Indianapolis Journal, Indianapolis, Marion County, 29 January 1887 — Page 4

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THE INDIANAPOLIS JOURN"AIk SATURDAY, JANUARY 29, 1887.

THE DAILY JOURNAL. SATURDAY, JANUARY 20 1SS7. , tYASlllNGTON OFFICE 513 Fourteenth St. I S. Heath. Correspondent

Telephone Calls. Business Office. .....239 1 Editorial Hoom 242 THE SUNDAY JOURNAL. The Sunday Journal to-morrow will be fall of tbe vory beat of reading. The special features consist of an original story, General Badeau's paper on Grant and Fish, a Mexican letter from ex-Mayor Grubbs and poems by . James Whitcomb Riley and Evaltren Stein. All the regular and miscellaneous features will be fully sustained. The recent demand for a new car-heating device, doing away with stoves, has resulted in the filing of three hundred applications or caveats for patents. k Out of all these it should seem the long-felt want ought to be filled. TnE Bhelbyviile Republican has come out etrongly in favor of woman suffrage. The State press has been a little slow in adopting the position assumed by the Journal some years ago, but one by one the papers are falling into line. TilE latter part of the argument of Senator JTarrison, upon the right cf the people to elect a Lieutenant governor for a vacancy, is spe--tially deserving of general reading. Its clearness and force are inimitable; and it is fortified by quotations from the debate in the constitutional convention which settle the question beyond possible controversy. TnE Commissioner of Pensions estimates the number of surviving soldiers of the Mexican war entitled to pensions at 34,74S, and of widows, 13,826. To examine the claims and perform the clerical work arising under the new act he asks for an increase of 221 employes in his office, mating an addition to the pay-roll of $257,000 a year. A member of the British government informed the London correspondent of the New York Tribune that Secretary Bayard, in the official correspondence on the fishery question, admitted "that little or no fault could be found with the attitude and temper either of the British or Canadian government." Tbis is Secretary Bayard, all over trying to tickle Englishmen by fawning on them. A decision by the Supreme Court, yesterday, recalls the frequency with which telegraph companies escape the statutory penalty of $100 for neglect in transmitting messages. The act of 1883, which superseded previous legislation, singularly omitted to make neglect a ground of liability, as is found in the previous statute; and the court, under the rule that penal statutes should be strictly construed, decides in favor of the companies. The clause, if the companies are to be held to this liability, should be restored. TnE Philadelphia Record, though a Democratic paper, usually shows a disposition to be fair in its judgments; but when it places the unseating of McDonald and that of Meagher, and the seating of their opponents, under the same category it forfeits its reputation in that respect, and also demonstrates that it has not read the Journal with proper care. Had it done so it would have known that there was nothing illegal or unjust in the rulings in the Meagher crsr; that he was given, and used, ample opportunity for defense, and that the question of bribery did not enter into the contest at all. Ordinarily it is not worth while to correct Demooratic misstatements, but in this instance it seems worth while to protest. In the form of an interview with a correspondent of the New York Herald, Gen. Phil Sheridan gives his views in regard to coast defense, and how it could be accomplished. He favors a system of defense by which guns aud men will be concealed and no visible target presented to the enemy. He says he ha had the idea in his mind for twenty years, having first applied it fighting the Indians, when he had . his men protect the stations on the Pacific railroad, by digging square pits in the ground, with a covered way to shoot from, and it was found to be an excellent device. This idea has developed a process of mental evolution into an elaborate plan ofjeoast defense, including sunken emplacements for disappearing ordinance to te worked by pneumatic or electrical machinery, and many other interesting details. The General says he has given the subject much thought, and is satisfied that his theories are sorrect and can be successfully applied. The present week has been an interesting one to the live-stock breeders of Indiana, no less than five State associations holding their annual conventions in this city. . These associations, in the order of their assembling, are the sheep-breeders, the short-horn cattlebreeders, b wine-breeders, trotting and pacing horses, and Jersey cattle-breeders. They have been attended by representative farmers and breeders from dhTerent parts of the State, iach interest being much more numerously tepresented that at any former meeting. Many valuable papers have been read, and the discussions of practical topics by practical men have been interesting and instructive. This activity among live-stock breeders is a sign of iealthy progress. The interests they represent are of enormous pecuniary value, and their proper development enters largely into ihe general prosperity of the Commonwealth ind In fixing its rank, and place among the sisterhood of Stateg. Indiana is essentially an fricultural State, and always will be. Our . Cftnufacturingmining and commercial intor-

ests arc each important,- and their steady development is a matter of congratulation with all who are interested in the progress of the State; but in magnitude and importance they fall far short of the agricultural interest. That is th corner-stone, the bed-rock, the great underlying interest of all. And the associations which have been holding their meetings this week represent a very important branch of it. Successful farming means mixed farming, and this necessitates livestock culture. The development of this in

terest U a Rure index of the development of agriculture in eeneral. which in turn is the key to prosperity in all other branches of in dustry. The associations referred to are do ing much to advance the several interests which they represent, and they have also acted wisely in forming a joint association called the Improved Stock-breeders' Associa tion of Indiana. There are many things in which all stock-breeders are alike interested, cattlemen and horsemen, swino-breeders and sheep-breeders, and while they discuss their separate interests in their separate associa tions they should have a general association to look af tor the joint interests of all. This consoh-iated association can be made very useful in this direction, and should receive the cordial support of all stockmen. This or ganization is one of the eood results of the meetings held this week. No apology is needed for the space occupied in this issue of the Journal by the report of the argument of Senator Harrison before the Supreme Court yesterday afternoon. Bv all who heard it, Democrats as well as Republic ans, it was agreed to be one of the finest legal arguments ever made in that court. It dis cusses the entire question presented by the case at bar, and particularly does it emphasize the fundamental and vital interdependence of the co-ordinate branches of our system of government, which is so seriously threatened 07 the proposition that the judiciary can, practically, control not only the executive, but the legislative branch as well. Senator Harrison brushes away the paltry quibble that, because the Question is presumed to be whether the election for Lieu tenant-governor was held at the proper time, it 13, therefore, not a 'contested election," and can be taken out of the jurisdiction of the General Assembly. If upon a question of an improper time, why not upon any other question, except some narrow construction of the word ''contested" that the court may see nt to makei . suppose mere should, be a contest of a member's seat in the General As sembly upon the question that the election by which the sitting member claimed, was not held at the proper time, there bei ng no vacan cy as migut readily arise in tne case of Senator McDonald, of Whitley, for instance would any man in his senses say that such a question could be taken into the com ts when the Constitution has made each house the judge of the election and qualillca tions of its own members? The idea is pre pesterous. "Why, then, with reference to an election for Governor or Lieutenant-governor upon a similar question, when the Constitution has reserved specifically the decision of the election of those officers to the General Assembly? There can be no more wild and dangerous position assumed, that for any reason or under any possible circumstances, the judicial authority can determine upon the election of a Governor or Lieutenant-governor. If that can be done, then good-bye to the three co-ordinate departments, and we have what 1 - Jefferson called the tyranny of the Supreme Court. House bill No. 109, to provide for a livestock sanitary commission and a State veterinarian, and to prescribe their powers and duties, has been ordered engrossed. It is an important measure, intended to protect the live stock interests of the State. It was introduced by Judge Buckles, of Delaware county, himself a live-stock-breeder, and had i,he support of leading stockmen and farmers through out the State. The bill provides for the ap pointment by the Governor of three commissioners, who shall be practical agriculturists and identified with the live-stock interests of the State, and who shall be known as the "State Live-stock Sanitary Commission." The commission shall appoint a competent State veterinarian. Their duties relate to the prevention and suppression of contagious and infectious diseases among live stock, and they are clothed with full power to act in the prem ises. Such a measure is demanded by the live stock interests, and the pending bill, if in proper form as to details, ought to pas3. A few days 8go the manager of a "Black uroou.' company, in asw iorK, invitaa a number of prominent clergymen to attend the per formance. One of them, in declining, invited the company to attend his church. They have accepted the invitation, and will attend next Sunday in a tody. They will probably feel as strange there a3 the preacher would at the theater. to the Editor of the Indianapolis Journal: Please answer, through the columns of the Journal, the following questions: (1.) Is Green Smith the fraud President of the Senate a hold over Senator, or was be re-elected last fall? (2. ) To what political party does Judge Ayres, of the Marion Circuit Court, belong! Cambridge: Citt, Jan. 28. (1.) He is a hold-over. (2.) Democratic. Indiana fowls carried away a large number of blue ribbons from the Atlanta poultry show. When the proud Hoosier bird mounts the back fence and exercises his tenor voice, let no nervous listener cast a stone; he has earned the right to crow. 1 1-4-73 turns Up of tener than 4-11-44. The lucky figure is, however, somewhere in the seventies. - What both parties are longing for in the sena torial etruggle the da'ya of. 76. -

COL. BOBEBTSON'S APPEAL.

The Argument of the Case Before the Supreme Court Judges Yesterday. The Two Leading Candidates for United States Senator Speak in Behalf of the Contestants for Lieutenant-Governor. Gen. Harrison's Argument One of the GrealesrEver Heard in the State. Fall Text of His Presentation of the Law and Facts Bearing Upon the Qnestions Involved in the Case. The interest in the argument of the lieuten ant-governorship case before the Supreme Court yesterday was intensified by the fact the speakers are the two leading candidates for United States Senator, and a desire to hear their presentation of a case of much political importance attracted to the court-room many more people than could gain admittance. Every inch of avail able space in the room was occupied and eager listeners being about the door and in the hall. Judge Turpie's speech in the morning covered about the same ground that he went over in arguing tne case in tne lower court No new point wan made. Senator Harrison's argu ment in the afternoon was frequently Inter rupted by interrogatories from Justices Mitchell and Zollars, all of which were readily and fully answered. At the end of the two hours alloted him, the court offered to extend his time, owing to the interruptions, but the speaker declined to avail himself of the offer, thanking the judges for the patience and atten tiveness with which he had been heard, Several times he was interrupted by applause from the listeners, and the argument was gen erallv pronounced bv those who heard it as the greatest ever delivered in the State. It was especially astonishing to lawyers, from the fact that there had been little time for preparation, the Senator having entered the case within the last few days. The Argument by General Ilarrison. May it Please Your Honors The case at bar is, in some of its aspects, one of unusual significance. It takes us away from the consideration of those rules which apply to ordinary contracts between individmls to a study of the philosophy of government It has other aspects which are quite familiar, which present questions not more difficult and not different from those which this court i? in the habit of dealing with incases involving the most petty amounts of property. I take it that logically, in the consideration of every case, before a self-respecting tribunal, the question of jurisdiction is first. Whether that question relates to the jurisdiction over the individual who is brought by summons before the court, or to the 6ubject-niatter involved, it is a threshhold question. It is usurpation for this court, or any court, to give judgment in any case where it has not jurisdiction of the person and of the subject-matter. I am aware that in certain quarters there has been a degree of restiveness and even an indulgence in brutal criticism because these obvious considerations in a previous case had tbe consideration of this court and the court could not be driven over a threshhold which was barred against it by the Constitution and the law. It is an insulting proposition to any court that it 6b ail, for the convenience of any man or any combination of men, enter into the consideration of any questions which the law and the Constitution do not submit to its judgment We have here, as I have already indicated, first, a question of jurisdiction over the person of the defendant, Robert S. Robertson. He is sued iu Marion county, while the record shows that his residence is in Allen county. The first question is, can he be impleaded by any one in the form of action here adopted in any other county than that of his residence? The learned counsel have had recourse to some euegestions as to what the common law of venue is, and the defense 01 this jurisdiction seems to rest upon these views 01 tee common law. is venue a matter of the common law in the State of Indiana? Were the diligent counsel able to cite any decision of this Court indicating that the common law might bo resorted to in the de cision or fcnch a question? we nave general provisions of our code intended to cover, and actually coverincr, all classes of actions, and in dicating the legislative intention as to the forum in which such actions might be brought This pction is called in argument quo war ranto; our statute calls it "lnrormation." It is not called information in the nature 01 quo war ranto, or quo warranto, but simply information It does not relate exclusively to tne case 01 an intrusion into an office, but embraces several other subjects; it embraces an intrusion into a franchise; it embraces the case 01 a corporation assuming to act as sncn without authority or law; it embracps tne case of an escheat of prop erty; it embraces the case or a patent or deed, made by the State, and its annulment; all of these are embraced in the article of out code en titled information. There is nowhere in all of these subdivisions or subjets, which mav be brought to the attention of the court, by infor mation, any expressed declaration of a veuue, in the case or escneat, ana in tne case or an action to annul a conveyance or deed there is no suggestion of any. My recollection is that even the terms "in the Circuit Court of the proper county" are not used. In connection with the subject of the intrusion into an office it is said "the action shall be brought in the Circuit Court of the proper coun ty." I he learned counsel say that establishes a venue witnout reierence to anv other statute. What is it in this case? They say "that county where the intrusion or the particular act of in trunion complained of occurred." Now, in order to maintain their position they must establish two propositions. First, that this is not a proceed ine governed by the general provision of the code fixing the venue of civil actions; secondly. that this special statute itself establishes some venue. The counsel say: "We do not controvert the preposition that this is a civil action." It seems to me when that admission is mad the argument is abandoned, unless it can be shown that some other venue than that described in the section of the code reiatmg to the general subject of venue and the commencement 01 actions is pro vided in this special proceeding. I do not controvert the proposition that if in this article entitled "information" a particu lar venue was declared it would be controlling of the general statute. But I insist that it is not declared by the words "the Circuit Court of the proper county,' because those words ODen the question, "What is the proper county? How are we to determine it? "Oh," say these eentlemen. "upon the opinion of the particular court as to what county in a given case is convenient So we are remiuea 10 tne opinion or the judge as to what is convenient Instead of beinc di rected to a forum where the relator mav know that there is jurisdiction, he must either him self decide tbe auestion or convenience or take in aavance tne opinion 01 me court It your Honors please, in all these classes of special pro ceedings replevin, attachment, ne exeat, man , - aate, naoeas corpus in every one or them, unless avenue is "particularly described in the special proceeding, this court, whenever the question has been brought to its attention, has determined it by reference to the general statute upon the subject of venue. The learned cousel said, this morning, there 1 m was no declaration 01 a venue in the article relating to habeas corpus, but that it was brought upon this principle of convenience in the county where the party was restrained of his liberty. It must havo been an inadvertent statement, for the statute on the subject of habeas corpus expressly confers jurisdiction upon me conns 01 iue county wnero the re straint takes place. Now let me hastily run through 60tne of these rrt 11 m " . casus, mey are au rererrea to, with, one or two exceptions, iu this brief which wo will sub

mit to the court The first is a proceeding to

disbar uuder the statute. The statute says that it may be had "in -any court of record. And vet. when the subject came to be reviewed by this court it was held that these words must be construed with reference to the other statutes conferring jurisdiction, and that the Criminal Court, though a court of record, unquestionably, did not have jurisdiction of this special proceeding. The next special proceeding in which such a question arose was under the drainage act, a special proceeding in a very strict sense. And in that case the statute provided that the action should be brought "in any court of competent jurisdiction." Are not those words wider than the terms "in the Circuit Court ef the proner county?" Do not tbe last terms contain within themselves the su?gestion of a reference to some other statute fixing the venue of actions? But here it was said: "May be brought in any court of competent jurisdiction," and yet his Honor, Judge Zollars, construing those words, held that the action must be brought with reference to the general provisions as to venue in actions relating to real property. Again, there is no special provision in the article entitled "mandate" as to venue; and we have a case in which this argument, drawn from a supposed convenience, was disposed of by this court. If the argument of convenience, which Judge Turpie so much pressed, has iany force, has it not equal, if cot greater, force in the case of mandate, where the act the official act which tbe party declines tb do, must be done ia a particular locality? He says convenience must control where an official act has bpen done that amounts to intrusion into an office, and the court is asked to restrain it; but, in case of the refusal to do a particular official act, which must be done in a given locality, would not the argument be stronger that, as the act was to be done in a particular county, the action would lie in tbe courts of that county? And yet, if your Honors please, we have a case in which, notwitstanding this argument of convenience, this court has remitted the party to the courts of the county where the defendant resided. The case of The State vs. The Whitewater Canal Company, in 8tb Indiana, is the case I refer to. It was a mandate to compel the rebuilding of a bridge in Dearborn county. The refusal to discharge the official duty was there. And yet this court held, notwithstanding it might be convenient that the courts of Dearborn county should supervise the execution of this corporate duty, that the action must be brought in the county where the corporation had its of flee. The court say: It is assumed that this action ia local in Its nature and must be brought in the county where the duty sought to be enforce is to be performed. Precisely as the gentlemen say here it must be brought in the county where the intrusion into tne office has occurred, and yet the court said the code points out and defines the subject-mat ter of the actions which must be instituted in the county in which the subject of the action or some part thereof is situated, but the case at bar is not within the definition, and, therefore, it was held that there was no jurisdiction in Dear born county. Let us take the action of replevin, another special proceeding. In the case of Hodsoa vs. Warner, m COth Indiana, Judge worden. speak ing for the court, says: It is claimed that an action of replevin is local, and must be brought in the county where the property is detained, and that unless the complaint shows the de tention to have been in the county where the action is brought, the court will have no jurisdiction or the subject thereof. Here, aeain, the argument of convenience might be made. The property is here detained It will be convenient if the venue and determi nation of the case is here. But the court say: Authorities are cited to show that, at common law, the action of replevin was local. Just the suggestion we had from the learned gentleman this morning. But this is a matter which is regulated by our otat ute. 1 he statute provides And this statute referred to is the general statute on the subject of venue not any special statute in this special proceeding The statute provides that certain actions shall be brought in the county where the subject thereof is situate, or where the cause thereof arose; but the ac tion of replevin is not mentioned, or thus localized. Then it is provided in Section 33 that "in all other cases the action shall be commenced in the county where the defendants, or one of them, has his usual place of residence." So it was then held, notwithstanding the refer ence to tne common-law rule as to venue in re plevin, notwithstanding the suggestion as to the convenience in such case, that, replevin, special proceeding a3 it is, is governed by the general statute upon the subject of venue. So acain with proceedings in bastardy, in the case of Haley vs. The State, 69th Indiana. Sec tion vbo provides that such a proceeding may be commenced before "anv justice cf the peace without any limitation as to the county or town ship in which it is brought Yet it is held in this case. Judge Niblack delivering the opinion Such proceedings hems transitory in their character un ier the code must be commenced in the. county in which the defendant resides when he is a resident of the State. The argument of convenience might well be used here. It may be that the mother resides here. It may be that the putative father may not be found if there is any delay. All of these suggestions as to convenience apply strongly. But tbe court has not left the venue of these actions to tht whim of the judge, but notwith standing the inconvenience that may attach has settled upon general principals regulating them. Attachment and garnishmeut I micht refer to as other special proceedings, although they may be said to be it some sense ancillary to another action and venue may be determined by that fact; and yet in such cases the court say the general rule in relation to personal actions is de clared by Sec 312 of the Code. In this section as amended it is provided: In all other cases the action shall be commenced in the county where the defendant or one of them has his usual place of residence, It was held that the Wabash Circuit Courthad no jurisdiction of a proceeding in garnishment Now, if your Honors please, I want to call attention to the case of the State vs. The Board in 4yth Indiana. I his was a case where a statute was passed providing that a certain action to be brought by the Auditor of State for the failure to properly assess or collect certain taxes might be brought, as the statute said, "in any court of this Stat." A State officer was to be the plaintlft or relator, and the statute said he may brine the action 'm any court of tbis State." And yet this court construing those terms, apply those general principles as to venue of which I have been speaking. They say it could not have been intended by the Legislature that this action brought by Wildman as Auditor, against the Commissioners of Vanderburg county, could be brought in Marion county. Again they go back and take hold of these general provisions of our code as to venue, and they diminish the force of the legislative expression so as to brine it within the control of these general provisions. The court say: By the sections of the statuta nho-ra Bpf nnf fliA action therein provided for may be brought in any court of this State. If this language is toreceive a literal interpretation it will lead to results that we tninic were not contcmplat&d by the Legislature. And then they go on and say that it muat be controlled by the general provision as to venue. auu noiu mat me action against the commissioners of Vanderburg county, notwithstanding that statute, must be brought in the county of Hii'icruure. 1 here is another case, if your Honors please, to wnicn 1 wish to call your attention, to show you how strong the the tendency and drift in this court has been to subordinate all of these special proceedings to the general rules of prac tice ceunea oy our code. It is a case in 105 In oiana. 1 his was a divorce case and the question was, if I recollect, whether a change of venue might be allowed. Your Honors can see now radical the question is, whether this special proceeding of divorce, a nroceedir? nndoi. th Enplish law in the ecclesiastical courts, is to be treated under our code as a civil action, and the provisions of the code as to chances of vennn made applicable. This was an opinion by Judge Zailars, and I believe the case cited in the opinjuu was Biso aeciaea oy tne same learned judge. I read a paragraph or two: in me recent case ot Fowell vs. Powell, 104 Tnd v 1 1 v. " ''"'""aiiuu ui ine question, it was ucm mat, uero ics procedure is prescribed in the divorce act, that should be pursued and not the niv-1 code; that so tar as a procedure is provided in that act, it may be called a special proceeding, and that VlerB" V apparent mat tee Lieeislature intended that certain sections of the civil code should not applv Notice the lancuage! "Where it is apparent!" Aim x at&. your Honors to appiv it, and tell me what there is in this article establish inf t.hA sno. eiftl proceeding by information that makes it ap

parent that the Legislature intended that those sections of the code relating to venue should not apply.

It was further held that nnder the code divorce cases arc, in some sense at least, civu actions, ani that the rules of pleading and practice provided, m trie civil code will apply to tf:em, except to the extent that a different procedure may be provided in the divorce act. and to the extent that it may be apparent that the Legislature intended otherwise. This indicates the drift of the court, as well as the other cases, to bring these special proceeaings, so far as rcay be done without violence to the special statute, under the control pr tne general statute regulating the practice in our courts. As a result of these holdings, it was further held that the above section of the civil code providing for a change from the judse is applicable to divorce cases, and that, upon the filing of the proper affidavit under that section in any case, the change must be granted. ve can see no reason why tha reasoning and conclusions in that case are not applicable and controlling here. Changes of venue are provided for in order that parties litigant may have fair and impartial trials, and nenee the provision for a change from an interested or biased judge, and hence also the provision for a change of venue from the county where one of the parties may have an undue influence over the citizens, or where an odium may attach to one of the parties, or to his cause of action or defense on account of local prejudice. Now I read again: The more rational conclusion would seem to he that the intention was that such cases should be tried m impartial tribunals, and that as no provision is made in the divorce act for reaching such tribunals by a change of venne, when necessarv, the intention was that resort might and should he had to the code of civu procedure. There is nothing in the divorce act to show or indicate an intention on the part of the Lesrislature ttat the above section of the code, provid ing for a change of venue from the county, should not be applicable to a proceeding for a divorce m a proper case, unless it be the fact that no such change is provided for in that act, and that the case must b8 commenced in the county where the plaintiff resides. Now, if your Honors please, I use that case to show that a proceeding in an especial sense spe cial, regulated by a statute having no reference anywhere to these provisions of, the code as to change of venue, the rule was established, applicable to all other such proceedings, that the provisions of the general code as to practice not in consistent with the provision of tbe special statute should stand; and I venture to say that without overriding the principles of that case the conclusion cannot be avoided that in tbe case or quo warranto or information the general provisions of our statute as to venue must apply. Indeed, in the use of the words "The Circuit Court of the proper county," as I have already said, there is a suggestion of reference to another statute to determine what is the proper county; the legislature did not need to repeat what had been elsewhere enacted, but adopted it by these words of reference. If your Honors please, it is not in a strict sense an information that yon have before yon. It is an injunction case. To be sure, that ia ancillary to a proceeding by information, but the appeal is from an order granting an injunction. Is there any doubt, may it please your Honors, that in the case of an injunction the venue is in the county of the defendant's residence? Can there be any doubt about that? It seems, then, that in their own judgment this article entitled "Information" was not so special, not so complete in itself as prescribing a new and exclusive remedy, and all its attendants and circumstances, but that they might go out and incorporate with it an action of injunction, where tbe venue, as 1 cave already said, is admittedly and confessedly controlled by the general statutes. The court has been compelled to adopt tbis construction in dealing with these special statutes. There was no provision for trial by jury in the quo warranto act If the courts are to treat it as complete, as dealing with the subjeet fully, and are not to look to other statutes as incorporated; if they are not to treat it as a civil action, and give to the trial of such cases all those incidents, privileges and limitations that belong to civil actions, then there is no trial by jury; and yet the court, in a case referred to, decided that a trial by jury was allowable because it was a civil action, and the trial by jury in civil actions is guaranteed by the Constitution. Here we have, then, a civil action, special if you choose to call it, without any definition as to what the venue shall be, and we have a general statute regulating civil actions, declaring, as is admitted, that in a case like this the venue is in Allen county. So I say. your Honors, this is the threshold question. You must step over it or trample it under foot before yon can invade the consideration of questions that lie further along in this case. And again, I repeat, whatever source it comes from, whatever needs it is sunposed to eubserve, it is brutally insulting to eay to the Supreme Court of Indiana that they should consider questions and decide the riphts of a roan over whose person they have no jurisdiction; to say that because he is called here in this information a usurper into an office this high court must usurp functions which 'have been denied it by the law, in order to cure one usurpation by another. But, if your Honors please, if it were estab lished that you had acquired jurisdiction over the respondent here, there is still another threshold question to be considered, and that re lates to your jurisdiction of the subject-matter of the case, iioth these conditions must exist, or any opinion you may deliver upon the ques tions involved; other than these is obiter, is in trusive, is, so rar as they may fortify , any man in a course of action which he baa entered upon. making this high court subservient to uses that were not contemplated by law. WThat are the jurisdictional questions as to the subject-matter that are presented! I think there are two. if your Honors please, as this case now presents itself. First, have the courts of this State the power, under the Constitution, to try the title to the office of Lieutenant-governor1 Secondly, if that be conceded, have they power, by injunc tion, to invade the legislative halls, and restrain a co-ordinate department of this government from the exercise of its will and pleasure? Be cause, if your Honors please, I think this action, in that aspect of it tbis injunction restraining oionei itooerieon rrom presiding over the benate of Indiana not at the solicitation of the Senate, not because tbe Senate has expressed to your Honors any such wish, not be cause they have appealed to you for protection. but at the Kuppestion of a man, an individual, that vou should issue your writ of injunction, and say to the Senate of Indiana for it is so said whenever you say that oionei uooertaon shall not preside as Lieuten ant-governor you shall not allow the respondent to preside you restrain the discretion of the Senate itself. Whenever vou sav. as this writ and I roust criticize it in res'nectfnl trm much as I resent the idea that any court in the United States can intrude into the legislative hall9 anywhere in these States, or in our eeneral government, constituted on one model of three co ordinate departments of government, that any court can intrude into any legislative hall and say to the body a particular person 6hall not preside over your deliberations. But I should discuss these Questions in the order in which T have suggested them. Is there jurisdiction in the courts of Indiana to try the title to the office of Governor or Lieutenant-governor8? I say Governor or Lieutenant-governor because, may it please your Honors, if you have the jurisdiction to try the title to tbia office claimed by Colonel Robertson you have the jurisdiction to try tne title of Isaac P. Gray as Governor of Indiana. Whv do 1 Hpnv thi ir.idiction? Because, if vour Honors nbisA tmn w juur jurisdiction, it aoes not em orace every subject or every person. Tt is lim. ited in both directions. The Constitution of Indiana provides that the judicial power shall be vested in a Supreme Court, and circuit courts, and other subordinate eourts, or other courts. I believe the word "subordinate' ba V.aa stricken out by the amendment. RntifTflnd in the same Constitution an express grant of judicial power iu a given case to another tribunal over a particular question, how are these two grants to be construed? Ia not tha fen Aral grant to be construed as if It had been made ex-, phcitly and in the same section subject to the exception which is found elsewhere in the Constitution? I do not hesitate to declare that without reference to this provision in our Constitution to which I shall presently call attention, if it rested upon the general declaration establishing three co ordinate, co-equal and co-sovereigu department of this government the Supreme Court of Indiana, without a special grant of power in the Constitution, could not determine the question in the case of a contest sj to who was or who was not the Governor of Indiana. And why, if your Honors please? The very idea of co-ordination, the very essence and principle of sovereignty is gone whenever this court may say you are and you are not Governor of Indiana; you 1 will enjoin from exercising executive functions. Oh. but say the learned counsel, the courtdoesn't acton the executive department; it acts on the person. Wise distinction! Worthy ot that subtle refinement o: ia-

tellect for which my friend Judge Turpie is

conspicuous, lo be sure it matters litt! it n court act upon Isaac P. Gray as &n individual and expels him from the office of OovcrnA.fi the result is the same precisely I'.l they had acted upon the executive denarm.r I They have create! ed a vacancy, or; at their o,. sweet will, have installed another installed another in hi ti,-" 1 If your Honors please, that tribunal any when l liinv cu oauci ujo Linn T-ArvimvB ana tint . other in his place dominates the put execmivA j partment 1 suppose ray friend would sav th if I should seize upon some one of the who ara so kindly attending to what 1 am sa. . ..Y, Vim nut nf tliA n-innm .1... , oa-D2 auu piibii uiui vu w. t i .-. uvrr, mat 1 Wiinli be dealing with the person simply, n0t with th court, and yet the distinction would be one ht I think neither the judge that went out ofh window nor the four that remained here would appreciate. -No, 6ir, the doctrine that the courts and i your Honors please, it is not simply this aniri atlmiei tribunal, but the Clarion Circuit Posey Circuit Court may expel or install n. chief oxecutive of Ind.ana is not to be tadmittei Now there is, I think, a misconception r thought that iu some of the questions propound.'A Vit tb inilwa this mtsmnAAntinn aj apparent We are so much in the habit of think ing and saying that the courts are to settle all1 disputes of every sort, and this court is bo mnch in the habit of regarding itself as the Sa. via tt preme ttpjieuaio vuum ui me of Indiana, having jurisdiction of all Stati Quel. tions, that you have not, and r,nni ly, considered the questions which are seldom presented to us, as to the limits of your power And so, popularly, we say, whenever any qnes. tion arises, "Take it to the Supreme Court Let us have their opinion about it" The courtj inemseives, x uiay tnf nauuuv ny Glsreeoect have come to regard their functions to be thai of the mother hen to cover everything that ii in alarm or dispute. No one rejoices more than I, if your Uonoti please, that those questions of personal right which were once left to the arbitrament of forc may be now confided to the seaceful adjadic! tion of courts. But is quite another question whether the Supreme Court of this State, or of the United States, can make and unmake tha chief executive. It was suggested, in case a usurper enterea into the office of Governor Gray, and expellej him and got possession of the great seal, if it in his custody, whether this court could not thrn that usurper out Why, if your Honorj please, the Constitution of Indiana has not left the chief executive to that, ready and willing and. I have no doubt wise belD which you would render him by sending your sheriff to his rescua in a case like that It has constituted him a coordinate, self -contained, self-defended branch of the government of the State of Indiana, It hat put at his disposal the army and the navy of tha State. He does not need to appeal, in the de fense of his perogative, when, by the fortnalitiei of the Constitution, he has been inducted into tha office, to the sheriff ot any court Your sheriff is for your protection. He has a right to call upon the body of the community to pra-, serve your dignity, to repress intrusion and to punish contempts. But the executive and, may I not suggest the Legislature of thi State, is clothed in its own right with ampla powers of self-protection. I do not think thai the Legislature, or either branch of it, could allow any executive ofSser or administratira officer of any court to intrude into its precincU with any writ It has the power to hedge itself around, and to lay tne amy upon the men who serve it to protect it So it is, if your Honors please, that the com' mon impression which we have, because it is tha experience of our ordinary life, because it is the experience of this court from day to day that it does deal with questions, that it disposes of property between rival contestants, that it establishes or annuls transactions, and that wa are so seldom, and it is well so, brought to confront these fundamental principles of government, and of the limitations of the power of the several departments which are involved here. Justice Mitchell In the event, General Harrison, that the Senate should undertake to repel the intrusion of Colonel Robertson and imprisol him for contempt, would the court have no powef to interfere? Senator Harrison Very clearly not, if your Honors please; no more than the Legislature would have the right to interfere if you shoulq. imprison him here for a contempt of your court; not a whit more. Justice Jlitchell Have we not a recent eminent example where the Supreme Court of tha United States took an individual out of tha hands of Congress and imprisoned him? Senator Harrison Yes, sir, undoubtedly; undoubtedly, uuder a writ of habeas corpus, you might consider whether the man was lawfully restrained. That I do not deny. Justice Mitchell Then we Would have to inquire whether or not he would have the right U go there and offer to preside? Senator Harrison No, sir; not that at all You could not decide the question of hi3 right to preside, or enforce such a judgment, but yon might, perhaps, decide, as iu that case, that the man must be discharged upon habeas corpus. That was a case of an examination before a committee of tha body, and the decision was as to whether they might or might not imprison him for a refusal to answer certain questions. Eut let me ask your Honor a question, not, of course, for answer; and I desire to say it gives me great pleasure at any time to have any suggestion from any member of the court if there is any point that I am discussing upon which, in the. opinion of the court any judge would desire t have me express myself more fully. Justice Mitchell I only wanted- to draw out your idea, because I feel tbe force of your n: gestions. If they were of no consequence, I would cot have asked the question. Senator Harrison I cannot believe that thlJ court can send into the Senate of Indiana any writ. I do not say there might not questions arise as to the Governor, collateral in some actions, that this court may pass upon; but what I do hold is that, when conformable to tbe Con stitution, the Legislature the political department of this government have recognized I man as President or as Governor, the court may not inquire whether he is such or not Justice Zollars Allow me to pat a question, I believe it was put the other day, and answered that it was not a supposable case. Bat no, suppose the Legislature should count th votea for a man and declare him to be Governor at tbu time, 'and there came a conflict between him and the incumbent, is there any remedy for that conflict throueh the courts at all? Senator Harrison None whatever, if yow Honors please. That is very apparent Into such conditions as that the courts cannot enter. You may try qnestions of assault and battery of of treason growing out of the conflict, but toy the title of the claimants to the office. Justice Zollars That is your idea? Senator Harrison That is my idea. If courts could control matters of that kind we would have had no rebellion. I do not say that there may not be cases where your Honors coui pun ish an individual, where you could try Ma condemn and execute him for treason, cer tainly, there micht be such cases. But 1 do cow this: That where the Legislature has, Accord itlir tn tVia fru-mn it Via fVwrvctlfrlltinn. C&UV assea the vote for Governor or Lieutenant-goverBOf, and has declared a person to be Governor or Lieutenant-governor, aod has recognized .mti ii vie r.nn AimnaRea him of his - office. Tr.a;.. -m n -v tli ai-a. of coflfS9, we might not be able to dispossess him, box c the court pronounce upon the legal Q??'?!? Vj volved. Is not the question of the right w office a judicial question? That is an idea wish to have elaborated. , ,.T Senator Harrison If your Honors ple&sv " was saying, it seems to me that from the uns ; tution these three departments, ar.d ttat ie without anything else althonsh I will too your Honors there is much else necessariij prohibits that. Has any one ever had anyq? , tion that tha Supreme Court of the W States could not have passed upon the ' . as to whether Hayes or Tilden was elected re dent? Did any good lawyer suss" lu might? ..Mnn Justice Zollars-That was another ' there. In that case there w3 no question there havinc been an election at tbe proper Senator Harrison-Ah, if your Honor p-ew that is too fino a discrimination. I J 13 " vcquestion of discrimination a8.t0. A0ti they were not elected. Tb" k m test the limits of the power of a coy It is because they may not approach the ' a-ltjfl at all directly. If they may approach U ltla such a case, then they may decide " ed. question that the time for a prop" tion had- not arrived, or nlotner. man may cet more votes than " 0w The Constitution of the United States vyv provides that the returns from the elect i . leges shall be opened by the Yice-prcaUea