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mob which has already fired upon Federal troops and commenced an indiscriminate slaughter of colored men, to avoid a further sacrifice of life and loss of property I am impelled by a sense of duty to submit my case as it now stands, and abide the President's determination.
Joseph Brooks, Governor of Arkansas.
Governor Baxter to the President.
Little Rock, May 12. I am informed Mr. Brooks is now removing all of the records of State from the public buildings.
I respectfully ask that the public records be returned to the public buildings, and placed in charge of the United States troops here until the return of the Secretary of State, who is the proper custodian under the law. Answer.
Elisha Baxter, Governor of Arkansas.
Reply of Attorney General.
Washington, May 12. I know nothing that we can do here about the reported removal of the records by Brooks. The probabilities are that if the records are taken away from the public buildings, they will in due time be returned.
Geo. H. Williams, Attorney General.
Governor Baxter to the President.
Little Rock, May 13. The assertion of Brooks that assassination will follow the disbandment of his troops, in my opinion, is utterly unfounded. In the event of disbandment, I will use every possible means to preserve perfect peace, and would ask the cooperation of the Federal troops to assist in preserving order. Elisha Baxter,
Governor of Arkansas.
Capt. Rose to the Secretary of War.
Little Rock, May 13. Both sides here considerably re-enforced. Baxter has two additional brass guns. For two days there has been some street fighting, though of a very low grade. Cannot watch it all without a small mounted force; the troops here too much fatigued to do mounted service in addition to other duties. If cavalry is sent here, there is no need of horses; want a few more men and cavalry arms. T. E. Rose,
Capt. \§th Infantry, Commanding.
Governor Brooks to the President.
Baring Cross, May 14.
First. I was elected by the vote of the people. This is universally admitted by all parties, is not denied by Baxter, and has been clearly proven by the testimony on file in the circuit court.
Second. I have a j udgment of the circuitcourt, our only court of general and original jurisdiction, awarding me the office to which the people elected me.
Third. Under that judgment I am in possession of the office and exercising its functions, and have been for thirty days.
Fourth. The Supreme Court has passed upon my claims collaterally, in which it is clearly de
cided that the circuit court has jurisdiction of the subject-matter; that the proceedings are regular and the judgment authoritative and binding; that as Governor I am authorized to draw warrants upon the treasurer of State according to law.
Fifth. I have, with the sole exception of the Secretary of State, the recognition and co-operation of every branch and member of the State government.
Sixth. The actual case decided by the circuit court has gone up by appeal and will doubtless be decided in a few days.
Seventh. In the interest of peace I promptly acceded to your proposition of May 9, to submit the question as therein proposed to a full Legislature, convened under a mutual call of Baxter and myself, which, among other things, provided that all the votes cast at the November election, 1872, should be counted and the result declared. This is all I have ever asked for, either from Legislature or courts. This having been rejected by Baxter, and Congress apparently disposed to inquire into the case, I now propose cheerfully to submit to, and ask, an investigation as to who received the majority of votes, to be conducted upon the ground by a congressional committee, and consent to abide their decision. I am reliably informed that Baxter refused your proposition of May 9, for the reason that it required all the votes to be counted, and the result declared. He has uniformly, ever since the election, made every erlort to prevent an investigation into the result of the election—has never raised any question but that of jurisdiction, and now openly declares that he will not submit to any such investigation. If I do not establish unequivocally that I was elected and am, both in law and equity, entitled to exercise the functions of Governor of Arkansas, I will promptly and without a murmur retire. Joseph Brooks,
Governor of Arkansas.
Baring Cross, May 14. In my dispatch to you of the 11th instant I stated that a quorum of both Houses existed, and that this quorum should pass upon the election, returns, and qualifications of the new members. There are now fourteen pretended members of the Senate here. Six of this number were admitted to seats without any evidence of election, and pretend to represent districts where no vacancies had been declared. In the House there are forty-five pretended members present. Twenty-three of this number were admitted to seats without any evidence of election, and to represent districts where no vacancies had been declared. Instead of there being a legal quorum in either branch of the Legislature, there is in point of fact but eight Senators in the Senate and twenty-two Representatives in the House, when there should be fourteen Senators and forty-two Representatives to constitute a quorum in both Houses of the Legislature. You will readily see why I could not consent to recognize his call. I was willing, and am now willing, to make a joint call of the Legislature to meet at the state-house, and let the quorum now in existence pass upon the question as to whether there are any vacancies in the districts these few members claim to represent, and whether they are entitled to seats, but I cannot consent to recognize a body organized as this has been, within the lines of Baxter, where no man can enter it without a pass from himself or one of his subordinate officers. As to whether the present pretended Legislature, it being called by Baxter after the judgment of ouster, and after I was in full possession of the office, has any authority depends upon the fact as to whether it was convened by the Governor of Arkansas. This is a question that can only be determined by the courts of this State, and the moment it takes any affirmative action I shall bring the matter before the Supreme Court, which is now in session, and test the question. That tribunal having lately compelled the treasurer of State to pay a warrant drawn upon a fund that no one but the Governor can use, has recognized me as Governor, and it is not unreasonable to assume under this state of facts that the courts will not recognize any act passed by a Legislature called together by one who is not authorized to convene it. Joseph Brooks.
Opinion of the Attorney General. Department Of Justice,
Sir: Elisha Baxter, claiming to be Governor of Arkansas, having made due application for executive aid to suppress an insurrection in that State, and Joseph Brooks, claiming also to be Governor of said State, having made a similar application, and these applications having been referred by you to me for an opinion as to which of these persons is the lawful executive of the State, I have the honor to submit:
That Baxter and Brooks were candidates for the office of Governor at a general election held in Arkansas on the 5th day of November, 1872. Section 19 of article VI of the constitution of the State 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 transmitted to the seat of government by the returning officers, and directed to the presiding officer of the Senate, who, during the first week of the session, shall open and publish the same in the presence of the members then assembled. The person having the highest number of votes shall be declared elected; but if two (2) or more shall have the highest and equal number of votes for the same office, one of them shall be chosen by joint vote of both Houses. Contested elections shall likewise be determined by both Houses of the General Assembly, in such manner as is or may thereafter be prescribed by law."
Pursuant to this section, the votes for Governor at said election were counted, and Baxter was declared to be duly elected.
Said section, as it will be noticed, after providing for a canvass of the votes, specially declares that "contested elections shall likewise be determined by both Houses of the General Assembly, in such manner as is or may hereafter be prescribed by law." When this constitution was adopted, there was a law in the State, which continues in force, prescribing the mode in which
the contest should be conducted before the General Assembly, the first section of which is as follows:
"All contested elections of Governor shall be decided by the joint vote of both Houses of the General Assembly, and in such joint meeting the president of the Senate shall preside."
Brooks accordingly presented to the lower House of said Assembly his petition for a contest, but, by the decisive vote of sixty-three to nine, it was rejected by that body. Subsequently the Attorney General, upon the relation of Brooks, applied 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 Governor, in which it was alleged that Baxter was a usurper, &c.; but the court denied the application, upon the ground that the courts of the State had no right to hear and determine the question presented, because exclusive jurisdiction in such cases Imd been conferred upon the General Assembly by the constitution and laws of theState. Brooksthen brought a suit against Baxter, in the Pulaski circuit court, under section 525 of the civil code of Arkansas, which reads as follows:
"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 exercising the office or franchise."
Brooks stated in his petition that he received more than 45,000 votes, and that Baxter received less than 30,000 votes for Governor at such election, and after declaring that Baxter has usurped the office, prays that it may be given to him by the judgment of the court, and that he may recover the sum of $2,000, the emoluments of said office withheld from him by Baxter. This presented to the court the simple question of a contest for the office of Governor. Baxter demurred to this petition, on the ground that the court had no jurisdiction of the case, and afterward, on the 15th of April, the court, in the absence of the defendant's counsel, overruled the demurrer, and, without 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 execution of said judgment, and with the aid of armed men, forcibly ejected Baxter and took possession 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 when the demurrer was submitted and the final judgment thereon rendered; that the judgment of the court upon overruling the demurrer should have been that the defendant answer over, instead of which a final judgment was rendered without giving any time or opportunity to answer the complaint upon its merits; that the court assessed the damages 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 overruled by the court.
Section 4, article IV of the Constitution of the United States is as follows:
"The United States shall guarantee to every
State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the Legislature or of the executive, (when the Legislature cannot be convened,) against domestic violence."
When, in pursuance of this provision of the Constitution, the President is called upon by the executive of a State to protect it against domestic violence, it appears to be his duty to give the required aid, especially when there is no doubt about the existence 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 persons is the constitutional Governor of the State.
That section of the constitution of Arkansas, heretofore cited, in my opinion, is decisive of this question as between Baxter and Brooks. According to the constitution and laws of the State, the votes for Governor were counted and Baxter was declared elected, and at once was duly inaugurated as Governor of the State. There is great difficulty in holding that he usurped the office into which he was inducted under these circumstances. Assuming that no greater effect is to be given to the counting of the votes in the presence 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 upon that question is as final and conclusive as is the judgment of the Supreme Court of the State upon any matter within its jurisdiction. Parties to such a contest plead and produce evidence, according to the practice provided in such cases, and the controversy is invested with the forms and effect of a judicial procedure. When the people of the State declared in their constitution that a contest about State officers shall be determined by the General Assembly, they cannot be understood as meaning that it might be determined in any circuit court of the State. To say that a contest shall be determined by a 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 that the framers of this Constitution, when they declared that contested elections about State officers, including the Governor, should be determined by the General Assembly, intended that any such contest should be just as unsettled after as 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 Assembly, the defeated party may treat the decision as a nullity, and proceed de novo 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 upon the questions presented in the petition; but it is not of any consequence
whether or not the General Assembly has in fact decided the contest, if the exclusive jurisdiction to do so is vested in that body by the constitution and laws of the State. Section 14 of article 5 of the constitution of Arkansas, like most other constitutions, declares that each House of the Assembly shall judge of the qualifications, election, and return of its members, and it has nevei 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 undisturbed 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 the votes at the election.
Looking at the subject in the light of the constitution alone, and it appears perfectly clear to my mind that the courts of the .State 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 Arkansas say in the case of The Attorney General vs. Baxter, above referred to:
"Under this constitution the determination of the question as to whether a 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 be; 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 issue should be made before the General Assembly. It is their duty to decide, and no other tribunal can determine that question. We are of the opinion that this court has no jurisdiction to hear and determine a writ of quo warranto for the purpose 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 denied."
Some effort has been made to distinguish this case from that of Brooks vs. 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 exclusive, which, of course, deprived one court as much as another of the power to try such a contest.
There is, however, another decision made by the same court upon the precise question presented in the case of Brooks vs. 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 no jurisdiction in the case. As to the questions of law involved, the cases of Berry and Brooks are exactly alike. That this circuit court should have rendered a judgment for Brooks under these circumstances is surprising, and it is not too much to say that it presents a case of judicial insubordination 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 dissented in the case of The Attorney General vs. Baxter, delivered the opinion of the court in the Wheeler case, in which he uses the following language:
"The majority of the court in the case of The State vs. Baxter, under the delusion that quo warranto and a con tested election proceeding were convertible remedies, having one and the same object, decides that neither this nor any other State court, no matter what the form of action, had jurisdiction 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 election 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 that portion of Berry vs. 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 foregoing decisions are understood in the State, I refer to a note by the Hon. H. C. Caldwell, judge of the district court of the United States for the eastern 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 VI of the Constitution, the jurisdiction of the General Assembly over cases of contested election for the offices in said section enumerated is exclusive. (Attorney General on the relation of Brooks vs. Baxter, Ms. Op., 1873. Wheeler vs. Whytock, Ms. Op., 1873.")
It is assumed in the argument for Brooks that the judgment of the Pulaski circuit court is 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, ii warranted by the constitution and laws of the State. The General Assembly has decided that Baxter was elected. The circuit court of Pu
laski county has decided that Brooks was elected. Taking the provision of the Constitution which declares that contested elections about certain State officers, including the Governor, shall be determined by the General Assembly, and that provision of the law heretofore cited which savs that all contested elections of Governor shall be decidedby the Legislature,and the two decisions of the Supreme Court affirming the exclusive jurisdiction of that body over the subject, and the conclusion irresistibly follows that said judgment of the circuit court is void. A voidjudgment binds nobody. Said section 525, under which this judgment was rendered, must be construed with reference to the constitution and other statutes of the State, and is no doubt intended to apply to county and other inferior officers for which no provision elsewhere is made; but the constitution takes the State officers therein enn merated out of the purview of this section and establishes a special tribunal to try those contested election cases to which they are parties. The jurisdiction of this tribunal is exclusive. (Ohio vs. Grisell & Menlon, 15 Ohio, 114; Attorney General vs. Garragues, 28 Penn., 9; Com. vs. Baxter, 35 Id., 263; Com. vs. Leech,44 Id., 332.)
Respecting the claim that Brooks received a majority 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 of this case, be a proper subject for his consideration. Perhaps, if everything about the election 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 controversy upon the subject. Somebody must be trusted to count votes and declare elections. Unconstitutional 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 people are more interested in the preservation of peace than in the political fortunes of any man. Either of the contestants with law and order is better than the other with discord and violence.
I think it would be disastrous to allow the proceedings by which Brooks obtained possession of the office to be drawn into precedent. There is not a State in the Union in which they would not produce conflict and probably bloodshed. They cannot be 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 r%* ceived a telegraphic copy of what purports to be a decision of the Supreme Court of Arkansas, delivered on the 7th instant, from which it appears that the auditor of the State, upon the requisition of Brooks, drew his warrant on the treasurer for the sum of $1,000, payment 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 is, did the circuit court have jurisdiction to render the judgment in the case of Brooks vs. Baxter? We feel some delicacy about expressing an opinion upon the question propounded, but, under the pleadings, it has to be passed upon incidentally, if not absolutely, in determining whether the relator is entitled to the relief asked for, his right to the office, if established by the judgment of the circuit court of Pulaski county. We are of opinion the circuit court had jurisdiction of the subject-matter, and its judgment appears to be regular and valid. Having arrived at these conclusions, the demurrer is overruled, and the writ of mandamus will be awarded as prayed for."
To show the value of this decision, it is proper that I should make the following statement:
On the 20th of April Brooks made a formal application to the President for aid to suppress domestic violence, which was accompanied by a paper signed by Chief Justice McClure and Justices Searle and Stephenson, in which they stated that they recognized Brooks as Governor, and to this paper also is appended the name of Page, the respondent in the above-named proceedings for mandamus. Page, therefore, did not refuse to pay the warrant of the auditor because he did not recognize Brooks as Governor, but the object of his refusal evidently was to create such facts as were necessary to make a case for the Supreme Court. Accordingly, the pleadings were made up by the parties, both of whom were on the same side in the controversy, and the issue so made was submitted to judges virtually pledged to give the decision wanted, and these, within the military encampment of Brooks, they hurriedly, but with delicacy, as they say, decided that he is Governor, a decision in plain contravention of the constitution and laws of the State, and in direct conflict with two other recent decisions of the same court, deliberately made.
I refrain from comment. More than once the Supreme Court of the United States has decided that it would not hear arguments upon a case made up in this way, and a decision obtained under such circumstances is not recognized as authority by any respectable tribunal. No doubt this decision will add to the complications and difficulties of the situation, but it does not affect my judgment as to the right of Baxter to the office of Governor until it is otherwise decided upon contest made by the Legislature of the State.
On the 11th instant the General Assembly of the State was convened in extra session upon the call of Baxter, and both Houses passed a joint resolution pursuant to section 4 of article IV of the Constitution of the United States,
calling upon the President to protect the State against domestic violence. This call exhausts all the means which the people of the State have, under the Constitution, to invoke the aid of the Executive of the United States for their protection, and there seems to be, under the circumstances of the case, an imperative necessity for immediate action.
I have the honor to be, with great respect, Geo. H. Williams, Attorney General. The President.
For President's proclamation see chapter IX.
The President to General Sherman. War Department, Adjutant General's Office, Washington, May 16. General: I am instructed by the Secretary of War to communicate to you the following orders of the President, and to request you will direct the commanding officer at Little Rock, Captain Thos. E. Rose, Sixteenth Infantry, by telegraph, to see that they are properly carried out.
The President directs that as his proclamation recognizing Baxter as lawful Governor has been issued, he is to be protected in that position by the United States forces, if necessary.
I am, General, very respectfully, your obedient servant.
E. D. Townsend, Adjutant General. General W. T. Sherman, United States Army.
General Sherman's Order. Headquarters Army Of The United States, Washington, May 16. General W. H. Emory,
Commanding Department of the Gulf,
New Orleans, La.: The President has recognized Governor Baxter as the legal Governor of Arkansas by his proclamation of yesterday. You will accordingly instruct the commanding officer at Little Rock, and all other garrisons serving in Arkansas, to recognize Governor Baxter as the legal Governor of that State, and afford him all the protection in that position which the case calls for.
By command of General Sherman.
Wm. D. Whipple, Assistant Adjutant General.
United States Marshal to Attorney General. New Orleans, November 16, 1872, Attorney General George H. Williams:
Requisition was made by chief supervisor for troops and referred to General Emory to learn desire of Government. State court enjoined Warmoth's new canvassing board, but disregarded. United States circuit court has to-day restrained Warmoth and his canvassing board from canvassing vote pending trial of rule for injunction fixed for Tuesday. Enforcement law has been defied by over half Warmoth's election officers. United States commissioner has already issued warrants for many of them, which have been executed. S. B. Packard,
U. S. Marshal.
[note.—For full copies of these restraining