The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-05-16

ox.rc, ~ ~ s,t.e - usuipo1 Ho"
Brooks stated in his petition that he received
than So 900 votes Tor Governor At the said election;
and after declaring that Baxter has usurped the
ts %s, ss s. ns s y s
the sum q $4,000, the emoluments OF said
question Of contest ior tho once p
X. Ba5sef sSs Gc. to this pet
ton OF tue case, and afterwards, on the 18th Of
April the Court In the absence OF the defendant g
counsel, overruled the demurrer, and, without
dered judgment for Brooks in accordance with
minutes thereafter, without process to enforce the
execution Of SAID judgments and with the aid OF
session Of the Governors once: On the mex. DAY
alter the Judgment was rendered, Baxter's counsel
osss n1s SET ssa
they were absent when the, demurrer
thereon taas the Se eoa9s
upon overruling the demurrer should have been
shs the answer over Of which
time or opportunity TO answer the complaint upon
| its merits; that the Court assessed the damages
the Court had no yurisdiction over the sabjecs
matter Of the suit; but the next day this motion
| was overrued by the Court
Section I, article 4, OF the constitution Of the
United States = % follows:-
State in this Union q republican FORM Of govern.
ment and SHAH protect each OF them against In
vss,on and, on application Of the Legislature, or
convened against domestic Violence"
DECISION OF ELECTION CONTESTS
when, IN pursuance Of this provision Of the
constitution, the President is called upon By
the Executive OF State to protect II
duty to give me required aid, and especially when
there s no doubt about the existence OF the do
claiming to be Governor, make calls respectively
upon the President under said clause OF the const-
tuition, IT, OF course becomes necessary Tor him TO
Is the constitutional Governor OF the State. That
section OF the constitution OF Arkansas heretofore
Gil ed In my opinion IL decisive OF this question: as
between Baxter and Brooks. According to the
constitution and laws OF the State the votes ior
Governor OF the state. There is great
once into which he was lnducted under these
circumstances. Assuming that no greater effect
presence OF the General Assembly than ought to
be given to similar action by any board OF can.
contest inc General Assembly Is Converted ny the
constitution into judicial body and It's Judgment
Is as conclusive and nal as Is the Judgment Of the
Supreme Court OF the state on any matter within
Its jurisdiction. Parties TO such contest plead
and produce evidence according TO the practice
vested with the form and erect Of judicial pro-
cedure. When the eople OF the State declared In
their constitution that contest about State officers
shall be determined by the General Assembly, theJ
cannot be understood as meaning 1t might be de-
say that contest shall be decided by decisions
and then to say alter the decision Is made that
such contest Is not determined but is as open as
1t ever was, Is contradiction in terms. Can 1t
possibly be supposed the trainers OF this c0nstitu
ton when they declared contested elections about
determined by the General Assembly, intended
that any such contest should We just as unsettled
after as 1t was before such determination OF 1t
Manfestly they intended to create q special tri-
bunal to try claims to the high onices OF the State
have concurrent jurisdiction over the subject.
BROOKS appears TO claim that when contest tor
defeated party may treat che decision as nullity
and proceed de noUo in the courts. This makes
the constitutional provision as to the contest OF
no effect and the proceedings under 1t On empty
form. When the House OF Representatives dis
missed the petition Of Brooks Tor contest it must
presented In the petition. But 1t is not OF any
consequence whether or not the General Assembly
jurisdiction to do so is vested in that body by the
constitution and laws OF the State.
Arkansas, like most other Constitutions. declares
tnat each House OF the Assembly shall judge OF the
Saa naao any return 81 ,.s
words confer exclusive lurisd .ction But the
the cones %
State oflcers. Doubtless the makers OF the con-
stitut1On considered 1t unsafe to lodge in the
hands OF every Circuit Court OF the State power
to revolutionize the Executive Departments at
the case under consideration, IN which per-
son who had been installed as Governor
the State, after an undisturbed incumbency Of
more than year. Is deposed BY Circuit Judge
sup statement the tnat he had
ceived q majority of votes at the election.
THE COURTS WITHOUT JURISDICTION
Looking at the constitution alone, IL appears per-
fecty clear to my mind that the courts or the State
have no right TO Try q contest about the office OF
Governor, but that exclusive jurisdiction that
question Is vested In the General Assembly. This
view is confirmed by judicial authority. Summing
up the whole discussion, the Supreme Court OF Ar
kansas say In the OF the Attorney General va.
Baxter, above reierred to-
..Under this constitution the determination ofthe
question as to whether the person exercising the
office Of Governor has been duly elected or not IS
nehy this or any ohsr sae q
contest. be the mode or form what It may; whether
at the suit Of the Attorney General on the rea-
ton Of claimant through him, or by an Individual
alone claiming right to the Office such an issue
their duty to decide, and no other tribunal can
determine that question:. We are OF opinion that
mine o writ Of quo acarranto for the purpose or
rendering judgment OF custer against the Chief
information and issue writ Tor that purpose is
Denied"
case from that OF Brooks Baxter in the Circuit
Court by calling the opinion q dictum; but the
point presented to and decided by the Supreme
ernor the jurisdiction OF the General Assembly was
exclusive, which, OF course, deprived one Court as
There ia, however, another decision made by the
same Court upon the precise question presented in
the case OF Brooks vs. Baxter; Berry was candl-
date for State Auditor on the same ticket with
Brooks Wheeler, his competitor, was declared
elected by the General Assembly. Berry then
brought suit, under said section 625 in the
Pulaski Circuit Court, TO recover the office.
Wheeler applied to the Supreme Court for an order
to restrain the proceedings, and that Court
issued writ OF prohibition forbiddlng the
said Court to proceed, on the ground that 1t
had no jurisdiction in the case to the questions
OF law involved. The cases OF Berry and Brooks
are exactly alike. That this Circuit Court should
have rendered Judgment Tor Brooks under these
circumstances ls not surprising, and 1t Is not too
much to say tnat 1t presents case or judicial in
subordtnaton which deserves the reprehenslon OF
every one VINO does not wish to see public conf
proceedings wholly destroyed. Chief Justice
Mcclure, who dissented In the case OF the AttOr.
ney General vs.. Baxter, delivered the opinion OF
the Court in the Wheeler case, In which he uses the
following language