The Van Buren press., 1873-07-08
Berry VS.. Wheeler
lFrom Little Rock Gazette, July

I As our readers are advised, Hon J Il. Bor-
| ry, sometime since commenced an action in
the Circuit Court OF Pulaski county for the
Office Of Auditor This action was brought
under the provisions of chapter IL ofthe Code
of Civil Practice, section l25 of which read, as
fellows;
Whenever person usurps an office or
franchise to which he Is not entitled by law,
an action by proceedings at law may be insli-
tuted against him either by the State or the
party entitled TO the Office or franchise, to
prevent the usurper from exercising the office
or franchise
Mr. Berry, in his complaint, set out that he
was elected Auditor etc, and asked tor a
Judgment of custer against Wheeler, The de-
fendant'S attorneys demurrcd to the jurisdic-
tion Of the court taking the position that, ac-
co1ling to the following provision of the
Constitution. no contest for an executive Of
fee could be had before any other tribunal
than the Legislature:
The RETURNS Of every election for Gov
CrnOr. lieUtCnant- governor, secretary of state,
treasurer auditor, attorney general ana SIT
perntcudeut of public instruction shall be
sealed up and transmitted TO the seat of gov
eminent by the returning officers, ana df-
reCtcd TO the presiding officer Of the senate,
who. during the first week Of the session,
shall open aud publish the same in the pres
cncc Of the members then assembled The
persons having the highest number of votes
shall be declared elected /; but If two or more
shall have the highest and equal number OF
votes for the same ohicC, one of them shall be
chosen by joint vote OF both houses. Con-
tested elections shall likewise be determined
by both houses of the general assembly, in
such manner as is or may hereafter be pre-
scrbed by law.
On Saturday last Judge Whytock over
ruled the demurrer In his opinion he says:
II viii be seen that the chapter Of the Civil
Code under consideration embraces all offices
or franchises The remedy thus provided
was Of course enacted since our present con
stitution was adopted, No statute has been
passed prescribing the manner of conducting
contested elections for the Office of auditor,
and it is conceded that the plaintiff has never
applied to the general assembly and demand
ed contest,
Next, the Judge states tie Circuit Court,
under the code, has general original jurisdic-
tion in proceedings for the enforcement Of
civil rights and inasmuch as the Legislature
has failed to prescribe the manner Of contest.
he construes this section of the code to mean
that that power is conferred on Circuit
Courts OF the recent decision by the SUI
preme Court in the quo rardHto case against
Gov. Baxter, Judge Whytock says;
This Court is referred to an oral announce
ment reported to have been made by the su-
prcme court in the case of the State vs.. BaX-
ter, governor, etc. It has been difficult to as
Il in ogCuro,aly 81 al % ha ppipt lprilpl In
that case. II it should be discovered hereaf
ter that it included all those officers denomi-
mated executive officers of the state, and which
also embrace the auditor the decision of that
court. II It goes the length OF holding that no
court has jurisdiction ofa contest FOR an cleo
lon of any such officer would of course be
binding on this court.
We do not understand the decision Of the
Supreme Court to have included any other
Office than that Of Governor, for the simple
reason that the Statutes Isee Colds Digest
do prescribe the manner or contest for the Of
gee of G overnor before the Legislature, but
there is nothing as to any other executive Of
iiccr. But the fudge, we infer, holds that the
provision above quoted from the Civil Code
repeals that portion Of Gould's Digest relat-
ing to 4 contest tor Governor.
Mr. Brooks has recently commenced con-
test before Judge W. for the executive Office.
and Notwithstanding the recent decision Of
the Supreme Court, that the Legislature was
the only body before whom a contest for the
office of Governor could be made we have
this foreshadowing:
Our constitution tsee the bill of rights
prescribes that every person Is entitled to
certain remedy in the laws for all injuries aud
wrongs" :" but it Is argued by. the defendants
counsel, shat any usurpation OF Office by the
seven executive officers mentioned, cannot be
reached by the courts. Fortunate seven! If
partisan or corrupt general assembly, or
even one of the houses refuse by bare ma
iority to entertain petition for u contest or
receiving It, decline 20 investigate the case,
then this select hierarchy, no matter by what
mean, and instrumentaltics they may nave
been counted n,' are placed beyond the
reach OF courts Of law and the arm OF justice,
and sit secure in their usurpation. These sa-
cred seven. like the spirits OF The air, can sit
in the clouds and mock as" Not only is this
one of the consequences of the narrow or re-
stricted rule the court is urged in this case TO
adopt but it is asked, and, a VIII be seen,
against almost the whole current of English
and American authorities, to place con-
struction upon the provision under review,
which will deprive persons OF important
rights and send sutors hence without redress
or remedy.
But. we presume. from what the judge
states in another quotation above, that II 1t Is
shown him the Supreme Court has decided
the legislature has exclusive jurisdiction ola
guhernatorial contest, that he viii not pre-