H. C. Robinson, W. C. Case and C. J. Cole, in support of the demurrer.
The main propositions upon which the case for the defendant stands are the following: — (1) The information in the nature of quo warranto does not lie to test the title to the office of governor. (2) The jurisdiction of the General Assembly is full, final, complete and exclusive.
First. These proceedings cannot be maintained. This information, in the nature of quo warranto, was brought to the Superior Court for New Haven County to test the title of Governor Bulkeley. This is not a case of contested election between rival candidates asserting and defending their respective claims to the office, nor is it a case in which "all questions concerning the election of governor can be determined." within the meaning of the last clause of art. 4 of the constitution.
If the Superior Court for New Haven County can call the governor before itself to defend his title, then the only question thereafter to be considered, is the question of the right of Governor Bulkeley to exercise the office and maintain the title of governor.
The questions here pending are not before this court as a court of original jurisdiction, but as an appellate court having power to advise or review the court below upon the questions of law only. The court below must find and pass upon all questions of fact conclusively, and over the decision of that court upon the questions of fact this court, has no power of review. That consideration is one of the most important and conclusive reasons against the power of the court below to summon the governor of the state before it for trial or inquest as to the title to his office.
The immediate question DOW is, — can the Superior Court within and for the County of New Haven, upon the information of the state's attorney for that county, require the governor of the state to appear before it and defend his title, and, if it shall find the fact against him, depose him from office? This question cannot be avoided by the claim that the information runs against the man and not against the office. If that court can try the title of a mere usurper, it can try the title of a de jure and de facto governor upon an allegation that he is a usurper. "If the court can judge, it may misjudge." State ex rel. Brooks v. Baxter, 28 Ark., 129 . So that in the last analysis the claim against us here is that a judge of the Superior Court has power to depose a governor if he shall find the fact against him, whether in so finding he "judge or misjudge" the fact.
It is for this court to say whether the constitution and the laws intended to place such vast power in the hands of a single judge upon the information of a local prosecuting officer — to subject the governor to the possibility of being led out by a constable at the summons of a judge of the Superior Court to defend his title "in any corner of the state." State v. Marlow, 15 Ohio St., 135 . Whenever inquiry into the title to the office of governor has been made
in other states by quo warranto it has been made under their constitution and laws by the attorney-general of the state, proceeding originally in the highest court of the state, with the single exception of the case of State v. Baxter, 28 Ark., 129 , which case was finally overthrown by the case of Baxter v. Brooks, 29 Ark., 173 .
The nature of the information considered historically, excludes the idea that it can be made use of to try the title of the supreme executive officers of the state. The information by writ of quo warranto was established and regulated in England by statute 9 Anne, ch. 20. For some of the limitations upon the use of the ancient writ, before this statute, see 3 Black, Com., 262, clause 5, and especially the note by Chitty, and cases there cited, showing that the information did not issue to try title to offices of all kinds. The statute of Anne permitted an information to be brought by leave of court, at the relation of any person desiring to prosecute the same against any person usurping, intruding into, or unlawfully holding, any franchise or office in any city, borough or town corporate, and the limitations expressly made in this statute are the same in substance as those which existed in practice under the ancient writ. It thus appears that both the common law before the statute and the statute of Anne itself limited the operation of the writ and information to certain inferior offices. It was never claimed that the information could be made use of to set up or pull down a government or chief magistrate of a state. The theory of the process then was that it issued from a superior power or authority to an inferior one, and not otherwise. That was the course of the common law. "All jurisdiction implies superiority of power." 1 Black. Com., 242; Mauran v. Smith, 8 R. Isl., 192. In this state, before the adoption of the statute relating to quo warranto,
the information was made use of State v. Tudor,
5 Day, 329. The statute of Anne formed a part of the common law of this state. Baldwin v. Walker, 21 Conn., 181 . From these illustrations it is manifest that at common law quo warranto would not lie to try the title to the office of governor.
There was no enlargement of the common law by our own statute of quo warranto which will permit the Superior Court, to inquire into the title of the governor by means of that process. This statute (Gen. Stat., sec. 1300,) is no more than a re-enactment of the common law, and the following limitations contained therein exclude the idea that the information could run against the governor: — (1.) It runs according to the course of the common law. Hence it runs not against superiors in office. — (2.) The idea of the statute is, that the usurpation is local, as it would be if limited to a subordinate office. Hence, the writ is issued upon information of the state's attorney for the county to punish for the usurpation, and is issued by the Superior Court "in the county where the cause of action arises." Thus it is evident that the intention was to reach local offices only. — (3.) Jurisdiction over quo warranto is given to the Superior Court, presided over by a single judge. It is preposterous to claim that the constitution and laws intended to subject the governor of the state to such a proceeding, especially in view of the formalities provided by the constitution for examining and declaring his title, and the high and composite tribunal provided for his impeachment.
Our position upon this point is strengthened by the numerous decisions of the highest courts of many of the states, that mandamus does not lie to compel the governor to perform his duties. Atty.-Gen. v. Barstow, 4 Wis., 567 ; Thayer v. Boyd, a case from Nebraska just decided by the Supreme Court of the U. States, and not yet reported; Ex parte Smith, 8 So. Car., 495 ; Royce v. Goodwin, 22 Mich., 496 ; State v. Marlow, 15 Ohio St., 114 ; State v. Harmon, 31 id., 250; Collin v. Knoblock, 25 Louis. An., 263; Rogers v. Johns, 42 Texas, 339; Batman v. Megowan, 1 Metc. (Ky.,) 533; State v. Mason, 77 Mo., 189 ; State v. Baxter, 28 Ark., 129 ; Baxter v. Brooks, 29 id., 173; Goff v. Wilson, 32 W. Va., 393 ; Carr v. Wilson,
id., 419; Robertson v. The State, 109 Ind., 79 .
Second. No man can be the governor of Connecticut until he has been duly declared governor by the General Assembly,
and whoever is so declared holds the office until his successor be duly qualified. The defendant was duly declared governor by the General Assembly at its January session, 1889, and thereupon was duly qualified and entered upon the discharge of the duties of the office. A general election for governor was next held on the Tuesday after the first Monday of November, 1890, as the constitution requires, but no person has since been declared governor by the General Assembly, and therefore the defendant still rightfully holds the office. The General Assembly, upon which the duty of examining and the power of declaring the result of the general election for governor held in November, 1890, devolved, is still in session, and still clothed with the power of declaring who, if any person, was legally chosen governor. One branch of the General Assembly — the House of Representatives — has performed its constitutional duty of examination, and upon that examination has declared, and still does declare, that no person was legally chosen governor at that election. These propositions state the case for the defendant, and suggest the comprehensive question of this controversy, to wit: — What is the power of the General Assembly over questions concerning the election of governor? We submit that the jurisdiction of the General Assembly is full, final, complete, and exclusive, and that no judicial process will lie to test or determine a title to the governorship of Connecticut.
1. Let us look at the matter historically. The framers of the constitution considered the supreme executive power to be a co-ordinate department of the government, and the office so important and of such consequence to all the people, that as to the title there should never be any question or possibility of question or doubt. Hence they provided one, and only one, method of ascertaining and determining that title, — the declaration and notice made and given by the General Assembly, the legislative department of the government, to the end that all the people and all public officers throughout the state should at all times know who was governor.
The importance of absolute certainty at all times as to the supreme executive is discussed by Blackstone, 1 Com., 190. It is as important to the "public tranquility and to the consciences of private men that this rule should be clear and indisputable" in Connecticut, as it is in England.
The governor's assent to the laws enacted by the General Assembly is required. He is commander-in-chief of the militia. All commissions issue from him. It is his duty to take care that the laws be faithfully executed. His are the highest and most important of the executive functions, and upon him the welfare, peace, and good order of the state depend. The framers of the constitution placed upon him those high duties, and thus it must have been clear to them that, whatever doubt there might be as to the title to other offices, there must be no doubt as to the title of governor. They therefore embodied in the constitution itself that certain and absolute muniment of title, to be known by all men and disputed by none, the finding, declaration, and notice by the General Assembly. Const., art. 4, sec. 2. That declaration is followed by the oath of office taken in public, and by long-established custom by the public inauguration, and thus the people know and are not in doubt as to the office. To cover all possible contingencies the constitution proceeds one step further, and provides that the governor shall hold his office for a fixed term, and until his successor be duly qualified. Const., art. 4, sec. 1; 27th amendment to Const., sec. 2. Under that provision it was, and is, the duty of Governor Bulkeley to continue in office. The article of the constitution which requires the General Assembly to find and declare what person has been chosen governor, upon a careful analysis, and in the light of historical knowledge of the manner of choosing a governor from the early days of the Colony, shows conclusively that the finding and declaration of the General Assembly were intended to be absolutely final and beyond dispute, and that the person who should hold that title must remain in possession of the office until some other person with a later title of the same indisputable
character should appear to claim the office, that is to say, until his successor be duly qualified.
Under the charter the freemen were privileged to elect or choose one of their own number for governor "in the said General Court and Assembly to be held from that day or time, newly chosen for the year ensuing, by such greater part of the said company for the time being then and there present." See Charter in Rev. Statutes, 1808, p. 3. With the increase in the numbers of people and extent of settled country, all the freemen could not actually assemble in the General Court to elect officers; hence the adoption of a preamble and public act in May, 1670, reciting the great difficulty and expense which the freemen of the Colony had in their personal attendance at the election at Hartford, and ordering that they should or might on the second Thursday in May, yearly, either in person or by proxy, at Hartford "attend and consummate the election of governour;" and further ordering "that the election by proxies may be so managed that there be no fraud or deceit used therein," and that "all the freemen in the respective towns shall be warned by the constable, or one deputed by him, to meet where he shall appoint upon the last Tuesday in March or April annually, where they shall read to them the freeman's oath and a law which puts a penalty upon disorderly voting, and the names of those appointed to stand for nomination, out of which number the freemen may bring in to the said constable the name of him whom they would have for governour for the year ensuing, fairly written upon a piece of paper, which the said constable shall receive, and, in the presence of the freemen, put them up in a piece of paper and seal them up, and write upon the outside of the paper the name of the town and these words, `The Votes for the Governour.' In like manner they shall bring in their votes for the deputy governour," etc.; and "the constable that receives the votes, and seals them up as aforesaid, shall by himself or one of the deputies of the court, convey the said proxies to Hartford, and deliver them at the election," and "at the time of election, those that stand for nomination shall be
put to election in the same order they are propounded," etc. * * * "And the constables of each town shall take an account, of the names of all those that shall vote in their several plantations, and send them with their proxies." General Laws. 1673, p. 22. That law in substance remained in force until 1803, and all the votes or proxies cast in freemen's meeting were sent up to the General Court, where, in theory, the election was held, there to be counted and declared in order that the election might be consummated. The names of the freemen casting the votes were also sent up. The election was not consummated until all those votes had been counted in the General Court and the result declared.
In 1803 that law was in part repealed, and a new act was passed, (Rev. of 1808, p. 253,) by which, instead of sending up the votes or proxies themselves, they sent up an abstract of them to the General Court, intending to place before it exactly the same information which the votes would have conveyed, saving to the General Court, however, the time and trouble of counting, and nothing more. Still in theory the election was consummated only when the General Court had acted upon the votes which had been given in freemen's meeting. In 1808, (Rev. of 1808, p. 256,) the provisions for counting and returning votes were still further enlarged and provision also made to supply omitted returns and correct defective returns. Article 4, sec. 2, of the constitution, in the first and second paragraphs, substantially follows the statutes of 1670 and 1803. And so on throughout sec. 2, article 4, of the constitution, which was intended to embody the laws then existing, and preserve to the General Assembly all the powers which the General Court had previously exercised in relation to the election and choice of governor. And the power which the General Assembly had embodied in the act of 1808, for the purpose of supplying omitted returns and correcting defective returns, was intended to be retained and preserved by means of the last clause of that section, viz.: — "The General Assembly shall by law prescribe the manner in which
all questions concerning the election of a governour or lieutenant governour shall be determined." The votes cast by the electors in the electors' meetings were returned to the General Assembly us "votes," and the intent still was that the General Assembly should have before it all the information which it would have if the votes themselves were sent up. And the intent of the constitution was that the election should not be consummated until the General Assembly had examined the synopsis and returns of all the votes
cast in the electors' meetings, and from such examination, carried to their source, had found and declared the result.
2. Having thus far considered, historically, the relations of the General Court and the General Assembly to the election of state officers, we now proceed to inquire what is the power of the General Assembly in regard to the election of governor. It is the fundamental principle of a republican form of government that every qualified elector shall have the right and power to cast his ballot for whom he pleases, within such necessary limitations as the law establishes. It is the right of every such elector, and the right of him for whom he casts his ballot, that such ballot shall be received and counted as cast. It is indispensable for the protection and preservation of the privilege of free suffrage that for all denial of its lawful exercise, and for all fraud and mistake which defeat its purpose and result, there shall somewhere be a remedial power ample and absolute. It is certain that in the beginning this power was in the legislature, for the legislature was practically supreme from the charter of Charles to the constitution of 1818. See 1 Swift's System, 72; also sec. 4, chap. 10, of the Rev. of 1808, p. 256. How did the adoption of the constitution affect this power?
"The constitution of the United States is a grant of powers where they did not before exist; the constitution of this state is a limitation of powers already existing." Pratt v. Allen, 13 Conn., 125 ; Starr v. Pease, 8 Conn., 547 . "As the constitution is a mere limitation on the powers of the legislative department, nothing should be regarded as prohibited
which is not so either expressly or by fair and reasonable implication." Lowrey v. Gridley, 30 Conn., 458 .
It will hardly be contended that the constitution anywhere expressly forbids the legislature to fully examine the proceedings at general elections and declare the results in accordance with such examination. Does it so by fair and reasonable implication? For answer we must go to the constitution itself. See art. 6, sec. 6; art. 4, sec. 2; and the closing sentence of art. 3, sec. 6. The constitution nowhere confers upon, or prohibits to, any body, tribunal, class of men, or man, any power over the results of general elections except what is conferred or prohibited in these extracts from that instrument, and the inquiry now is, is there anything therein contained which, by fair and reasonable implication, prohibits the General Assembly from fully examining the results of a general election for governor, and declaring the result in accordance with its finding upon such examination? If there is no implied prohibition so clear and broad as to prevent legislative correction of any — the most glaring and notorious — fraud or mistake, then, we submit, the question is ended, for the occasion for legislative interference is a matter of legislative discretion and judgment. Article 4, section 2, imposes on the General Assembly the duty of consummating and declaring the election of governor, but there are several steps which the constitution presupposes have been duly and legally taken before the General Assembly commences its work, and certainly before it can make any declaration. — 1. That the ballots of the electors have been received and counted in the presence of the electors. What is to be done if all have not been counted? — 2. When the ballots have been received and counted, "duplicate lists of the persons voted for, and the number of votes given for each, shall be made and certified by the presiding officer." What is to be done if he does not make and certify such lists? — 3. These lists shall be made and certified by the presiding officer. What is to be done if he was not the presiding officer, but a mere usurper? Shall his own certificate to his own official character be conclusive? — 4. One of the
lists shall be deposited in the office of the town clerk within three days, and the other within ten days after the election hall be transmitted to the secretary of the state or to the sheriff of the county in which such election shall have been held. What is to be done if such list from one or more towns is not transmitted to the secretary or to the sheriff? — 5. The sheriff receiving the votes shall deliver or cause them to be delivered to the secretary within fifteen days next after the election. What is to be done if the sheriff who receives them does not deliver them and the secretary does not receive them? — 6. The votes so returned shall be counted by the treasurer, secretary and comptroller within the month, etc. What is to be done if they are not so counted? — 7. A fair list of the persons and 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. If such list should not
be made and not laid before the General Assembly, is it powerless to remedy the omission?
These steps taken, the constitution proceeds: — "Said General Assembly shall, after examination of the same, declare the person whom they find to be legally chosen ." The purpose of the examination — to find out who is legally
chosen — indicates unmistakably its character and practically its scope. The language is not "declare the person who shall appear to have a majority of the votes so returned." That would be appropriate language if the examination were to be a mere inspection of the papers. "After examination of the same." Is there here a fair and reasonable implication that this examination may not trace these returns to their source for the purpose of determining every question of their authenticity, reliability and legality? The constitution requires a finding as to whether there is a legal choice; it provides with great plainness the legal prerequisites of that finding. Can it be claimed that in this language there is a fair and reasonable implication that the General Assembly may not determine whether the legal prerequisites have
been performed? If the General Assembly cannot determine, who can? If nobody can, what reasonable assurance is there that the result of such a "finding" will be the discovery of a legal choice? But on this question of implied prohibition the entire article must be considered, and the concluding sentence is: " The General Assembly shall by law prescribe the manner in which all questions concerning the election of governour or lieutenant-governour shall be determined ." And this prescription by law manifestly may be made either before or after the questions have arisen; may be by general or special law, as the General Assembly sees fit. Selleck v. South Norwalk, 40 Conn., 359 . This is not restrictive or prohibitory. On the contrary, it would be an enlargement if the constitution were a grant and not a limitation. As it stands it is simply a confirmation of the original power of the legislature. Upon these considerations, it is submitted that the constitution does not by fair and reasonable implication
prohibit to the General Assembly the exercise of any of its original power in examining, consummating and declaring the result of the election for governor.
It is not an answer to say that an examination conducted on the principles we have indicated is an exercise of judicial functions, and as such prohibited, for it is long past argument in this court that the General Assembly can and does exercise judicial functions. Wheeler's Appeal from Probate, 45 Conn., 306 . And beyond this, while it is true, doubtless, that this power has some of the elements of a judicial character, it is essentially a political power, and with the exercise of its political power by the legislature the courts cannot legally interfere. Rogers v. Johns, 42 Texas, 339 ; Collin v. Knoblock, 25 Louis. An., 263; State v. Harmon, 31 Ohio St., 250 ; People v. La Salle Co., 100 Ill., 495 ; Goff v. Wilson, 32 W. Va., 403 ; Carr v. Wilson, id., 426; Luther v. Borden,
7 How., 1; Georgia v. Stanton, 6 Wall., 50, and cases there cited.
Third. But it is insisted that the constitution expressly, as well as by fair and reasonable implication, limits the General Assembly in making its examination to the fair lists
of the canvassing board and the presiding officers' certificates of the votes counted, and that this is a material restriction of the power of the General Assembly. What are the returns of the presiding officers which the constitution requires shall be furnished to the General Assembly, and which it shall examine for the purpose of finding out who, if any person, is legally chosen? The constitution says they shall be " lists of the persons voted for and the number of votes given for each." This clearly means that every vote given by every qualified elector, with the name of the person voted for, shall be included in the return of the presiding officers for the information of the General Assembly. Here we are met with the claim that the constitution requires a list of the votes given, not of the ballots cast, because ballots
are not votes until they have been not only given and received but also counted and returned, so that all that is necessary to prevent the ballot of a qualified elector from becoming a vote is to throw it out in the count, and the return of the presiding officer which makes no account of the transaction is constitutionally unimpeachable. This distinction between "vote" and "ballot" is purely fanciful. A vote is "a suffrage; the formal expression of a will, preference, wish, or choice, in regard to any measure proposed, in which the person voting has an interest in common with others, either in electing a person to fill a certain situation or office, or in passing rules, laws, regulations," etc. 6 Cent. Dict., 6790. A ballot,
by the same authority, (vol. I, p. 432,) is a slip of paper on which the, voter's expression of his will is written or printed. A vote is an expression of the voter's will in any way; it may be orally, by rising, by raising the hand, or by a written or printed word or words, according to the method of voting required, and when the method is by a written or printed slip of paper, the words vote and ballot and suffrage are synonyms, and are used indiscriminately, the only distinction being that vote is generic and ballot specific. These citations sustain this view: — "Deliver his vote or suffrage." Acts of 1818, p. 312. Same expression. Acts, of 1820, p. 454. See also Gen. Statutes,
§ 247, where the word "ballots" is used to describe the votes counted and preserved in the ballot-boxes, as well as the ballots rejected. See also Opinion of the Judges, 30 Conn., 597 , 599 , where the word "vote" is used as descriptive of a ballot before it has been counted. But the constitution itself furnishes ample evidence that no such distinction was ever contemplated. "The electors present shall be called upon to bring in their written ballots
for senators. The presiding officer shall receive the votes of the electors, and count and declare them in open meeting." Art. 3, secs. 5, 6. "In all elections of officers of the state, or members of the General Assembly, the votes of the electors shall be by ballot." Art. 6, sec. 7. "And each elector present at such meeting, qualified as aforesaid, may thereupon bring in his ballot or suffrage for such person or persons as he shall choose to be senators for such district, not exceeding the number by law allowed to the same, with the name or names of such person or persons, fairly written on one piece of paper. And the votes so given in shall be received, counted, canvassed, and declared," etc. 3d Amendment. In this light the use in art. 4, first of the word " ballots " and then of the word " votes ," is easily explained without resorting to the notion of any such distinction as the one claimed. One of the causes of complaint which led to the constitutional convention of 1818 was the tyrannical restraints placed upon the exercise of the elective franchise; notably the odious "stand-up law," which required voters to stand up at elections; and so the constitution, art. 4, sec. 2, provided that when the presiding officer called upon the electors to vote, he should call upon them to vote by ballot, and when these ballots were cast they were " votes " and they were the " votes given ," within the meaning of the constitution requiring a list of the number of "votes given for each." These are the constitutional returns, and when made, as the constitution expressly requires they shall be made, they carry out the fundamental idea of this commonwealth from its earliest days, which the constitution did not discard, that all the votes which the qualified electors cast shall be before the
General Assembly when it examines to find out who is legally chosen.
The claim of Mr. Morris to the office of governor stands solely upon the evidence of returns of the votes counted
and not returns of the votes given. By the evidence of these unconstitutional and defective returns he had twenty-six majority of all the votes cast.
Fourth. But again the constitution provides that the General Assembly shall, by law, prescribe the manner in which all questions concerning the election of a governor or lieutenant-governor shall be determined. Acting under this mandate, the General Assembly enacted secs. 239 and 240 of the Gen. Statutes of 1888. It will be observed that the certificates required in §§ 239 and 240 are alike called " returns ," and (§ 251,) that the original returns of the presiding officers are required to be laid before the General Assembly on the first day of its session. The purpose of the General Assembly, at least in enacting the provisions of § 240, is too plain for argument. It meant to prescribe by law the manner in which questions concerning the election of governor might be intelligently and fairly determined, by providing itself with sufficient information, if possible, to find out what person, if any, had been legally chosen. It meant itself to be the tribunal, as the constitution meant it should be. It meant this legislation to facilitate and make sure the performance of that duty of determining all questions arising about the election of governor which the mandate of the constitution had devolved upon it.
To state briefly what is claimed here as to the character of the certificates required in § 240: — 1. They are returns of the presiding officers, and the only returns which show the " number of votes given " as the constitution requires. — 2. They are returns of the presiding officers required by the Legislature in pursuance of that mandate of the constitution which requires the General Assembly to provide methods by which all questions concerning the election of a governor shall be determined.
Upon the evidence of these returns in the present case no
person can be found to have a majority of all the votes cast and no person can be found to be legally chosen.
The question now recurs, what is the extent of the legislative power of examination which the constitution requires the General Assembly to make for the purpose of finding out who is legally chosen? An answer to this question is really contained in that mandate of the constitution which requires it to make an examination
of the returns to the point of finding out who is legally chosen. Such an examination to terminate in such a result must necessarily have scope to include all questions of forgery, falsehood and mistake. It is not simply an examination of the face of the returns to find out who appears therefrom to be legally chosen, but an examination thorough and exhaustive and resorting to extrinsic explanatory evidence, if that is necessary to find out who is legally chosen. No general proposition is better settled by authority than the proposition that whenever
and however it is apparent that returns are unreliable, their value as evidence is gone, and other evidence may and must be resorted to. McCrary on Elections, §§ 540 to 544. and authorities there cited; High on Extr. Leg. Remedies. § 638. and authorities there cited; Paine on Elections, § 596 et seq., and cases there cited; Cooley on Const. Lim., (6th ed.,) 788, 789.
But it is the confident claim of our opponents that the certificate of the presiding officer is final upon the question he certifies to, and that the aggregate of these certificates returned is the only evidence upon which the General Assembly can act. The true dimensions of this claim can best be seen by inquiring what exactly that certificate is, and an analysis of § 237 of General Statutes shows what it is. The way the presiding officer's certificate is made is this: — the counters deliver to the moderator a certificate showing "the number of votes counted for each candidate and office respectively; "the moderator indorses this certificate as showing the result of the official count, and passes it over to the presiding officer, who certifies the counters' count to be the vote of the electors' meeting over which he
presides. The whole; business is in the counters' hands they count what they please, reject what they agree to reject, and the moderator must indorse their doings as showing a correct result, and the qualified elector who cast his vote and has been practically disfranchised is without remedy. Such is the presiding officer's certificate, and it goes without saying that it ought not to be final, and it is not. Either branch of the General Assembly, confessedly, may go behind his returns, reverse his decisions, correct his mistakes, count as legal votes the votes which he has rejected, and entirely change the result of the election as declared by him in case of its own members. And in case of question about the election of sheriff or judge of probate, a judge of the Superior Court may review the proceedings of these election officials and reverse the results which they have reached. And the same is true in case of any question about any town office. So that we have this state of things: — the election officer's decision that a given vote shall be rejected for an alleged non-compliance with some requirement of the law may be reversed so far as representatives are concerned, but it must stand as to all state officers. If an elector's vote for constable is unjustly rejected, it may be inquired into in court — even in this court — and the wrong righted; but a counter at the polls may deprive him of his vote for governor without just reason, and for this wrong there is no remedy, because the presiding officer's indorsement of the counters' count is final. This cannot be. In a free state there is no such creature known to the law or possible, whose act is final, however arbitrary, despotic, or even corrupt it may be. The state must stand upon the sure foundation of free suffrage. The constitution takes care of this. The General Assembly exercising a power of which it has never been deprived by the constitution, and following, too, the express mandate of that instrument, has made such provision as legislative foresight could suggest to support the privilege of free suffrage. Section 247 provides that all the ballots cast at any electors' meeting shall, after they are counted, be returned to the box
which shall be locked and sealed up by the moderator, and deposited in the town clerk's office, and kept with the seal unbroken for six months, "to be opened and the ballots examined only by those authorized to make an official examination of them." This section further provides that "if such boxes are opened under authority of a judge of the Superior Court, charged with inquiring into an election, the said judge shall see that all the ballots and the accompanying certificates are returned to the box, and the same effectually sealed up again." There can be no doubt to what end all these provisions point. Ballots to be preserved under lock and seal. What for? Ballots to be preserved for the definite period of six months. Why that time? Boxes to be opened for " official examination ." By whom? Boxes to be opened only by " those authorized ." Who authorizes? If a judge opens the box he must return the votes to the box and effectually seal it up again. Why? The General Assembly requires the ballots to be kept for the purpose of official examination, and it fixes a period of time for this keeping long enough to extend from any election beyond a stated session of the General Assembly. The boxes are to be opened only by the authority of the constitution or the General Assembly. A judge of the Superior Court may open the boxes in the discharge of his statutory duty of inquiry into an election, but when he is through with the votes he "shall see that all the ballots and the accompanying certificates are returned to the box, and the same effectually sealed up again." There is no explanation of this last part of the section; no other construction possible than that the legislature means that when the Superior Court has finished with the ballots, still the great purpose of their preservation is not accomplished. The legislature contemplates an official examination, beyond the Superior Court, as a possibility, and the only power beyond the Superior Court which can open the boxes and conduct this examination is the General Assembly or either branch thereof, in pursuance of its constitutional rights and duties. These elaborate provisions of the law were made in "support of
the privilege of free suffrage;" were made to the end that this privilege shall never be at the mercy of ignorance or fraud. What more effectual safeguard could this privilege have than the promise of the General Assembly that what is done darkly at the polls shall be exposed to the sunlight of legislative inquiry?
The limitation of this power of examination is the ascertained will of the qualified electors of the state legally expressed, and it has no other limitation.
On two occasions the General Assembly has exercised this power without question and without interference: — in Gov. Jewell's case in 1871; in Gov. Waller's case in 1884. In the first of these cases the legislature exercised this power, in the matter of election for governor, by tracing the returns to their source — going to the ballot-boxes themselves and to the men who cast the ballots which were or ought to have been found in them, to trace out and correct illegalities of voting and counting and returning which could not otherwise be detected, because of the defective and deceptive character of the returns of the presiding officers. In the second case the General Assembly exercised this power by going behind the returns of the presiding officers to take cognizance of certain irregularities and passed a validating act to heal the defects of certain votes which were decisive, when healed, of Gov. Waller's election. This power of examination which the General Assembly has exercised, it has never abdicated and can never abdicate; it has never delegated it to any other tribunal and it cannot delegate it. Brown v. O'Connell , 36 Conn., 432 , 447 . This case would seem to be of large value to the court because it defines the meaning of the words "manner prescribed by law," which are common to two articles of the constitution, the one under discussion, and the one construed in that case.
That the General Assembly possesses the power for which we contend is not only evidenced by the fact that the constitution requires it, and it alone, to find out who is legally chosen, but, we submit, it is conclusively established by the
consideration that the constitution has invested it with the sole power of declaring who is chosen governor, and by the further consideration that no man can be governor until he is so declared. Golf v. Wilson, 32 W. Va., 393 ; Carr v. Wilson, 32 W. Va., 419 ; People v. North,
72 N. York, 124; People v. Crissey, 91 id., 616; McCrary on Elections, §§ 215, 274. The Superior Court has no power to compel the production of the evidence upon which alone these proceedings in quo warranto could be sustained, for the legislature is still in session, and the returns are still in its exclusive control. Fleming v. Guthrie , 32 W. Va., 1 . The Superior Court has no power to make any declaration as to who is governor, and no power to enforce it if it should. Suppose the court finds out who is legally chosen, and makes declaration who is governor, what is to prevent the General Assembly, still in session, from making a different declaration the next day, and enforcing its declaration? State v. Baxter, 28 Ark., 129 . And we submit further that the court will take judicial notice of the action of the General Assembly in the matter of finding and declaring what person has been legally chosen governor, and will take judicial notice of the person entitled to exercise the duties of that office. 1 Greenleaf on Ev., § 36; Prince v. Skillin, 71 Maine, 361 .
Fifth. Having discussed these intervening questions, to wit, what are the returns? and what is the extent of the legislative power of examination for the purpose of finding out who is legally chosen? we come to the inquiry as to whether the General Assembly now in session has made the indispensable declaration of some other person to be governor since it declared Gov. Bulkeley to be the governor?
Has the General Assembly made any declaration that any person has been legally chosen? This question can be answered briefly by stating what the General Assembly has done. The Senate, without examination of the returns, its committee refusing the respectful request of citizens and electors to be heard in the premises, has indeed made declaration that Mr. Morris was legally chosen governor in November, 1890; but the Senate is not the General Assembly.
The House of Representatives, without whose concurrence the declaration of the Senate amounts to nothing, having performed its constitutional duty of examination, so far as it could without concurrent action of the Senate, after an examination necessarily incomplete for this reason, has voted that it cannot find that any person is legally chosen It still makes that declaration. Just exactly what the House did is discovered upon an analysis of the report of the committee. This report discloses, first, an examination of the face of the returns; second, an examination of the returns by the aid of extrinsic evidence. On the first part of this examination it appeared that in the whole state 1289 general ballots had been rejected; that these ballots were all cast by qualified electors; that they had all been received and placed in the box; that they had been rejected from the count after the boxes were closed; that the authority upon which they were rejected did not appear; that 458 of these ballots had been rejected for being double; that 121 of these ballots had been rejected and no cause for rejection assigned; in addition, that 111 ballots were rejected, and a cause for rejection given which was neither specific nor sufficient in the law; and that 536 more ballots had been counted for governor than were actually cast. Upon the second part of the examination the committee found, in addition, that 38 general ballots more had been counted in the town of Norwich than the whole number of ballots cast, 20 of which were for Luzon B. Morris for governor; that in Bridgeport 126 republican general ballots were rejected for having an alleged distinguishing mark, which the committee found was merely a minute speck made by defective printing, and not a distinguishing mark within the meaning of the law; and that 103 of those 111 general ballots hereinbefore referred to as rejected for a cause neither specific nor sufficient in the law, were rejected solely because the word "for" was printed thereon as a part of the title of each office voted for, and that, therefore, the ballots were illegally rejected. Upon these facts the committee reported that no person has a majority of the votes lawfully cast for governor.
This report the House adopted, and upon this report it declared, and still does declare, that it is impossible for it to find and declare that any person whatever has been legally chosen governor.
To sum up all we have urged upon the failure of the General Assembly to make a declaration and the results of that failure: — 1. The defendant is holding the office of governor because he was duly declared governor by the General Assembly at its January session, 1889. — 2. The General Assembly, which the constitution invests with the sole power of declaring who was legally chosen governor at the election in November, 1890, has not declared any person to have been legally chosen. — 3. That branch of the General Assembly which has alone made a constitutional examination of the returns, has declared and still does declare that no person was elected. — 4. The action of the General Assembly in examining the votes cast and declaring the result was, and is, an integral part of the election, and such examination and declaration are as much a necessary part of the election as the casting of the votes by the electors. — 5. The General Assembly is still in session, and has the power and the sole power at any time to make such declaration.
Sixth . — In conclusion we respectfully submit that, upon and for the foregoing considerations, the defendant, Morgan G. Bulkeley, is by right the governor of Connecticut. "If the tenure of an office be fixed for a prescribed term, and until a successor shall be elected or appointed and qualified, neither a resignation, nor the expiration of the term, nor the election or appointment of a successor, will vacate the office or impair the power of the incumbent until the successor is duly qualified." Paine on Elections, § 199. See also — People v. Supervisor, 100 Ill., 332 ; Badger v. U. States, 93 U. S. R., 599 ; People v. McKinney, 52 N. York, 374; State v. Jarrett, 17 Md., 309 ; State v. Seay, 64 Mo., 89 , 105 ; People v. Lord, 9 Mich., 227 ; Com. v. Hanley, 9 Penn. St., 513. In Badger v. United States, above cited, the court held that an officer elected to hold until his successor
was duly qualified, could not resign at pleasure and leave the office vacant. Hence we submit that the governor of the state cannot be required to examine the election returns and ascertain for himself whether one man or another has been chosen to succeed him. A case might arise in which he would be mistaken in the result. He is entitled to have a finding and declaration, official in its character, before he shall be required to lay down the office or turn it over to a successor. An attempt by him to decide whether a choice had been made or not would be a usurpation of the power vested in the legislative department of the government.
The exclusive investigations of all questions of every nature pertaining to the chief executive have always been made by the General Court and General Assembly. No abdication or delegation of this high service, call it as we please, duty or prerogative, has ever been made, nor have they been conceived of, so far as is known, until the present suit was brought. Under all of the organic acts, the fundamental orders, the charter, which is little more than the fundamental orders enlarged and assented to by the Crown, the state declaration of its independence and adoption of the charter in 1776, and the constitution of 1818, this political duty of declaring and notifying the chief executive of his calling to office has been exercised by the General Court and the General Assembly, which has ever been and is the supreme political magistracy of our government. Of this department of government our court says, in the modern case of State v. Lewis, 51 Conn., 127 : — "The legislature, is whom all sovereign power is vested, is limited only by the Constitution." And any judicial interference with the General Assembly, while it is in the uncompleted performance of its constitutional duties, would be a nullity. It appears that one branch of the General Assembly has found a certain result of the election, after examination to its satisfaction; that the other branch has found a certain other and opposite result of the election, after examination to its satisfaction. The duty of harmony is yet before them. And
if there is no harmony to be organized from within, there is no possible harmony to be organized from without. To command the General Assembly to complete its constitutional duties by a direction, emanating from the judiciary, is a constitutional and legal absurdity. The General Assembly is responsible only to the people whom it represents. If either branch fails to fulfil its constitutional duty, then it is to the people alone to whom it must answer. Until the General Assembly has certified a candidate for the supreme executive office, it would be worse than idle, it would be a contempt put upon the constitution and the supreme legislative and political branch of the government, for a member of the Superior Court to attempt to bestow upon him suitable credentials of title, by giving him an execution for ouster of an incumbent, addressed to a constable of a single town or to a sheriff of a single county. A clearer instance than that of the confusion of constitutional magistracies could hardly be created. That the declaration of the General Assembly is essentially a political act, with judicial incidents, is apparent. Especially is it so under our constitution, where, in the event of a failure to find a majority vote for any candidate, the constitution imposes upon the legislature itself the highest possible political function of choosing the governor. Nor is it to be overlooked in the case at bar, that the General Assembly has not only neglected, but, by the action of one of its constituent branches, has absolutely declined to ask the assistance of the judiciary in settling these controversies. Can it be that the Superior Court by a judgment in quo warranto will fulfill the high functions of declaring who is governor, which by the constitution was left with the General Assembly, where it has been for nearly two and a half centuries, and which that body can delegate to nobody? We submit, then, that an unsolicited interference by the judiciary with the constitutional duties of the General Assembly, while its two branches have put themselves in opposition to each other, is as unreasonable as, and much more unhistoric than, an interference would be by the executive. In this controversy between the two representative
branches of the legislature, as to whether Luzon B. Morris received a majority of the popular vote last November, and if not, whether he or Samuel E. Merwin shall be chosen by the General Assembly under the constitution, it is no more fitting for the judiciary department to intervene than it would be for the executive department itself to intervene.
But it is said that the constitution contemplates a declaration upon the first day of the session, and, if there is no majority candidate, then a choice by the Assembly upon the second day of the session. We submit that this assignment of dates is but a direction. In general, where a statute requires an official act to be done by a given day, for a public purpose, it must be construed as merely directory in regard to time. Ex parte Heath, 3 Hill, 42. This doctrine has been uniformly maintained by the courts, and nothing is better settled. People v. Alien,
6 Wend., 486, and cases there cited; Colt v. Eves, 12 Conn., 242 , 253 , 255 , and cases cited; McCrary on Elections, § 88. It may be said that this rule is leas universal in the construction of constitutional than statutory law, which is true, but there is no such inflexibility of construction of a constitution in this regard as to defeat the very ends of popular government. These directions are not like a provision of law for a certain number of days' notice to quit possession of a house, or of grace given to the maker of a piece of commercial paper. They were not enacted to be the foundation of a lawsuit or of a defense to one. They were put into the constitution to make it the first duty of the General Assembly to ascertain and declare the will of the people at the election, and if the Assembly should find, after a fair examination, that the people had not elected their state officers by a majority vote, then, at once, on discovery of the fact, to proceed to select them from the leading candidates. With the proprieties or improprieties of the methods of examination pursued by the General Assembly, with their compliance or non-compliance with the directions of the constitution, as to when to make the constitutional declaration and notification,
and when to choose or not to choose his successor, whether on this or that day, this defendant, the executive of the state, has no constitutional right to interfere. That would be an offensive confusion of magistracies. He can do but one thing in order to be true to his oath and to the solemn trusts put upon him by his call to his high office. He cannot abdicate. He must wait until a successor comes to him clothed with the certification which the constitution and the traditions of two hundred and fifty years have made the only evidence of succession. For the appearance of a successor so certified he has waited, willing, and much more than willing, to resign his trust. Until that time comes, he has but a single course of duty to follow, whether it is met by applause or criticism. When such a successor appears, and not till then, he will have filled up the sanctities of his oath, and will have discharged the obligation of his high trust.
C. R. Ingersoll and H. Stoddard, with whom were T. E. Doolittle and L. H. Bristol, contra.
The question is, whether the defendant is the rightful and lawful governor of the state of Connecticut. If he is such governor this action must necessarily fail, but if he is not the governor of this state, this action must succeed and a proper judgment be rendered accordingly. The case presents no question of jurisdiction. An unlawful, unfounded and pretended claim of title to the office of governor cannot oust this court of jurisdiction to determine whether in truth and in fact the defendant is by law entitled to such office. Whoever intrudes into any office, it matters not what that office may be, with or without the final evidence of title, may be ousted on proper judicial inquiry, as was decided in the leading case on this subject of Attorney General v. Barstow, 4 Wis., 567 , where, notwithstanding the incumbent had been declared governor by the proper authorities, the court upon quo warranto
adjudged him to be an intruder, and ousted him from the governorship which he had unlawfully usurped. The question of jurisdiction thus disposed of, the single
issue presented to the court for its determination is, who is governor of the state of Connecticut? Is it the relator, or is it the defendant?
The following are conceded facts in the case: —
— (1.) A general election for governor and other state officers was duly held by the electors of this state on the 4th day of November, 1890, pursuant to the provisions of the constitution. — (2.) The relator, Luzon B. Morris, received a clear majority of all the votes received and counted at the several electors' meetings. — (3.) Lawful returns of such votes were made to the treasurer, secretary and comptroller of the state, and these officials counted the votes so returned, and therefrom it appeared and still does appear that the relator, Luzon B. Morris, had 67,662 votes, and that all other candidates had 67,636 votes; showing a majority for the relator of 26 votes, and if an amended return of votes from Milford is considered, a majority of 44. — (4.) A fair list of such votes so returned was made by the treasurer, secretary and comptroller, as provided by the constitution, from which fair list of votes the above result appeared, to wit, that the relator, Luzon B. Morris, had a majority of 26 votes, received and counted in the presence of the electors and returned as provided by law. — (5.) Said fair list and return of votes, made by the presiding officers of the electors' meetings, were duly laid before the General Assembly on the first day of its session. — (6.) The Senate, after examining the fair list and the returns of the presiding officers of the electors' meetings, thereupon found the vote to be as above stated, and in obedience to the constitution declared the relator to have been elected governor by the electors. — (7.) The House of Representatives had before it the same fair list and the returns of the several presiding officers of the votes received, counted and declared in the presence of the electors, and from these documents the House found that the democratic vote for governor "as returned" was 67,662, and for other candidates "as returned," was 67,636, leaving a democratic majority of 26 for governor "as returned."
The alleged facts put forward to excuse the refusal of the House to make a formal declaration are in substance these: — (1.) The House committee reported that they found that 1289 general ballots were not counted and were rejected at the electors' meetings and in the presence of the electors, and that they "thought" that some of these general ballots so rejected should have been counted for some one, but made no investigation nor any finding as to the person for whom these rejected ballots were actually cast, except by inference, and that only in relation to 159 of the 1289 rejected ballots, leaving a balance of at least 1130 of such rejected ballots, every one of which may, for aught that appears, have borne the name of the relator, Luzon B. Morris, for governor. — (2.) The committee also reported that 126 ballots were rejected in open electors' meeting in Bridgeport, for hearing a distinguishing mark, and, without seeing a single one of said rejected ballots, further reported that in their judgment the mark which the local election authorities, upon inspection of the ballots themselves, held and declared to he a distinguishing mark, was not such a distinguishing mark as to invalidate the ballots "within the meaning of the law." — (3.) The committee also reported that some of the 1289 rejected ballots were, through error of judgment on the part of the local election authorities, rejected without sufficient legal cause. — (4.) The committee further reported that in a number of towns the presiding officers, in attempting to make a certificate under section 240 of the General Statutes, in relation to a variety of facts connected with the conduct of the election, had blundered in some particulars.
It is not denied that the local election officers acted fairly, honestly and according to their best judgment. It is not claimed that there were any errors in the count except in Norwich, which error, if any there was, did not affect the result. It is not claimed that any mistake intervened in the return of votes. All was concededly regular and fair, and the only claim made on the part of the defendant is, simply, that mistakes of judgment on the part of the local authorities
did exist, whereby certain ballots were rejected which, in the opinion of the committee, should have been counted. And therefore it is now claimed that the House of Representatives, of itself and against the protest of the Senate, has the constitutional right to revise such judgment of the local election authorities, and upon such revision has jurisdiction to determine whether the rejected ballots should have been counted, and thereupon to count them if it so decide.
First. The relator contends — 1st. That the election was held and consummated by the electors of the state in the electors' meetings held on the 4th day of November, 1890, and that the General Assembly does not participate in the election of governor, but only declares the result as that result appears from certain figures.
2d. That the fair list and the returns of the presiding officers of the vote actually counted and by the board of can vassers laid before the General Assembly are primâ facie and presumably correct, and must necessarily stand until altered, amended or set aside by some competent authority.
3d. That under our constitution and practice there is no power on the part of the General Assembly, much less of either house composing it, to alter, vary or amend said list and returns, and that the duty of said Assembly and of each constituent house is simply ministerial, to wit., to ascertain from said fair list and returns the result of the election and then to declare that result.
4th. That no unlawful and unconstitutional refusal on the part of the House of Representatives to formally declare the result, as shown by the documents and found by the House, can deprive the electors of the state of their constitutional right to elect a governor, or deprive the relator of the office to which he has been lawfully chosen.
5th. That in the present case both branches of the General Assembly have ascertained the fact to be that the relator received a clear majority of all the votes cast as shown by the list and returns, which are the sole evidence of the fact, but that the House of Representatives, in violation of its duty
under the constitution, refuses to declare what is a necessary inference from such finding, to wit, that the relator was elected.
6th. That if there is power existent anywhere to alter, amend or vary the fair list and the returns of presiding officers, (which we utterly deny), such power can exist only in the General Assembly, which body can act only through the co-ordinate action of the two houses which compose it; that neither house can of its own motion alter or amend said list and returns, because that can be done only by the General Assembly, and that a refusal on the part of either house to change the list and returns necessarily involves a refusal on the part of the General Assembly, because the assent of both houses is indispensable to such change.
7th. That this court will not allow a mere matter of form to stand in the way of an election completed in substance and essence, but will, to prevent a failure of justice, adjudge the relator to be lawfully elected to the office of governor in spite of the refusal of one branch of the General Assembly to perform a ministerial duty by passing the customary formal declaration.
Broadly stated, the position for which the relator contends is, that the right to the gubernatorial office depends upon the election to that office by the electors, and does not depend upon a declaration of the result of that election by the legislature; that the General Assembly does not participate in the election of governor, but only declares the result as it appears from certain figures and papers laid before it; and that the action of the General Assembly in examining the votes and declaring the result is not judicial but ministerial, and is not, therefore, an integral part of the election.
The essence of the relator's claim is, that the action of the General Assembly in examining the returns and declaring the result is wholly and purely ministerial;
that it is not in the power of the General Assembly, by neglecting or refusing to make a proper declaration, to defeat the will of the people as expressed by the votes of the electors in their Meetings in the respective towns; that the act of declaring the result
as shown by the returns is an imperative duty imposed upon the General Assembly by the constitution; that the duty of the General Assembly is in this regard no other than, or different from, that devolving in similar cases on any other returning or canvassing board; that though the duty is imposed on the General Assembly, the quality of the act to be performed by the General Assembly is not altered because it is the General Assembly that is to perform it; that as that duty is a ministerial one, it does not and cannot become a judicial or political duty by reason of the nature of the tribunal to which it is entrusted — it remains purely and simply ministerial always; that if the General Assembly can refuse to declare a governor whom the returns show to be legally chosen, it has practically power to constitute an executive to suit its own purposes, thus strangling and overthrowing the public will; and that such a doctrine robs the people of the executive they have chosen, and may force upon them one who was not even a candidate for their suffrages. The defendant, on the other hand, contends that the duty devolved on the legislature by the constitution is not ministerial but judicial, and that, acting in such judicial capacity, the legislature has the power to examine, alter, amend and vary the fair list of returns laid before it.
It is upon the issue thus made up, whether the duty devolved on the General Assembly is judicial in its character or ministerial only, that the substance of the controversy turns. From that issue as presented by the record there is no escape. Either the duty of the General Assembly is ministerial, purely and wholly, or else it is judicial, with all that judicial power implies, — the right by all proper methods and with the aid of all legitimate evidence and proofs to conduct the inquiry to a conclusion which shall finally determine the rights of the parties. Less than this is to make the granting of judicial power a farce.
The underlying, essential question to be determined is, whether the declaration is an element or only evidence of title. If the latter, then it necessarily follows that it is no part of the title itself — that the right is perfect without it; and to
prevent a failure of justice, that no wrong may be without its remedy, the courts will and must, upon the production of such evidence as may be deemed satisfactory, make good the omission of the declaration by an adjudication that the person who has thus proved his title is entitled to the office; which adjudication, when made, has all the force of the declaration for which it is substituted, and is promulgated with the same publicity which that declaration was intended to subserve. And so it is that all the authorities, unless this case prove to be the one exception to the rule, from Lord COKE down, hold that the election
is the foundation, not the return; and that the right and title to an elective office depends upon the election, and is not contingent in any degree or manner upon the existence or non-existence of a certificate or declaration of election. Cooley on Const. Lim., 782, 785, 786, 787; Paine on Elections, §§ 625, 626, 634; High on Extr. Rem., §§ 638, 639, 639a; 6 Am. Eng. Encyclopedia of Law, 422, 423, and cases there cited.
"If one not legally elected is erroneously declared to be elected, the will of the people is disregarded. A usurper holds an office to which he has no right. `The usurpation of an office is not an invasion of the executive prerogative,' observes NOTT, J., in State v. Deliesseline,
1 McCord. 52, `but of the rights of the people, and the only method by which those rights can be protected is through the instrumentality of the courts of justice.' In accordance with these views it has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is only primâ facie evidence that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board." (Citing People v. Cooke, 8 N. York, 67; People v. Judson,
55 N. York, 525; People v. Vail, 20 Wend., 12; State v. Governor 1 Dutch., 848.) Per APPLETON, C. J., in Prince v. Skillin. 71 Maine, 871 . And it matters not that the body is so constituted that mandamus will not lie to enforce its duty. The true
rule is, that if the duty is imposed by law and the act is ministerial, a refusal to act cannot affect the title to the office in quo warranto proceedings. Dennett, Petitioner, 32 Maine, 508 ; McCrary on Elections, § 378. "The presumption is that the legislature will perform its duty and declare the result. If, therefore, the rights of a party who has been elected to an office are imperiled by the refusal of a canvassing board, (in that case the legislature), whose duty it is to proceed with the canvass and declare the result, he may confidently appeal to the courts to protect and enforce his rights." State v. Elder.
47 N. W. Rep., 710, 717.
If, one the other hand, the declaration is an element of title, it is evident, no matter whether it is termed "an integral part of the election" or "an indispensable adjunct," the title is not and cannot be complete without it, and no right exists which the claimant can assert in the courts or elsewhere. There is no failure of justice, because no legal right has been perfected; no denial of justice, because the right to demand justice does not come into existence. There is simply a failure to elect, which it is impossible for the courts to supplement or remedy. Is this so? Can it be that the constitution intended to place in the hands of either house or of the whole General Assembly the power to thus defeat the will of the people, and to thrust upon them, for a succession of terms it may well be, a hold-over executive whose only title is found in the "sic volo, sic jubeo; stet pro ratione voluntas," of a partisan majority? Did the framers of our constitution intend to open the courts to all other suitors, no matter how insignificant the office, and to close them only to those whom the people have elected to the highest offices of the state?
In proceeding to the consideration and discussion of those matters which, as we think, bear upon the fundamental issue thus stated, it is well, at the outset, to recall the language of the Supreme Court of Maine in a similar case — In Re Gov. Garcelon, 70 Maine, 561 , 599 . "In a case like the present the remark of Chief Justice MARSHALL, in Cohens v. Virginia,
6 Wheat., 404, is peculiarly applicable. `It is
most true,' he says, `that this court will not take jurisdiction if it should not, but it is equally true that it must take jurisdiction if it should.' The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts or whatever difficulties a case may be attended, we must decide, it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other will be treason to the constitution."
Second. The relator insists that the electors have reserved to themselves the exclusive right to elect the governor in the electors' meetings assembled, and that, considered historically, this is true in a high and emphatic sense peculiar to the people of this commonwealth.
1st. The freemen of this colony in the beginning gave, in all else, well nigh unlimited power and jurisdiction, legislative, executive and judicial, to the General Court, but in the single particular of election of governor and other magistrates they excluded the General Court by express negative words, and have always insisted by practice, by law and by constitution, that this privilege should never be parted with. Hooker's Sermon, Johnston's Conn., pp. 71, 72; Fundamental Orders of 1639. The 10th order is as follows: — "In said General Courts shall consist the supreme power of the commonwealth, * * * and (they) may deal in any matter that concerns the good of this colony except election of magistrates, which shall be done by the whole body of freemen." See Laws of 1750, p. 29; Laws of 1774; Laws of 1796, § 5, p. 125; Laws of 1808, p. 202. See also laws relating to proxy voting, appearing in 1 Colonial Records, 346; 2 id., 131; 3 id., 11, 12, 223; Revision of 1750, p. 46; Laws of 1784, p. 45; Act of 1803, (p. 253 of Laws of 1808;) which last cited act continued to be the law until the adoption of the constitution in 1818. Down to the adoption of that constitution the practice was uniform to appoint a committee under oath to receive and sort the votes and declare
the result, who thereupon caused that result to be proclaimed before the General Assembly. 4 Colonial Records, p. 41, May session, 1708; 9 id., p. 414, May session, 1749; id., p. 501, May session, 1750; 10 id., p. 3, May session, 1751; 13 id., p. 4, May session, 1768; 13 id., p. 572, May session, 1772; 14 id., p. 73, May session, 1774. From the earliest institution of our government down to the constitution of 1818 it is impossible to find a single instance where any action whatever as regards the election was had by the Assembly as such, or where the canvass made by the committee appointed for that purpose was other than formal and ministerial.
2d. In 1818, when the constitution was adopted, there was no return to be made by the moderators under the law, other than of the votes that were received, counted and declared in the presence of the electors and in open meeting. The rejected ballots were not, and at that time could not, be returned. Ballots rejected were not votes; they formed no part of the return, and by no possibility could they go before the General Assembly. The certificates now sent to the secretary of the state, under section 240, never go either before the board of canvassers or the General Assembly, and the board of canvassers have no legal relation whatever to those certificates. The earlier part of the 2d section of the 4th article of the constitution defines the returns to be the duplicate lists of the persons voted for and of the number of votes given for each. A pretended ballot which the local authorities have decided to be illegal, does not become a vote,
and it is only those ballots which are by the local authorities received, counted and declared in open meeting that can be returned as votes. It is a perverted ingenuity which finds in the clause that "the General Assembly shall by law prescribe the manner in which all questions concerning the election of the governor or lieutenant-governor shall be determined," a constitutional warrant for the substitution of other evidence and different returns from those which the express language of the constitution makes the sole evidence of the result. On the contrary, this very language,
if it has any meaning, emphasizes in a peculiarly emphatic way the soundness of our contention. If the constitution intended to give to the General Assembly full power to exhaustively examine and judicially determine the title to the state offices, it would be an utter absurdity, a sheer contradiction in terms, to provide that the same Assembly "shall by law prescribe" some other tribunal to hear and determine those identical questions.
3d. By the constitution each house of the General Assembly is made the final judge of the election returns and qualifications of its own members, but no such power is given to the General Assembly in reference to the election of state officers. This difference is significant. The omission was deliberate and intentional, and is consistent with the entire theory of our form of government, showing a clear intent that the election of a governor should in no wise be dependent upon the will of the General Assembly.
4th. An examination of the journals of the Senate and House since the adoption of the constitution shows that the result of the election has been uniformly declared upon the examination of the fair list and returns of votes; except in 1871, when the General Assembly, by the conjoint action of both houses, (and even then against the protest of the minority,) upon an allegation of fraud, proceeded, not to revise the action of the local authorities, but to do that which the presiding officers might have done. And the whole history of legislation in this state (Acts 1844, 1849, 1859, 1860, 1868, 1871, 1874, 1875) shows that the conduct of electors' meetings is by law committed to the local authorities.
An analysis of the provisions of the constitution demon strates that the duty devolved on the General Assembly by that instrument is ministerial and not judicial.
1st. It is unquestioned and unquestionable law that the governmental process of election, when once begun, must go on without stoppage to its completion and conclusion. Each agent must perform his duty as it comes to him, and has no power to hold back because some other agent has not
acted, or has not acted to his satisfaction. In the Lawful and orderly exercise of the process there can he no stoppage of its progress until the result is ascertained and declared, and in the light of this axiomatic truth it is idle to claim that the constitution intended to authorize the legislature to interrupt the process of election by giving it power to make a judicial scrutiny of the returns. There are three mandates of the constitution: the presiding officers must send the list to the canvassing board, the canvassers must canvass them, the legislature must declare the result on the first day Nothing can lawfully stop these processes. The interest of the state is that the office shall be filled, and no time is afforded for the trial of a contested election by the General Assembly; and therefore the General Assembly must declare the election after inspection of the fair list and returns of votes actually received and counted.
2nd. Under the constitution the governor is the person chosen by the electors to cooperate with the legislative department in the operation of government, by making laws and otherwise; therefore, it is necessary that who such executive is to be should be ascertained and declared concurrently with the opening of the legislative session, and to that end and for that purpose the constitution provides that the returns shall be laid before the General Assembly on the first day of the session thereof, and that the Assembly, after an examination of the same, shall declare the person whom they shall find to be legally chosen; but if there is no choice then said Assembly shall, on the second day of the session, proceed, without debate, to choose a governor. Neither discussion nor consideration is permitted, much less a judicial examination extending over weeks and possibly months, because in that event the machinery of the constitution would fail to carry out its plain intent to provide an executive chosen by the electors to cooperate with the legislature in the transaction of the business of the state. The only course consistent with our fundamental notions concerning frequent elections, or consistent with the language of the constitution, is to accept the fair list and the returns
of votes as they appear upon their face, declare such result, and leave every question which may arise upon a contest to judicial tribunals. A striking confirmation of this view is found in the language of MAXWELL. J., in the recent Nebraska case of State v. Elder, before cited. "The legislature is a lawful body, elected and organized in pursuance of the constitution and laws for a lawful purpose, and while within the limits and restrictions of the constitution it may pass any measure it may deem proper, yet morally it is bound by the same considerations of fairness and justice which control the courts and it is its duty to dispose of election contests in this manner. This not infrequently requires investigation of the evidence, which may require weeks or even months in connection with the other duties of the members, and is wholly irreconcilable with the theory that the declaration of the remit of the election should be postponed until the termination of the contest."
3d. By the provision of the constitution, the governor is chosen by the electors at their meetings in their respective towns, and all subsequent proceedings are simply to preserve and perpetuate the evidence of the result. The constitution first provides that the supreme executive power shall be vested in the governor, "who shall be chosen by the electors" and then provides that at the meetings of the electors in their respective towns, " the presiding officers shall call upon the electors to bring in their ballots for him whom they shall choose to be governor." By this language the whole power of choosing a governor is entrusted to the freemen of the state. It is by their ballots, received and counted in the presence of the electors, that the election is to be determined, and over these meetings the General Assembly has and can have no power. Within that sphere the meeting of the electors is supreme, and determines by its own proper authority what ballots shall be received, what ballots rejected, and what ballots counted as votes. It is a most significant fact that the constitution contains neither mandate, direction nor instruction of any sort as regards the conduct of the election by the electors in electors' meeting assembled. That is confined to
the electors wholly and entirely. It is only after the election in a town is completed, and the ballots have been counted in the presence of the electors,
and thereby made votes, that the state for the first time intervenes and directs what steps shall be taken to preserve the official evidence of the result, by means of duplicate lists of such votes, so that the General Assembly may declare to the world whom the electors have chosen to be their governor. The central idea of the constitution in this regard is, that the choice of governor is to be made by the whole body of the freemen
and not by any representative body. It is the election that decides. This was the very Ark of the Covenant brought by our Puritan ancestors from Old England to the New. As they chose one man from the whole body of the congregation to be their ruler in things spiritual, it was not only a natural but almost a necessary sequence that in things political the same rule should apply; so that alike, both in church and state, they should be ruled by one man, chosen by and representing in his own person the whole body of the freemen of the commonwealth.
4th. As a part of the machinery to perpetuate the evidence of the result of the choice made by the electors in the electors' meetings, the constitution provides that duplicate lists, not of the ballots cast but of the votes counted, certified to by the presiding officer shall be made; one of which shall be sent to Hartford within such a period of time that the canvassing board provided by the constitution shall have a whole month to canvass the votes returned by the presiding officers, while the legislature is given but a single day, the first day of the session, to declare the result. Is it possible to suppose that the constitution intended the General Assembly to make a judicial scrutiny, when the time for such scrutiny is limited to one day only?
5th. The constitution provides that duplicate lists of the persons voted for, and of the number of votes given for each, shall be made and certified by the presiding officers, one of which lists shall be deposited in the office of the town clerk. Under the act of 1803 only one list was made
out and that was deposited in the office of the town clerk as the primary and sole evidence of the result, and a copy only of that list was sent to Hartford for the purpose of informing the General Assembly what the result was. When, instead of such copy, a duplicate list was substituted, its function was not thereby changed. The original, proper and primary evidence of the result still remained in the office of the town clerk, confessedly beyond the power or control of the General Assembly. Can it be that the constitution meant to authorize the legislature to alter and change one record of the result and yet leave the other record of the same result, of equal verity, unimpeached and inviolate?
6th. The constitution provides that the fair list and the returns of the presiding officers shall be laid before the General Assembly on the first day of the session thereof. Now what was the object of laying these lists of returns before the General Assembly? Simply to furnish that body with evidence as to whether it could exercise the power to choose a governor by reason of the failure of the people to elect, and to show it who were the two having the highest vote, from which choice must be made. If a plurality elected there would be no occasion to send the returns to the legislature. And note the language of this section of the constitution: "If no person shall have a majority, then the Assembly 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 ."
Third. The journal of the constitutional convention of 1818 demonstrates the soundness of the preceding positions. The first draft of the constitution presented to the constitutional convention gave the General Assembly power to determine contested elections for the governor (see p. 83 of the journal); but the convention was unwilling to give the General Assembly this power, and adopted Judge Lanman's amendment, which reads as follows: "And said Assembly shall
after examination of the same, declare the person who has a majority of the votes returned as aforesaid to be legally chosen, and give him notice accordingly." The draft of the constitution thus amended was referred to an engrossing committee for the purpose of correcting verbal inaccuracies and errors in phraseology (Journal, p. 67); and that committee, acting under the authority of that resolution, made a few changes in language, among others using the phraseology of the constitution in place of the words of Lanman's amendment. The two forms of phraseology were, however, intended to he and are identical in substance and meaning, from which it appears that the language of the constitution, as it now reads, can only mean that the General Assembly must declare that person elected whom they shall find, by an inspection of the votes so returned,
to be legally chosen.
Fourth. The question now before the court has been settled by the authoritative exposition of the law of this state embodied in the opinion of the judges of this court as to the constitutionality of the Soldiers Voting Act, 30 Conn. R., 591 . The court there held that the mandate of the constitution fixed all the essential details of time, place and manner of elections, as follows: — (1.) The time — the first Monday in April. — (2.) The place — the meetings of the electors. — (3.) The voting — to be at the call of the presiding officers, in the presence of the electors, and in such order
and manner as the General Assembly should direct. — (4.) The votes to be received, counted and declared in the presence of the electors. — (5.) Lists of votes so given, received, counted and declared, to be made and certified by the presiding officers of the electors' meetings. — (6.) One of those lists to be returned to the secretary of the state, and the other to the town clerk. — (7.) The lists so certified and returned to the secretary, to be canvassed by the treasurer, secretary and comptroller and an aggregate list made therefrom. — (8.) The lists so returned, with those made by the canvassers, to be presented to the General Assembly on the first day of its session. — (9.) The General Assembly to examine the lists of the presiding officers and canvassers,
and declare the choice evidenced by them, and notify the several persons elected. — In other words, the court holds that the above procedure is exclusive of any other mode; that the examination by the General Assembly must be, confined to the lists laid before it pursuant to the provisions of the constitution; and that it is the duty of the General Assembly, "after an examination of the same ," to declare that the election has resulted in the choice evidenced by them. This opinion of the Supreme Court was adopted into and made part of the constitution of the state by the subsequent constitutional amendment of 1864, passed by two legislatures and approved by the people, allowing soldiers to vote, but providing that the provisions of the amendment should cease and become inoperative and void upon the termination of the then existing civil war.
Fifth. An unbroken series of decisions by the courts of last resort in other states is conclusive in the relator's favor. Those cases state that the electors elect, and that the persons or body having the duty to declare cannot look beyond the returns of votes. Such bodies act in a ministerial capacity only, and are subject to and must be governed by the law. In re Governor Garcelon, 70 Maine, 561 . In this case the Supreme Judicial Court of Maine say: — "The governor and council must act upon the returns forwarded to the secretary. If they purport to be made, signed and sealed up in open plantation or town meeting, they constitute the basis of the action of the canvassing board. No provision is found in the constitution, or in any statute of this state, by-virtue of which they will be authorized to receive evidence to negative the facts therein set forth. They therefore have no such power. The presiding officers are to determine whether the ballot offered has a distinguishing mark or figure. * * * But if the ballots have distinguishing marks or figures, it is no part of the duty of the officers of the town to make any report in reference thereto. * * * The governor and council have nothing to do with the question. Their duty is to count the votes, regardless of the fact improperly set forth in the return. They are nowhere
constituted a tribunal with judicial authority to determine what shall constitute a distinguishing mark or figure, nor can they legally refuse `to open and count the votes returned.' An election has been had by the electors of this state. The rights of several persons voted for depend upon the votes cast. It was the duty of the governor and council thus to declare it. * * * The governor and council have no right to summon a person to attend and take his seat in the Senate or House of Representatives who by the returns before them was not voted for, or being voted for was defeated. To summon one for whom no votes had been cast would be a deliberate violation of official duty. To summon those whom the returns show were not elected would be equally such violation. Either would be intruders without right into a legislative body."
So in Prince v. Skillin, 71 Maine, 361 , the court say: —
"The real title to an elective office depends upon the votes cast. The underlying principle is, that the election and not the return is the foundation of the right to such an office. It has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is one of primâ facie
evidence, that the real title to an office depends upon the votes cast, and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board."
"It is settled by the decision of the court in 53 N. Hamp., 473, 641, that the constitution of New Hampshire requires the governor and council to ascertain, not who are chosen, but who appear by the returns to be chosen state senators; to find the apparent results of the election, not by acting as judges of the election, but so far as the result appears in the returns to find it by arithmetic; to make a computation, not of the votes which would have been cast in a fair election, nor of the legal votes that were cast, nor of the votes, legal and illegal, that were cast, but of the votes which the returns show were declared by the moderators. The duty of making this computation being imposed upon the governor
and council by the constitution, they cannot be authorized to violate it. Their duty is, not to count a part of the returns, but to count them all. * * * It has been argued that to hold the declaration conclusive, so far as the record is concerned, is placing in the hands of the moderator a great and dangerous power, liable to abuse. This is doubtless true to a certain extent." The court then goes on to say that the power must be lodged somewhere, and adds: "This necessity was seen and recognized by the framers of the constitution, as well as a possibility of an abuse of the power necessary to be granted for that purpose. We therefore find that when the power was conferred upon the moderator it was attended with a safeguard as simple, and at the same time as effectual, as human prudence and sagacity could well devise. This safeguard is that the declaration of the vote by the moderator shall be public. The framers of the constitution probably did not look forward to a time when the people of the state should become so indifferent to their political rights and the purity of their government that this would not be sufficient." Osgood v. Jones, supra, 60 N. Hamp., 282 , 621 . "Nothing can be clearer than that the counting the votes and ascertaining the majorities and giving certificates of the result, are mere ministerial acts. They have no discretion in determining which of the candidates shall be elected. It must be the result of pure, inflexible, mathematical calculation." Strong, Petitioner, 20 Pick., 484, 497, 498; Clark v. Board of Examiners, 126 Mass., 283 . See also People ex rel. Noyes v. Board of Canvassers, 126 N. York, 392; Grading v. Boone, 98 N. Car., 573 ; Roberts v. Calvert, Id., 580. The case of State v. Elder, before cited, is the latest exposition of the law on this subject. The constitution of Nebraska provides that the speaker of the House of Representatives shall, immediately after the organization of the House and before proceeding to other business, open and publish the returns in the presence of a majority of each house of the legislature. The court say: — "This in effect makes the two houses of the legislature a canvassing board with the speaker of
the House of Representatives. In no sense is the canvass of the votes a legislative duty. It might have been imposed on any other body of officers and the duties would have been precisely the same as in the case at bar, namely, to add up the number of votes cast for the several candidates and declare the result. The rule is, that each board is to receive the returns transmitted to it, if in due form, as correct, and to ascertain and declare the result as it appears by such returns. This rule applies to all canvassing boards without exception. By what authority shall the courts discriminate and say, we will compel this board to do its duty but not that one? In a free government no person is above the law; all are bound by its provisions. The legislature is a lawful body, elected and organized in pursuance of the constitution and laws for a lawful purpose; and while, within the limits and restrictions of the constitution, it may pass any measure it may deem proper, morally it is bound by the same considerations of fairness and justice which control the courts, and it is its duty to dispose of election contests in this manner. It seems to be assumed that the legislature has the power, and that therefore at its option it may declare whomsoever it pleases, of the candidates voted for, elected. This is a government of the people, by the people and for the people. The constitution and laws provided a mode in which the will of the people shall be ascertained, namely, by a canvass of the votes."
Sixth. If we are right in our contention, that the duty devolved on the General Assembly by the constitution is ministerial only, to hold that the declaration is essential to constitute an election is revolutionary. If the General Assembly can refuse to perform a mere ministerial duty in the present case, it can equally well refuse to perform it in a case where the successful candidate has 10,000 majority and not one of the returns is in controversy. Such a doctrine is monstrous. It says in substance and effect that the neglect of a plain constitutional duty, ministerial in its character, may be made the weapon to destroy not only the will of the people but to overthrow the express provision of the constitution.
If this indeed be so, then our social order is at an end, anarchy is upon us, a government of men is substituted for that of law, and it remains only to oppose force by force in a conflict which must subvert all the institutions of the state. In the Garcelon case certain oaths or affirmations were by the constitution prescribed for persons elected to the offices therein mentioned; but it appeared that those before whom the prescribed oaths were to be administered refused to act. But the court said: — "The oath is prescribed; the terms are essential; its binding force depends upon its terms, not on the magistrate by whom it is administered. If there is no governor and council, or being a governor and council they refuse to administer the oath to one representative or to all, for there can be a refusal to all equally as to one, what is the result? Is anarchy to triumph? Can the government be destroyed or its action paralyzed because there is no governor or council before whom the prescribed oath is to be taken? We think not. The prescribed oath, from the necessity of the case, may be taken before a magistrate authorized to administer oaths." "It will hardly be contended," says APPLETON, C. J., in his opinion in Prince v. Skillin , "that, if by errors of computation throwing out legal returns or counting illegal ones, a candidate not duly elected is wrongfully declared to be elected, there should not be some remedy provided for the party actually elected by which the wrong done may be corrected. If the error is not subject to correction, then the canvassing board in the exercise of irresponsible power have full and absolute control of the government, and may effectually stifle the voice of the people according to their sovereign will and pleasure."
Seventh. Waiving, for the moment, all preceding contentions, we further insist that a substantial finding and declaration of the relator's election by the votes as returned was in fact made by the House, of Representatives. The committee of the House reported that the democratic vote for governor "as returned" was 67,662, for other candidates "as returned' 67,636, leaving a democratic majority of 26 for governor "as
returned," which report was accepted by the House. It was the plain constitutional duty of the House to make such declaration and finding, and the force and efficacy of such finding and its promulgation to the world by resolution cannot be and is not lessened or impaired by any further or additional statement of the House that no finding could or would be made by the House, or that certain other facts appear by the inspection of other documents. It being the duty of the House to make such finding, the question is, whether it has so done substantially. In Ex parte Heath,
3 Hill, 42, the court say: — "That return is special; that `we have received returns from the several districts of the said ward, etc., copies of which returns certified by us are hereunto annexed. That it is impossible for us to declare what persons were, by the greatest number of votes, elected.' * * * To declare who was elected, the ward inspectors were doubtless competent. Have they done so substantially? If they have shown an election on the whole return, that gives the right. * * * They have, in the words of the statute, set down the names of the candidates for the respective offices, with the number of votes for each; and it is admitted that if they had done nothing more, this was, in legal effect, the same as an express declaration of the majority. * * * We are of opinion that the declaration of impossibility by the ward inspectors was a nullity. * * * The case, was the same as if they had at first certified, in so many words, an election, according to all the words of the statute, and had then added the qualifying expression. The latter must obviously have been rejected as surplusage." See also cases relating to certificates and returns offered in evidence, referred to in Cowen Hill's Notes to 1 Phil. Ev., 1045 to 1047, and 1083, 4.
Eighth. In any possible aspect of the matter, the fair list and returns of the presiding officers, laid before the General Assembly, are primâ facie and presumably correct, and must necessarily stand as the sole evidence of the result until altered, amended or set aside by some competent authority. Such power, if existent anywhere, car under the language
of the constitution exist only in the General Assembly, which body can act only through the co-ordinate action of the two houses which compose it. A refusal on the part of either house to change the list necessarily involves" a refusal on the part of the General Assembly, because that body can assent to a change only through the concurrent action of both houses. If it he assumed that a measure of judicial power is given to the General Assembly by the words "the General Assembly shall rind and declare," and that under such power the fair lists and returns of votes may be changed, yet by these very words such power is expressly limited to the General Assembly and cannot be exercised by one branch of it. The fair lists and returns of votes remain the only evidence of the result, unimpeached and unimpeachable, until the General Assembly, by the joint action of its two houses, establishes some fact other and different from that which those returns import.
Ninth. To the defendant's contention in the matter we reply — 1. The argument that the General Assembly has judicial power to alter and change the fair list and returns laid before it, because such power is not prohibited by the constitution in express terms or by necessary implication, is abundantly refuted by the full analysis of the provisions of the constitution which form part of the relator's contention. 2. It is also contended by the defendant's counsel, that if the examination of the General Assembly is to be confined to the fair lists and returns of votes, it would place it in the hands of the moderators of the respective town meetings to thwart by their action the will of the people. A sufficient and conclusive answer to this claim is found in the language of the Supreme Court of Maine: — "If that officer (the moderator) should make a declaration differing from the count it would be a failure of his official duty, and if the act is willful, a clear breach of his official duty. The injunction upon him is to declare the vote truly according to the count, and no provision is made for his disobedience of the mandate, such derelictions of duty being left to the remedies furnished in one way or another by the law. The moderator
is thus made an important officer, and is accordingly clothed with powers commensurate to the duties he has to perform. It has been argued that to hold the declaration conclusive, so far as the record is concerned, is placing in the hands of the moderator a great and dangerous power, liable to abuse. This is doubtless true to a certain extent, and it is possible to suppose that an unscrupulous or even a careless and incompetent moderator might cause considerable mischief and wrong by making a declaration at variance with the count." But the court goes on to say that power must be lodged somewhere, and adds: "This necessity was seen and recognized by the framers of the constitution, as well as the possibility of an abuse of the power necessary to be granted for that purpose. We therefore find that when the power was conferred upon the moderator it was attended with a safeguard as simple, and at the same time as effectual, as human prudence and sagacity could well devise. This safeguard is that the declaration of the vote by the moderator shall be public. The framers of the constitution probably did not look forward to a time when the people of the state should become so indifferent to their political rights and the purity of their government that this would not be sufficient."
It is far better that we should endure, until corrected in court, the small temporary evils and effects of the mistakes or even frauds of town and local officers in an election, than that the public should be subject to the evils and effects of the ignorance, partisanship and unserupulousness of a legislative majority acting through a partisan legislative committee, and were there no other consideration this one ought to be conclusive. But in our freemen s elections no ballot can be rejected without the concurrence of two counters of different politics, nor except by the decision of the moderator made in open meeting in the presence of the, electors, before any contest has arisen and before it is known what the effect of his ruling is to be upon the result of the election, should be decide (sic) the (sic) are open to give ample and prompt
(sic). The (sic) of willful error are
thus reduced to a minimum, and nil errors and mistakes can be corrected by legal process.
The Senate and House of Representatives cannot agree as to the duty of the General Assembly under the constitution, relative to the formal declaration of the result of the last election for state officers. For many months persistent and continuous efforts have been made by both branches of the General Assembly to find some peaceful solution of the difficulty, but the disagreement is radical and final. The people of the state are also divided into two great sections, holding the same discordant views. The machinery of our government has broken down, the business of the state is paralyzed, the public peace is seriously menaced, and the fair fame of the commonwealth is threatened. The only existing remedy for these evils is now sought. The judicial department of the government is appealed to. A suit at law is brought to obtain an authoritative, judicial, and final exposition of the constitution from the only tribunal invested by law with the peculiar jurisdiction of construing cur fundamental charter. The people of the state with entire unanimity are anxiously awaiting the decision of this court. Both the Senate and the House, recognizing that the judgment of this court in the case now here ought to determine the difference and put an end to the present unfortunate condition of public affairs, have adjourned their sittings to await the promulgation of the opinion of this court. That opinion is also awaited with just solicitude by the people, as well as by both branches of the General Assembly, not only because of the present relief to the existing state of affairs, but in a high degree because of the great and manifest difficulties, doubts and dangers that may otherwise be involved in our next and succeeding state elections.