Democratic Sentinel, Volume 10, Number 51, Rensselaer, Jasper County, 21 January 1887 — SMITH VICTORIOUS. [ARTICLE]

SMITH VICTORIOUS.

Robertson Enjoined by Judge Ayres, of the Circuit Court. The court said: This is a proceeding in the nature of quo warranto with an ap? plication for a temporary injunction pendente lite. The questions that arise in this case now are those that invariably come up in determining whether a temporary injunction should be granted. The defendant raises firs* the question of jurisdiction. It is contended that this action must be brought in the county w ere the defendant resides, and can not be brought in this county. Although the question is n?t free from doubt, I still thinkjthat the action may rightfully be brought in this county, where the alleged usurpation or attempted usurpation of the franchise of office occurs, * * * It seems to me that it is meant by the statute that the prosecuting attorney, in the discharge of his duties to the public, should take notice of any neur-

pation ot office or any unlawful holding or exercising the duties thereof in the county or counties in which he is prosecutor. Ido not think that the prosecutor was expected to take notice of usurpations of office in counties other than those m which he is prosecutor. For example, if some person whose place of residence was in Allen county should intrude himself into or usurp one of the county offices JJf Marion county, would it be expected that the prosecutor of Allen, rather than the prosecutor of Marion county, should take notice of such usurpation? I think not. I think the county where the tranebise of office is being usurped is the proper one, and 1 shall therefore adhere to my ruling against the defend tut on the question of jurisdiction. It is further contended that as the constitution provides that all contested elections for governor and lieutenant governor shall be determined by the general assembly in such manner as may be prescribed by law, that, therefore, no court has any jurisdiction to determine whether or not a lieutenant governor has been legally lected. As the constitution is not selfexecuting; the general assembly can try or determine contested elections only in the manner and in the particular kind of a proceeding that is prescribed bylaw, and only for the causes mentioned and specified in that particulai proceeding. Section 4,756 of the revised statutes in specifying causes for which an election may be conteste- provide no ground whatever for trying such a question as is presented here; namely, whether the election held was held at a time wnen it might lawfully be hell. If the court's therefore nave no authority to determine whether or not the election in controversy could legally have been held, there is no way to determine it. I think it does not follow that because tMe general assembly is authorized to try and determine contested elections, that therefore the courts have no authority to determine the title to an office in some other proceeding other than a contested election. But this proceeding is not a contest of an election as I think such as is provided for. While every contested election involves the title to an office, it does not follow that every proceeding to determine the title to an office is a contested election; this proceeding is not a contest to determine a contest between two persons; to determine which of them was elected where an election was held; but is one to determine whether there was any election at such a time as is recognized and provided for by law. I. do not think, therefore, that this is a contested election of which the general assembly has the exclusive jurisdiction to try But Ido think that the question presented is one of law, which the courts have the right to decide.

it is contended that the-defend-ant is entitled to have this procedure for an injunction continued, because the statute provides where either party is a member of the general assembly or lieutenant governor that, on the application of either party, the case should be continued until the expiration of the session of the general assembly. But this is an application for a temporary injunction to protect the rights of parties pending litigation ; to preserve the statu quo, and I think, therefore, that if a proper showing is made for a temporary injunction, that this statute could nave no application. The allegations of the’complaint as to the alleged usurpation on the part of defendant are somewhat contradictory. It is charged that the relator was duly elected president of the senate and is in "possession us the franchise of presiding over that body, br.t that the defendant has unlawfully intruded 1 himself into the officej of lieuten--1 ant governor and usurped some of his rights, and is threatening to and will, unless enjoined, usurp 1 the rights and duti » of president of th 1 senate. The defendant ad-

mits that he was declared elected to the office of lieutenant governor; that he did preside over the house and nineteen senators as a joint con ention and that he proposes to again preside over the joint convention when it meets for the purpose of electing a United States senator, but denies that he intends to use any force to obtain possession of the presiding office of the senate or the joint convention.

r As I look at it, therefore, it is necessary to pass upon the main question as alleged in the coinplaint—to determine whether, according to the allegations of the complaint, there is any usurpation. To determine this it is necessary to decide whether upon the facts alleged, the election specified was a valid one and whether such election oould legally have been holden. The constitution provides for the election of a governor and lieutenant governor at the same time, and provides that their term of office shall be for four years; and provides that the official term °f governor wed lieutenant governor shall commence on the second Monday in January, 1853, and'on the same day every four years thereafter, and further provides in case of the death or removal from office of the governor that the duties of th» office shall devolve on th®, lieutenant governor, and provides further that the general assembly ,shall provide by law for the case of removal from office, death,resignation or inability, both of the governor and lieutenant governor, declaring what officer shall then act as governor. There is no provision in the constitution for the election of a governor or lieutenant governo. to fill an unexpired term in that office, but simply providing for some one to succeed to the discharge of the duties of the office until a governor be regularly elected. The constitution provides that he shall be elected for a particular term, beginning at a specified time and to last for a period of four years. It does not provide for his election for any shorter period, and for these reasons, without attempting to give any additional reasons, that the eminent counsel of the plaintiff have stated in the argument, I think that no election could legally have been held at the time specified in the petition for the election of a lieutenan governor, and that, therefore, the defendant. according to the allegations of the petition, was not legally elected.

Under the allegations of the petitions of the relator, Smith, was elected president of thd senate, and had the right to preside, and therefore the defendant could not rightfully take from him or exercise any of the functions of the presiding officer of the senate, and if he did he w r ould, with-n the meaning of the statute, be usurping or unlawfully exercising such right or function. It is claimed by counsel for defendant that he is de facto at least the lieutenant governor, and that therefore, as a de facto officer, he can not be enjoined from discharging the duties thereof. It is undoubtedly the law that ordinarily a de facto public officer can not be enjoined from discharging the duties of the office. The reason is clearly stated. It will be observed . that the reason is not 1 ecause the court has no right to restrain him, but because public interest requires that the duties of his office shall be exercised by some one.—Ordinarily, the duties or functions that pertain to a particular office can be discharged by the holder of that office only, a#d if that office is vacant, or the holder of the office is enjoined, there is no other officer who can serve the public in discharging any of the duties of his office. In this case, however, so far as presiding over the senate i® concerned, that principle does not apply, because xhe president of the senate presides, and the public does not suffer for the want of some officer tot discharge such du ties.

In this particular case the ver , 1 reason that the r la.tor, as president of the senate, asks that the d fendant be enjoined, is that he may be enabled, without interruption, to disch rge such duties, it is a maxim of the la > that when the reason for the ride ceases the rule itself ceases. On the question of the power of the court in* a quo warranto pro-| reeding, I quole from High, on Extraordinary Legal Remedies, section 634. Not only will de facto public officer not be enjoined in the discharge of his duties but he will be protected in the discharge of them AV ha* are the facts as presented by the peti ion ( and affidavits filed in this application? It is clear th » relator was legally elected, etc., this session as president of the senate and that lie has ever since continued as the presiding officer of the senate, and is now, de facto, presiding officer, and if I am right in my view of the law that the defendant was not legally elected, because no legal election could then be held, then the relator is not only the de facto but is the de jure president of the senate. It is admitted that the defendant was declared by the speaker of the house of representatives elected lieutenant governor; that he took the oath of office and presided over the house of representatives and a portion of the senators in what was claimed to be a joint assembly, and that he did this claiming by his right as lieutenant governor to preside over the senate, and that he afterward notified the senate that he had duly qualified and w’as in possession of the| office of lieutenant governor and ready to preside over the senate, and protested ag 1 inst being excluded from the exercise of that function of his office, and that he proposes to preside over the joint convention to assemble on the 19th day of ) anuary, 1887, for the purpose of electing a United States senator, if he can do so without violence and breach of the peace, and not otherwise.

The question is whether this is such an usurpation’ or threatend invasion of the relator’s rights as entitles him to a temporary injunction. There is no provision of the statutes or constitution that provides who shall preside at a join* convention. That is determined by parliamentar • usage according to which the presiding 6'fic. r of the nigher branch of the assembly presides. The lieutenant goverernor, has no right or authority to preside over a joint convention.— When he presides, if at 11, it must be because he is presiding officer of the senate, an therefore as the relator is unquestionably the de facto pr siding officer of the senate as the president thereof, the defendant could not discharge that function of the president of the senate with put intruding upon his rights and duties. Therefore he has no right to interfere wfth therelator in the discharge of such duties, and even .f the relator was not de jure the presiding officer of the senate according to the authorities cited by counsel for defenda t as the de facto officer, would be entitled to protection in the discharge of his duties, and I think would be entitled to be protected from an invasion of his rights as such presiding officer, but this is certaily true if the relator is de jure the presiding officer of the senate. But it is la med by the defendant that while he intends to preside o er the joint convention, he i i tends to ’do so without violence or breach of the peace. I think that if the defendant is intending to unlawfully exerci e the rights which belong to the plaintiff. and interfere with his duties as a presiding officer, and intends to intrude himself into that office and attempt to discharge part of the functions that belong to that office, which, according to my view, he has no right to discharge, then he may be enjoined, even though no breach of the peace is intended. At all events he clearly has no right to interfere with the de facto presiding officer, as I think. Under the circumstances of this ease I think the in junct! n to prevent the defendant, so far as he is proposing to interfere with the rights of the relator as president of the senate is concerned, should be granted. I am more content with granting this ixijunchn. because the inter-! e.iU of Cht A iblic de*xu;n.l f ;.s I

t hint, that the supreme court sho’d pass as soon as possible upon the questions whicli arise in the application; and the only way in the absence of an agreement of the parties,which seems impracticable, that this ease can now go to the supreme court is by gr nting this injunction, and if 1 am wrong it - an be righted in a very few days before any great injury can t e done the.defendant by this ruling, and I hope befoT&dhe- joint convention. On the other hand, if not granted, the relator could not appeal and he could not get the question to the supreme court lor their decision until after the trial of themerits of the case in term, which would delay the matter for a long ime, although as appears from the affidavits and admissions of the defendant, there is practically no dispute of fa< ts between the parties to be tried, but simply questions of law 7 to be decided.

Editor Pharos—The Journal says the value of our imp mts of foreign goods last year was $700,000,000, and 80 per cent of that labor, and on that builds an argument in favor of protection. The statement of the c st of the labor employed in manufacturing these imports is wholly untrue. The amount paid for labor is not 20 per cent, much less 90 per cent. The protectionists continually assert that labor is cheaper in Europe than here, and that they must have a high tariff tax on manufactures, or in other words be permitted by the law to exact a bounty from every purchaser to enable them to compete with the foreign manufacturer. Now our census returns of 1880, prepared by a Republican tariff spoliation tax administration gives the cost of the labor in the entire manufactures of the United States at less than 18 per cent, of the value of the product. As labor is cheaper in Europe than here, according to the oft repeated assertions of the Journal, it follows that the cost of the labor in our import of foreign manufactures is less than 18 per cent, instead of being 90 per cent. I regret that any member of the press should permit itself to be betrayed into such reckless statements. They deceive for lu a short time. The demand for ft material reduction of the outrageous tariff tax is founded on sound economic principles, and will prevail, and that in the near future, and cannot be prevented or retarded by such mis-tatements as those of the Journal. Laborer.

- — —- The United Statc.s lias a law called the “Tree Culture” act, under which settlers can procure i government lands by simply plant- . ing so many trees each year, and in ■ addition raying the stipulated feeslat the Land Office. The aim, of I course, is t > stimulate the growing . timber. It requires a great I deal of timber to meet t e demand in this great country of ours, hei.ce the great forests are fast being depleted and will soon be a thing of the past, In view of this fact would it not be well to take off the tai iff of 82 per thousand on lumber, and cease p T otecting Canadian forests at the expense of our own, as no one receives any benefit but the lumber lords, and why should t ay leceive it at the expense of the consumer, when we could just as well save our forests and pay less money for our lumber? The law, enacted by republican lawmakers, is certainly liberal, it requires the people to pay a bonus for the destruction of f rests, and another bonus for their reproduction. -

“Taffy” all. Abound.—The Indianapolis Daily Journal of course goes to press at 2 or 3 o’clock m the morning. The Journal of .Wednesday morning of last week copies, with credit, from the Message, its reference to the Thompson Temperance bill, although the Message had not gone to press when the Jouanal rea- ers at this place, la'e in the evening were perusing it. How was that feat ac- ! com Dashed'? That’s a conundrubum! ! Again, our Republican organs - the “Republican” and ‘Message’ —this week contains what purports to be a constitutional argument by the Bober(t)son muddle, Monday last, by Mr. Thompson ,We fail to find in the published proceedthat v.r geaatvi addressed

he Senate on that subject. Are the organs giving Mr. T. ‘taffy?’ The lunch and meais, gotten up by Antrim are attracting a patronage *o that establishment highly appreciated by the proprietor thereof. Antrim says his aim will be to deserve it. It is amusing to hear the curses, loud and deep, pronounced against the Democracy by the very fellows who applauded the infamous and gigantic steal which elevated Fraud Hayes to the Presidency. The Republican declares there is “m re unmitigated cussedness * * * in the democratic party of Indiana than in any political party in the Unit d States,” and the Message shouts ‘'Usurper Smith”. •The “organs” expect by such exhibitions of wrath to establish their orthodoxy in radicalism.

We call attention of our readers to an advertisement of the Chicago Cottage Organ Company in another column, and we take pleasure in recommending to the general public a company whose Organs have attained a popular reputation for their superior musical qualities, art stic beauty, and general excellence. This company ranks among the largest and best in the United States, having capacity for manufacturing 1200 Organs per month, and its organs are shipped into nearly every inhabitable portion of the globe. The members composing the firm of the Chicago Cottage Organ Company are men. of experience, in tegrity, skilled in their line, con duct their business on an equitable basis, and their future is destined tc? be a bright one. Buy overcoats for your boys at Ralph Fendig’s. He has a splendid stock, good goods,. t the lowest figures.