38 



ARKANSAS. 



State ticket, but favored the election of the 

 Brooks wing. The election was held on the 

 5th of November. On the 6th of January, 

 1873, the General Assembly convened, and at 

 once canvassed the returns of the recent elec- 

 tion, pursuant to section 19 of Article VI. of 

 the constitution, which provides : 



That the returns of every election for Governor, 

 Lieutenant-Governor, Secretary of State, Treasurer, 

 Auditor, Attorney-General, and Superintendent of 

 Public instruction, shall be sealed up and trans- 

 mitted to the seat of Government by the returning- 

 officers, and directed to the presiding officer of tho 

 Senate, who, during the first week of the session, 

 shall open and publish the same in presence of the 

 members then assembled. The person having the 

 highest number of votes shall be declared elected, 

 but, if two or more shall have the highest and an 

 equal number of votes for the same office, one of them 

 shall be chosen by joint vote of both Houses. Con- 

 tested elections shall likewise be determined by 

 both Houses of the General Assembly in such man- 

 ner as is or may hereafter be prescribed by law. 



As it appeared that 41,784 votes had been 

 cast for Elisha Baxter, and 38,673 for Joseph 

 Brooks, the former was declared by the Gen- 

 eral Assembly to be the duly-elected Governor 

 of the State, and was at once installed in the 

 office. Meantime, on the 4th of January, Mr. 

 Brooks, alleging that fraud had been practised 

 at the polls by the supporters of Baxter, and 

 that a majority of the legal votes had been 

 cast in favor of himself, petitioned the Circuit 

 Court of the United States to enjoin Baxter 

 from exercising the functions, of Governor. A 

 similar suit was also brought before the same 

 tribunal by "William M. Harrison, who had been 

 a candidate on the Brooks ticket for Associate 

 Justice of the Supreme Court against Mar- 

 shall L. Stevenson, his successful opponent, on 

 the Baxter ticket. A decision was rendered 

 in this case on the 13th of January, to the ef- 

 fect that a court of the United States had no 

 jurisdiction in the premises. As the facts and 

 principles of law were the same in this as in 

 Brooks's case, no further proceedings were 

 had in the latter. 



On the 19th of April Brooks applied to the 

 Legislature for permission to contest the elec- 

 tion of Baxter, but his petition was rejected 

 by a vote of 63 to 9. Application was then 

 made, June 2d, by the Attorney-General, in be- 

 half of Brooks, to the Supreme Court of the 

 State for a writ of quo warranto, to try the 

 validity of Baxter's title to the office of Gov- 

 ernor, which, it was alleged, he had usurped. 

 After elaborate arguments by counsel, this ap- 

 plication was denied by the court, which held 

 that, "under the constitution the determina- 

 tion of the .question, as to whether a person 

 exercising the office of Governor is duly elect- 

 ed or not, is vested .exclusively in the General 

 Assembly of the State, and neither this nor 

 any other State court has jurisdiction to try a 

 suit in relation to such contest, be the mode 

 or form what it may ; whether at the suit of 

 the Attorney-General, or on the relation of 

 a claimant through him, or by an individual 



alone claiming a right to the office. Such is- 

 sue should be made before the General As- 

 sembly. It is their duty to decide, and no 

 other tribunal can determine the question." 



Brooks now brought suit against Baxter in 

 the Circuit Court of Pulaski County, under 

 section 525 of the Civil Code of Arkansas, 

 which provides that, "whenever a person 

 usurps an office or franchise to which he is not 

 entitled by law, an action by proceedings at 

 law may be instituted against him, either by 

 the State or party entitled to the office or 

 franchise, to prevent the usurper from exer- 

 cising the office or franchise." His petition 

 stated that he had received more than 45,000 

 votes for Governor, while less than 30,000 had 

 been cast for Baxter, and prayed that the latter 

 might be ousted as a usurper, and that the 

 office of Governor, with $2,000 emoluments 

 which had been received by Baxter, might bo 

 judicially awarded to himself. 



It should also be recorded here that a simi- 

 lar suit, embodying the same facts and princi- 

 ples of law, was begun in the same court by 

 Berry, who had been the candidate for State 

 Auditor on the ticket with Brooks, against 

 Wheeler, who had been declared elected by 

 the General Assembly. But the Supreme Court, 

 on the application of Wheeler, issued a writ of 

 prohibition restraining the proceedings of the 

 Circuit Court, on the ground that the latter 

 had no jurisdiction. In pronouncing the 

 opinion of the court, Chief-Justice McClure 

 said: " As to all matters of contested election 

 for the offices of Governor, Lieutenant-Govern- 

 or, Secretary of State, Auditor, Treasurer, 

 Attorney-General, and Superintendent of Pubr 

 lie Instruction, I am of the opinion that it can 

 only be had before the General Assembly." 



Governor Baxter interposed a plea of want 

 of jurisdiction in the Brooks suit, but, appre- 

 hending that a decision would be rendered in 

 favor of his opponent at the October term, and 

 that the latter would gain possession of the 

 State government before an appeal could be 

 taken to the Supreme Court, he sent a com- 

 munication dated September 4, 1873, to the 

 President of the United States, reciting the es- 

 sential facts of the controversy, and asking 

 that Federal troops be sent to Little Eock, 

 "as the course of events may compel me to re- 

 sort to the extreme remedy of martial law, as 

 the only means by which an effectual stop can 

 be put to the proceedings of those men who 

 are now disturbing the peace and good order 

 of the State." This application was refused by 

 President Grant, on the ground that it was not 

 made in accordance with the Constitution of 

 the United States. 



Nothing more was heard of the controversy 

 till the spring of 1874. On the 15th of April, 

 the Circuit Court of Pulaski County, in tho 

 absence of Governor Baxter's counsel, issued 

 a judgment of ouster in favor of Brooks against ' 

 Baxter. The former immediately took forci- 

 ble possession of the Governor's office, and 



