Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-05-16
ARKANSAS.
The Opinion of Attorney Gener-
al Williams.
A Plain Case--Baxter Clearly the
= Governor.
The State Supreme Court Guilty
of Judicial Decentralization.
Proclamation by President Grant.
Brooks Given Ten Days to Dis
perse.
Phil. Sheridan VIII Do the Work
If Necessary.
Little Rock Goes wild with JOY.
Arkansas Congressman Disguised
Opinion Of Attorney Williams.

Il WASHINGTON, May 15.-The Attorney
general has submitted to the President his
| opinion in the Arkansas case, wherein
Elisha Baxter and Joseph Brooks, each
claiming to be Governor Of the State, had
made application to the President for aid
to suppress instruction. After quoting
from the Constitution of Arkansas the sec
ton providing for the opening and publish
ing Of the returns of the elections for
! State officers, under which Baxter was de-
clared Governor, and the clause providing
| for contested election cases, under which
the Lower House Of the Assembly rejected
Brooks petition for contest by the de-
cisive vote Of 80 to 8, the Attorney General
passes to the proceedings of Brooks in the
courts.
Subsequently to the vote in the Lower
House, the Attorney General of Arkansas,
upon petition Of Brooks, applied to the
| Supreme Court of the State for quo war
rantO TO try the validity of Baxter's title 20
the Office Of Governor, in which it was al
legged that Baxter was an usurper etc; that
the Court denied the application upon the
| ground that the courts of the State had no
right to hear aud determine the question
presented, because exclusive jurisdiction in
such cases had been conferred upon the
General Assembly by the Constitution and
| laws of the State. Brooks then brought
suit against Baxter in the Pulaski Circuit
| Court, under the civil Code of Arkansas.
Brooks states in his petition that he re-
ceived more than ninety thousand votes,
and that Baxter received less than thirty
thousand votes for Governor, and after de-
| elaring that Baxter has usurped the Office.
prays that it may be given to him by the
judgment of the Court, and that he may
recover $1,000, The emolumentS of the Of
fee. This presented to the courts the simple
question of contest for the Office Of Gov
ernOr. Baxter demurred to the petition,
on the ground that the court had no juris-
ton of the case, and afterwards, on the
| 18th of April, the court, in the absence of
| defendants counsel, overruled the demur-
rer, and without further pleadings or any
| evidence in the case, rendered a judgment
| for Brooks in accordance with the prayer
and petition. Brooks, within few min
utes thereafter, without process to enforce
the execution Of said judgment, and with
the aid of armed men, forcibly elected
Baxter and. took possession Of the Govern
Or's office. On the next day after the
| judgment was rendered Bakers counsel
made motion to set aside, alleging among
other things as grounds therefor, that they
were absent when the demurrer was sub
mitted and final judgment rendered; that
| the judgment Of the court upon overruling
the demurrer should have been that the de-
| PENDANTS answer, instead of which final
| judgment was rendered, without giving
any time or opportunity To answer the COM
| plant upon its merits; that the court as
seSsed the damages without any jury or evil
dence, and finally that the court had no
jurisdiction over the subject matter of the
suit. But next day this motion was over
ruled by the court.
When the President, in pursuance of the
provisions of the Constitution of the Uni
| ted States, is called upon by the Executive
of State TO protect it against domestic
violence, it appears to be his duty to give
the required aid, especially when there is
no doubt of the existence of violence. But
where two persons claim to be Governor,
and make calls upon the President under
the Constitution, it becomes necessary for
him TO determine which Of the persons is
the constitutional Governor. The Consti-
tuition of Arkansas is decisive of this ques-
tion as between Baxter and Brooks. Ac-
cording TO the Constitution and laws Of the
kOldlCs lA4C hOlCo III NONCInOA MClC COUulCu
and Baxter declared elected and at once
was duly inaugurated. Assuming
that no greater effect is to be
given to the counting Of votes in
the presence of the General Assembly than
ought to be given to a similar action by
any board of canvassers, yet when it comes
to decide the question of contest, the Gen
eral Assembly is converted by the consti-
INT s,a1 1,r.1x- nj nd
ment is as conclusive and final - is the
judgment Of the Supreme Court of the
State or any matter within its jurisdiction.
Parties to such contest plead and produce
evidence according 10 the practice pro-
vided in such cases, and the controversy is
invested with the forms and effect of a ju-
dicial procedure. Brooks appears to claim
that when the contest for Governor is de-
cided by the General Assembly, the de-
feated party may treat the decision as a
nullity, and proceed de doyo in the courts.
This makes the constitutional provision as
to the contest Of no effect, and the proceed
ings under it an empty form.
Looking at the Constitution alone, and it
appears perfectly clear, the Courts of the
State have no right to try contest about
the office Of Governor, but that exclusive
jurisdiction over that question is vested in
the General Assembly. There is decision
made by the Supreme Court upon the the
precise question presented in the case of
Brooks VS.. Baxter. Berry was a candidate
for State Auditor on the same ticket with
Brooks. Wheeler, his competitor, was de-
clared elected by the General Assembly.
Berry then brought suit under section 525
of the Code 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 a writ
Of prohibition forbidding said Court to pro-
coed on the ground that it had no jurisdic
ton in the case. As to the question of law
involved, the cases of Berry and Brooks are
exactly alike. That this Court should
have rendered a judgment for Brooks
undert these circumstances is surprising,
and it is not too much to say that it pre-
sents a case of judicial INSTRUMENTATION
which deserves the apprehension of every
one who does not wish to see public conf
dence in the certainty and good faith of jul
dicial proceedings wholly destroyed Taking
the provision of the Constitution which de-
clares that contested elections about GER
tain State officials, including Governor,
shall be determined by he General As
sembly, and that provision OF the law which
says all contested elections of Governor
shall be decided by the Legislature, and
the Supreme Court affirming the exclusive
jurisdiction of that body over the subject,
and the conclusion irresistibiy follows that
said judgment of the Circuit Court is void.
A void Judgment binds nobody. Section
525 of the Code, under which this judgment
is rendered, is no doubt intended to apply
TO county and other inferior officers for
which no provision is elsewhere made.
Respecting the claim that Brooks
received majority of the votes at the cleo
ton, it must be said that the President has
no way to verify that claim. If he had, it
would not in my opinion, under the cir
cumstances of this case, be proper subject
for his consideration. Perhaps, if every
thing about the election was in confusion
and there had been NJ legal count of the
votes, the question of majorities might
form an element of the discussion, but,
whereas, in this case there has been legal
count of the votes, and the tribunal organ
lied by the constitution of the State for
that purpose, has declared the election, the
President ought not to go behind that &C
ton 10 look into the State vote. Frauds
may have been committed TO
his ,,-a;r,dioo hint ruhanr,ilv fhora