« AnteriorContinuar »
sembly, but, if they were, and it refused to make a correction, it must be presumed that it had sufficient reasons for its action. Besides, the board was only a preliminary agency to take evidence, and report the facts to the general assembly. The assembly itself finally determined the contest.
It is also urged that under the specifications of the notice of enntest, if all were true, the election was void, and the general assembly should have so determined. But we have no means of knowing that the general assembly reached such a conclusion. The presumption is in favor of their judgment, and when they have found as a fact that the contestants received the highest number of legal votes cast at the election in controTeray we are not at liberty to go behind their finding. In Commonwealth v. Jones, 10 Bush, 725, the board found that Jones had accepted a challenge to fight a duel, and was, therefore, disqualified to hold office. But as, under the constitution, a conviction of the offense was necessary to disqualify Jones from holding office, this court disregarded the finding of the board, for the reason that it related only to an immaterial matter. In this case, however, the legislature finds the fact that determines the rights of the parties. There is nothing in their finding to show the election was void, and, as we cannot go behind it (Commonwealth v. Jones, 10 Bush, 747, 748), the cases of Leeman v. Hinton, 1 Duvall (Ky.), 38, and Hocker v. Pendleton, 100 Ky. 726, 39 S. W. 250, have also no application.
It is also insisted that the legislative proceedings are in violation of the fourteenth amendment to the constitution of the United States, which provides: "No state shall 304 make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property, without due process of law." The office of governor being created by the constitution of this state, the instrument creating it might properly provide how the officer was to be elected, and how the result of this election should be determined. The provisions of the constitution on this subject do not abridge the privileges or immunities of citizens of the United States. Such an office is not property, and in determining merely the result of the election according to its own laws the state deprives no one of life, liberty, or property. In creating this office the state had a right to provide such agencies to determine the result of the election, and it had a right to provide such mode of procedure as it saw fit. It is wholly a matter of state policy. The people of the state
might, by an amendment to their constitution, abolish the office altogether. The determination of the result of an election is purely a political question, and, if such suits as this may be maintained, the greatest disorder will result in the public business. It has always been the policy of our law to provide & summary process for the settlement of such contests, to the end that public business shall not be interrupted; but, if such a suit as this may be maintained, where will such a contest end? To illustrate, section 38 of the state constitution provides : “Each house of the general assembly shall judge of the quali. fication, elections and returns of its members, but a contesteul election shall be determined in such manner as shall be directed by law.” Whatever inherent power either house might have had to determine the election of its members if the constitution had been silent, its power under this 305 section is limited to the grant. It will be observed that the phraseology is substantially the same as section 90, relating to contested elections of governor and lieutenant-governor. Suppose these suits had been brought by two members of the general assembly, alleging, in effect, the same facts as are alleged in this case, would anybody suppose that the judiciary of the state would have the power to go behind the legislative journals, or to supervise the propriety of the legislative action, in determining the election of its members ? Could a member of the general assembly, who had received a certificate from the canvassing board, and been afterward ousted from the house to which he belonged on 1 contest, allege and show that the house had acted arbitrarily, depriving him of a pre-existing right, and denying to him the emoluments of the office for the term ? Could it be maintained that such action by either house of the general assembly violated any protection afforded him by the constitution of the United States, or that for this cause the action of the state authorities under the state constitution, by virtue of which he claimed to have been elected, might be overruled? This question was presented to the United States supreme court in Wilson v. North Carolina, 169 U. S. 586, 18 Sup. Ct. Rep. 435, where an officer arbitrarily removed from office applied to that court for redress. His case was dismissed for want of jurisdiction. If the state may arbitrarily remove an officer once appointed, we see no reason why it may not provide such means as it sees proper for the determination of its own elections. If it has not such power, then its sovereignty as a state exists only in name. The Congress of the United States bas, by the con.
stitution, the power 808 to judge of the qualifications, elections and returns of its members. In not a few cases it has been supposed to have acted arbitrarily in such matters, but it was never maintained that one who was ousted of his seat in Congress on a contest could take the matter into the courts to supervise the action of Congress on such grounds as are alleged in this case. Yet the power of Congress, under the constitution, in determining which of two claimants was in fact elected to a seat in that body, both being admittedly qualified, is, under the constitution, just the same as the power of our general essembly in determining a contested election for governor and Leutenant-governor.
It is earnestly argued that the general assembly was wrong in its decision of this case, and that it is a very serious matter thus to overthrow the will of the people. Whether the assembly was right or not in its decision it is not our province to determine. But a much more important question is involved in the case, which is the integrity of our form of government as founded by our forefathers. If the action of the legislature may be disregarded by the courts, then it is no longer an equal and independent branch of the government within its constitutional jurisdiction, but the courts become the final depository of the supreme power of the state. Judicial tyranny is no less tyranny because couched in the forms of law. There was great wisdom in dividing the powers of a republic between three equal and independent sets of officers. One operates as a check upon the other, and no greater blow to the perpetuity of our institutions could be given than to destroy this check.
For these reasons we are of the opinion that the courts of this state are without authority to enter into the inquiry 307 sought in this case, and that the journals of the general assembly are conclusive of the controversy. The judgment of the lower court, being in accordance with these views, is therefore affirmed.
BURNAM, J. The general demurrer to the answer and amended answer of contestees, which was sustained by the chancellor in this proceeding, admits that on the ninth day of December, 1899, W. S. Pryor, as chairman and W. T. Ellis, as member of the state board of election commissioners, certified that William S. Taylor and John Marshall had received the highest number of votes given for the offices of governor and Lieutenant-governor, respectively, and were duly and regularly elected to fill these offices for the term prescribed by the con
stitution; that at the election, under the operation of the state ute known as the “Goebel Election Law," the entire election machinery of the state was in the hands of the friends and partisans of contestants; that all of the election officers, from the highest to the lowest, were selected by the state board of election commissioners, or by their appointees; that the members of the state board of election commissioners were themselves fellow-partisans of contestants; that by the action of the election officers on the day of the election contestees were illegally, and in many cases fraudulently, deprived of a large number of votes in the various voting precincts of the state; that, subsequent to the election contestants had entered into a conspiracy with divers members of the legislature to nullify this election of the people by the institution of a fraudulent contest before them; that, pursuant to this conspiracy so entered into, the contest boards were selected by a fraudulent device 308 not by lot as required by law; that as a result of this trick ten out of the eleven members selected for the trial of the governor's contest were partisans of the contestant, and nine out of the eleven members selected as a contest board for the trial of the lieutenant-governor's contest were partisans of the contestant; that a number of the members of the general assembly selected on both of these contest boards were disqualified from sitting on the ground that they had advised that such contest should be made, and had promised to render them effective; that at least one member of the board selected to try the contest for the office of governor had wagered money on the result of the election; that the contest boards in the trial of the contests had acted throughout in an illegal, tyrannical, and arbitrary manner in the admission and rejection of testimony, and in the whole conduct of the trial; that they did not report to the general assembly any of the testimony which had been taken upon the trial; and that the general assembly, at the time they approved the decisions of the contest boards, did not have a particle of testimony before them, were not familiar with the facts, refused to hear argument, held their alleged meeting at which the contests were determined at a secret place without the knowledge of either contestees, or more than one-third of the entire membership of the general assembly who were thereby excluded from any participation in the action so taken at the time of the alleged determination of the contests in favor of contestants. It is also admitted that at the time the alleged action was taken by the general assembly on the second day of February,
1900, the legislature had been previously adjourned by the gove