State ex rel. Rinder v. Goff

*674 On October 18th judgment was rendered quashing the return and adjudging that the peremptory writ of mandamus issue. The following opinion was filed November 7, 1906:

WiNsnow, T.

The importance of this case,' as being the first case involving the construction of the new primary election law (ch. 4-51, Laws of 1903), was fully appreciated by this court from its inception. It was manifest at once that, if any remedy were to be given, it must be given quickly if it were to be effective. At the same time it was realized that the importance of the questions involved imperatively demanded deliberate and well-considered, rather than hasty, action. The court has made an earnest effort to meet these requirements, and it is the office of this opinion to make clear, if possible, the grounds upon which the several orders and the final judgment are based.

*675 The three separate grants of jurisdiction made by sec. 3, art. VII, Const., are now well understood. They are appellate jurisdiction, which enables this court to revise finally the decisions of inferior courts in all litigation brought to it by appeal or proper appellate writ; superintending jurisdiction, for the purpose of controlling the course of ordinary litigation in all inferior courts when such courts overstep their jurisdiction or refuse to act within it and there is no other adequate remedy; and original jurisdiction, to protect the general interests and welfare of the state and its people, which is exercised by the use of the prerogative and qwasi-prerogative writs named or referred to in the section. Att'y Gen. v. Blossom, 1 Wis. 317 ; Att’y Gen. v. Railroad Cos. 35 Wis. 425 ; State ex rel. Fourth Nat. Bank v. Johnson, 103 Wis. 591, 611 , 79 N. W. 1081 ; State ex rel. Cook v. Houser, 122 Wis. 534 , 100 N. W. 964 . It is well settled, also, that this original jurisdiction was not given to this court for the primary purpose of enabling it to entertain and decide mere private or local questions, of which the circuit court has full jurisdiction, but to make it a court of first resort on all judicial questions “affecting the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.” Att'y Gen. v. Railroad Cos., supra. This principle is important, and has been frequently acted upon by this court by refusing to exercise its original jurisdiction in cases involving mere private or local interests. Indeed, were it to be overlooked and the doors opened to ordinary actions, even of great importance, it seems very certain that the volume of such business would be so great as to seriously hamper, if not overwhelm, ^the court in its effort to perform its other constitutional duties. In re Mielke, 120 Wis. 501 , 98 N. W. 245 .

The present application, as at first made, was an application for the exercise of the last-named jurisdiction, by means of mandatory as well as restraining injunction in an action in equity, and our attention was first directed to the question whether the matters involved were such as could be properly *676 said to affect tbe sovereignty of tbe state, its franchises or pre*-rogatives, or tbe liberties of its people. Questions of tbe title to local public office, or of performance of local official duty, though, publici juris, are not ordinarily such questions, and only in very exceptional cases will this court entertain them in tbe exercise of its original jurisdiction. . Att’y Gen. v. Eau Claire, 37 Wis. 400 ; State ex rel. Wood v. Baker, 38 Wis. 71 ; State ex rel. Cash v. Juneau Co. 38 Wis. 554 ; State ex rel. Radl v. Shaughnessey, 86 Wis. 646 , 57 N. W. 1105 ; In re Holland, 107 Wis. 178 , 83 N. W. 319 . Tbe ordinary jurisdiction of tbe circuit court is ample for such cases. It did not seem that any exceptionally important circumstance or fact was present here. Tbe bare question whether tbe name of Mr. Binder or Mr. Packard should be placed on tbe official ballot was largely a personal question, important to no one except the two gentlemen named. In any event some person presumably competent would be chosen treasurer, and the public business would be transacted without perceptible difference, or, if there was any disturbance in the public business, it would concern only the affairs of one municipality. It was manifestly an entirely different question from that involved in the case of State ex rel. Cook v. Houser, 122 Wis. 534 , 100 N. W. 964 , where the question was as to the placing of the names of an entire ticket for state officers upon the official ballot, thus probably affecting governmental policies as well as business, and hence deemed to seriously affect the liberties of the people. Thus it seemed to us certain that the question whether Mr. Binder or Mr. Packard received the greater number of votes at the primaries was clearly not within the lines which have been laid down within which this court will exercise its original jurisdiction.

It appeared, however, by the relation that abstract questions were involved concerning the proper construction of the new primary election law and the rights of one holding a regularly issued certificate of nomination, and as to such ques *677 tions there were very different considerations. The primary election law was a new and important law, operative in every election precinct and county of the state, making a radical change in the conduct of all general and municipal elections, and creating a new office or quasi office, namely, the office of nominated candidate. Although this new office or right was one of very short duration and carried but one privilege, namely, the privilege of having the name printed properly on the official ballot, nevertheless the right was important. Evidently any serious abstract question as to the proper construction of the law clearly affected not only the local candidates between whom it might arise, but also the operation of the law throughout the entire state. Furthermore, the time within which such a question must be tested, if at all, was so brief that it would be rarely possible (except.by consent) to obtain a decision thereon in a trial court and review thereof by this court before the right would be lost and a decision fruitless. These persuasive considerations impelled us to the conclusion that the court ought to exercise its original jurisdiction for the purpose of determining such questions, for the reason that they were not merely questions of local interest or local official duty, but concerned the duty of all election officers in the state, and so affected the sovereignty of the state and the liberties of the whole people.

But, if original jurisdiction were to be assumed for. this purpose, the question then presented itself whether the question as to whether Binder or Packard actually received the more votes, though a mere local controversy, should not be also entertained and decided, as ancillary to the main question. The proposed action was an action in equity, and the proposed complaint alleged that Binder in fact received the greater number of votes; This allegation might well be put in issue. RTo reason was perceived why, if the action were allowed to proceed as an'action in equity, Packard should not be interpleaded for his own protection, and be entitled to *678 plead and prove that he himself received the greater number of votes, and thus convert the action substantially into an election contest over a nomination for a local office. If this were to be done for one it should be done for all in a similar situation, and thus the court would in effect become a tribunal for the settlement of all contests over primary nominations for all offices, state or local, or, in other words, an appellate canvassing board for the entire state. The considerations before mentioned, and which must be apparent to all, forbade such a course, and thus we reached the conclusion that, while we would entertain and decide an important question as to the construction of the primary law and the duties of local offi cials thereunder, we would not entertain or decide the question as to which of two candidates for nomination for a local office received the greater number of votes. We therefore declined to entertain the action in equity, which would necessarily open up the whole field as to the conduct of the election, the legality of the votes cast, and the number cast for each, and directed simply the issuance of an alternative writ of mandamus, not for the purpose of settling an election contest, for mandamus is not so used, but only to determine the duty of the county cleric upon the record before him as to the printing of the official ballot. By this course it seemed certain that the questions over which this court should assume original jurisdiction would be clearly presented, without embarrassment from the presence of other issues and claims not germane to the question of the proper construction of the primary law.

In so holding we are not unmindful of the general principle laid down in State ex rel. Board of Ed. v. Hunter, 111 Wis. 582 , 87 N. W. 485 , that mandamus will not generally be available in advance of the time when a duty is to be performed, nor of the fact that the county clerk is not required by law to print the official ballots until four days before the general election, and hence that no duty would be actually due *679 at tbe time of tbe issuance of tbe alternative writ. But it was recognized in that case that extreme cases might well arise demanding tbe use of mandamus to control tbe performance of prospective duties, and it seemed to us that this was just such a case. Tbe act to be controlled here was necessarily required to be done within a little more than three weeks, and it might legally be performed at once. Under the allegations of the proposed complaint or relation the county clerk had already made his determination and was threatening to carry it out. There was no provision for a recount of the ballots by any board or officer, except in an action of quo warranto or other proper proceeding to contest an election; no such, action or contest being then pending or practically possible within the limited available time. Sec. 80, Stats. 1898, as amended by ch. 287, Laws of 1905. If the relator’s position was correct, the county clerk was about to disobey the law, eliminate the relator’s name from the official ballot, and effectually destroy his right to have his name go before the people as a candidate. Moreover, if the writ were delayed until four days before election it would be fruitless. No hearing or judgment could then be obtained in time to be of any use. Under these circumstances we found little difficulty in reaching the conclusion that an exceptional case was made, justifying, and even requiring, the use of the writ to control prospective action on the part of a public officer. Por the reasons given the court refused to entertain an action in equity which would be substantially an action to contest the election, and ordered the issuance of its alternative writ of mandamus to determine simply the duty of the county clerk upon the record before him, and for the same reasons the court-refused the subsequent application to count the ballots.

Upon the allegations of the relation, the writ, and the return, there is no substantial contest as to the facts. The election inspectors, according to a well-known custom, returned the tally sheets which had been furnished them, with their cer- *680 tilled, statements of results, to the county clerk. The tally sheets in two precincts did not agree with the certified statements, and the difference was such that if the tally sheet results were accepted Binder was nominated, and if the certified statements were accepted Packard was nominated. The county hoard of canvassers duly met, canvassed the returns, discovered the discrepancies, and accepted the tally sheet results in the two precincts, declared Binder nominated, and adjourned sine die. The county clerk issued and delivered a certificate of election to Binder. Some days afterwards the hoard of canvassers, upon advice of counsel and of their own motion, reconvened, assumed to recanvass the vote, accepting the certified statements instead of the tally sheets, resolved that their former action be rescinded, and declared Packard nominated, and the clerk issued a certificate of election to Packard. Upon these admitted facts, in view of the absence of any statutory provision for recount of the ballots except in an election contest, and in view of the absence of contest and the apparent impossibility of the prosecution and determination of such a contest within the time available for such purpose, what name should the county clerk place upon the official ballot? This is the question presented by the motion to quash the return, and its determination requires, in the first place, consideration of the provisions of the primary election law which govern the canvass of votes. Upon this subject the law does not purport to contain a complete system of procedure, but attempts to adopt the methods provided by law for the canvass of the returns of the general election in November. Sec. 16 (ch. 451, Laws of 1903, as .amended) provides that the canvass of votes shall, except as therein otherwise provided, be made in the same manner and by the same officers as the canvass of an election. It further provides, after prescribing the duties of precinct canvassers, that the “county canvass . . . shall be made by the same officers and in the manner provided in ch. 5, Stats. 1898, for the canvass *681 of the returns of a November election.” Sec. 25 further provides :

“The provisions of the statutes now in force in relation to the holding of'elections, the solicitation of voters at the polls, the challenging of votes, the manner of conducting elections, •of counting'the ballots and making return thereof, and all other kindred subjects, shall apply to all primaries in so far as they are consistent with this act, the intent of this act being to place the primary under the regulation and protection ■of the laws now in force as to elections.”

The intention to import into the primary law all provisions of the general laws relative to the canvassing of the returns, not inconsistent with special provisions of the primary law, cannot be mistaken. Turning to the general statutes we find that the subject of the county canvass is covered by secs. 81 to 88, inclusive, Stats. 1898. Sec. 81 provides for the meeting of the board and of whom it shall be composed; sec. 82 provides for the opening of the returns and the procurement -of amended returns in case of informalities or defects; secs. 83 and 84 provide for the actual canvass, the determination ■of results, the making of a certified statement of such results, and the publication thereof; sec. 85 requires the clerk to immediately make out a certificate of election for each successful candidate and deliver the same to him on application; secs. 86 and 87 provide for the making of duplicate statements as to other than county officers; and sec. 88 provides for the canvass of the returns upon a proposed constitutional amendment -or other question submitted to the people. These are the provisions governing the county canvass of the returns of a November election, and the primary law says that the canvass ■of the returns of the primary election shall be made by the same officers and in the same manner; and, further, that the provisions of the general statutes relating to the conduct of elections, the counting of .ballots, the making of returns, and •all other kindred subjects shall apply to primary elections. Is the execution and delivery of a certificate of election to the *682 successful candidate one of the provisions thus imported into the primary law ? The county clerk so construed the law in the present instance, and we think rightly. We think it quite clear, from inspection of the general statutes, that the legislature regarded the execution of the certificate of election as an integral part of the county canvass;' The section providing for it is included within the subdivision of ch. 5, Stats. 1898,. which hears the heading “County Canvass.” The execution of the certificate is an act which might well he done by the whole hoard, and in many jurisdictions is so done; but even though not required to be done by the whole board, it is required to be done by the county clerk, who is, when able to act, required to be a member of the board. It is also required to be done immediately upon the execution of the certified statement of results-and apparently as the necessary final act attendant upon that result. As we have seen, the necessary effect of the pxfimary law is to give an official character and standing to a man who has received the plurality of the votes of his party at a primary election. It may not be strictly accurate to call him a public officer, but the law gives him a certain and definite legal standing and endows him with at least one valuable privilege or right which he may enforce. Until the time of the election he is guaranteed, and in fact holds, a recognized legal position, which may be called, in default of a better term, a qvxisi office, namely, that of a nominated candidate. The giving of a certificate of election to a man who has received the necessary plurality at a primary election, upon the determination of that fact by the proper board, is entirely logical; in fact, just as logical as the giving of a certificate of election to a man who has received the majority of the votes for an ordinary office. His rights under it are not so valuable and last a shorter* time, but they are substantial. In view, therefore, of the provisions of the general statutes which make the execution of the certificate a part of the county canvass, and the very sweeping sections which in *683 corporate, these provisions into the primary law, we conclude that the law contemplates the execution of a certificate of election to the duly nominated primary candidate.

Erom this conclusion it naturally follows that such a certificate must be given like effect, so far as the rights of a nominated candidate are concerned, as a certificate of election to-an ordinary office. This court has held that one who has been declared by the proper canvassing board to have been elected to an office, and has received the proper certificate of election and duly qualified, is entitled to the possession of the office and its property and emoluments as against all the world except a de facto officer already in possession under color of authority, and that this right persists until a different result is reached in a quo warranto action or other proper proceeding to contest the right of the certificate holder. State ex rel. Jones v. Oates, 86 Wis. 634 , 57 N. W. 296 ; State ex rel. McCoale v. Kersten, 118 Wis. 287 , 95 N. W. 120 . If this principle be applied to the present case, and we see no reason why it should not be so applied, it is decisive in favor of Binder’s right to have his name placed upon the ticket. ISTo act of' qualification is required of a candidate nominated at a primary election. So, when the vote has been canvassed .by the proper board and he has received his certificate, he is at once in possession of his quasi office so far as any one can be in possession of it, and entitled to its single privilege, namely, the right to have his name put on the official ballot in the-proper place, as against all the world, until in some proper action or proceeding to contest his right it is decided that another person was in fact nominated. It is not necessary now to decide what action might be brought to contest his prima facie right. ISTo reason is perceived why quo warranto proceedings would not be the proper remedy; but it is sufficient to-say that no action of any kind has been brought or is pending to test the relator’s prima facie title. ETor is it seen how any voluntary action of the canvassing board in coming together *684 again and attempting to rescind their former action and bestow the title to the office upon another can affect the relator’s prima facie title to the quasi office of which he was in possession. It would hardly he claimed for a moment that the incumbent of an ordinary office, who had qualified and taken possession of it under a certificate of election, could be ousted of his right by a resolution passed at a second meeting of the canvassing board. He is not a party to the proceedings of the canvassing board, nor can such proceedings be called an .action or proceedings to contest an election. We are not now attempting to decide whether the canvassing board had any power to re-assemble and make a second canvass, or whether they could be compelled to do so by mandamus. These are questions concerning which there is some conflict in the decisions. 15 Cyc. 383, 384, and notes 89-91. We simply hold that, where a canvass has been made and a certificate issued, the certificate holder cannot be deprived of his prima facie right to the office by any subsequent.action of the canvassing board. His right must be contested and set aside in a proper action or proceeding brought for the purpose, and until this has been done mandamus will lie to place him in possession of the property and privileges of the office to which he has prima facie title. These considerations seem to us to demonstrate that the peremptory writ of mandamus should issue, requiring the county clerk to place the name of the relator upon the official ballot.

Before closing this opinion it seems not improper to say that the present case must serve to bring sharply to attention the fact that there is no provision made in the primarj law for the speedy settlement of contests arising over primary elections. The frequency with which such questions are liable to arise is apparent, and the practical impossibility of •settling them by means of ordinary processes of law in the courts, by reason of .the very limited time within which they must be settled, seems equally apparent. It would seem the *685 part of legislative wisdom to provide some tribunal clothed with the power to entertain and finally decide in a speedy manner all such questions; otherwise, there is certainly danger of rights being lost and injustice done simply because no remedy is provided.

By the Gourt. — The demurrer to the return is sustained, and the peremptory writ of mandamus is adjudged to issue as prayed in the relation. The certiorari proceedings are dismissed, without costs.