Mills v. Newell

Mr. Justice Gabbert

delivered the opinion of the court.

*378The question involved is the right of Mr. Newell to have his name appear upon the official ballots as a candidate for state senator from the 26th senatorial district. He has been regularly nominated for the office named, and has tendered the secretary of state .his certificate of nomination, which is conceded to be regular in all respects. The latter refused to receive and file this certificate for the reason that, according to his construction of the apportionment act of 1901, no vacancy exists in the office of state senator for the 26th district, or that this district is not entitled to elect a senator at the next general election, and stated that he would not certify the name of respondent as a candidate for the office in question. Based substantially upon these facts, Mr. Newell commenced an action in the district court of Arapahoe county against the secretary of state, to compel him to receive, and file the certificate of nomination tendered, and also to' certify his name to the several county clerks of the counties comprising the 26th senatorial district as a candidate for the office of' state senator. Judgment was rendered in favor -of. Mr. Newell, and the secretary of state has instituted proceedings here to review that action. It appears that if a senator is elected from the 26th district, and senators are also elected from the candidates in' the other districts whose certificates of nomination have been received and certified, or will be certified by the secretary of state, to the proper county clerks, that it will result in electing eighteen senators, who, if admitted, would, with the hold-overs, constitute the senate a body in excess of the constitutional number by one. No claim is made by either party that the apportionment act of 1901 is invalid. It is unnecessary to state that act in full, but for the purposes of this action, it is sufficient-to say that it.re-districts the state into senatorial districts, designates the nurm *379ber of senators to which each district is entitled, does not expressly state what districts shall elect senators this fall, bnt does provide that nothing in the act shall be construed to work the removal of any senator' from office for the term for which he may have been elected.

The foregoing preliminary statement fairly presents the questions necessary to consider in so far as they are argued by counsel for the secretary of state. They contend that under the apportionment act of 1901 no senator is to be elected from the 26th district at the next general election, and hence the. refusal of the secretary of státe to receive and file the certificate of nomination or certify the name of Mr. Newell to. be printed upon the official ballots; should not be disturbed. The only question as to the apportionment act which either party raises is the one of vacancy in that district, which necessarily implies that the only controversy between them in this respect is, which one of the several districts claiming the right to elect senators at the next general election, including the 26th, is asserting a right to elect one which is not entitled to elect at that time? This is a question which the senate must determine for itself, and its authority to do so cannot be infringed. Our constitution expressly - provides that each house of the general assembly shall judge of the election and qualification of its members— § 10, art. V. The power thus vested is exclusive, and cannot be exercised by any other tribunal. Hughes v. Felton, 11 Colo., 489; State v. Gilmore, 20 Kan., 551.

The secretary of state bases' his action upon the ground that there is. no vacancy in the 26th district. On the strength of this construction of the apportioninent act of 1901,' he takes the steps which will result in the eléction of the statutory number of senators *380from other districts, to the exclusion of the 26th. The effect of this action is a declaration on the part of the secretary of state that all the districts claiming the right to elect senators at the next election are entitled to exercise it, except the 26th. This is clearly a usurpation of authority expressly inhibited by the fundamental law, because he has assumed indirectly, though arbitrarily, to determine the right of some one to a seat in the senate, in the face of the constitutional provision that that body has the exclusive authority to determine the election and qualification of its own members. In other words, by his action he not only assumed to determine that those elected whose certificates of nomination he has filed will be entitled to seats in the senate, but has taken the steps which will prevent the election of a senator in the 26th district, and thus effectually deprives some one who would otherwise be elected from that district of the privilege of having his rights to a seat determined by that body, but, in addition, has assumed to deprive the senate of its prerogative to judge of the election of its own members, and the electors of the 26th district of the constitutional guaranty to have their right to elect a senator determined by the only forum clothed with that power.

In view of the constitutional provision above referred to, if this court should undertake to decide whether the secretary of state was right or wrong in his construction of the apportionment act, it would also exercise an authority which it does not possess because it would be an attempt to determine questions which the senate alone has jurisdiction to settle. Aside from these considerations, if it could be successfully urged that the inhibition of the constitution is not controlling in this case, it is not amiss to add, that no harm can ever come of permitting the *381people to vote upon any question which they may desire to have submitted to their suffrages. If the issue thus presented is defeated, it is then settled; if not, tribunals are provided for determining the validity of elections, and unless the people are permitted to vote in the first instance, the opportunity for such determination could never be presented. If ballots could be prepared and distributed as under the law in force prior to the adoption of the present law upon that subject, no one would question the right of the electors of the 26th district to vote for candidates for the office of state senator from that district at the next election. The present law has not abridged that right, nor has it vested any officer or tribunal with authority to prevent its exercise. Inasmuch as Mr. Newell has been regularly nominated, he has the undoubted right to have his name submitted to the electors of the 26th district upon the official ballots as a candidate for the office of state senator from that district, so that if he should receive the requisite number of votes, he will be armed with the proper credentials which will enable him to present his claims to a seat in the next general assembly to the body which, alone, has the authority to determine the question upon which the secretary of state bases his action. — McCreary on Elections, 3rd ed., § 350; 4th ed., § 385; O’Ferrall v. Colby, 2 Minn., 148.

The judgment of the district court is affirmed.

Affirmed.