The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1886-12-09
ghe ACKNOWLEDGEMENTS Clear Presenta-
ton of the Law Relating to the Case.
The Wide Difference in the Line of Argument
democratic Troubles in Northern In
diana and Elsewhere in the State.
The Argument of the Attorneys on Both
Sides of the Case.

auditors at yesterdays argument OF A. ".
Smiths application for injunction against Secre-
tary of State Myers not particularly no
ticeable AS the day went on the crowd in
creased; but, with the exceptions noted. it had
altogether the character of an ordinary court
room audience. The hearing was before Judge
Ayres, of the Circuit Court. and came up on de-
murrer Of respondent the argument pro and
con consuming the day from o'clock in the
morning until o'clock in the evening, with an
hour and half recess at noon. With Attorney
general Kitchener were Hon. Stanton j.. Peelle
and Colonel Robertson, Lieutepant-eoverror-
elect. while the complainant. Smith, was repre-
Sented by Jason Brown, Judge Turpie and Ma
ior j. ". Gordon. the latter coming into the
case within the past few days.
The Attorney general read the lengthy COM
plant, which has been literally quoted in print,
end stated that he proposed to meet the issue
with these grounds of demurrer-frst, that the
court had no jurisdiction; second, the complain
ent had no capacity to sue, and third, the COM
plant did not state facts sufficient to give him
ground of action. The statute in regard
to making returns of the election
OF State officers to the Speaker OF the
House, said the Attorney general is imperative,
and robs the Secretary of State of any discre-
ton in the matter. When remedy is provided
by common law and the statute an injunction
cannot lie; hence, court of equity cannot inter
fere in this case because there is statutory
provision relating TO its manner of settlement.
This statute takes it to another forum, the Gen
oral Assembly, where contests regarding the
offices of Governor and acknowledgements are
30 be settled. AS to the word shall" which
applies to the duty of the Secretary of State in
making returns, 1t conveys no other than an
imperative and compulsory meaning. No legis
lature can provide means to try elsewhere
case for the trial of which the Cons titution pre-
scriSes imperative methods and in this it will
be found that acourt of equity is not the proper
tribunal for the trial of contests for public of
fee. The final forum to canvass the returns of
the election of State officers rests with the
Speaker of the House. This is secured both
through the Constitution and the statutes. 1t
3eeks to deprive him of that over which a court
Of equity has no jurisdiction. It cannot inter-
pose in matters of this kind unless by express
enactment The Wallace report bears out this
decision.
Article 8 of the Constitution says that the
powers of the government are divided into
three separate departments-the legislative,
the executive, including the administrative,
and the judicial; and person charged
with official duties under any of these
departments shall exercise any of the functions
of another. except as in this Constitution eX-
pressly provided. Under this the right to inter
fere with other departments in the exercise of
their exclusive powers was denied to the courts.
Here again is an imperative requirement. and
it has been held that neither general nor ad-
ministrative officer can be enjoined from per-
forming duty imposed by the Constitution.
The Secretary of State has no power over these
returns; he is more messenger to see that they
reach the Speaker of the House
The complainant says he is deprived of the
emoluments of the Office of Lieutenant governor,
and he thus places his claim on the ground of
for damages will lie. Yet again, he
says he is President pro tenn
pore OF the Senate, but he fails to
state either one or both of two contingencies on
which the election or such officer can be had.
One is when the acknowledgement discharges
the duties of Governor. There is no averrment
that such contingency arose. On the other
hand, it is matter of notoriety that the Lieu
nant.covernor was not acting as Governor
when the compliments alleged election took
place The second contingency is when the
Lieutenant governor sis absent or shall be I'M
able to attend as President CT the Senate" The
record of the Senate shows that Lieutenant gov
ernor Manson was not absent when this election
Is said to have occurred. 1t is not within the
power of the Senate, creature of the Consttu-
ton, to elect President who is to hold over.
and his term of Office cannot continue longer
than the converting of the Senate. He is not
officer like those contemplated by the Consttu-
zion, fod If the Legislature would undertake TO
place upon one of its members a succession to
she lieutenant-goyernorship it would be uncon.
AItutional 1t could not go outside of
the Secretary of State and other Offices
provided for by the Constitution which
makes specific provision for filling vacancies in
elective officers. When this vacancy occurred
the Governor could have appointed Lieutenant
governor whose term could have lasted no
longer than the inauguration of n person select
ed by the people to fill the vacancy at the next
general election. This is laid down both in the
Constitution and the statutes. The Attorney
general for an hour and half exhaustivelv
Created these various heads and supported
them by numerous decisions of the United
States Supreme Court, Indiana. Illinois, Ohio
Alabama, Mississippi and New Jersey reports
Jason Brown, on behalf of the complainant,
said it was the right of any qualified elector to
ask the injunction power of the court to restrain
wrong doer Senator Smith is the President
of the Senate and he has the right to discharge
Che duties of Lieutenant governor 1t is wholly
Irrelevant whether he is to sail under that title
Or rot, but the right, dignity, emoluments, and
everything pertaining to the office, belong to
him This bill presents distinctly conflict that
will arise between the complainant and
anyone claiming the Office under
the last election. The duties of
the Lieutenantgovernor are necessarily
Dected with the station he holds no matter how
he obtained 1t, whether from the people or the
body that elected him its President This is a
constitutional remedy he seeks and he has the
right to ascertain whether an election that has
been held for Lieutenant governor is with
in Judicial cognizance. Equity may re-
strain any officer except the President
and Governor The idea is still retained that
the King can do no wrong. This is not CON
test for the Office but means to test the validity
nF he lac n fnt apf-es
and therefore the proceeding is judicial The
question arises whether the acceptance by Man
Ron of an Office under the general government
created such vacancy that it should be filed
BY election or whether It can he filled otherwise.
The election OF Governor Morton cast upon the
Lieutenant governor the duties of Governor, and
10 10 this instance the President of the Senate