Opinion
February 19, 1941.
1. MANDAMUS: Election Returns. In an action by mandamus to compel the Speaker of the House of Representatives to open and publish the election returns for Governor, where the Speaker waived the issuance of the alternative writ and agreed that relator's petition served in its stead and filed a demurrer, the Supreme Court will look to the facts well pleaded in the petition and return for the facts of the case.
2. ELECTIONS: Mandamus. Where it was agreed that a candidate for Governor possessed the proper qualifications for the office and the face of the returns showed his election and the Speaker of the House of Representatives refused to publish and declare the returns, mandamus was the proper remedy. [Sec. 3, Art. V, Mo. Const.]
3. MANDAMUS: Jurisdiction. Before the Supreme Court may issue a writ of mandamus to compel official action, the duty to be performed must be of a character which the court may order performed, and the officer who should perform it must be one the court may command.
The court may direct the performance of a public duty which the law clearly and peremptorily imposes and where there is no discretion in the officer to act or refuse.
4. SPEAKER OF THE HOUSE OF REPRESENTATIVES: Election: Publishing. The Speaker of the House of Representatives is directed to open the returns which have been sealed and transmitted and publish them.
To publish means to bring before the public; open to the knowledge of all; without privacy; and the person having the highest number of votes shall be declared duly elected (Sec. 3, Art. V, Mo. Const.), and while that section does not specify who shall make that declaration, the Legislature by statute (Sec. 11461, R.S. 1939), has provided that such declaration be made by the Speaker.
The next duty of the Speaker is to declare the winner; the performance of these duties by the Speaker is to be in the Hall of the House of Representatives, in the presence of a majority of each house who shall assemble for the purpose and immediately after the organization of the House and before proceeding to other business.
5. ELECTION RETURNS: Presence of a Majority. The active participation of the Joint Assembly is called for by the constitutional provision only when there is a tie vote.
Though by statute the General Assembly has reserved the right to correct mistakes and has decreed that the returns shall be counted by the Speaker, under the direction and the control of the two houses thus assembled (Sec. 11461, R.S. 1939), the counting of the totals shown by the returns and declaring the result remains with the Speaker.
Where there are no mistakes on the face of the returns it is not necessary to discuss statutory provisions because they do not affect the case.
It is reasonable that the returns for the important executive office should be opened and made public by a public officer, in a public place, and before witnesses, such as the members of the body designated to entertain and decide a contest for the highest public office, if one should be later instituted.
6. ELECTIONS: Result. The result of an election as determined from the face of the returns was to be at least prima facie evidence of the election.
It follows that the duties imposed by Section 3, Article V of the Constitution, requiring the Speakers of the House to open and publish the returns, are ministerial.
If the election was to be contested such contest would be thereafter instituted and conducted as provided by law.
Any attack upon the returns would have to be made thereafter before the General Assembly.
7. ELECTIONS: Speaker of the House. The duties imposed upon the Speaker of the House places him in the same category as a mere canvassing officer or canvassing board; the function and duties of a canvasser are purely ministerial and being such the canvasser cannot go behind the returns.
8. ELECTIONS: Contest. A contest of an election must dig behind the returns; it therefore may in no way interfere with or prevent the Speaker from performing any duties which have to do only with the face of the returns.
The contest of Governor and Lieutenant-Governor shall be decided by a joint vote of both houses of the General Assembly (Sec. 25, Art. V, Mo. Const.), in a manner provided by law.
The duty commanded by such said Section 3 is imposed on the Speaker and is clear, peremptory and ministerial and therefore may be directed by mandamus.
9. ELECTIONS: Speaker of the House: Returns. The Speaker is the agent and servant of the House and under its orders, but only where the House is performing legislative duties.
The Speaker's canvass for the State officers directed by Section 3 is exactly the same as the county clerk's canvass for his county officers directed by the statute.
The office occupied by respondent as Speaker of the House does not put him beyond the jurisdiction of mandamus.
The court would be in no way interfering in this case with the legislative powers conferred on the Legislature by issuing a writ since the nature of the thing to be done involves neither legislative duty nor discretion.
The conclusion is that the Speaker of the House is an officer to whom the court may properly direct a writ to command the performance of the ministerial duty involved.
10. SPEAKER OF THE HOUSE: Direction by Assembly. The action of the Joint Assembly directing the Speaker of the House to make no declaration with reference to the office of Governor is contrary to the affirmative duty placed upon him by Section 3, Article V of the Constitution, and is void.
In our government the origin of all political power is vested in and derived from the people; it is a government of laws, and not of men.
PEREMPTORY WRIT ORDERED.
Frank E. Atwood, Charles E. Rendlen and James A. Finch for relator.
(1) All material averments of fact in relator's petition (when taken as and for the alternative writ) which are not specifically or specially denied in respondent's return are taken as confessed. Bliss v. Brand River Drain. Dist., 330 Mo. 360, 49 S.W.2d 121; State ex rel. Potter v. Riley, 219 Mo. 691; State ex rel. Wheeler v. Adams, 161 Mo. 363-4. (a) The allegations in respondent's return that relator did not have a majority of the legal votes or that the returns did not show the correct legal vote and all similar allegations therein do not specifically and directly deny the allegations in the petition and are equivocal and evasive and an attempt to plead a different state of facts from that averred in the petition, and since they do not directly traverse the allegations in the petition, the facts alleged in the petition against which such allegations are made are to be taken as true. State ex rel. Wheeler v. Adams, 161 Mo. 364; State ex rel. v. Vail, 53 Mo. 97. (b) Where a case is submitted on the petition or alternative writ and return thereto, the court will look to the facts well pleaded in the petition and return for the facts of the case. State ex rel. Buckley v. Thomas, 323 Mo. 248, 198 S.W.2d 714. (2) Any officer charged with the performance of a mandatory ministerial duty may be compelled to perform such duty by mandamus. "It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined." Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 71; State ex rel. Mo., etc., Railroad Co. v. Johnston, 234 Mo. 350, 137 S.W. 595; State ex rel. Maring v. Swanger, 212 Mo. 481; State ex rel. Register of Lands v. Secretary of State, 33 Mo. 293; State ex rel. Davisson v. Bolte, 151 Mo. 372; People ex rel. McCauley v. Brooks, 16 Cal. 11. (a) Mandamus will issue to a canvassing officer or canvassing board to canvass the election returns certified to them, and to declare the result. State ex rel. Metcalf v. Garesche, 65 Mo. 480; State ex rel. Atty. Gen. v. Steers, 44 Mo. 223; State ex rel. Ford v. Trigg, 72 Mo. 366; Mayo v. Freeland, 10 Mo. 629; State ex rel. Davisson v. Bolte, 151 Mo. 372; State ex rel. Broadhead v. Berg, 76 Mo. 144; Barnes v. Gottschalk, 3 Mo. App. 122; State ex rel. v. Stuckey, 78 Mo. App. 543; State ex rel. Glenn v. Smith, 129 Mo. App. 57; State ex inf. Anderson v. Moss, 187 Mo. App. 157, 172 S.W. 1181, Meyers v. Chalmers, 60 Miss. 772; McHenry v. State, 91 Miss. 562, 44 So. 831, 16 L.R.A. (N.S.) 1066; State ex rel. Husting v. State Board of Canvassers, 159 Wis. 216, 150 N.W. 547; State ex rel. v. Superior Court, 118 Wn. 664, 204 P. 797; Johnston v. State, 128 Ind. 16, 27 N.E. 422, 25 Am. St. Rep. 412, 12 L.R.A. 235; State ex rel. Barbin v. Strong, 32 La. 579. (b) Mandamus will issue to officers of legislative bodies, including Speaker, acting as canvassing officers or boards. State ex rel. Benton v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L.R.A. 796; State ex rel. Oldham v. Dean, 84 Neb. 344, 121 N.W. 719; State v. Moffitt, 5 Ohio, 367; State ex rel. Davisson v. Bolte, 151 Mo. 362; 18 R.C.L., sec. 112, p. 188. (c) The Bill of Rights, in our Missouri Constitution, provides: "The courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice should be administered without sale, denial or delay." Sec. 10, Art. II, Mo. Const. (3) The provisions of Article V, Section 3 of the Constitution of Missouri, and Section 10169. Revised Statutes 1929, are the only provisions with respect to the canvassing of the vote and declaring the results in the election of Governor, and such provisions are mandatory and the duties enjoined upon the person serving as Speaker of the House of Representatives are merely ministerial which can neither be delegated, evaded, delayed nor denied. This duty may be compelled by mandamus. State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L.R.A. 796; State ex rel. Oldham v. Dean, 84 Neb. 344; State ex rel. v. Bolte, 151 Mo. 372; State v. Moffitt, 5 Ohio, 367; Drew v. State Canvassing Board. 16 Fla. 17; State ex rel. v. Board of Election Commissioners, 36 Wis. 498, 150 N.W. 547; State ex rel. v. Board of Election Commissioners, 159 Wis. 249; State ex rel. v. Mayor, 170 Wis. 133. (4) The duties of the Speaker under Section 3, Article V of the Constitution, and Section 10169, Revised Statutes 1929, are not political, legislative or judicial, but are ministerial and imperative and may be compelled by mandamus. This is true even if the duty of the officer involves some construction of the statute or Constitution, the duty, however, being imperative. Bradley v. Board of State Canvassers, 154 Mich. 274; Territory Alaska v. Canvassing Board, 5 Alaska, 602; State v. Governor of Ohio, 5 Ohio, 534; 38 C.J., pp. 677, 688. Speaker herein is not the State, since the servant of the State, the respondent Speaker, by his act of disobedience does not represent or stand for the State. 38 C.J., 659; McCauley v. Brooks, 16 Cal. 11; Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432. (5) The Speaker cannot go back of the certified returns in opening and publishing the returns and declaring the result therein disclosed. State ex rel. Atty. Gen. v. Vail, 53 Mo. 111; State ex rel. Atty. Gen. Ewing v. Townsley, 56 Mo. 111; Sheridan v. St. Louis, 183 Mo. 33; Mayo v. Freeland, 10 Mo. 630; State ex rel. v. Trigg, 72 Mo. 365; State ex rel. v. Elder, 31 Neb. 169, 47 N.W. 710, 10 L.R.A. 796; Drew v. State Canvassing Board, 16 Fla. 17; State of Mississippi v. Board of Supervisors of Coahoma County, 91 Miss. 582, 44 So. 831, 16 L.R.A. 1066; State ex rel. v. Board of El. Commrs., 36 Wis. 498; State ex rel. Husting v. Board of Canvassers, 159 Wis. 216, 150 N.W. 542; People ex rel. v. White, 88 Colo. 229, 294 P. 535. (6) The allegation in respondent's return that a contest for the office of Governor is pending before the General Assembly is a mere conclusion of the pleader as to the legal effect of the James T. Blair, Jr., petition and the various reports to, and resolutions adopted by, the General Assembly. These proceedings on their face show that no election contest is pending (a) because an election contest is an adversary proceeding and (b) because some person must be declared elected before there can be an election contest. Gantt v. Brown, 244 Mo. 271, 149 S.W. 644; Secs. 10361, 10362, 10363, R.S. 1929; State ex rel. v. Circuit Court, 63 S.D. 313, 258 N.W. 278; State v. McElhinney, 199 Mo. 67, 97 S.W. 159; Barnes v. Gottschalk, 3 Mo. App. 111; Secs. 10340, 10361, 10362, 10363, R.S. 1929; State v. Francis, 88 Mo. 561; Austin v. Dick, 100 Cal. 199, 34 P. 655; Burke v. Perry, 26 Neb. 420, 42 N.W. 402; Hargett v. Parish, 114 Ala. 515; Leslie v. Griffin, 25 S.W.2d 920; 20 C.J., p. 57; Toncray v. Budge, 95 P. 32. (7) The office of Governor of Missouri does not exist by virtue of the common law. It is a creation of the Constitution and statutes. It can only be acquired by an election pursuant to the provisions of the Constitution and statutes. It is a settled rule that where a new right or the means of securing it is conferred and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress. The right and power vested in the General Assembly to hear and determine the election contests for the office of Governor in such manner as may be provided by law is an exclusive remedy and necessarily excludes the right of the General Assembly to conduct a legislative investigation to determine who has been elected to such office. State ex rel. Rainwater v. Ross, 245 Mo. 36, 149 S.W. 451; State ex rel. v. Slover, 134 Mo. 10; State ex rel. v. Vail, 53 Mo. 57; State ex rel. v. Mason, 77 Mo. 189; State ex rel. v. Francis, 88 Mo. 557; Baxter v. Brooks, 29 Ark. 173; State ex rel. v. Marlowe, 15 Ohio St. 114; Paine on Elections, sec. 811, p. 676; Commonwealth ex rel. v. Garrigues, 28 Pa. 12; Commonwealth ex rel. v. Leech, 44 Pa. 334. The legislative investigation provided by the adoption of the committee's report and Resolution No. 3 is not authorized by the Constitution or any statute and as such is unlawful, illegal and unconstitutional and violates Section 1 of Article IV of the Constitution of Missouri in that it attempts to invest a committee of the joint assembly with judicial powers and violates Article III of the Constitution of Missouri in that it attempts to invest a committee of the legislative department with powers and duties belonging to the judicial department.
Roy McKittrick, Attorney General, J.E. Taylor, R.L. Hyder and A. O'Keefe, Assistant Attorneys General, for respondent.
(1) Respondent's return specifically denies the allegations of relator's petition that the returns of the general election show relator had the highest number of votes for the office of Governor, or had a plurality of any votes for said office. State ex rel. Chaney v. Grinstead, 314 Mo. 55, 282 S.W. 719. (2) The history of the constitutional and statutory provisions establishes that the duty to determine which candidate for the office of Governor had the highest number of votes, and to declare such candidate duly elected, is imposed upon the General Assembly in joint session, and not upon the Speaker of the House. Sec. 10, Mo. Const. 1820; Sec. 19, Art. IV, Mo. Const. 1820; Sec. 15, R.S. 1825, p. 349; Sec. 17, Art. V, Mo. Const. 1865; Sec. 36, R.S. 1865, p. 65; Sec. 3, Art. V, Mo. Const. 1875; House Journal, 1856-7, pp. 34, 49, 66, 67, and 68. (a) The construction placed upon a constitutional provision by the General Assembly over a long period is entitled to great weight. State v. Riedel, 329 Mo. 616, 46 S.W.2d 134; Gantt v. Brown, 244 Mo. 299, 149 S.W. 644; Sec. 3, Art. V, Mo. Const. 1875; Laws 1877, p. 247; Sec. 10169, R.S. 1929; State ex rel. Sewer Dist. v. Smith, 115 S.W.2d 823; House Journal, 1877, pp. 20-28; House Journal, 1881, p. 17; House Journal, 1909, pp. 20, 21, 22, 23, 31, 32, 33. (3) General Assembly can go behind face of returns, to determine who was elected Governor. Sec. 3, Art. V, Mo. Const. 1875; Goff v. Wilson, 9 S.E. 26, 32 W. Va. 404; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1016; Ex parte Norris, 8 S.C. 465; State ex rel. Chaney v. Grinstead, 314 Mo. 55, 282 S.W. 719; Commonwealth v. Baker, 237 Ky. 380, 35 S.W.2d 548; Barnett v. Bellows, 315 Mo. 1100, 287 S.W. 606; Chattanooga Boiler Tank Co. v. Collinsville, 111 S.W.2d 1171; State ex rel. v. Baxter, 28 Ark. 135. (a) The Speaker of the House of Representatives, in performing the duties imposed upon him by Section 3, Article V, of the Constitution, acts as an agent and instrumentality of the General Assembly in joint session. Sec. 17, Art. IV, Mo. Const. 1875; Sec. 3, Art. V, Mo. Const. 1875; Sec. 10169, R.S. 1929; In re Speakership of the House of Representatives, 15 Colo. 520, 25 P. 709; State v. Elder, 47 N.W. 714, 31 Neb. 169; Goff v. Wilson, 9 S.E. 26, 32 W. Va. 401. (4) The General Assembly in joint session is not compelled to seat a person as Governor until it has determined that he was legally elected. Goff v. Wilson, 9 S.E. 26, 32 W. Va. 398; State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A. 663. (a) The General Assemply has such implied powers as may be necessary to carry out its authority to determine which candidate received the highest number of votes in an election contest for Governor. Lowe v. Summers, 69 Mo. App. 650; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 988. (b) The Legislature acts in a judicial capacity and its acts are exclusive and conclusive in determining the elections, returns and qualifications of its own members, and its powers are the same in passing upon the returns in elections for Governor. 18 Am. Jur., p. 367, sec. 288; State ex rel. Ainsworth v. District Court, 107 Mont. 370, 86 P.2d 8; 107 A.L.R. 209. (5) There is a contest pending before the joint session of the General Assembly. Sec. 10361, R.S. 1929; House Journal, 1857, p. 68; Sec. 25, Art. V, Mo. Const. 1875; Taylor v. Beckham, 56 S.W. 177, 108 Ky. 278; Taylor v. Beckham, 178 U.S. 548, 44 L.Ed. 1187; State ex rel. v. Baxter, 28 Ark. 135. (a) Rules of construction in ordinary statutory contests have no application to a contest for Governor and Lieutenant-Governor. Sec. 8, Art. VIII, Mo. Const. 1875; 20 C.J., p. 57. (b) The power of the General Assembly in a contest for Governor is inherent and not dependent upon any statute. Sec. 25, Art. V, Mo. Const. 1875; McGrew v. Mo. Pac. Ry. Co., 230 Mo. 496, 132 S.W. 1095; St. Joseph Board of Public Schools v. Patten, 62 Mo. 449; Hannibal St. Joseph Ry. Co. v. State Board of Equalization, 64 Mo. 305; State ex rel. Ainsworth v. District Court, 107 Mont. 370, 86 P.2d 8; State ex rel. Smith v. District Court, 50 Mont. 134, 145 P. 724; Baxter v. Brooks, 29 Ark. 184. (c) An examination of the cases cited by relator in support of the proposition that Section 10361, Revised Statutes 1929, affords the General Assembly its only power to deal with the question of contesting the election for Governor, discloses that such cases are not applicable to the issues herein. Sec. 25, Art. V, Mo. Const. 1875; Sec. 10361, R.S. 1929. (d) James T. Blair, Jr., had authority to file the contest petition, and its sufficiency is to be determined solely by the Legislature. Coffin v. Coffin, 3 Am. Dec. 189, 4 Mass. 35; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1018; Taylor v. Beckham, 21 Ky. L. Rep. 1735, 94 Am. St. Rep. 357, 49 L.R.A. 258, 56 S.W. 177, 108 Ky. 300. (e) A contestant is not necessarily in a contest for Governor. Gantt v. Brown, 149 S.W. 644, 244 Mo. 304; Taylor v. Beckham, 56 S.W. 179, 108 Ky. 291. (f) Resolution No. 3 passed by the Joint Assembly is valid. Taylor v. Beckham, 108 Ky. 278, 21 Ky. L. Rep. 1735, 56 S.W. 182; Sec. 8. Art. VIII, Mo. Const. 1875; Sec. 25, Art. V, Mo. Const. 1875; Barry v. United States ex rel. Cunningham, 279 U.S. 613, 73 L.Ed. 871. (g) Relator cites and relies upon the case of State ex rel. Ford v. Trigg, 72 Mo. 365, as authority for his position that if judges and clerks of election have made mistakes in casting up votes, all the power to correct the mistakes was in the tribunal having jurisdiction of the contest. (6) The powers of government are divided into three distinct independent branches, and those vested in one branch are exercised by that branch to the exclusion of the other two branches. Art. III, Mo. Const. 1875; State ex rel. v. Bolte, 52 S.W. 262, 74 A.S. 537, 151 Mo. 370; State ex rel. Major v. Shields, 198 S.W. 1105, 272 Mo. 342; Smith v. Myers, 109 Ind. 8; In re County Commrs. of Counties Comprising 7th Judicial District, 98 P. 557, 22 Okla. 446; Goff v. Wilson, 9 S.E. 26, 32 W. Va. 404; Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1017; Luther v. Borden, 1 How. 47; Taylor v. Beckham, 108 Ky. 278, 56 S.W. 184, 178 U.S. 574; Bash v. Truman, 75 S.W.2d 840, 335 Mo. 1079. (7) The court cannot control by mandamus the acts of the Speaker or the General Assembly, whether they be ministerial, judicial or political. State ex rel. v. Stone, 25 S.W. 376, 41 Am. St. Rep. 705, 23 L.R.A. 194, 120 Mo. 436; Albright v. Fisher, 64 S.W. 106, 164 Mo. 67; State ex rel. Major v. Shields, 198 S.W. 1105, 272 Mo. 347.
This is an original proceeding in mandamus against the Speaker of the House to compel him to open and publish the election returns for the office of Governor and to declare elected the person who received the highest number of votes.
The relator is the Republican candidate who, on the basis of the complete returns, was elected Governor at the General Election on November 5, 1940, by a plurality of 3613 votes.
The duty of the Speaker with reference to the returns for the chief of State offices, including Governor, is prescribed by our Constitution under the article relating to the Executive Department as follows: Article V, Section 3. "Returns of election — tie, how determined. The returns of every election for the above named officers shall be sealed up and transmitted by the returning officers to the Secretary of State, directed to the Speaker of the House of Representatives, who shall, immediately after the organization of the House, and before proceeding to other business, open and publish the same in the presence of a majority of each House of the General Assembly, who shall for that purpose assemble in the hall of the House of Representatives. The person having the highest number of votes for either of said offices shall be declared duly elected; but if two or more shall have an equal and the highest number of votes, the General Assembly shall, by joint vote, choose one of such persons for said office." Hereafter, we will refer to this provision merely as Section 3, but it must be kept in mind that it is a provision of the Constitution.
The Speaker waived the issuance of the alternative writ and agreed that relator's petition serve in its stead. He filed his return to which relator filed a demurrer. We therefore look to the facts well pleaded in the petition and the return for the facts of the case. [State ex rel. Buckley v. Thompson, 323 Mo. 248, 19 S.W.2d 714.]
From the pleadings we find the General Assembly convened in Jefferson City on January 8, 1941, organized, and the respondent was elected Speaker of the House. The official election returns for the chief State offices were delivered to the Speaker and on January 10, 1941, the Senate and the House assembled together for the purpose of witnessing the opening of the returns. The returns were opened and published and those receiving the highest vote for all the State offices except for the office of Governor were declared elected. As to the office of Governor these same returns showed officially that the relator received the highest number of votes by 3613. The returns were fair on their face, there were no contradictory or conflicting returns. The Speaker declined to publish the returns and declare the election of the Governor because of the action of a majority of the Joint Assembly ordering him not to do so. Such action was based on the filing in the House and Senate of a resolution of the Democratic State Committee charging irregularities, excessive use of money and fraud in the election of Governor. The resolution asked an investigation by the General Assembly "into the vote cast for governor." In support, many Democratic county committees filed similar resolutions. There was also filed with the General Assembly by a citizen and voter of Cole County a petition likewise charging fraud in the election. It prayed that the General Assembly investigate the election, correct the returns and recount the ballots. The Joint Assembly adopted the prayer of this petition and also adopted "Joint Resolution No. 3" to carry the petition into effect. This resolution created a committee composed of members of each house and empowered it to investigate the election and to recount the ballots. It further provided that pending the investigation no declaration of election should be made by the Speaker with reference to the office of Governor.
All this occurred at the Joint Assembly on January 10. The term of office of the new Governor commenced on January 13. On that date relator filed his petition for mandamus in this court.
It is agreed and admitted that relator possesses the proper qualifications for the office of Governor and that the face of the returns show his election. The Speaker contends, on the other hand, that the relator did not receive the highest number of legal votes cast at the election. He also contends that the duty of publishing the returns and declaring the election, is imposed on the Speaker acting with the Joint Assembly and since the Joint Assembly has entertained an investigation and contest of the office of Governor no declaration may be made until the contest is tried and determined and therefore he has no power to declare the election. He attacks our jurisdiction to issue a writ against him on the grounds first, that we may not compel the performance of such a duty which he contends is enjoined on him and the Legislature and second, that as Speaker he is not such an officer as would be amenable to our writ.
There is no contention here that the relator should have pursued any other remedy. Nor do we think that any other remedy is available to him. Almost two hundred years ago Lord Mansfield in the case of Rex v. Barker et al., 3 Burrow, 1266, announced the rule which was approved in Marbury v. Madison, 1 Cranch, 137, and is followed today. He said: "Where there is a right to execute an office, perform a service, or exercise a franchise (more especially, if it be in a matter of public concern, or attended with profit); and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy; this court ought to assist by mandamus; upon reasons of justice, as the writ expresses . . ., and upon reasons of public policy, to preserve peace, order and good government."
However, before we may exercise our jurisdiction to issue our writ of mandamus, the duty to be performed must be of the character which we may order performed; and the officer who should perform it must be one we may command. We may direct the performance of a public duty which the law clearly and peremptorily imposes and where there is no discretion in the officer to act or refuse.
Let us first determine the nature of the duty positively imposed upon the Speaker by Section 3. Is it a duty about which he may exercise discretion or is it merely a ministerial duty? He is first directed to open the returns which had been sealed and transmitted. Next he shall publish them. To publish means to make known; to bring before the public; to make public. A matter that is public is open to the knowledge or view of all; without privacy. Then Section 3 directs that the person having the highest number of votes shall be declared duly elected. It does not directly specify who shall make this declaration but this should cause no concern because the Legislature itself has solemnly placed its interpretation on this provision by statute (Sec. 11461, R.S. 1939), wherein it has expressly provided that such declaration shall be by the Speaker. We adopt such construction as it is a reasonable one. [State v. Riedel, 329 Mo. 616, 46 S.W.2d 131.] The next duty of the Speaker then, is to declare the winner. Webster defines declare as meaning to make a formal announcement of; to avow. These are three simple, mandatory duties about which the Speaker has no discretion. But that is not all, their performance is further limited; first as to place — in the hall of the House of Representatives; second, as to witnesses — in the presence of a majority of each house who shall assemble for that purpose; and third, as to time — immediately after the organization of the House, and before proceeding to other business.
There is an attempt to argue that the requirement of the presence of a majority of each House in Joint Assembly when the returns are opened and published must be interpreted to mean that such members exercise a discretionary role which mandamus may not control. The active participation of the Joint Assembly is called for by the constitutional provision only when there is a tie vote. By statute, it is true the General Assembly has reserved the right to correct mistakes and has decreed that the returns "shall be counted by the speaker, under the direction and control of the two houses thus assembled." [Sec. 11461, R.S. 1939.] Such mistakes must of necessity be ones which are shown on the face of the returns and which may be corrected at the joint session, the same kind of mistakes that a canvassing board may correct. The duty of counting the totals shown by the returns and declaring the result remains in the Speaker. It is admitted there were no mistakes on the face of the returns so we need not discuss the legality of these statutory provisions because they do not affect this case. A more compelling reason for the presence of the members of the joint session lies in their capacity as witnesses. It is reasonable that the returns for the important executive officers should be opened and made public by a public officer, in a public place, before witnesses. Who would be more likely witnesses than the members of the body designated to entertain and decide a contest for the two highest offices if one be later instituted? Section 3 is explicit. The Speaker "shall . . . open and publish . . . in the presence of a majority . . . who shall for that purpose assemble." For example, Section 11615, R.S. 1939, provides that the county clerk shall select two witnesses to the canvass of the votes but they have no duties except to act as witnesses.
The time prescribed for performing these duties also indicates that they are ministerial. "Before proceeding to other business' the question of what is shown by the returns of the election for Governor must be determined. It could not have been the intention of the people to postpone the important business of the State awaiting the outcome of a long and spirited election contest. A Governor may not succeed himself. Absent some express provision, it could not have been intended to make it possible by such a device to continue an incumbent Governor in office awaiting the determination of a contest which might be prolonged over a long period of time, especially in view of this limited single term.
We are convinced that the result as determined from the face of the returns was to be at least prima facie evidence of election. It follows then that the duties imposed by Section 3 are ministerial. The winner as shown thereon was to be declared elected. If the election was to be contested such contest would be thereafter instituted and conducted as provided by law. We held official returns to be prima facie evidence of election and good until proved otherwise by contest in State ex rel. Attorney General v. Vail, 53 Mo. 97.
In the debates before the Constitutional Convention of 1875 which proposed Section 3, it seems to have been agreed that upon aggregating the votes from the face of the returns the candidate with the highest vote would prima facie be entitled to the office and to enter upon his duties. Any attack upon the returns would have to be made thereafter by a contest before the General Assembly. [See Debates of the Missouri Constitutional Convention of 1875 by Loeb and Shoemaker, Vol. IV, p. 428, et seq.] We refer to the debates with knowledge of the rule which limits the reliance which may be placed in them. [State ex rel. Heimberger v. Board of Curators, 268 Mo. 598, 188 S.W. 128.]
The duties enjoined upon the Speaker place him in the same category as a mere canvassing officer or canvassing board. By the overwhelming weight of authority throughout the country the function and duties of canvassers are purely ministerial. [20 C.J., sec. 254, 18 Am. Jur., sec. 254.] This State follows the weight of authority. The rule here adopted is that the duty of casting up the vote certified by the returns and ascertaining who received the highest vote is a purely ministerial duty, and being such the canvassers have no right to go behind the returns. [Mayo v. Freeland, 10 Mo. 629; State ex rel. Attorney General v. Steers, 40 Mo. 223; State ex rel. Metcalf v. Garesche, 65 Mo. 480; State ex rel. Ford v. Trigg, 72 Mo. 365; State ex rel. Broadhead v. Berg, 76 Mo. 136; Barnes v. Gottschalk, 3 Mo. App. 111; State ex rel. v. Stuckey, 78 Mo. App. 533; State ex rel. Glenn v. Smith, 129 Mo. App. 49, 107 S.W. 1051; State ex inf. Anderson v. Moss, 187 Mo. App. 151, 172 S.W. 1180.] We see no reason why this is not also true of the canvass which the Speaker is required to make by Section 3.
Does the action of the Joint Assembly in entertaining the investigation and the alleged contest of the election change the nature of the Speaker's duties? It will be observed that there is no reference to a contest in Section 3. In an entirely different section, Section 25 of Article V, we find: "Contested elections of Governor and Lieutenant-Governor shall be decided by a joint vote of both houses of the General Assembly, in such manner as may be provided by law." A contest and investigation of an election must dig behind the returns. Therefore, it may in no way interfere or prevent the Speaker from performing any duties which have to do only with the face of the returns. Only in a lawful contest would the question of the legality of the votes be relevant. It is not relevant in the matter of publishing the returns and declaring the winner as shown by them. The argument of the Speaker, the Joint Assembly may go behind the face of the returns and exercise judicial powers to determine the legal votes before the winner is declared according to the face of the returns, is obviously untenable. Nor do the cases from other jurisdictions, which are relied on in support of this argument, apply here because of differences in the constitutional provisions or policies which they consider.
The Speaker leans heavily on the case of Goff v. Wilson, 32 W. Va. 393, 9 S.E. 26, which was mandamus to the incumbent Governor to surrender the office to the petitioner on the ground the latter had been elected to that office although the Speaker and the Assembly had refused to declare his election. Such refusal was based on the pendency of a contest of such election. The court points out that under some Constitutions a person would not be deprived of his office during a contest but it held that it was the constitutional policy of that state not to permit the governor or any executive officer to exercise any official duties until the determination of a contest of the office was completed. The fact that the beginning of the terms of the executive officers was postponed beyond the date other officers were seated in order to give ample time for the trial and determination of a contest was a controlling one in determining the constitutional policy. The converse of such a situation exists in Missouri which furnishes a basis for argument to sustain a contrary policy here. The case of Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, also discusses similar constitutional provisions. It says that "no one can be inducted into the office of Governor without legislative determination of his election. Not only must the Legislature determine that he received the highest number of votes, but Section 3 of Article IV requires a legislative adjudication of his constitutional eligibility." This case is therefore readily distinguishable because of the latter provision.
In Ex parte Norris, 8 S.C. 408, the statements relied on about the meaning of the words "to open and publish the returns" support the Speaker's theory. However, these statements are not made by the court but they are contained in the opinion of a single judge while another judge in a separate opinion in the same case reaches a conclusion which is apparently contrary to such statements. State ex rel. Morris v. Bulkeley, 61 Conn. 287, 23 A. 186, is determined on a constitutional provision directly contrary to ours. That provision imposed the duty on the assembly to declare as elected the person whom they should find to be "legally chosen." The court held that this contemplated a judicial inquiry so that the person declared elected by the assembly would have unimpeachable title to his office. These cases do not sustain the Speaker's contentions under the terms of our constitutional provisions.
It is our judgment that the duty commanded by Section 3 is imposed on the Speaker and is clear, peremptory and ministerial and therefore one which may be directed by mandamus.
We turn now to the final part of the question before us. Is the Speaker an officer subject to our writ or is he shielded by the cloak of the legislative branch of the government? The Speaker necessarily must be a member of the House of Representatives and is elected to the office of Speaker by the members of the House. Therefore, he argues that he is but an agent and instrumentality of the House in performing the duties placed on him by Section 3. It has been held that the Speaker is the agent or servant of the House and under its orders. But this is the case only where the House is performing its usual legislative duties. And certainly there are no legislative duties involved here. Such duties have been fulfilled in enacting the laws governing the elections. Administering these duties lies with the executive branch of the government extending down to the judges and clerks of election. The statutes provide that after the vote in the precinct has been enumerated under the inspection of the judges that it shall be publicly proclaimed to the persons present. [Sec. 11613, R.S. 1939.] Then the county clerk must cast up the vote and issue certificates of election to county officers. [Sec. 11615, R.S. 1939.] For certain State officers the Secretary of State must cast up the vote and certify to the Governor the names of those having the highest number. [Sec. 11466, R.S. 1939.] In none of these instances could it be conceived, nor has it ever been held in this State, that any legislative duty or power is even remotely involved. Nor can it be contended here that the duty of the Speaker prescribed by Section 3 is of legislative character. In other words, the Speaker's canvass for the State officers directed by Section 3 is exactly the same duty as the county clerk's canvass for his county officers directed by the statute. Can it be of no significance that the Constitution has placed this duty in Article V relating to the Executive Department?
Nor does the office occupied by respondent as Speaker of the House put him beyond the jurisdiction of mandamus. In Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60, Chief Justice MARSHALL declared that "it is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined." This court followed that rule in effect in State ex rel. Robb v. Stone, 120 Mo. 428, 25 S.W. 376. There we refused to issue mandamus against the Governor on the ground that the performance or non-performance of every duty placed upon the Governor, who has "supreme executive power." involved the exercise of executive duty and discretion with which this court could not interfere. In no way would we be interfering in this case with the legislative power conferred on the Legislature by issuing our writ since the nature of the thing to be done involves neither legislative duty nor discretion. If either were involved we could not interfere because of the constitutional separation of powers which we must and we do uphold.
Our conclusion is that the Speaker is an officer to whom we may properly direct our writ to command the performance of the ministerial duty involved.
We have pointed out above that cases cited from other jurisdictions offer no aid here because of the differences in constitutional provisions and policies. However, there is one case which is apposite because it construes constitutional provisions the same as ours. It is State ex rel. Benton v. Elder, 31 Neb. 169, 47 N.W. 710. That was a proceeding in mandamus brought by a person, claiming he was elected State Auditor according to the face of the returns, against the Speaker of the House to compel the Speaker to open and publish the returns before proceeding to other business. The Speaker answered that the election was being contested and there was evidence which tended to impeach the integrity and validity of the returns; and also that there was a resolution adopted referring the returns to a committee which was to conduct the contest so that he was powerless to publish them.
The court, in that case, first considered whether mandamus would lie against the Speaker of the House. It discussed the constitutional separation of powers but declared that such provision could not be interpreted to deny relief "where an officer of either the legislative or executive department or the judicial shall refuse to execute an imperative duty imposed by law upon the office of the incumbent, to the detriment and prejudice of a citizen, or of the public." It then announced the general rule where mandamus applies and in discussing its applicability to the Speaker said: "We know of no good reason, nor has any been suggested, why this officer, appointed to perform the ministerial duty of opening and publishing these returns, should be specially taken out of the pale of law any more than other officers. It is true that his duty is to be done in the presence of a majority of the two houses, and the result is to be declared and published, as a constitutional duty, not to be controlled by the joint convention, nor subject to be diverted from its appointed purpose by any reference or submission to a proposed committee. . . . No legislative body has the power to interpose a parliamentary contrivance in contravention of the express provisions of the constitution of the State. It alone is the law governing this question. And wisely has the constitution provided a method of contesting elections, to be kept separate and distinct from the canvass and publication of the returns. . . . The duty of the Speaker to open and canvass the returns and declare the result, whether there is any contest or not, must recur every two years, upon the election of State officers, and that duty has no relation whatever to the trial of a contested election. . . . It would seem utterly impossible to enter upon such a contest at once, while the constitution prescribes that the respondent's duty must be first performed to the exclusion of any other business."
In a concurring opinion the following statement is made: "In the answer of the respondent it is alleged in substance that a contest has been instituted against the relator and other State officers named, and that they are deferring the canvass of the votes until after the determination of such contest. This, however, is clearly in violation of the constitution. That instrument requires the parties elected on the face of the returns to be declared elected and inducted into office."
The action of the Joint Assembly directing the Speaker to make no declaration with reference to the office of Governor is contrary to the affirmative duty placed upon him by Section 3, and is void. In our government the origin of all political power is vested in and derived from the people; it is a government of laws, and not of men.
The Speaker should open and publish the election returns for the office of Governor and declare the election of the relator who is admittedly the person having the highest number of votes on the face of the returns in the manner provided in Section 3, Article V of the Constitution. For this purpose our peremptory writ should issue. It is so ordered. All concur.