The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1874-05-16
BY TELEGRAPH
ASSOCIATED PREBs REPoRT
(By the Western Union Line, n
otnee Northwest cor. Of Main and Monroe sn.
WASHINGTON.
OPINION OF THE ATTORNEY GENERAL M
THE ARKAHsAs CASE n

| AOA't AANJ @V' AAS AAhhSAASl
General has submitted to the Presidcn
his opinion in tho Arkansas case, whereil
Elisha Baxter and James Brooks eacl
claim 10 be Governor Of tho State, ant
had made application to the President fo
aid TO suppress the insurrectlon. Attel
quoting from the Constitution OF Arkan.
sas the section providing for the opening
and publishing the returns Of elections fol
State officers, under which Baxter wa
declared Governor, and tho clause provid
ing for contested election cases, under
which ths lower House oi the Assembly
rejected Brooks petition for contest by
decisive vote Of 38 to 0, the Attorney Gen
eral passes 10 tho proceedings Of Brooks
In the courts. He says: Subsequently
TO the vote in the lower house the Attor.
ney General Of Arkansas, upon the petit
tiOn OF Brooks, applied 10 the Supreme
Court Of the State tor q quo warranto
to try the validity Of Blxter's title
to the otlce Of Governor, in which II
was alleged that Baxter was q usurper,
sc. That court denied the application
on the ground that the courts oI the
State had no right to hear and determine
the question presented, because the ex-
elusive Jurisdiction in such cases had
been conferred upon the General Assem-.
bly, by the constitution and laws OF the
State. Brooks then brought suit against
Baxter in the Pulaski Circuit Court, un-
der theiciyil code ot Arkansas. Brooks
states in his petition that he received
more than ninety-1lve thousand votes,
and that Baxter received less than thirty
thousand votes Tor Governor, and after
declaring that Baxter had usurped the
Office, praYs that 1t may be given TO him
by tho judgment Of tho court, and that
he may recover $1,000, the emoluments
Of the Office. This presented 10 the court a
simple question Of contest Tor office. Bax.
ter demurred TO the petition on the ground
that the Court had no Jurisdiction oI the
case, and afterwards on the 18th OF April
the Court in the absence Of the defendants
Counsel overruled the demurrer aud with.
out further pleading or any evidence in
the case rendered Judgement for Brooks
In accordance with the prayer Of his peti.
ton. Brooks within lew minutes there.
after, without the process to enforce the
execution Of said Judgement, and with
the aid Of armed men forcibIy elected
Baxter and took possession oi the Gov
ernors Office. On the next day after
judgement was rendered Baxters Coun-
sci made motion TO set 1t aside, alleging
among other things az grounds, therefor,
that they were absent when the demurrer
was submitted, and the final Judgement
was rendered, that the judgement of the
Court upon overruling the demurrer
should have been that the defendant an
swer the averment instead OF which the
final Judgement was rendered without
giving any time or opportunity to answer
tho complaint upon its merits, that the
Court assessed damages withohta any jury
or evidence, and finally that the Court
had no jurisdiction over the subject mat.
ter Of the suit, but the next day this mo-
ton was overruled by the Court. When
the President, in pursuance Of the provis,
ion Of the Constitution Of the United
States, Is called upon by the Executive Of
State to protect 1t against domestic vio-
lence, 1t appears to be his duty to give
the required aid, especially when there Is
no doubt about the existence Of violence,
but when two persons claim to be Gov
efnor, and make calls upon the President
under the Constitution, It becomes neces.
sary for HIM 10 determine which ol the
persons is the constitutional Governor.
The Constitution Of Arkansas Is decisive
on this question as between Baxter and
Brooks. According 10 the Constitution
and laws Of the State the votes for Gov.
ernor were counted, Baxter declared cleo.
ted, and OF once was duly inaugurated.
Assuming that no greater effect Is to be
given 10 the counting Of votes In the Gen.
eral Assembly than the right given
to similar action by any Board
Of Commissioners, yet when It comes
to decide the question OF control, the
General Assembly Is converted by the
Constitution into q Judicial body, and Its
Judgment is as conclusive and final as is
the Judgment Of the Supreme Court Of the
State on any matter within It's Jurisdiction.
Parties to such contest plead and pro-
duce evidence according 10 the practice
provided In such cases, and the contro-
Versy is invested with the forms and
effect OF q judicial procedure. Brooks
appears to claim that when the contest
tor Governor Is decided by the General
Assembly, the defeated party may treat
the decision as Q nullity, and proceed
dcnoUo in the Courts. This makes the
Constitutional provision as to the contest
Of no effect, and the proceedings under 1t
an empty form. Looking at the Consti-
tuition alone, 1t appears perfectly clear that
the Courts Of State have no right to try
q contest about the office ot Governor; but
that exclusive Jurisdiction over that ques.
tion ls vested In the General Assembly
There was decision made by the Su.
preme Court on precise question as pre-
sented in this case-Brooks o. Baxter.
Berry was q candidate for auditor on
the same ticket with Brooks. Wheeler
his competitor. was, declared elected by
the General Assembly. Berry sther
brought suit under section 1856 oil the code
in the Pulaski Circuit Court to recover
the Office. Wheeler applied TO the Su-
preme Court Tor an order to restrain the
proceedings, and that Court Issued writ
Of prohibition, forbidding said Court to
proceed, on the ground that It had nc
Jurisdiction in The case. AS 10 questions
Of law the cases Of Berry and Brooks art
exactly alike.
That this Circuit Court should have
rendered judgment for Brooks under
these circumstances Is surprising, and 1
Is not too much 10 say that It presents 9
case Of judicial insubordinstion which de
serves tho apprehension Of everyone WHIT
does not wish 10 see public confidence II
the certainty and good faith Of judlcia
, proceedings wholly destroyed.
Taking the provision ot the constitution
which declares that contested election!
! about certain State officers, including
, Governor, shall be determined by thl
General Assembly and that the provision
IoI TIM 1au, which aavu CONTESTED n1aotlnr