The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-09

Abstract of Legal Points Made by Hon. L.
I. Kitchener for the Secretary of State.
The following abstract of the argument of
Attorney general Kitchener, containing the au-
thorities and cases cited, will be of interest:
The object Of this suit is to enioin the defendant
from delivering to the Speaker of the House of Rep
resenayes the certified statements Of the clerks of
the circuit courts to the number of received in
each county at the last general election by each cand
date for Lieutenant governor. The defendant is
commanded by Section 1929, Revised Statutes 1891
to do that which he is here sought to be restrained
from doing. That statute requires the defendant to
put in the hands of the Speaker the evidence of tho
election of the successful candidate and this action
to prevent him from doing is nothing less
in legal effect than action to try the title to the
office of Acknowledgements. This court has
jurisdiction of this action, for the following
l. 1t was we'll settled that an action for
an injunction will not lie where there is
adequate remedy provided w BY the common
1885, 2 High inuno Sec 1872; Sims vs. City s Of
Frankfort, re Ind. 446, 456 457; Ploughe vs.
Boyer So Ind. 1i3 and case. cited Marshall VS..
furnished by Constitution and statutes Article
8, Sec 6, of our Constitution is follows: Con
tested elections for Governor OF ACKNOWLEDGEMENTS
shall be determined by tie General AS.
sembly, in such manner may be pre-
scribed by law This section names the forum
in which the title to the Office of ACKNOWLEDGEMENTS
procedure is fixed by Sections 4744, 4745 and ALAG
R. S. 1881 As is said in Marshall VS. Gill; II Ind
Oh y. fOO Inc law having expressly PROVIDED a
forum for the trial Of that question there the parties
must try it." The language of the Constitution is
plain direct and unmistakable and it be strictly
construed, (Walcott VS.. Wigton. Ind, a. 48, and
cases cited; Gibbon vs. Ogden 8 Wheat, 1885, Reed
State, II Ind, GAL, 643; L. Il. Co. VS. Geiger 81
Ind: on p. 202) In order that there might be no
this section the word shall" is used The use Of
that word makes the command imperative
Rus0 W.. smith vs. F Noe 80 Ind l2 The Chine
Wall. 5O6: Elk parte Jordan o. U. s.. 251.l
is clear then. that the Constitution has created
tribunal in which shall be determined the questions
here presented for adjudication. This power having
been exclusively conferred the General Assembly,
it is not within the power of that body to vest urisdic
the right to assume such jurisdiction. Cooley
Const. Linn, 80, Note a. State VS.. Jarrett IL Mary.
land 800. 327; Opinion of Justices, So N. H. $40;
Birny IL Ohio St., 3I5 Laurence VS.. Knight Bright
ly's Flee. Cases 617 Hulseman Rems ibid, 316.)
In such cases the claimant must pursue the consttu
1872; Moulton Reid 81 Ala. 800; Beebe vs. Rob
inson, 81 Ala &c; The People VS.. Draper "a Barb.
265; Planters Ass vs. Hanes So Miss, 469; sheri
Dickey vs.. Reed rs M. 261 This is the necessary
result of the use of the words "sha be determnedh
in the Constitution. To determine is Ito fix perma-
nenty; to settle to adjust; to conclude; decide"
This view is followed by the statute governing such
1.-THE judgment of such committee shall be conclusive"
2. The purpose of this action is to prevent the
General Assembly from exercising the political power
reposed in that body by the Constitution and statutes
already quoted, and to prevent it from determining
that election might be lawfully held under Sec.
467S, r. S. 1881. to fill the vacancy in the Office of
acknowledgements which is admitted by the com
plant to have existed from the day General Manson
took the Office of collector and to prevent the publica
ton thereof according to Art. V, Sec a.
That this is political power which is conferred
upon the General Assembly is held by all the cases.
Dicksy vs. Reed, IS ~ on ?. 27l State vs. Govern,
Wall, AIS. 497; Georgia VS.. Stanton. Wall,
SO, II; Sheridan VS.. Calvin, 70 H., 246, 247)
strain the exercise of political power by
officer legal body. This question is
conclusively settled by Art. 3 of Constitution.
State in adopting this article to deny the courts the
right to sit in judgment the other departments in
the exercise OF their exclusive powers. Dickey
PIP. 349-352; Railroad Company VS.. Geiger, 81 Ind.
PIP. 196-19S)
The complaint does not state facts sufficient to con-
stitute of action for the following reasons:
/. Injunction win not lie prevent an officer from
doing an act which is authorized by law. q High
Injunc. Secs. 1909, 1926 Gibbs VS. Green 54 Miss
500, Sill, 612.) In the case at bar there is an i'm.
peratve command to the defendant by Section 4729,
R. S. 1881 to do the very thing which the complaint
seeks to prevent him from doing.
g. Such action will not lie unless it Is shown that
great injury will otherwise be done to the plaintiff
(Sec II4S r. S. 1881 If the injuries can be fully
(AIcOuarrie VS. Hildebrand % Ind. 1881
3. A court of equity win not permit itself to be
made the forum for the purpose of trying the title to
Office Il High lnjunc., Sec. 49, and cases
heretofore cited
The plaintiff seems to be President pro tempore of
the Senate. He is not such officer for the follow
ing reasons:
l. Section 10 of Article w of the Constitution pro-
vides that leach House. when assembled, shall choose
Its own officers the President of the Senate excepted"