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question of jurisdiction. This was argued at great length and with great ability, by Messrs. Carpenter, Orton and Arnold, counsel for Mr. Barstow, against the jurisdiction, and in its favor by Messrs. Randall, Knowlton and Howe, counsel for Mr. Bashford, the relator.
Chief Justice Whiton, and Justices Smith and Cole gave, at different stages of the cause, elaborate and able opinions, on this and the other points, and, as we have seen, sustained the jurisdiction.
It is the novelty of the question, in its application to the particular office of governor of a state, rather than any apparent difficulty in its solution, that has induced us to present it to our readers.
Was the decision of the court correct?
The arguments for the respondent were marked, as we have said, by great ability and research. Two points were taken under the local law. 1st. That the office or post of governor was not a “public office” within the meaning of the statute on the subject of quo warranto (above noticed.)
2d. That the certificate of the state canvassers was conclusive.
Upon these points comparatively little stress was laid. And we think they were properly overruled. Upon a candid and reasonable construction of the statutes, we think it will be manifest that neither of these positions can be maintained. We pass them, however, as local and relatively unimportant.
The counsel took bolder ground. They argued that what. ever might be the law, the constitution intended that such a question should not be decided in the courts. That the three departments of government, the executive, legislative and judicial, were independent, equal, and each within its own sphere supreme. That to preserve this equality, it was absolutely essential that neither should have any right, under any circumstances, to pass upon the title of the others. For this reason, the legislature decide upon the election and qualification of members of their own body.
Referring to historical precedents, why, it was asked, had it never been heard of from the origin of modern governments to this day, that a suit had been brought in the courts to try the right of the chief executive magistrate? How many battles, how much blood, how many voluines of his. tory would have been spared, if such an appeal could have been taken!
England formerly, and France in more recent times, had experienced a great many changes of this sort, but no precedent of an appeal to the courts could be produced.
The executive de facto has always been recognized without proof, for all purposes and in all proceedings in the courts of law.
The answer is entirely convincing on all points.
The foreign precedents are easily disposed of. They have been decided generally by the strong hand, against which there is no appeal; the bayonet has taken the place of the posse, the coup d'etat and pronunciamento of the quo warranto.
In England, the question has not arisen in recent times; at some former periods a settlement of the crown has sometimes been peaceably made by act of parliament. It is well known that in England, parliament, consisting of king, lords and commons, is supreme, and parliament has never delegated this jurisdiction to the courts of law; but has intervened, and probably would do so again. If a question, for instance, of legitimacy, should arise there, however, it might perhaps be decided by the courts, if the high court of parliament did not choose to interpose.
But however this may be, our form of government is quite different. The people possess originally all sovereignty; they delegate only a portion of this power, which, by the fundamental act, they divide as they see fit. In the case in hand, they have said that the executive power which they define, should be vested in a governor who shall have certain qualifications, and be elected in a certain manner; they give the judicial power to the courts.
Who shall decide whether the conditions have been complied with, the constitution being silent on this point ?
The counsel for the respondent were driven into the position that the actual possession of the executive power could be removed only by a revolution. We cite the observations of one of the judges upon this point.
The constitution has prescribed certain qualifications for the office of governor, and yet we are told that the incumbent of that office is the sole and ultimate judge of his own qualification. The constitution provides that no person but a citizen of the United States, and a qualified elector of the state shall be eligible to the office of governor; yet we are told whosoever can usurp or intrude into that office is the sole and ultimate judge of his own qualification, and that there is no power to inquire whether he be
in fact a citizen or a qualified elector of the state. Any man who can intrude into the office, is to decide upon his own qualification, declare himself a citizen and an elector, or at least a successful intruder, in defiance of the constitu. tional prerequisites."
“ Again – the constitution provides that the person having the highest number of votes shall be governor; yet we are told, any man who by force or fraud can get possession of the office must be the sole and ultimate judge of his own election ; that not the highest number of votes shall constitute him governor, but his own judgment must decide the matter, and his own will the ultimate tribunal by which his election is to be determined."
“ Again — the constitution provides that in case of the impeachment of the governor, or his removal from office, death, inability from mental or physical disease,' &c., the powers or duties of the office shall devolve upon the lieutenant governor,' and yet he is the sole and ultimate judge of bis own qualifications, of his own impeachment,' of his own removal from office, of his own 'inability from mental or physical disease!' If the mental disease amounts to lunacy, yet he is the sole and ultimate judge of his own sanity! If he be removed from office, yet he is the sole and ultimate judge of that fact, and of the jurisdiction of the authority by which he is removed! These, and the like, are the doctrines which this court is called upon to declare as the law of the land.”
5. If the lieutenant shall chance to imagine the governor insane, and take upon himself the duties of the office, and get possession of the department,' the governor might not be satisfied with the decision of the lieutenant, and yet both would be the sole judges of their respective sanity, while the secretary of state might deem them both mad, and mentally disabled, and himself pronounce the ultimate' decision in his own favor, and act the governor while he should think the disability continued."
“ To such confusion, not to use a term less mild, do the propositions assumed and insisted upon lead us. While the soil of England has been drenched by the best blood of her sons' in the process of determining the right of contestants to the chief magistracy of the realm, it is the boast of the states of this Union, that they have provided peace, ful and constitutional means by which pretensions to the executive magistracy shall be determined. To avoid the danger of usurpation they have prescribed certain qualifications, without which no man can gain accession to the office. To secure fidelity to the trust, and responsibility for its due execution, they have prescribed short terms of office, at the close of which the incumbent retires from the place, to be filled again by himself or another as the people shall elect. But if all these constitutional rquirements can be overridden by any bold and temporarily successful aspirant, every one must perceive that all these constitutional safeguards are vain and useless, and our soil is liable to be drenched with the best blood of our people at every returning gubernatorial election, and instead of the protection of the constitution and the law, we are solely dependent for the peace of the state and the supremacy of the law upon the mere forbearance of the retiring incumbent or the aspiring candidate.”
The fallacy, which was well exposed in argument at the trial and by the court, consists in confounding the officer with the office. That the executive is independent, and within the appropriate sphere, even supreme, is admitted ; but is A. B. the executive. The courts have jurisdiction of the person of A. B., they can inquire whether he owes a debt to C.D., why not then, whether he has intruded into an office of which C. D. is rightfully entitled ? Have they not then jurisdiction of the subject? It is admitted that they may inquire in the case of inferior officers, sheriffs, county commissioners, and all others. The cases are continually coming up, and may be found in the books of reports of nearly every state. What is there in the nature of the office or dignity of governor, that puts it beyond the reach of inquiry? Its impor-tance? That would seem to be a strong reason for securing a trial, both for the sake of the parties directly interestedand of the sovereign, whose affairs are to be intrusted to the successful candidate.
We can see nothing in the nature of the office to distinguish it, in kind, from all others.
It is true this precise controversy has never been decided in any of our courts. In many states, the constitutions provide a tribunal for trying this title, either a special one, or the ordinary courts of law. In New York, the controversy once arose between John Jay and George Clinton; the law made the legislature the final judge, and Mr. Jay acquiesced in their decision. Perhaps it might be fairly questioned whether, in the absence of constitutional enactment, the legislature can assume themselves, or delegate to others, not judicial officers, the power to decide finally on
a question apparently judicial. Mr. Jay did not raise the point, nor was it taken in the present case; the law of Wisconsin not having, in the opinion of the judges, made the decision of the canvassers final.
It is true also, that the courts ordinarily undertake to know judicially and without proof who is governor.
But this is only a rule of evidence for the convenience of administering justice, and must not be extended to defeat justice. Courts recognize the governor, as they do all other public officers of the state, because it would be very inconvenient to examine the question of title of every officer, in every suit in which any act of his came in question.
This rule of convenience only applies when the question comes up incidentally. If the very issue to be proved is the title of the officer to hold his office, it is open to plea and proof. So a judgment of court cannot be collaterally impeached, but it may on error or review. And this is all which, on this point, the case of Luther v. Borden, 7 Howard, can be taken to intend. The learned and venerable chief justice there says, that courts will not inquire what the constitution of their own state is, but will take notice of it. As applied to the case before the court, the observation is perfectly true, but we do not suppose it was intended to mean, that if the question could be brought up in a direct form by any appropriate process, whether a constitutional amendment had been duly passed and adopted, and no tribunal had been appointed to try it, the courts holding under the original constitution would not be competent to investigate that question.
Lastly. It was argued, that this was a political matter with which the courts should not meddle, and Luther v. Borden was again cited. In that case, the courts of the United States recognized the governor who had been recognized by the president. But this was a matter quasi foreign to the United States courts. Those courts sit and hold a qualified jurisdiction in the midst of sovereign states; the relations of the general government with the particular governments, are regulated by the constitution and laws of the United States, and these (as construed) invest the president with power to decide, in certain contingencies, who shall be recognized as governor of a state. He had decided in this instance, and the courts held themselves bound by his decision, as they have by the decision of the legislature and president, in questions of sovereignty with foreign nations.