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writs for a few months in one of the counties, has been the cause or occasion of dealing a blow to the judiciary of that state from which it will not recover in as many years, if at all. We had intended to give some account of this case at this time, especially in its constitutional aspects, but the materials not being all at hand, we must defer it.
In another part of this number we give some account of the contested judgeship in New York, which grew to something more than the proportions of a common lawsuit. And many other recent instances are within the recollection of all our readers.
Among these is the Wisconsin election case, some short account of which we have thought might be interesting.
By the constitution of Wisconsin, “ the executive power shall be vested in a governor, who shall hold his office for two years." He shall be elected by the qualified electors of the state, at the times and places of choosing members of the legislature, and the person having the highest number of votes shall be elected.
The returns of election for governor shall be made in such manner as shall be provided by law.
The law provides for a board of town, county and state canvassers. The latter body is composed of the secretary of state, state treasurer and attorney general, two of whom shall be a quorum for the transaction of business ; and if one only of these officers shall attend on the day appointed for a meeting of the board, the clerk of the Supreme Court is to attend with him, and they two shall form the board.
This board make up a statement from the county returns of the whole number of votes given for governor, and how many for each candidate, and distinguishing the votes of each county. They thereupon determine who is, by the greatest number of votes, elected to each office, and certify the same to the secretary of state, who publishes a copy and issues certificates of election.
There is a general provision that canvassers (that is, apparently, town, county or state) are to give certificates of election to the persons who have the highest number of legal votes, notwithstanding defects of form.
The constitution also provides that the judicial power of the state shall be vested in certain courts.
The Supreme Court, except in cases otherwise provided in the constitution, shall have appellate jurisdiction only. It shall have a general superintending control over all in
ferior courts and power to issue writs of habeas corpus, mandamus injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same.
And statute gives the court power to inquire on quo warranto into the question of intrusion into any public office.
At the last state election in Wisconsin the state canvassers certified to the secretary of state, that Mr. Barstow was elected governor, and the secretary issued his certificate and made due publication, and at the proper time (in January) Mr. B. entered upon the duties of the office. Doubt had already been thrown, however, on the genuineness of certain of the returns and in the correctness of others, and it was believed by Mr. Bashford, the rival candidate, that the election, if truly returned, would be found to have resulted in his favor.
He accordingly applied to the attorney general of the state, who filed an information in the nature of a quo warranto, upon the relation of Bashford against Barstow.
We copy the following account of the proceedings from the summary of Mr. Justice Cole, in his opinion, delivered about March 20, 1856:
« On the 15th day of January, 1856, the attorney general, the legal officer of the state, filed in this court an information in the nature of a writ of quo warranto upon the relation of Coles Bashford, giving the court to understand and be informed that the respondent, for the space of one day and upwards then last past, had held, used and exercised, and still did hold, use and exercise the office of governor of the state of Wisconsin without any legal election, appointment, warrant or authority whatever therefor; and that at a general election of state officers of said state in the several counties thereof, on the 6th day of November, 1855, the relator was duly elected and chosen governor of the state aforesaid, and that the said relator hath ever since the 7th day of January, 1856, and still is rightfully entitled to hold, use and exercise the said office; which said office of governor aforesaid the respondent on the 7th day of January usurped, intruded into, and unlawfully held and exercised, and still doth usurp, intrude into, and unlawfully hold and exercise, in contempt of the people of this state, and to their great damage and prejudice; and prayed for due process of law against the respondent in this behalf to be made, to answer the said people by what warrant he claims to hold, use, exercise and enjoy the office of governor of this state.
“In compliance with the prayer of this information, a summons in due form was issued, returnable on the 5th day of February, 1856, which summons was returned served according to law.
" On the 22d of January, the relator by his counsel filed a motion to discontinue the information filed by the attorney general, and for leave to file in lieu thereof an information in the nature of a quo warranto upon his own relation, different from the one already filed, and for liberty to prosecute and control the same by himself or counsel, as he should be advised ; and for such other or further order as the court should deem proper in the premises.
“ This application was based upon two grounds : .“ 1st. That the attorney general having refused to file a special information prepared by the relator, but filing a different one, the relator's right to file one on his own relation and prosecute it to final judgment, became perfect under the act of 1855, and
“ 2d. An alleged hostility or unfriendliness upon the part of the attorney general to the interests, rights and success of the relator. The motion was resisted on argument by the attorney general on behalf of the state, and by the counsel for the respondent, who that day entered his appearance in the cause. The motion was overruled, the court holding upon the first point, that the attorney general had substantially complied with the act of 1855, in filing an information adequate to all the purposes of the suit; and, upon the second point, that the attorney general might control the proceeding as long as he prosecuted with fidelity; but if he should act in bad faith towards the relator, or attempt to fritter away his rights, the court would interfere for the protection of them.
“On the 25th, a rule was entered by the attorney general, requiring the respondent to plead to the information in such time as the court should direct. The court required the respondent to plead on or before the 5th of February ensuing.
“On the 2d of February, the counsel for the respondent filed their motion to quash the summons issued herein, and to dismiss the same, and all proceedings, for the reason that the court had no jurisdiction in the premises. By order of the court, the argument of this latter motion came on for argument on the 11th of February, and the counsel for the respondent then endeavored, with great zeal and earnestness, to sustain their motion by insisting upon and establish
ing the position, that even when there is an usurpation of the office of governor of this state by a person not lawfully entitled to exercise its duties, this court has no constitutional power to entertain a proceeding for his removal, but that the person thus intruding could only be reached and removed by revolutionary force.
“ The court thought the position an unsound one, and overruled the motion, deciding the principle that where there was an intrusion without color of right even into the office of governor of this state, it had the power to entertain a proceeding to inquire into the right of the person thus holding the office, and to remove the intruder.
6 On the 25th of February, the respondent filed a plea in abatement to the jurisdiction of the court, setting forth in said plea that by the laws of the state of Wisconsin, regulating the manner of conducting general elections, and the canvass of votes thereat applicable to the election stated in said information, it became and was the duty of the board of state canvassers, upon a statement of the whole number of the votes given at the said election, and for whom given for the said office of governor, to be by them made and certified to be correct, and subscribed by their names, to determine what person was by the greatest number of votes duly elected to said office, and to make and subscribe on such statement a certificate of such determination, and deliver the same to the secretary of state, and thereupon it became and was the duty of the said secretary of state without delay, to make out and transmit to the person thereby declared to be elected to the office of governor, a certificate of his election, certified by him under his seal of office : that in fact, Alexander T. Gray, secretary of state, Edward H. Janssen, state treasurer, and George B. Smith, attorney general, who then constituted the said board of state canvassers, met together at the office of the secretary of state, in the capitol at Madison, on the 15th day of December, A. D. 1855, the day duly appointed pursuant to law for that purpose, and did proceed according to law to make a statement of the whole number of votes given at said election for the said office of governor, showing the names of the persons to whom such votes were given for said office, and the whole number given to each one, distinguishing the several counties in which they were given, and did certify such statement to be correct, and subscribe their names thereto, and that they did thereupon determine and certify that by the greatest number of votes polled at said election, the respondent was duly elected to said office of governor, for the term of two years commencing on the first Monday of January, 1856, and that they did in pursuance of law, make and subscribe on such statement a certificate of such determination in due form of law, and did duly deliver the same to the secretary of state; and that thereupon, in pur. suance of law, the said secretary of state did make out and transmit to said respondent a certificate of his election to the said office of governor of said state, for the term aforesaid in due form of law, and duly certified by him under his seal of office. And that said certificate was duly received by said respondent, who thereupon duly qualified bimself by taking the customary and proper oath of office as such governor, and entered into possession of such office as he lawfully might; duly certified copies of which said statement and certificates authenticated under the great seal of the state, the said respondent here in court produces and shows to the court.
“ Certified copies (under the seal of the secretary of state) of the statement made by the board of state canvassers, of the official oath of the respondent, and of the certificate of election, accompanied this plea as exhibits. The plea was demurred to, several causes of demurrer being assigned. The dernurrer was sustained upon the ground, that the matters contained in the plea, if good at all, should be plead in bar to the action, and did not go to the jurisdiction of the court. Consequently judgment of respondeas ouster was given on the demurrer, and the respondent had four days, until the 8th inst., to file his plea in bar. He has purposely made default. On the 11th, the counsel for the relator moved for final judgment. While this motion for judgment was under advisement, the attorney general on the 18th inst. files a motion to discontinue the proceeding, and this motion is resisted by the relator."
This motion also was overruled, and the court decided that, although by the default of the respondent, the judg. ment would, as of course, according to precedent, be in favor of the relator, yet as the cause was of great importance, they should hold the latter to make out a prima facie case of his own right to the office. This was done at a subsequent day, and judgment was given and execution issued, by virtue of which Mr. Bashford was put into possession of the insignia of office, and has ever since, we believe, exercised its functions.
The principal point of the case was upon the general