Tribune and telegraph. [volume] (Kenosha, Wis.) 1855-1856, 1856-03-13
INTERNATIONAL CONTEST.
Demurrer of RasEsfOrd Sustained by sic
Supreme Court.

The Supreme Court, Tuesday morning last
delivered its opinion upon the plea of the Re-
spondent, that the Court could take no further
cognlzanee of the case and the demurrer to the
plea. The opinion was delivered by Chief, Jus.
tice Wilton and Justice Smith
CHIEF JUSTICE WHITON:-The information
III this case is in the usual form. 1t AYERS thai
there was an intrusion into, and UsurpatioI
OF the office Ex-Governor; chat the sespondent ex
ercises the duties of the office without right, anC
also sets up the right of the rolator to hold the
ONCE. In point OF form, this information is pre-
sumed to be unobiectionable, as no objection,
have been raised before the expiration of the
time fixed for the respondent to plead. A mo
ton was made to dismiss the proceedings, be
cause the Court had no jurisdiction to consider
the matter. The Court decided that it had iu
risdiction, because the Governor is an officer
although of high character, still undoubtedly
an officer. 1t was stated, in the opinion of the
Court, that by the fling of the motion, the fact:
III the information were admitted. Although il
was stated in the opinion as true, still the Cour
did not consider it necessary in order that they
| should have jurisdiction. When the motor
was overruled, the defendant was required t,
answer, and has put in his plea
There is no doubt of the character of this plea
The counsel on both sides agree that this is q
plea to the jurisdiction of the Court. 1t is de-
signed to Gust the Court of jurisdiction. The
OF December. the State Canvassers declared thai
the respondent was elected Governor. The ar
gument is, that although the Court might have
jurisdiction in the case of a mere intruder, il
would not have in this case.
We have stated before, and we repeat, that We
shall decide questions no farther than they arc
raised by pleas, or in the proper manner to put
upon record. The question of the finality of the
canvass the validity to the title of the certificate
to the office, which is presented by the plea, we
shall not decide. We have all come TO the con
clusion that though the matter of the plea might
be good in plea i'll bar, it is not plea to the
jurisdiction. This case is likened to case o.
privilege and therefore, the Governor should
not be held to answer in this shape. We know
that a Legislator, during the session, and fol-
some specified time, previous and after, can not
be arrested for debt. This does not seem anal
ageus. We have already decided that we have
jurisdiction in the case. 1.-THE Governor should
plead his office in bar, and maintain that plea
he could not be ousted but the Court must have
and has jurisdiction to pass upon that plea.
For these reasons the demurrer is sustained
and the respondent is required to answer it
over.
JUSTICE SMiTH:-It seems very clear that
the matter pleaded is not relevant to the iurs-
diction of the Court The facts stated are that
canvass was had, and that the certificate of
election was awarded to the respondent, and it
is urged that these facts should GUST the Court
OF Its jurisdiction. Suppose a Judge of the Su-
preme Court was impeachcd and thereby dis
qualified for holding any office in the State
The people, notwithstanding this, elect him
Governor. The canvassers canvass the votes.
They have no power to enquire into his quaiii-
cations, and declare him elected Governor. The
Constitution says he shall not be Governor. The
Constitution has provided elements for its own
preservation. 1t is vain to say that a person
can hold the Office of Governor, if he is de-
clared elected, and that the Constitution pro-
vides no means by which its provisions shall be
carried out, no sustaining, self-preserving pow
er. The que stion of the right to hold office
must often become a judicial question, and the
Constitution provides fer this. The provision
relative to the merits of quo ,oarrGnto, uncqu~o-
caEiy shows that the trainers of the Constitution
designed that whenever such questions became
Judicial questions, they shoU.d be judcialy de-
cided.
1t has been said that there are three depart
ments Of the government. / hat may be true.
But there are not three governments, nor are
there parts Of government When the eXecu-
tive department acts, the whole government,
and not part, operates; and SO with the legisla
tive and judicial departments. While the exc
cutive power is vested in a GorerH0r, it is not
vested in the individual. The constitution de-
c!ares that the Governor shall have certain
qualifications. 1t is idle to say that any per-
son, If he were elected, will hold the office. Is
it so? fla person gets certificate of Office, is
that conclusive, and is there no power in the
constitution to correct any wrong, but the pow
er of the sword! Then the constitution is a
mere collection of idle words.
1t is said that we are exercising dangerous
and a delicate power in taking jurisdiction of
this question 1t is delicate, but not danger
Gus. Delicate, because it is q delicate duty to
ascertain ones own power. lie dare not exer-
else this power without it was clearly granted
by the constitutions when it was thus clearly
granted, be dare not abstain from the exercise
OF it.