State v. Long

I concur in the decree herein handed down, and I place my concurrence squarely on the proposition that neither this court, nor any other court, has jurisdiction to determine who is the Governor of the state of Louisiana. Courts take judicial cognizance of who is the Governor of the state and do not examine that question as a judicial one. This court has no more authority to inquire into the title of Huey P. Long, present incumbent, than would a court of the United States be authorized to inquire into the title of Herbert Hoover to the office of President of the United States.

Through the courtesy of the American Law Book Company of Brooklyn, N.Y., Lawyers Co-operative Publishing Company of Rochester, New York, and West Publishing Company of St. Paul, Minn., and through researches made by myself, I have been able to gather what seem to be all the authorities that bear directly or indirectly upon the question presented in this case. However, I have made no mention of such cases as relate only to mandamus proceedings directed to a Governor to perform some purely ministerial act, and in which, as a rule, the Governor has no interest whatsoever, and where the question of jurisdiction in the premises has either not been raised at all, or raised only in a perfunctory manner. I will not undertake to analyze all these cases, but for the benefit of any one who feels interested in the matter I here list them: Baxter v. Brooks, 29 Ark. 173; State v. Baxter, 28 Ark. 129; Dickson v. Strickland, 114 Tex. 176,265 S.W. 1012; In re Senate Resolution No. 10, 33 Colo. 307, 79 P. 1009; State v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A. 657; In re Moore, 4 Wyo. 98, 31 P. 980; Goff v. Wilson, 32 W. Va. 393, 9 S.E. 26, 3 L.R.A. 58; Carr v. Wilson, 32 W. Va. 419, 9 S.E. 31, 3 L.R.A. 64; State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739, 51 N.W. 602; Ex parte Norris, 8 S.C. 408; Ex parte Smith,8 S.C. 495; Taylor v. Beckham, 178 U.S. 548, 20 S. Ct. 890, 1009, 44 L. Ed. 1187; Boyd v. Nebraska, 143 U.S. 135, 12 S. Ct. 375, 36 L. Ed. 103; State v. Favre, 51 La. Ann. 434, 25 So. 93; Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L.R.A. 259, 94 Am. St. Rep. 357; Attorney General ex rel. Bashford v. Barstow, 4 Wis. 567, 758, 759; Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437; Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Saint v. Allen, 169 La. 1046,126 So. 548; Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078; Reid v. Brunot, 153 La. 490, 96 So. 43. See, also, State ex rel. Morgan v. Kennard, 25 La. Ann. 238, 244; Kennard v. Louisiana, 92 U.S. 480, 23 L. Ed. 478.

I. From the foregoing it will be found that the courts are much divided as to the right of the judiciary, under pretext of quo warranto proceedings, to undertake in effect to designate the Governor of the state.

The first case in which that question arose was the Wisconsin governorship case, reported in 4 Wis. 567 to 802 as Attorney General ex rel. Bashford v. Barstow. Bashford and Barstow were opposing candidates for the governorship; on the face of the returns Barstow was elected by a plurality of less than two hundred votes. Barstow and Bashford both took the oath of office, but Barstow was the first to get possession. Whereupon Bashford brought quo warranto proceedings before the Supreme Court of the state to contest the title of Barstow; that is to say, to oust Barstow and be himself placed in possession of the office. The court decided that it had jurisdiction and proceeded with the case. Barstow, in a communication to the court which appears at pages 758 and 759 of the report, notified the court that he would not acknowledge its jurisdiction, would not recognize its decree, and would resist with the full force of his office any attempt to enforce a decree of the court against him. The court, however, proceeded with the case and entered a decree ousting Barstow and seating Bashford.

So far as the law reports go this case ends unsatisfactorily, because it does not tell us the sequel. But through the courtesy of Mr. Stephen A. Mascaro, the librarian of the Louisiana State Bar Association, I have been furnished with a copy of the report of the Proceedings of the Wisconsin State Bar Association, volume 1, years 1878 to 1885, in which I find an epitome of the life of Coles Bashford, at page 258, from which I extract the following:

"In 1852 he was elected to the state senate from the 21st district, embracing the county of Winnebago, and in 1854, was re-elected from the same district, and served during the sessions of 1853, 1854 and 1855. Having been nominated by the then new Republican Party, in 1855, he resigned his seat in the senate. Wm. A. Barstow, who had held the office during the preceding term, was the Democratic candidate against Mr. Bashford. According to the official canvass Gov. Barstow had a majority of 157. He received the certificate of election and entered upon the duties of the office. It was alleged, by Mr. Bashford and his friends, that false and fraudulent returns had been made to the state canvassers, and canvassed by them. A quo warranto was brought in the name of the Attorney General, upon the relation of Mr. Bashford, in the supreme court. The court "went behind the returns" and made a new canvass, deciding that Mr. Bashford had received a majority of the legal votes and was entitled to the office. By virtue of this decision he entered upon the duties of the office on the 25th of March, 1856, and he held it until January 4, 1858."

This was a most fortunate solution of a question capable of exceeding vexation to many. It seems that Mr. Barstow was more promising in words than in performance. But the matter might have ended differently.

For instance, in Ex parte Norris, 8 S.C. 408, and Ex parte Smith, 8 S.C. 495, the Supreme Court of South Carolina was asked to pass upon the title to the governorship of that state by proceedings for habeas corpus on behalf of certain persons pardoned by two different individuals each claiming to be Governor of South Carolina. The actual incumbent was the handsome and courtly, but brave and determined, Wade Hampton, late Brig. General, C.S.A., who had taken his seat as Governor of the state in the face of federal bayonets. The court solved the question in favor of Hampton, but had the question been solved otherwise, is there any one so simple as to believe that General Hampton would have surrendered his office, thus held even against the armed federal forces, at the say-so of a few theorists powerless to make their decree effective? If such there be, he also doubtless believes in Santa Claus and the fairies.

In State v. Baxter, 28 Ark. 129, and Baxter v. Brooks,29 Ark. 173, the Supreme Court of Arkansas was asked to pass on the title to the office of Governor of the state of Arkansas between two individuals each claiming to have been elected; one of these cases was a quo warranto proceeding; the other a civil suit for salary; one was decided by a Supreme Court composed of five judges, the other by a Supreme Court composed of three judges. How this change of courts occurred, does not appear from the reports. Possibly it occurred in the same way as the change of courts occurred in this state about the same time, when the Supreme Court presided over by Ludeling, C.J., was displaced by the Supreme Court presided over by Manning, C.J. The bar, the people, and the new Nicholls government, which had just taken possession and control of the state, all recognized the Manning Court, and the Ludeling Court merely faded out of existence. But we see from the report in Baxter v. Brooks, 29 Ark. 173, that the whole matter was effectively settled, not by the decision of the Supreme Court of Arkansas, nor even by that of its two Supreme Courts, but by the fact that the President of the United States, on the advice of his Attorney General, recognized the incumbent Baxter, who was thus effectively maintained in his office. In each of these two cases the Supreme Court of Arkansas declined jurisdiction. In the quo warranto proceedings, because they said it would be an interference by the judiciary with the executive department of the state; and in the salary proceeding, because the question of salary depended upon the title to the office and the same reasoning applied.

In Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012, the Supreme Court of Texas declined to pass upon the qualifications of Mrs. Ferguson as a candidate for Governor, on the ground that the sole judge of the qualifications of a gubernatorial candidate was the joint legislative assembly; that the judiciary had no jurisdiction in the premises. It was urged in that case that the Supreme Court had answered some questions put to it by the Texas Court of Civil Appeals, and therefore had entertained jurisdiction; to which the Supreme Court replied that it had only answered the questions put to it by the Civil Court of Appeals, and no question had been asked them touching jurisdiction; but that in any event the case before the Civil Court of Appeals involved a party nomination and not a candidacy before the people.

In Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L.R.A. 259, 94 Am. St. Rep. 357, the Supreme Court of Kentucky was asked to pass upon the title to the governorship of Kentucky, claimed by two individuals. The court entertained jurisdiction but finally decided that the count made by the General Assembly of the people was conclusive, although the evidence showed that the election reeked with frauds. The case was carried to the Supreme Court of the United States and, as it involved no federal question that court declined to interfere. 178 U.S. 548, 20 S. Ct. 890, 1009, 44 L. Ed. 1187.

In State v. Bulkeley, 61 Conn. 287, 23 A. 186, 14 L.R.A. 657, the Supreme Court of Connecticut entertained jurisdiction in a controversy involving the governorship of Connecticut. The General Assembly had failed or refused to count the votes. Quo warranto proceedings were begun in some inferior court against the holdover Governor by one claiming to have been elected. The court decided that as the General Assembly would not do its duty or had lost power in the premises by lapse of time, the court itself would proceed to canvass the returns and declare the result; and then, perceiving that the relator had declared merely that upon the face of the returns he appeared to have been elected, but had not declared that in fact he had been elected, held that the quo warranto proceedings should have been dismissed with leave to the relator to renew his suit upon proper allegations.

State ex rel. Thayer v. Boyd, 31 Neb. 682, 48 N.W. 739, 51 N.W. 602, and Boyd v. Nebraska, 143 U.S. 135, 12 S. Ct. 375, 389, 36 L. Ed. 103, involved the governorship of Nebraska. Thayer was Governor of the state and Boyd was elected to succeed him. Boyd took his oath of office and went into possession. Some months afterwards Thayer conceived the idea that he had improvidently surrendered the governorship to Boyd, alleging that Boyd was not qualified to hold the office because he (Boyd) was not a citizen of the United States; and Boyd being in possession, Thayer brought quo warranto proceedings against him before the Supreme Court of Nebraska. That court entertained jurisdiction and decided that Boyd was not a citizen of the United States and therefore not qualified to hold the office of Governor of Nebraska. Thereupon the court entered judgment ousting Boyd and restoring Thayer to the governorship, as one entitled to hold the office until his successor was duly qualified. But the case did not end there, as one would have supposed it might have ended; no one dreamed that the Supreme Court of the United States would take a hand in a matter so purely local. But in this they were mistaken. The Supreme Court of the United States did entertain jurisdiction. It held that since the matter was before the courts, it was "a case" within the meaning of the Constitution of the United States, a case manifestly involving a federal question, and decided by a court of last resort. Whereupon that august tribunal promptly decided that Boyd was a citizen of the United States, overruled and reversed the decision of the Supreme Court of Nebraska, and adjudged the office to Boyd.

The decree of the Supreme Court of the United States reads as follows: "The judgment of the supreme court of Nebraska is reversed, and the cause remanded to be proceeded in according to law and in conformity with this opinion."

The dissenting opinion of Mr. Justice Field in that case is illuminating but not consoling. It shows, as the Supreme Court of Arkansas had previously shown, that if a state court and a federal court can name a Governor, they can also name the members of the Legislature. And thus the whole power of government can be gathered into the hands of the judiciary department to the exclusion of both the legislative and executive departments. This not only by a state court but by a federal court, and a state may be governed, if need be, by a federal marshal. Cf. Kennard v. Louisiana, 92 U.S. 480, 23 L. Ed. 478.

This state has already experienced government by federal marshals, or rather by federal soldiers. In 1872, the people of this state elected John McEnery and Davidson B. Penn, respectively, Governor and Lieutenant Governor of this state, but William Pitt Kellogg and C.C. Antoine also claimed those offices; and the history of the times tells us that President Grant, with his federal troops, sustained Kellogg and his negro Lieutenant Governor. At the foot of Canal street in the city of New Orleans stands a monument dedicated to the memory of the fourteen white leaguers who paid with their lives the penalty of resisting this hydrid government.

In this case a federal question is involved, namely, when does a Senator-elect become a Senator in fact of the United States? Whatever this court might decide on that question, the Supreme Court of the United States, under the authority and precedent of Boyd v. Nebraska, 143 U.S. 135, 12 S. Ct. 375, 36 L. Ed. 103, will undoubtedly entertain jurisdiction upon proper application by the party feeling aggrieved; and again the Governor of this state will be named not by the people of the state but by federal authority prepared to enforce its mandate, and, if need be, govern this state through a United States marshal.

In Saint v. Allen, 169 La. 1046, 126 So. 548, this court delivered an elaborate opinion on the subject of keeping separate the different departments of government, and so supersensitive did the court feel on that subject that it promptly threw out of the highway department sundry small attorneys employed by that department, because, forsooth, they were members of the legislative department of the state, to wit, Senators and Representatives.

If this court were now to inject itself into a controversy over the governorship of the state of Louisiana, it seems to me that it would now be swallowing a camel where heretofore it had strained at a gnat.

There are some questions in government which are purely political and with which courts have nothing whatever to do and in which they should refrain from interfering. They should recognize the President of the United States and not inquire into his title to office. They should recognize the Governor of the state and not inquire into his title to office. They should recognize the Congress of the United States and not inquire into the title of the Senators and Representatives who sit in that august body. They should recognize the Legislature of the state and not inquire into the title of the members who compose that assembly. They should recognize the Constitution of the state and not inquire into its validity. They have no power to interfere with Presidents and Governors and Congress and the Legislature in the discharge of their duties and no warrant whatsoever to interfere with their incumbency. State v. Favre, 51 La. Ann. 434, 25 So. 93; Luther v. Borden, 7 How. 1, 12 L. Ed. 581; Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437; Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721; Massachusetts v. Mellon, 262 U.S. 447, 43 S. Ct. 597, 67 L. Ed. 1078; Reid v. Brunot, 153 La. 490, 96 So. 43; State ex rel. Morgan v. Kennard, 25 La. Ann. 238, 244.

I here mention the principal cases and events bearing on the subject under consideration. The other cases noted at the beginning, but not specially referred to, are not particularly enlightening. But it is my deliberate conclusion that the law warrants and every material and moral interest of the state demand, that its courts should confine themselves to the business for which they were established and keep their hands out of matters which do not concern them.

II. Thus far I have dealt with the question only on general principles of law and government. But in this state our Constitution of 1921 has itself spoken on the subject. Article 8, § 12, p. 74, of that instrument reads as follows:

"The Legislature shall provide by law for the trial and determination of contested elections of all public officers, whether State, district, judicial, parochial, municipal or ward (except Governor and Lieutenant Governor), which trials shall be by the courts of law, and at the domicile of the party defendant."

Clearly here the Legislature is forbidden to provide for trials before the courts of contested elections for Governor and Lieutenant Governor. And if it be true, and it is true, as held in Reid v. Brunot, 153 La. 490 (syllabus 1), 96 So. 43, that:

"All elections and all matters relating to or affecting them belong to political departments of the government, and are beyond control of the judicial power, in absence of special constitutional or statutory authorization."

Then it follows that the courts of the state cannot entertain any contested election case involving the Governor or Lieutenant Governor.

For, under Reid v. Brunot, supra, they cannot entertain such contests without statutory authorization, and under the Constitution the Legislature cannot give them such authorization.

Therefore if this were a contested election matter, the courts could not entertain it.

But if it is not a contested election matter, then it is clearly a matter of "removal from office." Here again, under article 9, § 6, p. 79, of the Constitution, the courts are given power to remove "any officer, whether state, district, parochial, or of a ward or municipality, except the Governor andLieutenant-Governor." But if the courts cannot remove a Governor or Lieutenant Governor, then the case cannot be entertained.

It is perfectly manifest that the Constitution intended to make effective (against the grasping tendency of the judiciary department to draw to itself power and jurisdiction on all occasions) that part of the Constitution which declares, article 2, § 1, p. 3, that:

"The powers of the government of the State of Louisiana shall be divided into three distinct departments." Vide Saint v. Allen, supra.

III. This concurring opinion has been hurriedly dictated, contrary to my usual practice of writing my opinions in my own hand, and hence has neither the sequence, clarity, nor brevity with which I endeavor to clothe my opinions generally. I have neither the time nor the inclination to write concurring and dissenting opinions, but the importance of the matter now before the court is such that I deem it well to hand this down so as to serve rather as a repository of the authorities which I have gathered bearing on the question than as the finished product which I usually try to furnish as a result of my labors.

I therefore concur.