St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1892-10-19
And the People May Grin and
Bear It From This Time
On.
The Courts Hold They Have
No Jurisdiction in the
Matter.
No Decision as to the Extent
OF the Wrong He Has
Done.

| cided. A partisan secretary of state,
himself candidate for reelection, may
act at the dictation OF the Republican
| committee and purposely blunder and
! confuse an official ballot, and the law
can offer no redress.
The natural presumption is that Sec
| retary of State Brown arranged the
| electoral ballot at the orders of his
political masters In such manner as
to make it confusing and misleading;
and yet there is no remedy at law. The
only Wopder is that he did not entirely
omit the Democratic electors. Mr..
Brown Is a candidate for reelection;
suppose, for example, he should omit
the name of his opponent for secretary
of state. The law has no remedy He
might be impeached after the election,
but that would be too late.
In the mandamuS case brought bv the
Democratic committee to compel Brown
to correct the ballot, Judge Brill yester-
day rendered his decision, dismissing
the case. He holds that the court has
no Jurisdiction, and on that ground
alone discharged the order. He does
not decide that the secretary OF state is
not in the wrong, nor that the ticket is
not piece of bungling work, but de-
cldes simply that the court has no juris-
dictiOn. No matter how great might be
| the wrong of the secretary of state. he
| is beyond the power of the court. The
| decision of Judge Brill, in which Judge
| Otis concurs, is as follows:
The Decision.
| The secretary of state is charged, by the
| provisions Of chapter 1 of the General
! Laws OF 1891, known as the Australian ballot
oiT iuti tha -
| ballots to be used at the state election 1t is
! provided by section 43 of the law as follows:
| whenever it shall appear, by affidavit pre-
sented to any Judge of the supreme or dis
| trict courts of the state that error or omis-
| sion has occurred in the printing of the
name or description of any candidate on
| Official ballots, or any other error has been
| committed in printing the ballots" etc.
| "Such judge shall Immediately, by order. re-
| qulre the officer or person charged with the
| error or neglect to forthwith correct the er-
| ror and perform his duty, or to show cause
forthwith why such error should not be cor
rected or such duty performed Failing to
| obey the order of such judge. shall be con-
| tempt"
An affidavit of Lewis Baker was presented
| to me charging that the secretary of state in
preparing the ballots for presidential elect
| ors, was not arranging the names in ac-
| cordance with the provisions of the law, and
an order to snow cause was issued IN accord
ance with section 43. At the time of issuing
the order | expressed doubts us 10 the jurs-
diction of the court in the premises in view
of certain decisions of the supreme court of
this state. but was assured by counsel~that
they believed the point could be overcome
upon argument
If there is any question settled definitely
and clearly in the jurisprudence of this state
it is that an executive officer of the state is
not subject to The control or interference of
the judiciary i'll the performance of his
official duties. This has been held over and
over again i'll
A Series of Decisions.
beginning with Chamberlain VS. Sibey, in the
4th Mimi, page 5l2. and ending with State
VS.. Braden, in the 10Th Mimi, page III, and
this has been held i'll proceedings against the
governor, proceedings against the state treas
urer proceedings against the state auditor
and proceedings against the secretary of
state and the rule has been applied as well
where the duty was imposed by law as where
it was directly fixed by the constitution,
and as we'll where the duty might have been
cast upon any other officer or person as
where it was duty necessarily appertaining
to the office.
BY the constitution Of the state the gov
ernment is divided into three departments
legislative executive and judicial. The
powers and duties of each are distinctly de-
fined. Neither of the departments can ex-
ercise any of the powers of the other not eX-
pressly provided for. This not only prevents
an assumption by either department. of pow
ers not properly belonging to it. but also
prohibits the imposition by one of any duty
upon either of the others not within
the scope of its jurisdiction, and it is the
duty of each to abstain from and prevent
encroachment upon the other.
1t was said i'll the argument that the appli-
cation of this doctriue might result i'll the
failure of justice; that a citizen having
right might be remediless If an executive
officer failed to do his duty That argument
applied with equal force in all the cases we
have referred to. 1t is an argument not
open 10 us to consider. The difficulty, if
there is any, is inherent in our system of gov
ernment. There cannot be three independ-
ent departments of government and either
be under the control of the other. The ad-
vantages arising from the separation of the
functions of the government ana their inde-
pendence were supposed by the founders of
the government and are supposed by the
people, to more than counterbalance any dis
advantage necessarily inhering i'll such an am
rangement.
No Distinction.
An attempt has been made to distinguish
this case from the cases referred to. We are
unable 10 find any distinction. The duties
placed upon the secretary of state regarding
the preparation of the ballot by the law OF
1891 are official: he is acting as secretary Of
state. and not as an individual.
1t is said the law has cast the duty Jointly
upon the judge and the secretary. The legls-
lature has no right to call upon the judge to
perform ministerial duty. and it has not at
tempted TO do so. The judge is not required
to do anything toward preparing the ballot
or having it printed. Tine duty is cast upon
other officers and if they do their duty the
judge is not called upon at ali. IY'ease they
fail to do their duty. section 43 provides
summary judicial proceeding by which<say
are to be compelled to 40 their duty in the
premises.
There is no joint action by The executive
officer and the Judge any more than in any
other case where a party performs certain
act because compcllrd to do so by mandate of
the court. The fact that the word Judge" is
used in The law instead of court is of no
significance. All through the statutes of the
state a similar use of terms is made in pre-
scribing judicial action.
The duty imposed is judicial i'll its nature;
the judge acts in his judicial character. The
action taken is a judicial action
Counsel also attempt to find an argument
in the fact that this proceeding is not pre-
ciseIy the same as the proceedings in the
cases W here the principle alluded to has been
announced But there is nc essential differ
ence between this proceeding and the others.
This is i'll the nature of mandamus. 1t is
made summary because delay would in most
cases render it Intellectual. Besides, in none
of the cases did the decision turn upon the
nature of the particular proceeding: the cases
were decided upon the broad principle that
executive officers. in the performance Of
official duties, are not subject TO the control
OF the judiciary.
Must Ese Dismiss ed.
The secretary of state has appeared in this
matter and expressed his Willingness to pro-
ceed to hearing on the merits and abide the
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