ARKANSAS. 



47 



id the question presented, because exclusive 



. in su.'li iu*es hud l.euti conferred upoa 

 . Assembly by tUo constitution uud luws 



.on brought a suit against Baxter in tho 

 . i Circuit Court, under suction 525 of the Civil 

 f Arkansas, which reads as follows: 



Whenever a person usurps an office or franchise to 

 !< I- nut entitled by law, an action by proceedings 

 t luw m-iy bu instituted against him, either by the State 

 parties rntitlc'd t > tin; office or franchise, to pre- 

 vent tht- usurper from exercising the office or franchise. 



Brooks states in his petition that he received more 

 i '>,000 votes, and that Baxter received less than 

 1 votes for Governor at the said election, and, af- 

 laring that Baxter has usurped the office, prays 

 that it may ue given to him by the judgment of the 

 i nil that ho may recover the sum of $2,000, the 

 emoluments of said office withheld from him by Bax- 

 ter. This presented to the court a simple question 

 of a contest for the office of Governor. Baxter de- 

 murred to this petition on the ground that the court 

 had no jurisdiction of the case, and afterward, on the 

 15th ot April, the court, in the absence of the de- 

 fondant's counsel, overruled the demurrer, and with- 

 out further pleadings or any evidence in the case, 

 rendered judgment for Brooks in accordance with 

 the prayer of his petition. Brooks, within a few 

 minutes thereafter, without process to enforce the 

 ion of said judgment, and with the aid of 

 arum. I men, forcibly ejected Baxter, and took pos- 

 session of the Governor's office. On the next day 

 after the judgment was rendered, Baxter's counsel 

 made a motion to set it aside, alleging, among other 

 things as grounds therefor, that they were absent 

 he demurrer was submitted to the final judg- 

 ment thereon rendered; that the judgment of the 

 upon overruling the demurrer should have 

 been that the defendant answer over ? instead of 

 which a final judgment was rendered with'out giving 

 any time or opportunity to answer the complaint 

 upon its merits ; that the court assessed the dam- 

 ages without any jury or evidence ; and, finally, that 

 the court had no jurisdiction over the subject-matter 

 of the suit, but the next day this motion was over- 

 ruled by thje Court. 



Section 4, Article IV., of the Constitution of the 

 United States, is as follows: "The United Status 

 shall guarantee to every State in this Union a re- 

 publican form of government, and shall protect each 

 of them against invasion, and, on application of the 

 Mature, or of the Executive (when the Legisla- 

 ture cannot be convened), against domestic vio- 

 lence." 



When, in pursuance of this provision of the Con- 

 stitution, the President is called upon by the Execu- 

 tive of a State to protect it from domestic violence, 

 it appears to be his duty to give the required aid, 

 -pecially when there is no doubt about the ex- 

 istence of the domestic violence ; but where two 

 persons, each claiming to be Governor, make calls 

 respectively upon the President under said clause of 

 the Constitution, it of course becomes necessary for 

 him to determine, in the first place, which of said 

 ~ arsons is the constitutional Governor of the State. 

 hat section of the constitution of Arkansas hereto- 

 ire cited, in my opinion, is decisive of this question, 

 \ between Baxter and Brooks. According to the 

 nstitution and lows of the State, the votes for 

 vernor were counted and Baxter declared elected, 

 d at once was duly inaugurated as Governor of the 

 itate. There is great difficulty in holding that ho 

 usurped the office into which he was inducted under 

 these circumstances. Assuming that no greater eft'ecl 

 " to be given to the counting of the votes in the pres- 

 ice of the General Assembly than ought to be given 

 to a similar action by any board of canvassers, yet 

 when it comes to decide a question of contest, the 

 General Assembly is converted by the constitution 

 Into a judicial body, and its judgment is as conclu- 



sive and final as is the judgment of the Supreme 



Court of the State on any mutter within it* juridic- 

 tion. Parties to such a contest pleud uud produce 

 evidence according to the practice provided in such 

 oases, and the controversy is invested with the iim.i 

 and effect of a judicial procedure. When the peoplo 

 of the State declared in their constitution that a con- 

 test about State officers shall bo determined by the 

 General Assembly, they cannot bo understood as 

 meaning it might be determined in any Circuit Court 

 of the State. To say that a contest shall be decided 

 by decision, and then to say, after the decision is 

 made, that such contest is not determined, but is as 

 open as it ever was, is a contradiction in terms. Can 

 it possibly be supposed the framers of this constitu- 

 tion, when they declared contested elections about 

 State officers, including the Governor, should be de- 

 termined by the General Assembly, intended that 

 any such contest should be just as unsettled after aa 

 it was before such determination of it? Manifestly, 

 they intended to create a special tribunal to try claims 

 to the high offices of the State. But the tribunal is 

 not special if the courts have concurrent jurisdiction 

 over the subject. Brooks appears to claim that when 

 a contest for Governor is decided by the General As- 

 sembly, the defeated party may treat the decision as 

 a nullity, and proceed de iwvo in the courts. This 

 makes the constitutional provision as to the contest 

 of no effect, and the proceedings under it an empty 

 form. When the House of Representatives dismissed 

 the petition of Brooks for a contest, it must be taken 

 as a decision of that body on questions presented in 

 the petition. But it is not of any consequence wheth- 

 er or not the General Assembly has in fact decided 

 the contest, if the exclusive jurisdiction to dp so ia 

 vested in that body by the constitution and laws of 

 the State. 



Section 14 of Article V. of the constitution of Arkan- 

 sas, like most other constitutions, declares that each 

 House of the Assembly shall j'udge of the qualifica- 

 tions, election, and returns of its members, and it has 

 never been denied anywhere that these words confer 

 exclusive jurisdiction. But the terms, if possible, 

 are more comprehensive by which the constitution 

 confers upon the Legislative Assembly jurisdiction to 

 judge of the election of State officers. Doubtless the 

 makers of the constitution considered it unsafe to 

 lodge in the hands of every Circuit Court of the State 

 the power to revolutionize the Executive Department 

 at will, and their wisdom is forcibly illustrated by 

 the case under consideration, in which a person who 

 had been installed as Governor, according to the 

 constitution and laws of the State, after an undis- 

 turbed incumbency of more than a year is deposed by 

 a Circuit Judge, and another person put in his place 

 upon the unsupported statement of the latter that he 

 had received a majority of votes at the election. 



Looking at the constitution alone, and it appears 



Eert'ectly clear to my mind that the courts of the 

 tate have no right to try a contest about the office 

 of Governor, but that exclusive jurisdiction over that 

 question is vested in the General Assembly. This 

 view is confirmed by judicial authority. Summing 

 up the whole discussion, the Supreme Court of Ar- 

 kansas say in the case of the Attorney-General 

 against Baxter, above referred to under this consti- 

 tution, that the " determination of the question, as to 

 whether the person exercising the office of Governor 

 has been duly elected 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 tue relation of a claimant through him, or by 

 an individual alone claiming a right to the office. 

 Such an issue should be made before the General As- 

 sembly; it is their duty to decide, and no other 

 tribunal can determine that question. We are of 

 opinion that this court has no jurisdiction to hear 

 and determine a writ of quo tcarranto for the pur- 



