Morning journal and courier., 1892-01-06

taste to put an END TO tne ANOMALOUS Sou-
lition of our election laws. The ceftif-
ates and returns, for both words are used,
prescribed by section $40 of the statutes
he several presiding officers, ap-
bears to be compliance by the
general assembly with the direction of the
constitution in this behalf. No argument
IAN be needed to prove that what the gen.
,ral assembly was commanded by the con-
,titution to prescribe it was its duty to ex-
anime. The uncertainty attending these
certificates is that the secretary is not
directed to lay them before the assembly
on the first day of its session, nor is it by |
any specific words made the duty of the
act on them if examined and 80 it is |
claimed that either house is at liberty to |
them if it chooses to do so.
This topic and some of the others con-
sidered, have, perhaps, received more
attention than its Importance demanded.
Every occasion for their application will
doubtless be speedily removed by further
legislation. It has seemed to some of the
members of this court that the general as
sembly has no power subsequent to the.
second day of it's session to make declara-
ton that any person is elected governor,
or that no person has received majority
of all the votes, and 80 that mo- person is
elected; and that therefore the present as
sembly has no power to declare the relator
to be elected governor. But as this
point was not fully argued at the hearing,
and as a decision upon it might affect
other persons than those who are parties
to this proceeding, the court does not now
attempt to decide it.
From the facts spread out in the infor-
nation it appears not only that the cleo
ton process has broken down SO that there
is a failure to elect governor, but that all
legislation has ceased. Owing to the diff
ference between the branches of the assem-
bly, an entire collapse in the legislative de-
partment has ensued. Whether this con-
dition has resulted from one or the other
of the courses we have mentioned it is not
necessary to decide. In these circum-
stances is it not possible that the superior
court may make an Investigation and on
finding that the relator received majority
of all the votes lawfully cast for COVER
nor on the fourth day of November, 1890
whatever the returns of the presiding
officers may show-establish his title to
that Office by some judgment that shall be
legally equivalent to the declaration which
should have been made by the general as
semblys
1t must be carefully kept in mind that
the courts have no function to perform in
the process of an election. They disclaim
any such power. The superior court can
not make the declaration which the con-
stitution says shall be made by the assem-
bly,. The utmost that the court can do in
such case like this is, by some judgment
which it can lawfully make, to supply an
omission or heal a defect. In the life of a
state it may often happen that an occasion
arises calling for the application of RENE
dies which, in the ordinary current of af-
fairs, would not have been thought to ex-
list.
Whatever view of the workings of the
constitution may be taken, no one can sup
pose that it intends to afford opportunities
| for any state officer to hold Office longer
than the term for which he has been spe-
officially elected. The constitution pro-
| vides for regular biennial elections for gov
| ernor. There is provision that the gov
| ernor shall hold Office until his successor is
| qualified. This was designed to cover ex
| igencies always supposed to be brief. I'm
| til the present instance, it was never i'm
agined that the practical operation of that
| provision would be to require or permit
any governor to hold over for a large par
of term intended for successor. 1t il
only because of a singular omission on the
part of the general assembly to pre-
scribe suitable laws by which al
questions concerning the election of gov
| ernor fhall be determined, that the presen
instance has been made possible. On thu
4th day of November, 1890, the voters O
this state expressed their choice for min
| whom they would elect to be governor
| They intended to choose governor to holt
Office from the Wednesday following tn
first Monday of January, 1891, to the cor
responding Wednesday in January, 1898
The respondent was not one of the person
voted for. At the same election they ais
chose members of the general assembly
to whom they committed the duty 0
examining the results of their choic
for governor, and declaring the perso1
who was elected, and of choosing a gov
ernor in case they had made no choic
already mentioned, the will of the peopl
in this respect has failed to be accom-
plished. A very great wrong is bein
done to them. The relator claims to hav
received majority of all the votes cas-
for governor at said election. If his clail
is correct great wrong is being done
him. He has come into court seeking t
establish his right to that Office and to oil
tain redress for that wrong.
1t might be argued that it would brin
/ deserved obliquity on the Jurisprudence {
this state if there was no way in which til
relator could establish the right which h
claims. 1t ia of the very essence of civ
: liberty that every individual shall have tt
protection of the laws whenever he receive
: an injury. At page 20 of the third volum
| of Blackstone's Commentaries two case
> are mentioned in which a remedy is affort
ed by the mere operation of the law. 81
all other cases." says that author, cit is
7 general and indisputable rule that whel
> there is a legal right there is leg
l | remedy by suit or action at law whel
7 ever the right is invaded" AS a gener
g proposition this rule is not denied. b
3 it is urged that the general assemb
Q is the exclusive tribunal which has cogn
:. zance of the election of a governor. 1
? however, the general assembly refuses
: act, or if it be so that the general ascend
g has jurisdiction of the election of go
t ernor only in the manner and at the tin
9 pointed out by the constitution, then tt
: relator is remediless, unless the court m,
i intervene. When the time is passed wit
8 in which the general assembly may act,
y jurisdiction is gone. To hold that the a
o sembly has such exclusive jurisdiction tn
Il the court in no case can have the right
}. act, would be to afford an instance whe
9 fragrant wrong was without remed
g That such a result might follow
s powerful reason why that CO.
o struction ought not to be adopte
:. Blackstone, at page 100 of the same ve
= ume cited above, speaking of what inju
d les are cognizable by the courts of Il
g common law, adds: ftAnd herein I shs
d for the present only remark that all pos.
BILE injuries whatsoever that do not fl
q within the exclusive cognizance of eth
l. the ecclesiastical, military or martin
C tribunals, are for that very reason with
i the cognizance of the common law cour
70 of justice; for it is settled and invari
y BILE principle in the laws of England, tn
d every right when withheld must have
: remedy, and every injury its proper I
i. court of law is court
l. general jurisdiction. 1t has iurisdi
y ton of all matters expressly col
n mitted to it, and of all others cognizat
T by any court of law of which the exclusi
l. jurisdiction is not given to some 9th
# court. The fact that no other court b
i exclusive jurisdiction in any matter is So
9 fcient to give tho superior court jurisdi
It ton over that matter. A trial by the 8
" perior court of the questions in the info
70 nation would not be an Infringement upt
g the powers of the coordinate branches
d the government. Not of the legislative,
j. it has been made to appear that the pre-
a emit legislature is wholly unable to act
g the case. 1t is no infringement upon Il
10 executive powers to decide who
Q chosen governor. To decide VIII
y person is lawfully elected to any Office is
b judicial process, and when there is no II
# bunal specially authorized to make su,
10 decision the courts must decide And Il
n | courts always have jurisdiction unless Il