The opinion
The result of this decision is that there is no power, authority, or right in this court to order the State Election Board to reconvene, and set aside or cancel its former certificate as to the result of a state-wide election, and to issue a new certificate to the opposite effect.
I am loath to accept such a result in such a case as this, where it seems that one of the county election boards made a clear error in certifying the number of electors voting in the county. But there seems to me to be no justifiable alternative.
This is in no sense a procedural matter, nor a mere technical deficiency in corrective practice or procedure, or the like. If that were all, we could easily brush aside every objection, and do our best to hear every claim of election error, and then by order require that to be done as to each county and precinct election return which we thought ought to be done. But the first question here is one of the right and power of this court to so control a state-wide election. While this court must act courageously on every question in which it has authority, it must just as steadfastly refuse to arrogate to itself powers it does not have. It is intolerable that any state officer judicial *Page 280
executive, or legislative, should exercise force or power without authority so to do. And that power or authority, which is not authorized and legal, is not made legal merely by being exercised. In fact, the illegal exercise of power by one in authority is the more intolerable by reason of the position of the one so purporting to use it. It would be so if this court acted otherwise in this case.
This court cannot exercise any control over state-wide elections or the result thereof unless such authority is conferred on the court by the Constitution or statutory laws of the state, or is conferred by clear implication arising from the language of the Constitution or statutes. This court cannot confer such power on itself by its own decision or order.
The Constitution and statutory laws confer no such power on this court to control the certificate of result of such an election as this. That power is conferred exclusively on the State Election Board, and the law further provides the time and manner and method for the exercising of such power by the State Election Board, and further provides as to the county certificates upon which the state certificate is based. The law does not undertake in any manner to confer power on any state official or department of government to observe or determine error in the figures of any county or precinct, and thereupon to order the State Election Board to issue a new certificate changing its formerly certified result of an election such as this. Such power should not be permitted to be assumed by any other state official or department of government, and such authority in all probability would not be conferred upon any state official, or upon this court, even by legislative enactment, without at the same time placing definite restrictions upon the time and manner of the exercising of such power.
If this court should now assume to exercise such power and upon the error in one county should order the State Election Board to reconvene and change the formerly certified result of this election, the logical result would be to authorize the court at any later day to consider an error in any other county, and if there was such an error in sufficient amount or number, to then order the State Election Board to convene again and to again change the result of the election by a new certificate of result. Thus there could be no finality to the result of an election on a constitutional amendment. Because any certified result made by the State Election Board would only be final until the next order of this court. However much we would desire to correct any and all such errors whenever they are brought to our attention from any county or precinct in the state, we must say that we have no authority or power whatever to do so.
Our laws definitely direct and empower the State Election Board to certify the result of such an election as this and provide for finality thereof and proclamation thereon. When that board has so acted, in good faith, and correctly, upon the records and county certificates before it, without fraud or mistake on the part of that board, then there is no escape from these conclusions: (1) That the law intends a time and manner of bringing finality to the result of an election such as this; (2) That this court has no power to check the result of the election in any county or precinct and then order the State Election Board to change its certified result of such an election to a different result which we conclude it should certify; (3) That if the power so to do is to be conferred on this court or upon any state official or department of government, it must be done by an enactment expressly providing therefor.
All our elections are most carefully conducted, and they should be wholly free from any error. But when errors occur they must be corrected in some manner provided therefor and known in advance as an authorized check thereon, not by an unwarranted assumption of power, by this or any other court, to do it by so-called judicial order. *Page 281
The opposite rule would place in this court for all time the absolute control of such a state election, and the power to say the final word as to the result of each such election. There is nothing to indicate that such a situation could ever have been intended. Certainly we cannot decree such a result by our order in this case.
I am authorized to say that Mr. Vice Chief Justice GIBSON and Justices OSBORN and DAVISON also concur in these views.