dissenting:
The denial of the writ in this case is based upon three grounds: (i) That respondents do not in their answer disagree with the relators as to the duties and powers of the canvassing board under the law, and as they express no unwillingness or refusal to properly canvass the vote and declare the result as the statute requires, the writ should not be awarded; (2) that the writ would be ineffective unless issued against the Governor, and the majority opinion holds the court has no power to issue a writ of mandamus commanding or directing him in the discharge of any duties conferred upon him; and (3) that awarding the writ would tend to create disorder and confusion, and for that reason it should not issue.
Respondents constitute the canvassing board, but they are not the same persons who composed the board when the vote was- canvassed, the result declared and certificates issued. The terms of office of the persons then composing the canvassing board expired soon after the performance of that act, and no answer was made to the petition by the persons then constituting the board but the answer was filed by respondents. They do not in their answer refuse to canvass the vote and issue the certificates in accordance with the prayer of the petition, nor do they take issue with the relators as to the law governing the canvassing board in the discharge of its duties, but the fact remains that they have refused to take the law into their own hands and again canvass the vote, declare the result and issue certificates, and have submitted the question of their powers and duty, under the circumstances, to the determination of this court. Whatever the views of respondents may be as to the unlawfulness of the acts of the officers who preceded them as members of the canvassing board, they have chosen the orderly and lawful method of asking that their .powers and duties in the premises be determined by this court in this proceeding, and by that determination they will abide, whatever it may be. This, it seems to me, is much more commendable than it would have been for respondents to have taken the law into their own hands, canvassed the vote and declared the result without any directions from a court. Because they have chosen to pursue this course instead of the arbitrary one which the opinion indicates they could have pursued, affords no justification, in my judgment, for a denial of the writ.
With the general proposition that courts have no power to control an executive officer in the discharge of his duties I agree, but that rule is subject to some qualifications. The authorities, I believe, are all in harmony upon the proposition that courts have no power to control an executive officer in the discharge of any political or discretionary duty; but certain duties may be, and often are, conferred upon the executive which are purely ministerial in character. As to whether the executive may be controlled in the discharge of such duties the authorities are not harmonious. Many States where the question has been decided have held that the chief executive of the State is subject to control by the courts in the discharge of purely ministerial duties which might as well have been conferred upon any other officer as upon the Governor, and many States have held that courts have no power to compel the performance by the Governor of any duty, recognizing no distinction between discretionary and ministerial duties. A ministerial act- is defined to be “one which a person performs under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or exercise of his own judgment upon the propriety of the act being done.” (Flournay v. Jeffersonville, 17 Ind. 174.) Inasmuch as. the opinion of the court does not raise any question that the duties of the State canvassing board are purely ministerial, I assume that they are conceded to be such, which seems to me to be clearly the correct view. The opinion of the court does not pretend to hold that the canvassing board acted lawfully in refusing to accept the abstracts of votes certified by the county clerks in determining who was elected and entitled to certificates upon the face of the returns, and no time need be consumed for the purpose of demonstrating that the acts of the board complained of were unauthorized, contrary to the statute and illegal. Assuming, then, that the duties of respondents are purely ministerial, that their duties as such board are clearly defined by the statute and in the discharge of such duties they have no discretion whatever, may they disregard their duties and in palpable violation of the positive and plain directions of the statute from which they derive their sole power and authority, refuse to perform those duties and neither the public nor the parties affected have any remedy?
Some of the cases denying the jurisdiction-of courts to award the writ of mandamus against the Governor of a State are based upon the theory that all his duties are executive and in the performance of them he has a right to exercise a discretion, and therefore hold that courts cannot interfere in the control of any of his acts. This subject was elaborately discussed and the conflicting authorities referred to in Martin v. Ingham, 38 Kan. 641, and it was there said: “If we should deduct all the cases decided upon the theory that the court was asked to control executive, political or discretionary action and not consider any of the dicta of such cases, and thereby leave only such cases as necessarily included a decision (not dictum) and decided that the courts could not in any case control any act to be performed by the Governor, the weight of judicial authority would probably be that courts may control any mere ministerial act to be performed by the Governor.” This is also the view of the author of an extensive note upon this subject to State of Wyoming v. Brooks, 6 L. R. A. (N. S.) 750, where it was held the writ would issue against the Governor to compel the performance of a ministerial duty when his judgment and discretion were not involved. In State v. Thayer, 31 Neb. 82, where the jurisdiction to award the writ of mandamus against the State board of canvassers, composed of the Governor, Secretary of State, Auditor, Treasurer and Attorney General, to compel the board to canvass the votes was sustained, the conflicting decisions were referred to, and it was said the weight of the argument supports the right and authority of courts to compel the performance of purely ministerial duties by the executive. Numerous other cases might be cited expressing the same view, and it seems to me that is the sound view. To say that any executive officer, whatever his title, may disregard a ministerial duty imposed upon him by a statute which specifically provides how the duty shall be performed, leaving nothing to the judgment or discretion of the officer, is to acknowledge an authority higher than the law. To say the remedy is to remit him to the “high tribunal of his own conscience and the public judgment” is a confession of weakness in the law that I cannot make.
While' it may not be customary, as said in some cases, to impose ministerial duties upon the Governor, there is nothing in the nature of the office which prevents that being done, and it is well known that such duties are enjoined upon the Governor of a State. Other State officers, such as Secretary of State, Auditor, Treasurer and Attorney General, are officers of the executive department, but the legislature has charged them also with the performance of some ministerial duties. While the court does not decide whether they are subject to control by the courts in the performance of ministerial duties, I am unable to see any difference, in principle, between such officers arid the Governor in the performance of such duties. Imposing such duties upon an executive officer, whether he be Governor or some other executive officer of the State, does not transform such duties from ministerial to executive or discretionary duties. An officer' charged with the performance of a purely ministerial duty by an act of the legislature containing specific directions as to how it shall be performed, leaving nothing to the judgment or discretion of the officer, is as to that duty, no matter what his title may be, a ministerial officer. Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137: “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.”
The question of the jurisdiction of a court to award a writ of mandamus against the Post-master General was before the Supreme Court of the United States in Kendall v. United States, 12 Pet. 608. The.court said: “The mandamus does not seek to direct or control the Post-master General in the discharge of any official duty partaking in any respect of an executive character, but to enforce the performance of a mere ministerial act, which neither he nor the President had any authority to deny or control. * * * There are certain political duties imposed upon many officers in the executive department the discharge of which is under the direction of the President. But it would be an alarming doctrine that Congress cannot impose upon any executive officer any duty they may think proper which is not repugnant to any rights secured and protected by the constitution, and in such cases the duty and responsibility grow out of and are subject to the control of the law and not to the direction of the President. And this is emphatically the case where the duty enjoined is of a mere ministerial character.”
In United States v. Blaine, 139 U. S. 306, where a writ of mandamus was asked to be awarded against the Secretary of State, the court, after holding the writ could not issue against the head of an executive department to control him in the discharge of an executive duty involving the exercise of judgment or discretion, said: “When, by special statute or otherwise, a mere ministerial duty is imposed upon the executive officers of the government,—that is, a service which they are bound to perform without further question,—then, if they refuse, the mandamus may be issued to compel them.”
I do not regard People v. Bissell, 19 Ill. 229, and other Illinois cases cited in the opinion of the court, as conclusive of the question here involved. While in those cases no reference was made to any distinction between executive and ministerial duties, it seems apparent that the court had in mind only executive duties the performance of which involved the judgment and discretion of the Governor. That this court has not heretofore thought those cases settled the question here involved is made to appear from the fact that, we have recently taken jurisdiction of petitions for the writ of mandamus against the Governor and the other State officers constituting the State canvassing board, in cases precisely like the one under consideration. In People v. Deneen, 247 Ill. 289, relator was granted leave to file, and did file, a petition in this court asking a writ of mandamus against the Governor and other State officers composing the State primary canvassing board, commanding them to certify the relator’s name as one of the candidates nominated by his political party for the office of representative in the General Assembly at the preceding primary, so that his name would be placed on the official ballot to be voted for at the election. Pour members of the court agreed that the writ should be denied but did not agree upon the grounds of denial. Want of jurisdiction was not suggested in either of the two opinions filed giving the reasons why a majority of the court thought the writ should not issue. Three of the justices who concur in the opinion of the court in this case filed an opinion in that case in which they stated that in their opinion the writ should have issued. If we had jurisdiction then to issue the writ against the Governor I know of no reason why we have not jurisdiction to do so now.
In People v. Deneen, 256 Ill. 436, the relator obtained leave to file, and did file, in this court a petition alleging that he had been nominated at the preceding primary election by his political party as a candidate for representative in the General Assembly, but that the State canvassing board, upon a canvass of the returns, refused to declare his nomination and issue a certificate to that effect. A writ of mandamus was prayed against the canvassing board commanding that said board declare petitioner nominated and that a certificate be issued. The case was considered on its merits and the writ denied, but the denial was not upon jurisdictional grounds but for reasons which will be found stated in the opinion.
In People v. Deneen, 256 Ill. 536, this court granted relator leave to file a petition for the writ of mandamus against the Governor and other State officers constituting the State canvassing board. The petition alleged the petitioner had been duly nominated as one of the candidates of his political party at the preceding primary election but that the canvassing board had wrongfully and unlawfully declared another the nominee. A writ of mandamus was prayed commanding the State board of canvassers to issue to petitioner a certificate of nomination and to certify his name to the county clerks of the counties composing his district, in accordance with the provisions of the statute. The writ was denied, not upon jurisdictional grounds but for the reasons stated in the opinion of the court.
All three of the above cases were original proceedings begun by leave in this court. They were all considered upon their merits, and while the writ was denied in each case, the denials were based on the opinion of the court that the petitioners were not entitled, under the law, to the relief prayed, and not upon the want of jurisdiction of the court to grant the relief. It is very certain that if the petitioners had shown themselves entitled to the relief prayed, and that the canvassing board had, by its unlawful act or the failure to perform its duty as prescribed by .the statute, deprived petitioners of their rights, the writ would have been ordered to issue. In the five opinions filed in the three cases ño intimation will be found that the court had not jurisdiction to direct, by writ of mandamus, that the board, including the Governor as a member of the board, perform its duty under the statute.
But if the later cases are to be departed from and the dicta of the earlier cases that the courts will not assume to control the action of the executive in the performance of any duty is to be adhered to and applied to purely ministerial duties, still, under the facts of this case the relators are entitled to the writ and the court has the power to issue it under the. early cases cited in the opinion of the court. In People v. Bissell, 19 Ill. 229, the court said that where, for the purpose of getting advice of this court in reference to some duty imposed upon him by law, the Governor makes an agreed case and submits to the jurisdiction of the court, the court will take jurisdiction and determine the right of the relator to the writ,'—citing People v. Matteson, 17 Ill. 167, as being a case of that kind. In People v. Palmer, 64 Ill. 41, relator filed a petition in this court for a writ of mandamus requiring the Governor to issue to him a commission as police magistrate in and for the city of Chicago. The Governor appeared, admitted the facts alleged in the petition were true, and expressed a willingness to issue the commission if the court should be of opinion the relator was entitled to it. The court said this relieved it of any consideration of the question whether it had jurisdiction to award the writ against the Governor and decided the case upon its merits.
The answer of respondents in this case admits the facts alleged in the petition; alleges that since the filing of the petition the terms of office of the officers composing, the board of canvassers had expired; that they had been succeeded by respondents, and that respondents submitted to this court whether or not the writ of mandamus should issue commanding them to forthwith canvass the abstracts of votes returned to the canvassing board by the county clerks, declare petitioners elected, cause proclamation of the result to be made and certificates to issue. The answer prayed that the court should enter such order in the premises directing them as law and justice should require. This is clearly and unmistakably a submission to the jurisdiction of the court. All question whether the Governor or the other members of the board were subject to be controlled in the performance of the duty involved was waived, and the court was invited to determine and advise respondents what their duties were under the facts alleged in the petition. The position of respondents as disclosed by the answer is, that they admit the returns have never been canvassed by the board of canvassers, the result declared and certificates issued in accordance with the requirements of the statute, 'but as a pretended canvass of the returns had been made by their predecessors in office they were uncertain as to what their powers and duties were under the circumstances. They therefore submitted themselves to the jurisdiction of the court for the purpose of getting its advice in reference to some duty imposed upon them by law, (People v. Bissell, supra,) and thereby “relieved the court of all consideration of the question as to the authority of the court to coerce the performance of a public düty by the executive of the State.” (People v. Palmer, supra.) If we are to accept those cases as holding that the court cannot assume to control the executive in the performance of any duty, how can we consistently disregard the exception made by them in cases where the executive voluntarily submits to the jurisdiction of the court and asks to be advised as to what his duties are? It seems to me that under the authorities relied upon by the court we should have decided the question submitted and advised the respondents what their powers and duties are, as we were requested to do.
It is also said in the opinion of the court that awarding the writ would tend to create disorder and confusion, and that it is discretionary with the court to deny it in such cases. It is said the predecessors of respondents, as members of the board of canvassers, declared George A. Miller and R. D. Kirkpatrick elected members of the house of representatives and commissions had been issued to them; that the house is now in session, and awarding the writs would result in different persons holding certificates of election to the same office, some made by Gov. Deneen and some by Gov. Dunne, contending for seats in the house. This, it is said, would create disorder and confusion and result in no substantial benefit to relators, who would necessarily be required to submit their claims to the decision of the house. This seems to me wholly insufficient to^ afford any justification for a denial of the writ. As previously stated, it is not denied that if the board that canvassed the returns and declared the result of the election had performed its duty in the manner required by the statute, relators would have been declared elected and given certificates. This action of the board would not have been conclusive of their election, for the house of representatives is the sole judge of the election of its own members. The canvassing board has no other power- than to accept the abstracts of votes returned by the county clerks and be governed thereby. That body has no power, in a contest between different claimants to the office of representative, to determine who is elected. That question can only be determined by the house itself. The opinion correctly states that if relators were awarded the writ and given certificates this would not be conclusive, but their right to the office they claim would have to be submitted to the house of representatives for decision. They have a right, without the writ, to contest before the house the election of the persons now holding certificates and have a decision of that body upon that question. The persons to whom the certificates have been issued, having been sworn in and admitted to membership, would hold their seats until relators had established their right and the house had decided in their favor. The procedure would be the same and would be attended with no more disorder and confusion than would be the case if relators contested the right of the sitting members to the office without having applied for or obtained certificates. If relators were entitled to certificates upon the face of the returns but were denied them and they were issued to persons not entitled to them on the face of the returns, it is no answer to say they must submit to the wrong done them because to correct the wrong in an orderly legal proceeding would tend to create disorder and confusion. The cases in which the writ of man-damns has been denied upon that ground are not analogous to this case. In my opinion the writ should be awarded.
Mr. Justice Cooke: I concur in the dissenting opinion of Mr. Justice Parmer.