Imágenes de páginas
PDF
EPUB

of no such check upon legislation, and would not 206 desire to see such a one instituted. The remedy for such an evil is in the hands of the people alone, to be worked out by an increased care to elect representatives that are honest and capable. If the judiciary have such authority, then every justice of the peace is competent to sit in judgment upon every act of legislation which disorderly moralists or knavish or ignorant anarchists may choose to charge as fraudulent. Nay, more, if the question may be raised in a judicial proceeding, the judges and justices of the peace will be bound to investigate and decide it, and the principal judicial business then might become that of testing, not cases by the standard of the law, but the standard itself by the infinitely various and uncertain judicial notions of morality": Sunbury etc. R. R. Co. v. Cooper, 33 Pa. St. 283. Any number of similar quotations may be made from other state courts. The decisions are all uniform. The same rule has been applied by the United States supreme court: Fletcher v. Peck, 6 Cranch, 87; Ex parte McCardle, T Wall. 506; United States v. Old Settlers, 148 U. S. 466, 13 Sup. Ct. Rep. 650; United States v. Des Moines Nav. etc. Co., 142 U. S. 544, 12 Sup. Ct. Rep. 317. In the case last cited the court said that: “The knowledge and good faith of a legislature are not open to question. It is conclusively presumed that a legislature acts with full knowledge, and in good faith."

The learned counsel for the appellants do not question the soundness of these decisions, but seek to distinguish them from the case before us on the ground that appellants have a pre-existing right, and that the rule referred to only applies to leg. islative acts operative for the future. But none of the cases rest on this ground. The ground 297 of all the decisions is that the judiciary have no power to sit in judgment upon the motives of an independent branch of the government, or to deny legal effect to the record of its action solemnly made by it pursuant to the constitution. If this were alleged, it would soon follow that the independence of the legislature would be destroyed altogether. When our system of government was formed, not a few publicists pronounced it impracticable, and foretold that sooner or later one of the three equal departmento of the government would overshadow and supervise the others. So far these prophecies have proved groundless, but, if the contention of the appellants were sustained, this court would, in eubstance, assume supervisory power over the action of the leg. islature and as our jurisdiction is only appellate, the same

[ocr errors][ocr errors][ocr errors][ocr errors]

power might be exercised by every subordinate court in the state in cases within its jurisdiction.

The constitution of this state creates the offices of governor and lieutenant-governor. It provides how they shall be filled by election. It also provides how the result of that eiection shall be determined. In each of the four constitutions of this state the general assembly has been made the exclusive tribunal for determining this matter. This shows a clear and settled purpose to keep this political question out of the courts. We have no more right to supervise the decision of the general assembly in determining the result of this election than we have to supervise the action of the governor in calling a special session of the legislature, or in pardoning a criminal, or the action of the leg. islature in contracting debts, or determining upon the election of its members, or doing any other act authorized by the constitution. There is no conflict between the action of the state canvassing board 208 and that of the legislature in these cases. The state canvassing board were without power to go behind the returns. They were not authorized to hear evidence, and determine who was in truth elected, but were required to give & certificate of election to those who, on the face of the returns, had received the highest number of votes. For the state board to have received evidence to impeach the returns before them would have been for them, in effect, to act as a board for trva ing a contested election; and if they had done this, they would have usurped the power vested in the general assembly by the constitution, for by its express terms only, the general assem. bly can determine a contested election for governor and lieutenant-governor. But the certificate of the state board of canTassers is no evidence as to who was in truth elected. Their certificate entitles the recipient to exercise the office until thic regular constitutional authority shall determine who is the de jure officer. The rights of the de jure officer attached when he was elected, although the result was unknown until it was declared by the proper constitutional authority. When it was so declared, it was simply the ascertainment of a fact hitherto in doubt or unsettled. The rights of the de facto officer, under his certificate from the canvassing board, were provisional or temporary until the determination of the result of the election as provided in the constitution; and upon that determination, if adverse to him, they ceased altogether. Such a determination of the result of the election by the proper tribunal did not take from him any pre-existing right, for, if not in

[ocr errors][ocr errors][merged small][merged small][merged small][ocr errors]

fact elected, he had only a right to act until the result of the election could be determined. We are therefore unable to see how this case can be distinguished from any other legislative action taken in a matter over which the constitution has 299 given the legislature exclusive jurisdiction, and are, therefore, of the opinion that the courts are without jurisdiction to go behind the record made by the legislature under the constitution. Such a record seems to us entitled to every presumption in its favor that the records of this court kept under its supervision would be entitled to receive at the hands of the legislature in a matter before it.

4. As to the action of the assembly being void because without evidence and arbitrary. The report of the contest boar:1 to the general assembly shows that it heard the evidence offered by the contestants and contestees, but the report does not, on its face, show that the evidence taken by the board was submitted by it to the general assembly. The journals also fail to show this fact. It is insisted that therefore the general assembly acted without evidence in determining the contest. But there is a clear distinction between the failure of the journal to show a fact where the journal is merely silent on the subject, and a fact expressly shown in the journal. Here the journals are only silent as to what evidence the general assembly heard, and, as it was a question requiring evidence for its proper determination, it must be presumed that the legislature did its duty, and had before it such evidence as was satisfactory to it. Thus, in Cooley's Constitutional Limitations, it is said, in disposing of the question of the constitutional power of the legislature: “In any case in which this question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of power. They must assume that the legislative discretion has been properly exercised. If evidence is required, it must be supposed that it was before the legislature when the act was passed, and, if any special finding was required to warrant the passage of 300 the particular act, it would seem that the passage of the act itself might be held equivalent to such finding”: Cooley's Constitutional Limitations, 220. In McCulloch v. State, 11 Ind. 433, the court well said: "Presumptions are often indulged in support of the proceedings of courts, and it would be difficult to perceive why their proceedings should be entitled to more favor than those of the legislature. It has been repeatedly decided that, where the record of a court possessing general powers is silent as to

whether a party defendant had notice of suit, it will be presumed that the steps necessary to give jurisdiction of the person were properly taken. There is, indeed, no reason why legislative records should be more full and perfect than judicial.” In those states where the enrolled bill is not held conclusive, it is uniformly held, where the journals are merely silent, that the presumption is absolute that the required steps were in fact taken: Lafferty v. Huffman, 99 Ky. 88, 35 S. W. 123. Under these principles it must be presumed that the legislature in the case before us did its duty. A copy of the proof taken before the contest board has been filed with this record, comprising about seventeen hundred typewritten pages. Of course, it is not presumed that each member of the legislature read all this. It is only that the legislature should learn the facts of the case from those appointed for that purpose, for this is all that is practicable in such bodies. There is nothing in the record before us to raise the presumption that this was not done.

It is also insisted that the notice of contest was insufficient, and that the evidence was equally insufficient; but these were matters to be determined by the legislature, which the constitution has made the sole tribunal to determine such a contest. Whether their decision in these 301 matters was right or wrong we have no power to inquire. In the distribution of the powers of the government certain power was, by the constitution, assigned to the courts, and other powers to the general assembly. For us to attempt to review its action would be as im. proper as for it to interfere in a case that this court had decided. It is said that, if this is true, great injustice might be done by the legislature. To this the supreme court of Indiana, in Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710, responded thus: "Public authority and political power must, of necessity, be confided to officers, who, being human may violate the trust reposed in them. This perhaps cannot be avoided absolutely, but it applies to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with truth to say that its high places have not been disgraced. The framers of our govern. ment have not constituted it with faculties to supervise co-ordinate departments, and correct or prevent abuses of their author. ity. It cannot authenticate a statute. That power does not belong to it. Nor can it keep the legislative journal. .... It is neither modest nor just for judges thus to impeach the integrity of another department of government, and to claim that

Am. St. Rep., Vol. 44-24

[ocr errors][merged small][ocr errors][ocr errors]

the judiciary only will be faithful to its obligation.” Speaking of contested elections for public office, this court, in Batman v. Megowan, 1 Met. (Ky.) 538, said: “The law has designated the manner in which such questions shall be ascertained and determined. A board is to be constituted as prescribed by the statute to examine the poll books and issue certificates of election. Another board is to be organized in the case of a contested election for determining the contest between the claimants. Upon this last-mentioned board the law devolves the duty 302 and confers the power of deciding who is entitled to the office. The courts have no right to adjudicate upon these questions, or to decide such contests.” In the later case of Stine v. Berry, 96 Ky. 63, 27 S. W. 809, this court again said: "We understand and so adjudge, that the statute in regard to contested elections for state and county officers is exclusive. . . Such statutes are enacted with remedies providing for the speedy determination of such questions and to take from the courts all original supervisory power over such contests”: See, also, Anderson v. Likens, 104 Ky. 699, 47 S. W. 867; Booé v. Kenner, 105 Ky. 517, 49 S. W. 330. This whole subject was fully examined in the case of Baxter v. Brooks, 29 Ark. 173, which was, like this, a contest for the office of governor. The court said: “The office of governor does not exist by virtue of the common law. It is a creation of the constitution. And it is well settled that where a new right, or the means of acquiring it, is conferred by a constitution or a statute, and an adequate remedy for its infringement is given by the same authority which created the right, the parties injured ar confined to the redress thus given.” In a review of this contest, quoted in this opinion, Judge Cooley said (page 186): “To our mind, there can be no plausible suggestion that the decision of the general assembly on such a contest is open to judicial review afterward; but it may not be inappropriate to refer to Grier v. Shackleford, 2 Tread. Const. 642; Batman v. Megowan, 1 Met. (Ky.) 533, State v. Marlow, 15 Ohio St. 134, and People v. Goodwin, 22 Mich. 496, as in point.”

It is also argued that the contest board was not fairly drawn by lot, that certain of the board were liable to objection on the score of partiality and that, therefore, this board was not properly constituted. If any of these objections 303 were well founded, the general assembly had full power to take such action as was proper in the premises. It does not appear that any of the objections urged were presented to the general as

« AnteriorContinuar »