of congress from the third congressional district; governor; lieutenant governor; secretary of state; state treasurer; auditor of public accounts; attorney general; commissioner of public lands and buildings; superintendent of public instruction; state senators for each senatorial district; and representatives for each representative district,--as provided by law. Also the electors of the state will vote upon the following amendments to the constitution: To amend sections two, (2,) four, (4,) and five, (5,) of article six (6) of the constitution, relating to the number of supreme judges. Also to amend section thirteen (13) of article six (6) of the constitution, relating to the salary of the supreme and district court judges. Also to license and regulate the manufacture, sale, and keeping for sale of intoxicating liquors as a beverage. Also to prohibit the manufacture, sale, and keeping for sale of intoxicating liquors as a beverage. [Great seal of Nebraska.] In testimony whereof, I have hereunto set my hand and caused to be affixed the great seal of the state of Nebraska. Done at Lincoln this 23d day of September, A. D. 1890. By the Governor: JOHN M. THAYER. BENJAMIN R. COWDERY, Secretary of State.”

(4) That the electors of the sixth judicial district also voted for the election of a district judge.

(5) That the incumbent, Jerome H. Smith, was appointed judge of said district December 12, 1889, to fill the vacancy caused by the resignation of T. L. Norval.

(6) That there was cast at the election in the four counties comprising said district, (Seward, York, Hamilton, and Polk counties,) held on November 4, 1890, 12,734 votes, and no more, of which the relator received 7,612, and Jerome H. Smith received 4,841.

(7) That in issuing his said proclamation the governor, through inadvertency, omitted to call any election for a judge of the district court of the sixth judicial district, and failed to give any notice, by proclamation or otherwise, of any vacancy in said office, or that the electors of said judicial district would be called upon to elect a judge thereof at said election.

(8) That the several county clerks of said judicial district have certified to the secretary of state the votes cast on the question of a district judge, and did so prior to November 26, 1890.

(9) That the defendants, though requested so to do by the relator, refuse to meet and canvass said votes cast for judge of said district court, alleging as reason for such refusal that no authority existed for holding said election for said judge on November 4, 1890; nor does the law enjoin upon the defendants the duty of canavssing the votes which may have been cast at said election for the office of judge of the district court of said district.

(10) That by virtue of the appointment made by the governor to fill the vacancy caused by the resignation of Judge Norval Jerome H. Smith now holds said office, and fills the same, and by virtue of that appointment alone.

(11) That as early as July, 1890, the incumbent, Jerome H. Smith, was duly nominated by the Republican convention as a candidate for judge of said sixth judicial district, to be filled at said election, and in August, 1890, the relator was duly nominated by the People's independent convention, and afterwards, in October, said nomination was ratified by the Democratic party; that each of said nominations was made by conventions of delegates, and were published and made known throughout the sixth judicial district.

(12) That the next election by the people of the state subsequent to the said vacancy in the office of judge of the sixth judicial district, produced by the resignation of Judge Norval, occurred on November 4, 1890, and which was a general election, at which the relator and Jerome H. Smith were rival candidates for election to the office of judge of the sixth judicial district for the unexpired term of Judge Norval, who had resigned.

(13) That at said general election the total number of votes cast for the office of judge of the sixth judicial district was 12,455, of which the relator received 7,612 and the said Jerome H. Smith received 4,841 and other candidates received 2; not voting for either, 279. That the votes so cast as aforesaid were in the manner required by law counted, canvassed, certified, and transmitted by the several county clerks to the secretary of state, by whom the same were received before the 24th day of November, 1890.

(14) That the relator is an elector and voter in said judicial district, and is eligible to the office of district judge.

(15) That both the relator and the incumbent had at all times actual knowledge of said omission in said proclamation of the governor, and of the failure to call for an election of judge of said district, and the incumbent, during all the times mentioned herein, denied all authority for holding any election for...