National Republican. (Washington City (D.C.)) 1872-1888, 1875-02-22

mans acts. The section already quoted says
that Contested elections shall likewise be de-
termined by both houses of the General Assem-
bly, in such manner as is or may hereafter be
prescribed by law" You state that Crooks
endeavored to use the Federal courts to Gust
Baxter, but they declined to interfere. The
Supreme Court of the State, to which he ap-
piled next, denied that It had Jurisdiction, say
ing that neither this nor any other State
court has jurisdiction to try quit in relation
to such contest, be the mode or form what it
may. Such issue should be made
before the General Assembly. 1t is their duty
to decide, and no other tribunal can decide
that question. ,"
Once more you are mistaken. Brooks did
not apply to the Supreme Court. The Attor-
ney General of the State, T. D. W. Yonley,
made application on behalf of the people of the
State for leave to file q writ of quo icdrrGRto
calling upon Elisha Baxter to show cause why
hewas acting as Governor. Brooks was not a
party to the suit, nor was the question of juris-
diction before that court. When the court
rendered its oral opinion by Judge Gregg, one
of the associate justices, Yonley asked him
whether the court proposed to decide the ques-
ton of Jurisdiction, and Judge Gregg answered
"No, the court only decides the question be-
fore it, which is, whether you shall have leave
to file the writ of quo. 'oarrdRto, and we refuse
to grant the leave" Four members of the
court concurred in this, Chief Justice Mcclure
dissenting. The court adjourned on that even
ing, and 1t was agreed that Judge Gregg should
write the opinion at his home in Fayetteville
and send it to the capital. This he did, and
when it arrived here Judge II. C. Caldwell,
Judge of the United States District Court, took
the decision and added the part lOhieI you quote
to the decision. Had 1t been a part of the de-
cision, it would only have been obiter dictunl at
best. With the facts known, it is only blank
paper.
In the meantime Mr.. Brooks, under the
twelfth chapter of the code, commenced suit
in the Pulaski (this) County Circuit Court. A
demurrer was filed by Baxter, which, after
being argued, was overruled, and the defend
ant not making any other defence, the judg-
ment of custer was rendered, upon which
Brooks was sworn in and took possession of
the State-house. You quote Judge Caldwell's
opinion as though it were valuable. Here it is
not so looked upon, as it is well known that he
said after the election in 1872, when it was
found that Brooks was elected, go on, put
Baxter in and l will stand between you and
harm, so far as my court is concerned" You
will also observe that in the language quoted
from section nineteen, article six, of the con-
stitution the words used comforting jurisdic-
ton on the Legislature are not prohibitive;
they do not deny in positive language the
Jurisdiction of other courts, and it is a we'll
cd of lauy bot words Of
prohibition are required to deprive court of
jurisdiction, and that when such are not used
only concurrent Jurisdiction is conferred when
a new is constituted. Nor does the language
of the Supreme Court in the case of Berry
change this. The chief justice, in delivering
the opinion, said: GAS to all matters of con-
tested election for the offices of Governor,
Lieutenant Governor, Secretary of State, Au-
ditor, Treasurer, Attorney General and Super
intendent of Public Instruction, 1 am of the
opinion that it can only be had before the
General Assembly,"
This simply meant that in conformity with
the constitution the party must exhaust the
constitutional remedy before attempting any
other. Berry had not done this. But how
stood the case of Brooks and Baxter upon this
pointl During the session of the Legislature
in 1873 Mr.. Brooks, under the clause quoted,
filed his petition in the Legislature, asking
leave to contest for the office of Governor. On
motion, the petition was rejected by vote of
81 to 9-not even read or considered-and
Governor Baxter appointed forty members of
the Legislature, who voted to reject this petit
ton, to good offices, bribing them in this way
to retain his office. He had in the Supreme
Court room when the decision was rendered in
the quo lOdrrGHto case one of his militia briga-
der generals, we'll known leader of the Ku-
Klux in 1868, with an order to dispense the
court and declare martial law If the finding
of the court was against him. Brooks had
exhausted the special remedy given by the
constitution, and had to fall back upon others.
AS to the adoption of the new constitution
let US see about that. During the Brooks
Baxter war, President Grant directed Baxter
to call together the Legislature and submit to
them the question who was elected. By ex-
aiming the testimony taken before the COM
mittee, you will see that there were present
but twenty six legal members of the lower
House and nine Senators, and it requires forty
two in the lower House and fourteen in the
Senate to make quorum of the Legislature,
the other pretended members being there with
out authority-Mr. Garland, the present Gov
ernor, testifying that he furnished the roll of
their names as members of the Legislature
Without one particle Of evidence that they SUsre
members. This bodypassed the act calling the
convention. Had it been a legal Legislature
it had no authority to pass any such act. The
constitution of 1868 provided the manner of its
amendment, but did not provide for the calling
of a convention. The wording of that instru-
ment on that subject is almost identical with
that of the constitution of New York previous
to 1915. When it was then proposed to call q
convention there, Chancellor Kent was asked
his opinion as to the power to do SO, and re-
sponded as follows:
NEW YORK, March II, 1915.
c. CoTstock' ChGfrman q the Committee on Con.
SIR: have the honor to acknowledge your
letter of the 14th inst, and considering the
respect which is due to your application and
the important relations to the government Of
this State which have formerly sustained,
think you have q right to ask and that am
bound in duty to answer the question you have
stated.
In my opinion the Legislatureis chosen under
the constitution, for the purpose of executing
the legislative power in conformity with the
provision and direction Of the constitution. It
Is the instrument which the members Of the
Legislature are sworn to support, and it Is the
sole warrant from the people for the exercise
Of their power. They have no other business
or duty to perform In their legislative charac-
ter than what the provisions of the constitution
dictate or allow. The Legislature has no
power to call a convention to amend the con-