New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1874-05-16
ARKANSAS.
OPINION OF TIE ATTORNEY GENERAL.


TnE LEGAL POINTS IN THE cAsE-BAxrER CLEARLY
THE LAWFUL GOvERNOR-THE RECENT DECISION
or TIKI ARKANSAS COURT voID-THE RECoGNI
TON or BAXTER IMPERATIVE.
WASHINGTON. May 15.--The Attorney General has
rendered the following opinion in tho Arkansas
case:
DEPARTMENT OF JUSTICE. WARRINGTON, May IS, 1874.
THE PREsIDRNT-SIR: Elisha Baxter claiming to DO
Governor OF Arkansas having due application for
Executive suppress instruction in that State
and Joseph Brooks claiming also to be Governor OF sld
State, having mado a similar application, and these
applications having been referred by you to me for an
opinion which OF these persons IL the lawful Exc
cutive of the State have the honor to submit That
Baxter and Brooks were candidates for the ONCE OF
Governor at general election hed III Arkansas Oh 'no
9Th day OF November. 1874
Section 49, of Article 6. OF tho Constitution OF the
State provides that the returns OF every election for
Governor Lieutenant Governor. Secretary OF state,
Treasurer Auditor, AtOrneyGeneral and Superntend-
ent OF Public Instruction shall be sealed up and trans
nitted to the seat OF Government by the returning
oGcers and directed TO the Presiding Officer of the
Senate who during tho first week of the session. shall
omen and pub lish the In the presence OF the
bers there assembled The person having tho highest
number OF votes shall be declared elected but IL two or
more shall have the highest aud equal number OF votes
for the same Office of them shall be chosen by joint
vote OF both Houses.
contested elections shall likewise DO determined by
both Houses Of the General Assembly In such manner
as ia or may be prescribed by law
Pursuant TO section tho votes for Governor at the
sad election were counted and Baxter declared TO
be duly elected Said section, az it will be noticed after
providing for Of the votes specially declares,
Contested elections shall likewise be determined by
both Houses tho General Assembly. In such manner
as IT, or may hereafter be prescribed by law When this
Constitution was adopted there was law in the State
which continues in force, prescribing tho mode In
which the contest should be conducted before the
General Assembly. the first section of which is as
follows:
Gan contested elections OF Governor shall be decided
by The Joint vote Of both Houses OF the General As
semby and IN suc JOht mcoIpS thc Treslieht Vi lnc
Senate shall prcsluo'
Brooks accord ingy presented to the Lower House OF
.aid Assembly his petition a contest but by the dc
cisiye vote OF IS to 1t rejected by that body. Sub
seouently the Attorney General the petition of
Brooke applied the Supreme Court OF the State for
oo caranto try the validity Of Baxters title TO the
Office of Governor in which II was alleged that Baxter
was usurper &c. That Court denied the application,
upon tho ground that the Courts of the State had
right TO hear and determine the question presented be-
cause exclusive jurisdiction in such had been
ferred upon tho General Assembly by tho Constitution
and Laws OF the state.
Brooks then brought suit against Baxter in the Pu
laski Circuit Court under section 55 OF the Civil Code Of
Arkansas, which reads as follows:
~Wbencyer person usurps office franchise to
which he is not entitled by law, action by proceed
lngs at law may DO instituted az inst ni either by the
state the parties entitled 10 the office franchise TO
prevent tho usurper from exercising the Office or fran
cbsc."
than 5000 votes and that Baxter received less than
1000 votes Governor at the said election and after
declaring that Baxter has usurped the Office pray that
1t may be given TO hun by the Judgment OF the CONT
and that he may recover the OF $1,000. the cmOu
presented to the Court simple question OF contest Tor
the office OF Governor. Baxter demurred TO this petition
on the that the Court had jurisdiction OF the
and afterward, on the l5ih o! April the Court IN
the absence OF che defendants counsel, overrulei
che ana the ee or
Brooks accordance with the prayer OF ms petition
BrOoGs within few minutes thereafter without pro-
to enforce the execution OF SAID JUDGMENT ana
with the ala of armed men, iorcDy elected Baxter ana
took possession of tho Governors once On the next
day alter the judgment rendered, Bakers counsel
made a motion To set IL aside, alleging among other
things grounds therefor that they were absent when
The demurrer was submitted to the final judg
thereon rendered that the judgment OF the Court upon
overriding the demurrer shOdld have been that the de-
PENDANT answer over instead of which hnal Judgment
rendered without giving any te or Opportunity 70
the complaint upon IT'S merits; tnat the Court
assessed the damages "llIot IN, luy anu
finally, the Court had no jurisdiction over the sub
I oyar rii by y tho lee Court Sir
section 4 Article a OF the Constitution OF the United
States is as foows: Tho United states shall guarantee
10 every state Ia this Union republican form OF gov
ernment and shall protect each OF them against inva-
sion ana on application OF the Legislature, OF the
Executive when the Legislature cannot be convened
against domestic violence.
VIXEN in pursuance OF this provision of the Constitu-
tion the President IL cali upon Oy the Executive Of
state to protect 1t from domestic violence appears to
be dny give the required aid ana especially when
there is douDt about the existence OF the domestic
Governor make calls respectively upon the President
under SAID clause Of the Constitution, 1t Of course be-
comes necessary for him 10 determine, III the first
place, which OF said persons Is the constitu-
sional Governor OF the State. That section of
tho Constitution VI Arkansas heretofore citcd In
my opinion, is decisive Of tins question, be-
tween Baxter and Brooks According to the Constitu-
tIon and laws OF the state, the votes for Governor
were counted and Baxter declared elected, and
duly naugurated ms Governor OF the state. There
Is great difficulty IN holding That he usurQod the Office
into which he was indicted under these circumstances
Assuming that greater effect Is to DO gwen to the
counting Of the votes III the presence OF the General
Assembly than ought to DO gwen 10 similar action by
any Board OF Cauyassers yet when comes to decide
verted the Constitution into judicial body and its
Judgment Is conclusive and final as is the Judgment
OF the Supreme Court OF the State any within
its jurisdiction Parties such plead and pro-
duce evidence according TO the practice provided in such
cases, and the controversy Is invested with the
forms and effect OF a judicial procedure. When
the people OF the State declared their Con-
sttuon that "a contest about State officers shall be
determined by the General Assembly, they cannot BIO
understood AS meaning 1t might be determined in any
decided by decision, and say after the decision
contest Is not determined, but as
possibly supposed the trainers of this Constitution
when they declared contested elections about State
officers including the Governor should be determined
by the General Assembly, intended that any such con-
test should be just unsettled after 1t was before
such determination OF it Manifestly, they Intended TO
create special tribunal TO try claims 10 the high offices
Of the State. But the tribunal is not special n
the courts have concurrent Jurisdiction over the
subject. Brooks appears to claim that whom
contest for Governor decided by the General Assem-
bly,, the defeated party may treat the decision as u null
ty and proceed de noco in tho courts This makes the
constitutional provision to the contest Of effect
and proceedings under II empty FORM When the
House OF Representatives dismissed the petition of
Brooks for contest 1t must be taken decision Of
that body questions presented In the petition But IL
is not of any Consequence whether not the General
Assembly has in fact decided the contest, II the exc
sive jurisdiction TO do Is vested III that body by the
Constitution and laws OF the State.
Section IA OF Article OF the Constitution OF Arkansas