48 



ARKANSAS. 



pose of rendering a judgment of ouster against the 

 chief Executive of this State, and the right to file an 

 information and issue a writ for that purpose is de- 

 nied." Some effort has been made to distinguish 

 this case from that of Brooks against Baxter, in the 

 Circuit Court, by calling the opinion a dictum, but 

 the point presented to and decided by the Supreme 

 Court was that in a contest for the office of Governor 

 the jurisdiction of the General Assembly was exclu- 

 sive, which of course deprived one court as much as 

 another of the power to try such contest. There is, 

 however, another decision made by the same court 

 upon the precise question presented in the case of 

 Brooks against Baxter. Berry was a candidate for 

 State Auditor on the same ticket with Brooks. 

 Wheeler, his competitor, was declared elected by 

 the General Assembly. Berry then brought a suit 

 under said section 525 in the Pulaski Circuit Court to 

 recover the office. "Wheeler applied to the Supreme 

 Court for an order to restrain the proceedings, and 

 that court issued a writ of prohibition forbidding 

 the said court to proceed, on the ground that it had 

 110 jurisdiction in the case as to the question of law 

 involved. The cases of Berry and Brooks are ex- 

 actly alike. That this Circuit Court should have 

 rendered a judgment for Brooks under these cir- 

 cumstances is surprising, and it is not too much to 

 say that it presents a case of judicial insubordina- 

 tion which deserves the reprehension of every one 

 who does not wish to see public confidence in the 

 certainty and good faith of judicial proceedings 

 wholly destroyed. Chief-Justice McClure, who dis- 

 sented in the case of the Attorney-General against 

 Baxter, delivered the opinion of the court in the 

 "Wheeler case,, in which he uses the following lan- 

 guage : " The majority of the court in the case of 

 the State against Baxter, the decision of the quo 

 warranto and a contested election proceeding be- 

 ing convertible remedies having one and the same 

 object, decides that neither this nor any other State 

 court, no matter what the form of action, has juris- 

 diction to try a suit in relation to a contest for the 

 office of Governor as an abstract proposition of law. 

 I concede the correctness of the rule, and would 

 have assented to it if the question had been before 

 us. The question now before this court is precisely 

 one of contest and nothing else. As to all matters 

 of contested elections for the offices of Governor, 

 Lieutenant-Governor, Secretary of State, Auditor, 

 Treasurer, Attorney-General, and Superintendent of 

 Public Instruction, I am of the opinion that it can 

 only be had before the General Assembly." 



He then adds, in conclusion : "I think a writ of 

 prohibition ought to go to prohibit the Circuit Court 

 from entertaining jurisdiction of Berry against 

 Wheeler that has for its object a recovery of the 

 office." All five of the judges heard this case, and 

 there was no dissent from these views as to the 

 question _ of jurisdiction. To show how the forego- 

 ing decisions are understood in the State, I refer to a 

 note by the Hon. H. C. Caldwell, Judge of the Dis- 

 trict Court of the United States for the Southern 

 District of Arkansas, upon Section 2379 of a, digest 

 of the Statutes of the State, lately examined and 

 approved by him, which is as follows : 



By the provisions of Section 19 of Article TV. of the 

 constitution, the jurisdiction of the General Assembly 

 over cases of contested election for the officers, in said 

 Bection enumerated, 'is exclusive. Attorney-General on 

 the relation of Brooks against Baxter, manuscript opin- 

 ion, 1873 ; Wheeler against Whylock, manuscript opinion, 

 loT'j. 



It is assumed in the argument for Brooks that the 

 judgment of the Pulaski "Circuit Courtis binding as 

 well upon the President as upon Baxter until it is 

 reversed, but where there are conflicting decisions as 

 in this case, the President is to prefer that one which, 

 in his opinion, is warranted by the constitution and 

 laws of the State. The General Assembly has de- 

 cided that Baxter was elected. The Circuit Court 



of Pulaski County has decided that Brooks was 

 elected. Taking the provisions of the Constitution 

 which declares that contested elections about certain 

 State officers, including the Governor, shall be de- 

 termined by the General Assembly, and that pro- 

 vision of the law heretofore cited which says that all 

 contested elections of Governor shall be decided 

 by the Legislature, and the two decisions of the Su- 

 preme Court affirming the exclusive jurisdiction of 

 that body over the subject^ and the conclusion irre- 

 sistibly follows that said judgment of the Circuit 

 Court is ^void. A void judgment binds nobody. 

 Said section 525, under which this judgment waa 

 rendered, must be construed with reference to the 

 constitution and other statutes of the State, and ia 

 no doubt intended to apply to county and other in- 

 ferior officers for which no provision elsewhere is 

 made. But the constitution takes the State officers 

 there enumerated out of the purview of this section 

 and establishes a special tribunal to try these con- 

 tested election cases, to which they are parties. The 

 jurisdiction of this tribunal is exclusive. (Ohio 

 against Grisell and Menlon, 15 Ohio, 114 ; Attorney- 

 General against Garrugues, 28 Pennsylvania, 9 ; Com- 

 monwealth against Baxter, 35 Id., 203 ; Common- 

 wealth against Leech, 44 Id., 332.) 



Eespecting the claim that Brooks received a ma- 

 jority of the votes at the election, it must be said 

 that the President has no way to verify that claim. 

 If he had, it would not, in my opinion, under the 

 circumstances in this case, be a proper subject for his 

 consideration. Perhaps if every thing about the elec- 

 tion was in confusion, and there had been no legal 

 count of the votes, the question of majorities might 

 form an element of the discussion; but where, as in 

 this case, there has been a legal count of the votes, 

 and the tribunal organized by the constitution of the 

 State for that purpose has declared the election, the 

 President, in my judgment, ought not to go behind 

 that action to look into the state of the vote, frauds 

 may have been committed to the prejudice of Brooks ; 

 but, unhappily, there are few elections where partisan 

 zeal runs high in which the victorious party, with 

 more or less of truth, is not charged with acts of 

 fraud. . There must, however, be an end to the con- 

 troversy upon the subject. Somebody must be 

 truste_d to count votes and declare elections. Un- 

 constitutional methods of filling offices cannot be 

 resorted to because there is some real or imagined 

 unfairness about the election. Ambitious and selfish 

 aspirants for office generally create the disturbance 

 about this matter, for the people are more interested 

 in the preservation of the peace than in the political 

 fortunes of any man. Either of the contestants, 

 with law and order, is better than the other with dis- 

 cord and violence. I think it would be disastrous to 

 allow the proceedings by which Brooks obtained pos- 

 session of the office to be drawn into a precedent. 

 There ia not a State in the Union in which they 

 would not produce a conflict, and probably blood- 

 shed. They cannot -b^e upheld or justified upon any 

 ground, and in my opinion Elisha Baxter should be 

 recognized as the lawful Executive of the State of 

 Arkansas. 



Since the foregoing was written I have received a 

 telegraphic copy of what purports to be a decision of 

 the Supreme Court of Arkansas, delivered on the 

 Tth instant; from which it appears that the Auditor 

 of the State, upon a requisition of Brooks, drew his 

 warrant on the Treasurer for the sum of $1,000, pay- 

 ment of which was refused. Brooks then applied to 

 the Supreme Court for a writ of mandamus upon the 

 Treasurer, who set up, by way of defense, that 

 Brooks was not Governor of the State, to which 

 Brooks demurred, and thereupon the court say : 



The only question that we deem it necessary to notice 

 if, did the Circuit Court have jurisdiction to render the 

 judgment in the case of Brooks against Baxter ? We 

 feel some delicacy about expressing an opinion iipon the 

 question propounded, but under the pleadings it has to 

 be passed upon incidentally, if not absolutely, in de- 



