Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1874-05-16

gether, give thanks to the great
God of armies, who has blessed
our cause. Let US remember with
gratitude the great citizen-soldier, the
President Of the United States, who has
at length recognized the justice of our
cause; and your conduct has been thus
far marked in an almost extraordi-
nary degree by order, sobriety and disci-
pline. Let not ourlfiends-the people
have any cause to censure you for any
disorder or riot by your conduct in the
moment of victory. The commanding
general will see that this order is read at
tine head of each company atretreat this
evening. ELISHA BAXTER,
Governor Of Arkansas and Commauder-in-
NJ. McCAN, Adjutant General.
BROOKS SURRENDERS.
Tonight Mr.. Brooks sent eommuni.
cation to the governor to arrange for the
disbaBdiDg of the forces on both sides.
The governor referred the matter to his
commanding officer, General Newton.
tt4at4 FATAL ACcIpRNT.
A young man named West, from Hope
county, a Baxter soldier, while on duty
as sentinel, was accidentally shot and
killed tonight.
IMMENSELY HAPPY.
The rejoicing through the city tonight
is very great.
GENERAL SHERIDAN EXPECTS TO TAKE
A HAND.
NEW YORK, May I5.-At a meeting
Of the Grand Army of the Republic to-
night, it was stated that General Sheri-
dan could not promise to preside on the
evening of decoration day, as lieutenant
general Of the army, he might be called
on any moment to act in Arkansas.
THE ATToRNEY-GENERAL' OPINION.
WAsHINGToN, May 15-The attor-
ney-general has submitted to the
President the argument in the
Arkansas case, wherein Elisha BaX-
ter and Joseph Brooks, each claim
ing to be governor of the State,
had made application to the President
for aid to suppress the insurrectlon. AT
ter quoting from the constitution of Ar
kansas the section providing for open
ing and publishing ofreturns Of elections
for State officers, under which Baxter
was declared governor, and the clause
providing for contested election cases,
under which the lower house Of assem-
bly, rejected Brooks's petition for contest
by the decisive vote of thirty-three to
nine, the attorney passes to the proceed
inos Of Brooks in the courts. He says that
subsequently to the vote in the lower
house the attorney general of Arkansas,
upon the petition of Brooks, applied to
the supreme court OF the State for quo
tgarrdnto to try the validity of Baxter's
title of Office of governor, in which ii
was alleged that Baxter was usurper,
etc. That court denied the application
upon the ground that the courts Of the
State had no right to hear and deter
mine the question presented, because 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 under
the civil court of Arkansas. Brooks
states in his petition that he received
more than ninety-five thousand votes,
and that Baxter received less than thirty
thousand votes for governor, and after
declaring that Baxter has usurped the
Office, prays that it may be given to him
by Judgment of the court, and that he
may recover two thousand dollars and
the emoluments of office. This presents
to the courts the simple question of con-
test for the office of governor. Baxter
demuned to the petition on the ground
that the court had no jurisdiction Of the
case. And afterward, on the fifteenth
of April, the court, in the absence of de-
fendant's counsel, overruled the demur-
rer, and without further pleadings or
any evidence in the case, rendered judg-
ment for Brooks. In accordance with
the prayer and petition, Brooks in a few
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 governors Office. On the next day
after the judgment had been rendered,
counsel made motion to set il
aside, alleging among other things as
grounds therefor that they were absent
when the demurrer was submitted and
final judgment rendered. That judg-
ment Of the court upon Overruling the
demurrer should have been that de-
fendant answer over; instead Of which
final Judgment was rendered without
giving any time or opportunity to
answer the complaint upon its
merits; that the court assessed
damages without any jury or evil
dence, and finally, that the court
had no Jurisdiction over the subject
matter Of the suit, but the next day this
motion was oyerruled by the court.
When the President, in pursuance Of
the provisions of the constitution of the
United States, is called upon by the ex-
ecutive of the State to protect it against
domestic violence it appears to be his
duty to give the required aid, especially
when there is no doubt about the exist
ence of violence; and that when two
persons claim to be governor and make
calls upon the President, under the con-
stitutiOn it becomes necessary for him
TO determine which of said persons is
the constitutional governor. The con-
stitution OF Arkansas is decisive on this
question as between Baxter and Brooks.
In accordance with the constitution and
laws OF the State, the votes for governor
were counted and Baxter declared duly
and was at once duly inaugu
rated. Assuming that no greater effect
i've is to be given to the counting of the
votes in the presence of the general as
sembly than ought to be given similar
action by any board of cauvassers, yet
when It came to decide the question of
contest the general assembly is con-
verted, by the constitution, into judi
cial body, and its judgment lis as con-
elusive and final as is the judgment OF
the supreme court of the State on any
matter within its Jurisdiction. The
parties to such contest plead aud produce
evidence according to the practice pro-
vided in such cases, and the con-
troversy is invested with the
forms and effect of a judicial procedure.
Brooks appears to claim that when the
contest for governor is decided by the
general assembly, the defeated party
may treat the decision as a nullity, and
proceed de moro in the courts. This
makes the constitutional provision as to
he contest Of no effect, and the proceed
ngs under it an.empty form. Looking
1t the constitution alone, and it appears
clear, the courts of the State
nave no right to try the contest about
he Office of governor The executive
over that question is vested
m the general assembly. There is de-
,ision made by the supreme court upon
he precise question presented In the
case Of Brooks versus Baxter. Berry
was candidate for State auditor on the
same ticket with Brooks. Wheeler, his
competitor, was declared elected by the
general assembly. Berry then brought
a suit under section 81 of the code, IN
the Pulaski circuit court, 10 recover the
office. Wheeler applied TO the
supreme court for an order to
restrain the proceedings, and that
court issued writ of prohibit
ton, forbidding said court TO proceed, on
the ground that it had no jurisdiction in
the case. AS to the questions Of law in
volyed, the cases of Berry and Brooks
are exactly alike; that this
circuit court should have rendered
Judgment for Brooks under these cir
is surprising, and it is not
too much to say that itpresents case of
i,,,3;oiaI inst,hordination which deserves