expressed his concurrence with the opinion just read by the chief justice. There was no doubt but that this motion should be denied. The counsel for the respondent (Mr. Barstow), had chosen to put the motion on the supposition of a bald, naked successful usurpation of the office of governor. The counsel had claimed that the individual now exercising the functions of governor, although an usurper, by succeeding, hád acquired such a position, that no other department of the government possessed the power or the right to inquire by what authority he held it. The basis of their argument was, that our government is divided into three departments, distinct, co-ordinate, co-equal and independent. Now the effect of the information and the motion made before the court was to place the respondent in the attitude of an usurper, with no constitutional right whatever to the office into which he had intruded. If so *663was Re co-ordinate with the other departments ? Co-ordination is that which is equal, which derived authority from a common source. Could one usurping power, claim to he co-ordinate ? The constitution admitted of no usurper. It seemed to him that until the respondent placed himself within the pale of the constitution, he could not claim the protection of that instrument, in exercising the functions of an office which, as had been the supposition on which this motion had been argued, he had usurped and was exercising in defiance of the constitution, nor could he thus call in question the powers of the other departments. He must stand upon the constitution if he would invoke its protection. He would suppose a case, that the emperor of .France or the queen of England, should send over one of their subjects, appoint him governor of Wisconsin, and that he should come to the eapitol, and in some way get possession of the executive department — complete possession for a few days or hours — the time was immaterial — could he come before this court, or the legislative department above, and say that he was co-ordinate with them ? He would not be co-ordinate. He was ordained by the emperor of France or the queen of England. The constitution, ordains in this government. Therefore the admission of the usurpation was destructive of the claim of co-ordination. If an individual could usurp the executive office, and hold and exercise it in defiance of the constitution, he was not co-équal with the other departments; he was above the other departments, and above the constitution itself; and, if successful, he destroyed the constitution and all the departments it had ordained.
Unless the individual now exercising the office of governor, places himself within the pale of the constitution, he cannot claim from this court immunity or protection under the constitution.
On the 21st day of February, the time appointed for pleading to the information, the counsel for the respondent presented the following stipulation, signed by the attorney-general and all the counsel for the respective parties:
“ The counsel for the respondent exhibited in court,a certificate of the board of canvassers,'on file in the office of the secretary of state, of the canvass of votes returned to said board as having been cast for governor at the last election, in and by which it appears that the said board of canvassers determined that Wil*664liam A. Barstow was elected governor for two years, from the first Monday in-January, A. D. 1856-; also, a certificate of election, made out by the’secretary of state, and transmitted to the said Barstow, which said certificates are in proper form, and the oath of office taken and subscribed by the said Barstow on the seventh day of January,. A. D. 1856.
“And the respective counsel and the attorney-general submit, to the court, whether said court have any jurisdiction to inquire,, beyond said certificates and the said canvass, as to the nurpber of votes actually given at said election for said Barstow for governor ; the counsel for the relator offering to prove that said certificates were made and issued through mistake and fraud, and also that said Coles Bashford, at said election for said office of governor, did receive the greatest number of votes; all of which the said counsel offer to prove by competent evidence;” and asked the decision of the court upon the question raised thereby,, viz: whether the court had any jurisdiction to go behind the statement of returns and certificates thereof, and the certificate of election issued to the respondent by the board of state canvassers and secretary of state. ,
• The court declined to entertain the stipulation, and to pass upon the questions suggested, as they were not presented in legal form, as no issue of law or of fact was made; and any opinion which the court might express thereon would be inconsequential, and the position of the case would- be precisely the same on the record, whatever might be the- decision, hence the usual and regular forms of pleading would be required until an issue was-formed; and time was given to the respondent, until February 25th, to file a plea to the information; on whieh day last mentioned the respondent, by his counsel, filed and read the following plea:
[Title, &c!\ “ The aforesaid William A. Barstow, saving and reserving to himself all exceptions to the uncertainty and imperfections of the said information, herein, by Arnold, Orton and Carpenter, his attorneys,, comes and defends, &c., and says that he to the said information ought not to be compelled to answer,, because, he says, that by the laws of the state of Wisconsin, regulating the manner of conducting general elections and tho canvass of the votes thereat, applicable to the election stated in *665said information, it became and was the duty of tbe board of state canvassers, upon a statement of the whole number of votes given at said election, and for whom given for the said office of governor, to be by them made and certified to be correct and subscribed by their names, to determine what person was by the greatest number of votes duly elected to the said office, and to make and subscribe in such statement a certificate of such determination, and deliver the same to the secretary of state; and thereupon it became and was the duty of the said secretary of state, without delay, to make out and transmit to the person thereby declared to be elected to the said office of governor, a certificate of his election,' certified by him under the seal of his office; that in fact, Alexander T. Gray, Secretary of State, Edward H. Janssen, State Treasurer, and George B. Smith, Attorney-General, who thus constituted the said board of state canvassers, met together at the office of the said secretary of state, in the capitol at Madison, on the 15th clay of December, A. D. 1855, the day duly appointed pursuant to law for that purpose, and did proceed according to law to make a statement of the whole number of votes given at said election for the said office of governor, showing the names of the persons to whom such votes were given for said office, and the whole number given to each one, distinguishing the several counties in which they were given, and did certify such statement to be correct, and subscribe their names thereto.; and that they did thereupon determine and eertify, that, by the greatest number of votes polled at said election, William A. Barstow, the respondent, was duly elected to said office of governor, for the term of two years, commencing on-the first Monday of January, A. D. 1856; and that they did, in pursuance of law, make and subscribe on such statement a certificate of such determination in' due form of law, and did duly deliver the same to the said secretary of state; and that thereupon, in pursuance of law, the said secretary of state did make out and transmit to the said respondent a certificate of his election to the said office of governor of said state, for the term aforesaid,, in due form of law, and duly certified by him under his seal of office, and that said certificate was duly received by the said respondent, who thereupon. duly 'qualified himself by taking the customary and proper oath of office as such governor^ *666and entered into possession of said office as he lawfully might. All which the said respondent is ready to verify, and pray judgment whether this court will have further cognizance of this suit, and whether he, the said respondent to the said information, ought to be compelled to answer.”
Annexed to the plea was a tabular statement of the votes polled for governor, lieut. governor, secretary of state, state treasurer, attorney-general, state superintendent, bank comptroller, and state prison commissioner, at a general election held in the several counties in the state of Wisconsin, on the Tuesday succeeding the first Monday, being the 6th day of November, 1855, from which statement it appeared that the votes cast were:
For governor, seventy-two thousand, five hundred and ninety-eight; of which number William A. Barstow received thirty-six thousand, three hundred and fifty-five (36,855), Coles Bashford received thirty-six thousand, one hundred and ninety-eight (36,198), scattering, forty-five (45).
Also, the proper certificates of the secretary of state, verifying these statements; also the certificate of election issued to the respondent in the following form—
“ SECRETARY’S Oefice, Madison, Dec. YUh, 1856.
“ To Hon. William A. Barstow:
“I do hereby certify that after duly canvassing the votes cast at the general election, held on the 6th day of November, 1855, for state officers, it was determined by the board of canvassers, on the 17th inst., that you had received the highest number of votes cast for the office of governor, and you were therefore declared to be elected to that office for the term of two years, commencing on the-first Monday of January, A. D. 1856.
[l s ] U Witness my hand and the Great Seal of the State of Wisconsin.
(Signed) “ Alexander T. Gray, Secretary of State.” together with the usual oath of office made and filed with the secretary of state.
To this plea a demurrer was interposed, assigning causes:
“And the said attorney-general saith that the said plea of the said defendant and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not suffi*667cient in law to take from this court further cognizance of the said information of the said attorney-general, and that the said attorney-general is not bound by the law of the land to answer the same. And this the said attorney-general is ready to verify. Wherefore for want of a sufficient plea in this behalf, the said attorney-general prays judgment, and that the said defendant may answer further to the said information, &c.
“ And the said attorney-general states and shows to the court here the following causes of demurrer to the said plea:
“1st. Because the matters stated to the said plea, as therein pleaded, are not a legal answer in bar or to the said information, and do not disclose a want of jurisdiction in this court further to proceed upon the said information.
“ 2d. Because the defendant having by his motion to that effect, raised the question of the jurisdiction of this court and submitted the same to the adjudication of this court, and this court having thereupon by its order passed upon and adjudicated the question of its jurisdiction, the jurisdiction of this court to entertain, hear and determine this cause h^s become res adjudicata, and it is not competent for the defendant to plead the above plea to the jurisdiction.
“ 8d. Because the said plea does not show that there is another court which can take cognizance of the said information.
“ 4th. Because the said plea is .not verified by affidavit.
“5th. Because the said plea is in other respects informal and insufficient.”
On the 29th day of February, the argument of the demurrer came on.
Mr. Syan, in support of the demurrer. It would have been desirable that the plea of the respondent should present only the single question which, I understand, the respondent’s counsel designed to raise by it. But as it is, it contains objections independent of this question, which as a lawyer, I cannot overlook. Those objections are not trifling, but are based upon sound authorities.
A general demurrer to a plea of jurisdiction raises all questions of the time, form and method of the plea. The demurrer in this case is general. The first I take is, that any plea to the *668jurisdiction of a superior court, must disclose another jurisdiction, where the right can be tried. There is one principle that the counsel in all their arguments of this question of j urisdiction have either disregarded or pushed aside. It is the general principle of law — to which there may be rare exceptions in minor cases, but they are the defects of the law — that there is no wrong without a remedy. And because there is no wrong without a remedy, the courts have said that a plea to the jurisdiction of a superior court is bad, unless it discloses another jurisdiction that can try the right. This is no mere technical rule of pleading. It is founded upon the supposition of the law, that every wrong can be remedied. It is the boast of the law that it redresses all' wrongs, and whenever a suit is instituted to redress a wrong, the rule is, that a plea to jurisdiction must disclose another jurisdiction where the wrong can be remedied.
“In all pleas to the jurisdiction of the superior courts, it must be shown that there is another court in which justice may be effectually administered, for if there be no other mode of trial, &c., that alone would give the superior c'ourt jurisdiction.” 1 Ohiity, 144.
“Every plea to the jurisdiction must state another jurisdiction.” 1 Bacon’s Ah, 2.
Lord Ellenborough, C. J., in The King vs. The Hon. Robert Johnson (6 East's Reports, 600, 601), says: “The rule is insisted on, that whoever pleads to the jurisdiction of one of the king’s superior courts of general jurisdiction, must show what other court has jurisdiction. I am of that opinion ; and that for the want thereof the plea is bad, and ought not to be allowed, if nothing more be in the case; as it is expressly laid down in 2 H. 7, 17, A., and Doctrina Placitanda, 284, and is agreeable to the general rule of pleas of this sort; as in1 the pleas of abatement, wherein it must be shown that the plaintiff may have a better writ. The reason of this is, that in suing for his right, a person is not to be sent everywhere to look for a jurisdiction, but must be told what other court has jurisdiction, or what other writ is proper for him ; and this is a mattter of which the court where the action is brought is to judge.”
In The Bishop of Lodor vs. The Earl of Derby (2 Ves. 357), Lord Hardwicke, speaking of the plea to the j urisdiction in the *669former case, and of the grounds on which he had overruled it, says: “ I would not be understood when 'I overruled the plea of the Duke of Athol, to have overruled it on affirmance of the general jurisdiction of this court to try and determine the title to the Isle of Man, or any such feudatory dominion, but merely on .this; the plea was to the jurisdiction, without averring to 'what court the jurisdiction belonged; and the rule of law is, that in a plea to jurisdiction, like a plea in abatement, where it is to a court of general jurisdiction, you must also show where the jurisdiction rests, as well as negatively that it is not there; but if it be an inferior court, you need only plead thereto, and not show where it is, &c.”
Mr. Ryan next cited the case of Mostyn vs. Fabrigas (1 Cowper). This was an action of trespass, brought in the Court of Common Pleas, by Anthony Eabrigas against John Mostyn, governor of the island of Minorca, for an assault and false imprisonment. The case was carried up to the Court of King’s Bench. The jurisdiction of the court was called in question. It was claimed that: ...
.‘-If an action would lie against any other person, yet it cannot be maintained against the governor of' Minorca, acting as such, within the Arraval of St. Phillips.”
The governor of Minorca, at least within the district of St. Phillips, is absolute; both the civil and criminal jurisdiction vest in him as the supreme power, and as such he is accountable to none but God.”
Lord Mansfield, in delivering the opinion of the court, said :
The first point, then, upon this ground, is the sacredness of the defendant’s person as governor. If it were true that the law makes him that sacred character, he must plead it and set forth his commission as special matter of qualification ; becauseymmcs facia the court has j urisdiction. But I will not rest the answer 'upon that only. It has been asserted by way of distinction, that supposing an action will lie for an injury of this kind, committed by one individual against another, in a country beyond the seas, but within the dominion of the crown of England, yet it shall not emphatically lie against the governor. In answer to which I say, that for many reasons, if it did not lie against any other man, it shall most emphatically lie against the governor.”
*670“In every plea to the jurisdiction, you must state-an other jurisdiction ; therefore, if an action is brought here for a matter arising in Wales, to bar the remedy sought in this court, you must show the jurisdiction of the court of Wales; and in every case to repel the jurisdiction of the king’s court, you must show a more proper and a more sufficient jurisdiction ; for if there is no other mode of trial, that alone will give the king’s court a jurisdiction.”
On the same point see Durnford & East, 224; 3 Man. 26; 5 Man. 362; 6 N. H. Rep. 497; 3 Harris & McHenry, 151; 6 Leigh, 47.
It is often said that nature has so far exhausted herself, as to be incapable of producing anything original; that all great men are patterns of some other great men who have lived before. If Gov. Barstow has a pattern it must be Gov. Mostyn. In the government of St. Phillips he did a high handed act, for which he was sued in the Court of the King’s Bench. If they got their idea of Gov. Barstow’s sovereignty from anywhere, they got it from Gov. Mostyn’s plea. He claimed that the Court of the King’s Bench had no jurisdiction over him, not merely that the act was committed in St. Phillips, but for the sacredness and sanctity of his person as governor. If there was any sacredness or sanctity of person inherent in the person filling the office of governor, it should be set forth in the plea.
We boast, we brag, we throw our caps to the moon, and compare the independence enjoyed by the people in this country with the other nations of the world, and especially with Great Britain. I want no better doctrine than that contained in those words of Lord Mansfield. He was chief justice for the Court of the King’s Bench by appointment of the king, an hereditary member of the upper house of Parliament, and was'throughout wholly identified with the whole reign and represented the interests of class and privilege in the British nation. We shall see if in free Wisconsin, in the middle of the 19th century, Gov.' Barstow will succeed better before this court than did Gov. Mos-tyn jjefore the King’s Bench in the last century.
2. The plea is bad unless verified by oath. The matters of fact which it contains must be sworn to specifically.
“ In support of a plea to the jurisdiction there must in general be an affidavit of the truth of its contents.” 1 Chitty, 445.
*671“ By the statute of 4 and 5 Ann, e. 16 for the amendment of the law, no dilatory plea is to be received unless on oath, or probable cause shown the court.” 1 Bacon's Abridgment, 27.
In all pleas that oust a court of jurisdiction, whether superior or inferior, there must be oath in that very court of the truth of the plea.” Sparks v. Wood, 6 Mod. Rep.
I suppose it will be contended by the counsel who filed the plea, that there is other satisfactory evidence equivalent to an affidavit.
Mr. Byan, alluding to the several certificates of the secretary of state, annexed to the plea, said: “ I suppose these will be urged by the opposing counsel as equivalent to affidavits. They are not. We cannot indict the great seal for perjury. That is one objection. Again, the great seal does not pretend to verify what is stated in the plea. First, there is attached to the plea a tabular statement, purporting to be a copy of what purports to be the canvass of the votes of the last election, in witness whereof, there is an impression of the seal of state. The plea asserts that there was a canvass; the seal asserts nothing of the-kind, but only that this is a copy of a certain paper on file in the secretary of state’s office. The second accompanying document is a copy of the oath of office that was not taken before the chief justice, bearing also the impress of the seal of state; and next comes the queerest use of the great seal that has yet come under my notice. It is a certificate addressed to Gov. Barstow, by Mr. Gray, the late Secretary, informing him under the great seal of the state, that he was declared elected by the late board of canvassers, and this is impressed with the great seal of the state. Of what validity is the great seal to show the correctness of a paper not on^file in the secretary’s office ? None whatever. There is, then, as I conceive, no evidence in support of the plea, which the court could receive in lieu of an affidavit. We may have an impression that the facts are so — but I have come, to the conclusion that I do not know what exists in any^of-fiee in this capitol. It is not safe to think that we know. Recent developments have demonstrated this, and stranger things have happened in this capitol than would be the discovery that these are not facts.
*672■ Justice Smith — If I understand you, then, Mr. Ryan, however it may be intended, the certificate of the canvassers, and their statement of the votes, though set out in the plea, are not set out in proper form, unless verified by affidavit.
Mr. Ryan — Yes, sir,- unless the oath, or other satisfactory evidence, accompanies them.
S. As a matter of practice the plea comes too late, after the expiration of the time fixed to plead to the information, an im-parlance or dilatory plea cannot be allowed. Upon"the records of the court, and by the filings of the clerk, there appears what amounts to two imparlances. The defendant was twice subject to default and had time extended to him to plead, amounting to two general imparlances. 1 Shitty, 435, and 1 Tidd, 637, 638.
4. My next objection to this plea is, that the question raised by it is res adjudimta in this suit. The question of jurisdiction-has already been virtually decided, though then a decision upon a motion, while this is raised by a plea. The same question cannot be twice raised in the progress of the same suit.
“ After a judgment of respondeas ouster, it is said, there can be no plea in' abatement; for if it were allowed, there would be no end to such pleas.” 1 Tidd’s Practice, 641; See also 1 Bacon’s Abridgment, 27; 2 Saunders' Rep. 40.
The universal rule is, that there cannot be two dilatory pleas in the same degree in the same cause. If such were not the rule this matter of dilatory pleas might go on ad infinitum. There may be two pleas in abatement based on different grounds, but you cannot plead two disabilities of the plaintiff in abatement in the same degree. So there cannot be two pleas to jurisdiction in a cause, and what cannot be done in substance cannot be done by a mere, change of form. The opposing counsel saw fit-to raise the question of jurisdiction by motion. That motion was spread upon the record. It was overruled. The court has adjudicated the matter. The court did not merely dismiss the motion, but spread upon the records of the court the reasons why the motion to dismiss for want of jurisdiction, was overruled. Though not in the form of an interlocutory judgment, its decision, in this case, should have precisely the same effect. The adj udication of the question, to be sure, is in the form of a mo*673tion, but with precisely the same effect as if it had been raised by a plea and a demurrer, and had been sustained. The counsel have said again and again that they do not desire to delay this cause. Are they dealing sincerely, candidly with the court and with this cause, to come here and make a motion with another string to their bow ? Would the court have heard that motion, had the counsel informed them that they would subsequently plead to the jurisdiction, and ask them to hear twice over the same question ? The plea presents a different aspect of the question of jurisdiction, it is true, but the effect is the same as the motion; and it is the business of the court to find defects in all dilatory pleas, where defects exist. It is unfair to the counsel in the cause, and to the court, driving them to argue and decide the same question twice over. Look at your records, and how will they appear ? — a dilatory plea twice argued and twice decided; burdening the counsel and the court; burdening the counsel for the prosecution, if twice decided in their favor; burdening the court, if once decided in their favor and once against them.
What is the idea of a dilatory plea? It is this : A man charged with the commission of wrong comes into court and says, the wrong may exist, but for this or that reason, you have no power to correct that wrong. Such dilatory pleas should be scrutinized closely, for they are interposed as a shield between the correcting arm of the law and the offender. For this reason, as he had read, “ courts lean against them, and seek to restrain them.”
Many of these objections to the plea may appear technical, I have argued them technically. Interlocutory questions for delay, dilatory pleas to defeat the present administration of justice must be' treated technically. This in the strictest sense, in its conception and gestation, is„a dilatory plea,.and it should be held to the rigid rule which commands courts to frown upon dilatory pleas.. It certainly is not a plea in bar. It has ho attribute of such a plea. And yet the subject of the plea is-good, if good at all, as a plea in bar, not in abatement.
The court has already, by its former decision, taken jurisdiction as against a mere intruder into the executive office. Now he comes, not denying that he is an intruder, but asserting that *674he is not a mere intruder. He says the canvassers canvassed him into a majority. The plea does not deny the fact set forth in the information, that Coles Bashford was legally elected governor of Wisconsin on the 6th of November last, but only asserts that the state canvassers, on the 15th of December, gave the certificate of election to William A. Barstow. The defendant comes in and says, that although Coles Bashford was duly elected by a major* ity of legal votes, on the 15th of December, the state canvassers canvassed me into a majority, and gave me the certificate of election — a plea in bar and not in abatement. The main question is as to the finality of this certificate. The record before this court admits the election of Coles Bashford, but sets up that the state canvassers canvassed the defendant into office — and here I would invoke a new use of the word “canvass,” in the English language hereafter. When feats of legerdemain are to be performed, let it not be said “presto, pass, change,” but “canvass, pass, change 1” to express ready, accomplished sleight-of-hand. It is admitted, that the secretary of state delivered the certificate to Barstow. . It is admitted as a corollary, that Bashford, the stranger, the outsider — the outside Shanghai — is out of an office to which he is entitled by the will of the people; that Barstow is in an office to which he is entitled, by the will of the canvassers; and now it is claimed that the law is powerless to change that result — ■ that the will of the people is not sovereign, but that of the state canvassers is. It will not do to say that there was but a small majority for Bashford. It stands precisely as if Coles Bashford had received the unanimous vote of the state, and his opponent had received none. If the canvassers have the power to withhold the certificate from the man who received a small majority, they can withhold it from one who had a unanimous vote. They might give the certificate to some emissary from England or France, appointed by the sovereigns of those countries to come here and demand it. Those nations have sent governors here in former times, and, if in the conflicts of the world, the case should occur, put by one of the j udges the other day, as it may occur, if England should dispatch such an emissary hither, she would need to send no army to back him up,' conceding to the canvassers the powers here claimed. All he would need, would be what Lord Bacon calls a “pretty purse,” enough to buy the *675state canvassers. Such is the result of this doctrine — nothing more or less. In the former argument, it was contended, that the usurpation of the governor’s office, placed the usurper beyond the reach of law. A similar immunity is now claimed for him who can get a certificate of election from the state canvassers. There is angry talk just now between our government and England. We are a frontier country. Suppose that war should 'follow — a near possibility. Suppose a British fleet upon Lake Michigan, something less than two years hence, about the time -of the state canvass, the 15th of December, a day that we ought to put in our calendars, with the gunpowder plot, and other memorable conspiracies — a British army lands on our coast— they march hither — and by the outside pressure of British bayonets, or the inside pressure of British gold, they buy or force "from the canvassers a certificate that the present governor-general of Canada is the duly elected governor of Wisconsin. He takes possession of the office. As the war progresses, the British troops are forced to retreat, but the British governor remains. He has possession of the office and the certificate of the canvassers. The legally elected governor files an information in the nature of a quo warranto to oust him. Then, if the doctrine attempted to be maintained here were to prevail, the British governor would plead this as a precedent, and properly plead it. Remember that they plead no election, they do not deny but that Coles Bashford was legally elected, mark this. It is not denied but that the certificate was awarded upon a fraudulent canvass. The question is: Have the state canvassers the power to give the people of Wisconsin, by fraud, mistake, or corruption, a governor in opposition to their will as expressed at the ballot box ?
In many of the books it is said that the sovereignty of the Union resides in the people. We are in the habit of using words without attaching any precise significance to them. Now the word sovereignty is not the father of sovereign ; sovereign is the father of sovereignty. A sovereign is a supreme ruler.
In a theocracy, Grod is the sovereign. In politics the sovereign is the absolute ruler of the country. The moment we take the word sovereign from its absolute use, we run into a confusion of idea's. I deny that any monarch of a constitutional government *676is sovereign. I deny that there can be a limited sovereignty. No monarch not exercising supreme power is a sovereign. Limited sovereignty is a bull — a contradiction of terms. There is no sovereignty out of an absolute monarchy. We confound the idea of sovereignty with that of independent power. In international law, nations are called powers but not sovereignties. The sovereign, where he does exist, is supreme, exercising supreme rule, being the law in and of himself, administering the law in and of himself, executing the law in and of himself. Where, in any state of this Union is such sovereignty ? By some it is said to be divided, shattered — divided among the different departments of the government. By some it is said to be in the people. I deny that in the Union, there is anything beyond the idea of sovereignty. We are powers independent of powers. Until we have a sovereign there is no sovereignty. There is an idea of sovereignty — an inactive, latent, inscrutable, dormant idea existing — an idea of sovereignty — sovereignty so to speak, in solution. But till active, it never can be said to exist. Wisconsin is a power among the other states of the nation, it may be a sovereign power, so far as by that is understood an independent power, and except when it has parted with power by treaty or confederation. But in its internal organization there is no sovereignty — it is a mere idea, a dream which at some future period may be invoked and invested in a sovereign. The sovereign is the absolute power of law, of justice and of administration. I deny that in the people of this state is* vested any such power.
In our government, there is no source from which such power can be derived. In constitutional representative government, there can be no such thing as sovereignty. God gave us no sovereignty in a state of nature. The aggregate people of this state have no sovereignty, no. absolute power of tyranny over the humblest person in its limits. Tyrant and ruler are the same. Power abused is tyranny. There is no such tyranny here. The idea is a sort of political pantheism. The pantheist says that there is a God — but it is only all that we see, that every tree and stone and sod, is God. I never could comprehend it. It is a subtile name for atheism. I never could understand popular sovereignty. I deny it as a democrat of thirty years standing, and as one who intends to be a democrat for forty years *677longer — or if not for forty years, to tbe end of life. I can no more understand tbe doctrine of popular sovereignty than I can tbe new Boston pantheism — a subtile species of atheism that would not shock the religious sense of community as much as when presented in a grosser form' — and which escapes from a belief in God by saying that everything is God.
The idea of popular sovereignty is the idea of man running wild and savage through the woods, and over the prairies, having no law but his own will. To be sure, there are various powers of sovereignty in a constitutional government, and the elector, in voting, exercises one of those powers. This court is clothed with the armor of sovereignty, and when it makes a decision, or does any judicial act, it exercises one power that'a sovereign might exercise. So also does the humblest justice of the peace. It is less in quantity but, the-same in degree. But I deny that all put together represent the sovereign power of justice. So of the officers who exercise executive and legislative power — the state canvassers, when they certify to the number of votes cast — the. governor when he calls out the military to suppress an insurrection, or to create one: — the legislature, when it passes or refuses to pass a bill — exercise a sovereign power. Any act of discretion or power is a sovereign act. But the aggregate falls far short of the sic volo, sicjubeo. There is no such absolute power as sovereignty. It may exist, but as an idea — a dream. It is like a dormant fee waiting for an owner. There can be no sovereignty in active existence till our whole system is broken, destroyed and confounded. Then a sovereign may arise, and -the dormant fee find an owner.
It has been urged herein, that the governor is a part of the sovereignty, and therefore not under the jurisdiction of this court, which is another part of the sovereignty. At the same time it is admitted that the state treasurer is under the jurisdiction of this court.
In England, the right to political'"offices cannot be tested by quo warranto, because they hold the right to office from the crown. There is, then, a sort of quasi sovereignty which does not exist in this country. Here any public officer might make the same plea as the tenant of the office of governor makes, with equal propriety.
*678If the state canvass is a finality, so is the county canvass and tbe town canvass. The finality of the state canvass involves the finality of every other canvass. If the state canvass is final as to state officers, the county canvass is final as to county officers, and the town canvass final as to town officers. 'These canvasses are in the main ministerial. There is hardly an act of govern-: ment so purely ministerial as this. The canvassers are merely arithmeticians. And I say this, that if this canvass is final, and there is no power of law to inquire into it, to impeach it, to interfere with it, the town atad county canvasses come up here as finalities. I do not think this is the doctrine of the defendant’s' counsel — that the town is final to the county, and the county final to the state.
The state canvassers did not deem them so. They'went behind them, and if reports are true, went to some very queer places behind them. Into what absurdities does the finality of this canvass bring us! The town canvassers, for instance, in every town of the state, might canvass a majority for A.; the county canvassers not liking finality A., canvass a majority for finality B.; the state canvassers, preferring 0., set aside finality B., and give the certificate to 0. Each one of these canvasses might be a lie, neither A., B. or C. having a majority, and the last lie is final only because it is the last; or I suppose the town canvass might be called “positively" final, the county canvass “ comparatively ” final, and the state canvass superlatively ” final. It is absurd — absolutely absurd. Inasmuch as every elective officer holds from some canvass, whose decision is final, you cannot go behind that canvass to correct error or fraud! Or the canvassers are invested with a portion of the sovereignty, and cannot be called into the court 1 The doctrine goes to that length.
I answer the whole argument by the general proposition, that the law alone gives us an idea of sovereignty. The law alone is above all things. I deny to you upon the bench, to the govern- or sitting in state in the next room, to the legislature in session in the rooms above — I say I deny to all, any attribute of sover-éignty — sovereignty is in the law. Its will is execution. Its will is justice. It is above us all — it rules, controls us all. In the political sense of the word, that it wills, and its will is law, *679it is not sovereign. But in the popular sense it is above us all, it is up in the sunlight of sovereignty, it is alone sovereign. The law is above the court, it is above the governor — or it should be ■ — that is the theory — it is above the legislature. The latter can change it in the future, but is bound by it in the past.
■The law then is above all, and the reason why all other powers of the government are subordinate to the judiciary is that they are under the law, and the judiciary is the expounder, the mouthpiece of the law. Except power in the nature of judicial power — power of discretion, vested by law in certain offices — all the powers of the government are exercised under the judiciary and triable by the judiciary. The moment that this is otherwise, we have ceased to be independent and free. For the theory of freedom and independence is that we are all under the law. The governor may veto an act of the legislature. The judiciary cannot interpose; but it can determine whether he vetoed it according to law, within the constitutional time, &c. The moment this is otherwise, the moment you put the acts of any officer above the reach of the courts, you -put the officer above the law. This subject has been discussed in the courts of Massachusetts as early as 1810, and definitively settled.
Upon the main question involved in the demurrer, I have proceeded, in a somewhat discursive manner, to present two views : 1st. That the finality of a state canvass, applies as well to all canvasses, and that the different canvasses resting upon the same statute, the same defence might be set up by any person holding any. office, and claiming his right to it' by the finality of the canvass. I had shown as a corollary to that proposition, the utter absurdity of .the finality of the various canvasses, as shown by the contradiction of facts, each canvass rising above the other, and allowing no finality to the previous canvass, but claiming it for itself. 2d. That the same idea of exercising a function of sovereignty, or of being a co-ordinate branch of the government, would apply to every officer in the state, as well as to the governor.
I shall now go the direct question of the finality of any canvass, as a matter of law. I understand that an argument of this kind (in the case of Carpenter and Ely, contesting the district attorneyship of Rock county) has already been submitted to this *680court at its present term. If tbe authorities on this subject have beeD already read to the court, I will not go over them now.
On an intimation from the court, Mr. E. cited and read from 4 Oow. R. 297, 822, in support of Cook vs. Welch, 4 Seld.
“ If the votes of a town are improperly excluded, by which a majority of votes are canvassed and allowed to a candidate for the office of sheriff, who receives a certificate, takes the oath of office, &c., and acts as sheriff, judgment of ouster will be given against him, on an information in the nature of a quo warranto being filed ex relatione, tbe one who had the actual majority of votes.”
“ It is, perhaps, difficult to determine whether an information-lies to try the title of the governor and state officers. The governor is the representative of the state; and an appeal from the state canvassers may not exist. It is a case, perhaps, to which neither the common or statute law extends. But it by no means, follows, that the court have not power in this instance. Because-a case may be put a little puzzling, it does not deprive the court, of jurisdiction.”
Woodworth, J.,- in his opinion says r
“ It was contended in the argument, that the decision of the board of canvassers was conclusive until reversed; and could only be reviewed by certiorari. This objection cannot prevail. The duties of the canvassers are ministerial. They are required by the act to attend at the clerk’s office, and calculate and ascertain the whole number of votes given at the election; and certify the same to be a true canvass. This is not a judicial act, but merely ministerial. They have no power to controvert the votes of the electors. If they deviate from the directions of the statute, and certify in favor of a sheriff not duly elected, he is liable to be ousted by information. The trial is had upon the right of the party holding the office. The certificate is not conclusive. The court will decide upon an examination of all the facts.”
I also quote from 8 Ooioen, 106. This case was to try whether one Henry F. Yates was elected to the office of county clerk, a certain number of votes having been cast for H. F. Yates. The court said:
“ When we permitted an information to be filed in this case, it was represented to us that the ballots containing the designation *681H. E. Yates, were intended for the relator. The canvassers bad acted upon the idea that they designated some other person. They had no means of examining witnesses or of receiving any evidence beside what was upon the ballot itself. Courts and juries are not so restricted. They possess more ample means to determine any fact which is left in uncertainty.” Also The People ex rel. Benton vs. Vail, 20 Wendell, 14.
“ In those legislative bodies which have the power to judge of their own members, it is the settled practice, when the right of th.e sitting member is called in question, to'look beyond the certificate of the returning officer; and I think a oourt and jury, with better means of arriving at the truth, may pursue the same course.”
“ Conceding that the county canvassers decided correctly on the facts before them, I think we are bound in this proceeding to go back to the canvass, and rectify the error in the statement of the inspectors.”
In the case of The People vs. Seaman (5 Denio, 409), the court held: “ This proceeding is instituted to try the right of office. It is an appropriate proceeding for that purpose. And in it, we can look beyond evidences of title to office which are conclusive for every other purpose, and determine who has really the abstract right. We can look behind the certificate to see whether the canvass of the presiding officer was correct — whether they allowed the proper votes — whether they determined correctly or otherwise, that two of the candidates had an equal number of votes, &c.”
“ The returns of election inspectors are ministerial, not judicial acts. Their character is shown by the freedom with which they are scrutinized in proceedings by mandamus, or information in nature of a quo warranto.'” 3 Hill R. 47.
Again : “ The Montgomerie charter certainly does declare that the common council shall have the sole power of determining and deciding all elections of all corporate officers, and the amended charter of 1830, that each board shall be judge of the qualifications of its own members. It is quite doubtful whether the word qualifications can, by the most liberal construction, be made to comprehend elections. Admitting the clause, however, to mean that each house shall be judges whether its members have *682been duly elected, it would still be difficult to show that the enactment amounts to anything more than the bestowment of a power concurrent with our own.”
In the case of the Attorney-General vs. Blossom (1 Wis.), Justice Smith, of this court, held the following language respecting its jurisdiction:
“ Contingencies might arise wherein the prerogatives and franchises of the state, in its sovereign character, might require the interposition of the highest-judicial arm to preserve them. Other departments might need its intervention to protect them from usurpation ; indeed, various emergencies may have been conceived, in which this branch of the government, and this arm of the judiciary alone, might be adequate to preserve the balance of powers, to arrest usurped powers, franchises and prerogatives, to quell resistance to constitutional authority, to preserve the liberty of the individual citizen, and shield the sovereignty of the state itself from violation. Hence, we see that in the very sentence which constitutes the restriction to appellate jurisdiction, is inserted the exception, which is as broad as the constitution itself. ******
“ This writ (quo warranto) may go to a person who has usurped the office of circuit or county judge, or that of justice of the peace, or, indeed, any other office, requiring him to appear and show by what authority he exercises the power of the office. But this direction is to the person, not to the officer; to the individual, not to the court.”
In the plea of the defendant no election is pleaded. A reference to the plea in the case of Welch, in 14 Barbour, will show the court the difference between a proper plea and the one filed by the defendant. This case is a recent one, and its leading points are familiar. The action was in the nature of a quo warranto, brought by Benjamin Welch for the purpose of testing the right of James M. Cook to the office of treasurer of the state of New York. Cook was adjudged guilty of usurping and intruding into the office by the court, and was ousted, and Welch installed.
Our law and that of New York are the same upon this subject. The attention of the court was called the other day to the case of Jay and Clinton, in the state of New York. That case was *683never judicially acted upon. It arose soon after the institution of our government, before the operation of government was familiar, and when that government found a judiciary already organized. When lawyers, learned gentlemen, are driven to state politics, to the discussions of wild politicians and their wild speculations and hypotheses, to learn what government ought to be, it'seems to me they are driven into a hard place. But we all know the difference between the arguments outside the court, harangues in the street and upon the stump, and the grave’ argument of law in court. Outside of the court those fossil remains of stale political theories may be of some account. But I answer them all, that we produce as our authorities the adjudication of years, since the present laws were adopted, and all the way through, the principle for which we contend has been universally recognized. Instead of commenting, myself, upon the great principles that lie at the foundation of all these cases, I prefer to take the language of this court in its opinion in the case of the Attorney-General vs. Blossom, already quoted. Was the spirit of prophecy upon the learned judge of this court, when he wrote that opinion ? In that case it was urged that the Supreme Court had only appellate jurisdiction of quo war-ranto, that it must work its weary and almost interminable way through inferior tribunals up to this. The court, seeing the necessity of an immediate determination, seeing that justice depended upon that, took jurisdiction. Now it is contended that sovereign power is vested in mere ministerial officers, a board whose functions are merely arithmetical, a mere calculating board. Let us see where this argument goes. The respondent pleads here the tabular statement of the state canvassers. The footing up of columns of figures, as grave as this canvass, have been incorrectly made in this capitol heretofore. Even a secretary of state may commit errors in adding up a column of figures. We know this from past experience. But if .you find that these columns, in this tabular statement, are not correctly footed, if errors are discovered here, intentional or otherwise, changing the whole result, showing that the men declared elected were not elected, the doctrine promulgated by the defendant’s counsel here, is that this court is so crippled, so impotent, so deformed, so absolutely powerless that it cannot correct those *684errors. You may have the evidence of wrong before you, and you who have declared that you are “ armed with the sovereignty of the state,” who control those powerful writs, more potent than sword or cannon, have no power to reach out your arm and correct the wrong. There was no gross usurpation ever successful that did not lead to still greater outrages, more audacious wrongs. When courts refuse to exercise the power of correction with which they are invested, usurpation, fraud and villainy gather strength and courage. If this court were to fail in its duty in this cause, we might easily imagine what would follow. Let this usurpation succeed. Say that your arm is paralyzed. Say that you wear that “ armor of sovereignty ” on paralyzed limbs and paralyzed bodies. Let fraud and villainy triumph. Let them prosper. Let them feel that they are strong. Let them grow insolent in the confidence of immunity. Let yet greater wrongs be perpetrated than have been, and you will have established the precedent, that they are beyond the reach of justice. Suppose this done. Two years hence Mr. Barstow gets no votes at all; but again he receives the certificate from the state canvassers. You would have no power, however, to correct the wrong according to the doctrine. The proposition is monstrous — it is monstrous.
Now, our whole conception of sovereignty is in the law. Of the sovereignty of the law this court is the mouthpiece; Who says that the court has no power to punish outrages against the law, and that whoever sets himself up as a usurper, against the law,, is above the law ? The law has no vitality, it is but a theory, written or unwritten, except as vitality is breathed into it through the judgment, action and process of this court. Whosoever says he is independent of your judgment, action and process, says that he is independent of the law, and above the law. Why, they claim for their canvass more than for a judgment at law. The errrors of judgments at law may be inquired into and corrected. The judgment may be reversed. But they claim for this canvass that there is no power to inquire into, correct or reverse it.
I understood one of the counsel in the previous argument to concede that the decision of the board of canvassers might be reviewed as to the other state officers, but not as to the governor.
*685Now, all judgments at law are reviewable in equity. The counsel claim for this canvass what they will not claim for a judgment at law. They claim that one item of the canvass is inexorable, final. In all other respects it may be reviewed, but the single item that relates to governor, is immutable, absolute. And Governor Barstow-comes into this court and says he was elected, not by the people, but by the state canvassers; he asserts, not that he has a right to the office under the constitution and laws, but that he has the certificate of election and that is enough for you to know. If the secretary or treasurer cannot say that, how can the governor? In the first place he said to the court: You have no jurisdiction over me because I have got ■possession of the governor’s office. The court overrules that position. He comes now and throws the state canvass at the court. It is very evident that the governor de facto has considerable of an idea of his political position in the world. He is certainly exceedingly scrupulous, lest that sovereignty of the state, which he pretends to represent, may be sullied in his person by this court. As I said yesterday, I think Gov. Barstow has borrowed his ideas from Gov. Mostyn. Gov. M. held that he was supreme-ruler of the island of St. Phillips and accountable only to God for his acts. Gov. Barstow mounts the ladder a little higher and announces that he is only accountable to himself? Mostyn did consider that he was accountable to God; Barstow acknowledges no such limitation of his' powers.
In early times this idea of a wonderful power residing in the office of governor was promulgated in Massachusetts. It was considered in the Commonwealth vs. Samuel Fowler (10 Mass.), where an information was filed “ to know by what authority the Hon. Samuel Eowler exercises the office of judge of probate of wills, etc., in the county of Hampden, and also chief justice of the court of sessions in said county.” It was an office filled by appointment of the governor. Mr. Ashman, counsel for the respondent, in the course of his argument, took this position :
“ The respondent further issists that under the constitution of this commonwealth, no such process lies against an officer holding an appointment from the executive, which is a co-ordinate and independent branch of the sovereignty of the state. It seems an absurdity for one' portion of the government to call on *686a citizen to show by what authority he exercises an office, to which he has been appointed by another portion of the same government, equally deriving its powers from the constitution, and accountable for the exercise of them only to the people who conferred them.”
This is the same principle for which the counsel on the part of the defence contend, in the present case. Chief Justice Parsons in delivering the opinion of the court, said :
“ Two objections have been pressed upon our consideration, which have received the attention on our part, to which, as well from their own nature, as from the zeal and seriousness with which they were- urged by the respondent’s counsel, they were. entitled :
“ The first is a want of jurisdiction in this court in a case of this kind. If this court has not jurisdiction in the case, it must follow that there is no remedy ; and a very important branch of the law is left without any means of execution. But we are well satisfied that our jurisdiction extends to the case. As the supreme judicial court, we must have authority, whenever a wrong takes place to redress it, either by appeal or by process originating here.
“ The other objection is, that an information of the nature of that before us in this case, does not lie against an officer appointed by the supreme executive authority of the commonwealth. And it is said, that as the executive kas the exclusive right of appointing, so it must have exclusively the right to determine when a vacancy in office exists, the filling of which appertains to that branch-of the government; the executive being a branch of the sovereignty of the commonwealth, equally independent with the judiciary.
“ Our government is founded on principles not known to the laws of any other country. The sovereignty of the commonwealth remains in the people. The several departments of the government, the legislative, the executive and the judicial, are the agents of the people in their respective spheres. When the legislature enacts a law, not authorized by the constitution, it is the part and the duty of the judiciary to pronounce such an act or appointment null and void. Where one is charged with usurping an office in the commonwealth, there must be authority in *687this court to inquire into the truth of the charge. The party charged has a right to require that this inquiry be made by a jury of the country, so far as it shall involve facts.”
The court, acting upon this principle, and finding the appointment to be unconstitutional, declared it void. Mr. Orton said here the other day, that had this case arisen in Massachusetts, the court would have given months to the consideration of the question of jurisdiction. He complained that this court had not sufficiently considered this point. The gentleman’s reference was peculiarly unfortunate. Here we have a parallel case in Massachusetts. The interference in that case with the executive was more direct than in the present one. Here we do not propose to interfere with the executive at all; only to ascertain who is the executive. There the court inquired into the acts of the executive. The political objection applies to the one with far greater force than to the other. And Chief Justice Parsons took no time at all. The opinion followed immediately upon the conclusion of the argument. It was argued, moreover, at length by the ablest counsel that state at the time afforded. So much for the gentleman’s insinuation that the court had been remiss in attention to the questions brought before it.
The constitution {art. 5, § 8) provides “ the governor and lieutenant governor shall be elected by the qualified electors of the state, at the times and places of choosing members of the legislature. The persons respectively having the highest number of votes for governor and lieutenant governor shall be elected.”
I argued yesterday, what seemed to me the correct view of sovereign and sovereignty. There is no present, active sovereignty anywhere. It is latent, intangible, dormant, vested somewhere, but active nowhere. The idea of a republican government is inconsistent with sovereignty. The idea, then, attempted to be represented by “ popular sovereignty,” is that the people are the source of all power. The people make a compact asan absolute, independent people, but not as sovereigns. They say we will form a government, we will adopt a constitution, we will distribute the powers of government among such officers as may be necessary to a safe and prosperous society. It is therefore said that the people are the source of all power. They are, but not the source of sovereignty. They do not make a contract as *688sovereigns. They invest sovereignty nowhere. They form a republican government, which is inconsistent with the idea of sovereignty. Popular sovereignty then is just no sovereignty at all. The people are the source of all power. They grant all power. They say that certain powers of government shall be exercised in a certain way. Now, how is the governor constituted ? He is elected by a majority of all the votes cast.
The people have framed a constitution prescribing that condition. Under it no man can be governor de jure except that he received the “ highest number of votes cast” for that office. The State canvassers cannot control that. Suppose they give William A. Barstow, or William I, as some of the newspapers dubbed him, or William the conqueror, as he might be called, if the doctrines of his counsel were sound — a certificate of election for ten years instead of two, or for life. If they can violate with impunity the constitutional provision as to the highest number of votes, they may equally violate the other provision respecting the length of his term. The sheriff of this court adjourns it every day. Can he do so now ? and why not ? Because he is merely your mouthpiece ; the thought fixing the adjournment must come from you. So the canvassers are the xner.e mouthpiece of the'people. They give the majority, and the canvassers can only declare that majority. If they add figures wrongly, or corruptly, and declare a wrong result,- their declaration confers no right. They can convey no right; they can merely declare one that exists independent of their action. Their certificate cannot create a right; it must be created under the constitutional provision, by a majority of the popular vote.
In this world there has never been but two kinds of government —a government of force without law, and a government of law without force. In the main, the governments oí the world, have been governments of force without or above law. We attempted the experiment of a government of law without force. We complain of, and criticise, and grumble at our system of government. The truth is, it is far above us. We are not educated up to it, within a century. Here the law is a mere letter. There are no embattled armies to enforce it. It is a mere word, acting by its own vitality. How shall this system be preserved ? Only by the universal submission of all men, high and low, strong *689and weak, the highest official as well as the humblest member of community, to that simple letter, as paramount and supreme.
And whenever a usurpation of power — be it great or little— be it the sublime office of governor — and from what has been said of its nigh omnipotent tenant, I suppose if they should make profert of their client in court he would come with ermine on his shoulders and some kind of a tinsel crown on his head — or a justice of the peace — whenever a usurpation of power is successful, and the courts are powerless to correct it, when they have not the power, or will not exercise it, that very moment the reign of law without force has declined. Possession becomes stronger than right, usurpation has become stronger than law; the people cease to be the source of power — the state canvassers become the source of power; the law has ceased to enforce itself; then is the beginning of the end. And a government of law without force needs but one other process to make it a government of force without law. When the law cannot reign without force., when usurpation upon usurpation, and wrong upon wrong, have succeeded, you will call in force, to sustain the law. Force and law cannot exist together.. The force you have invoked to sustain the law becomes stronger than the law. It is true this court, sitting here in this simple way, with no executive power of hundreds of thousands of armed and embattled soldiery to enforce your judgments, you have not that apparent force which the courts of some of the monarchical countries display. But to the eye of reason, to one who loves, honors and respects his species, you are a far sublimer spectacle. Your honors have sat there for years; your predecessors have sat there for years; and no act of force has yet been called for to execute your judgments. So it has been, and so it will be, if you are true to the trust that has been reposed in you. True, we have heard threats of resistance, outside talk, a barking about a recourse to arms, in case you take jurisdiction of this case.' — And so long as you sit there, asserting the power with which you have been clothed, declaring as you have done, that there shall be a remedy for all wrongs, you will sit a sublime spectacle to all mankind of law without force. But once say that the law is no longer supreme —that great and terrible wrongs are without redress — that you are powerless to reach them — that your arm is withered — and *690force will then be invoked. Force will be resorted to to redress wrongs; force to confirm wrongs; force to perpetrate new wrongs;. Am I speaking of a remote contingency ? Has it not been growled about this capitol ? Have there not been threat-enings in the presence of this court ? Have not the newspapers echoed those threats, that if this court shall attempt to go back of the canvass and correct the errors and frauds it may find there, there will be armed resistance to its judgment? We know how cheap are those threats. But if the usurpation of this board of canvassers be successful this time, in a twelve, month those threat-enings may be realized. And unless you are true to the law, and true to yourselves, the spectacle you present, the peaceful reign of law without force, will cease upon the earth, and the reign of force without law will commence.
If this record is true, the canvass is a falsehood. The information declares the election of Bashford by a majority of the people of the state. The plea does not deny it. As it stands, then, Bashford was rightfully elected, and Barstow was canvassed into office. The record then shows that the act of the canvassers was a usurpation — it was a violation of the constitution — an exercise of power, if not strictly of force, yet without law. The intrusion of Barstow into the executive office was a usurpation over the law — an exercise of force above the law. Will yon redress it ? I say as a lawyer and a man of common sense, the doctrine that you cannot redress it, that you have not, the power to redress it, is monstrous — it is shocking. I well know the exigencies of counsel. I know the necessities of desperate cases— how lawyers are compelled to advance strange propositions, and how sometimes they study over them till they almost believe them. But this proposition is monstrous, and when the court overrules the plea, as I believe they will, they should do it with reprobation. If should not be done with any timid opinion, but with as much zeal and earnestness as it was ever done in any case. The court' should put on its judicial armor and strike down the usurper’s ideas of his own power. If ever the “ spear of Groliah ” was a proper weapon, it is in this case, and against the doctrines of this plea. The proposition is so monstrous, that if it were not for the peculiar history of this case, we should submit. it without á word of comment.
*691Mr. Knowlton submitted the following points in writing, not being present at the argument-:
1st. The plea should be sufficient in law to abate the suit, of bar the right claimed for the relator in the information. It does neither and is therefore bad.
2d. The court has already decided that it has jurisdiction in this case. That question is res adjudícala and is the law of this case, and this adjudication is not in the* proceedings subsequent thereto; to be questioned by plea or otherwise.
3d. The court has further decided that it has the same authority to proceed to final judgment in this case that it has in any other case between party and party — not to create rights, but to ascertain and enforce them, *as to either party. This ruling includes the exercise of power to investigate the case upon its merits and pronounce judgment thereon. Hence, too, we have the law of this case.
4th. This court, on information in the nature of quo warranto at the last December term, in the cases that came from Columbia county as to sheriff and clerk of the Circuit Court, decided that ■it had the power to, and that it would go behind the certificate of election and the decision of the canvassing board, for the purpose of ascertaining the real facts and thus sustain the statute law, and mete out to each party his substantial legal rights. To give effect to a plurality vote of the electors, certainly the court ■ should do as much under a positive provision of the constitution-. More, is by no one sought.
5th. If the last-mentioned ruling was correct (and of this there can be no well grounded doubt), it follows that the matter relied on in the respondent’s plea goes not to the jurisdiction of the court, or in abatement of the proceedings; but it is, so far as ■it goes, evidence in bar. Not good in bar, because the election of the relator as stated in the information is not denied or confessed and avoided. The plea stopping short of a full and complete answer to the case made by the ' information, is upon familiar- principles bad.
6th. In all judicial proceedings to ascertain and enforce rights when, to defeat the party plaintiff, the defendant relies on extrinsic, facts, he must plead those facts at the proper time and in *692the proper manner. He most plead faets, and not the mere evidence of the facts, if he wishes to establish in himself a right,, equal or superior to that claimed by the plaintiff.
7th. In this case the right to hold and exercise the office of governor is the real question in controversy, between the stater relator and defendant. This right under the constitution, has its entire basis on an election to the office. Such election does not exist, as to the relator or respondent, unless one or the other received the greatest number 'of votes given for that office, at an election in due manner held. If either has received such greatest number, in such person is vested the right by the constitution.
8th. The canvassing of votes polled, stating, determining and certifying the result thereof, and the certificate of election required to be given, is merely a mode provided by law to obtain prima facia evidence as the expressed will of the electors. And the pleading of these things is simply pleading some of the evidence of the fact on which the right alone rests : namely, who received the greatest number of votes for the office.
9 th. The fact of the election to the office of governor is nob therefore pleaded, which is the only warrant by which a man can hold that office. Instead of this, that is pleaded which would be prima facia evidence of the fact, had the pleader gone so far as to also state that the respondent was by the greatest number of votes given for that office elected thereto, at an election for that purpose duly held. The plea is for this cause fatally defective in substance. It amounts to no more than pleading some evidence of a defective title — not equal in any degree to a good-title defectively set out.
10th. The demurrer to the plea at most no more than admits that the certain matters pleaded would in law be evidence if the-fact existed, which thereby, or otherwise might be proved; but it by no means admits that that fact exists. In other words it does not admit that a fact exists, which is not stated in the pleading. It is simply an admission of a legal proposition and of course cannot injure the demurrant, nor aid the other party.
11th. The court judicially knows what day by the law an election is to be held, but it cannot in like manner know whether an election was in fact on that day held. Eacts which the court *693-does not j udicially know should be set forth by pleading. The respondent has not conformed to this rule.
12th. The response of the defendant lacks so many of the essential qualities of any plea known to the law, whether dilatory -or in bar, that it is not so much as a skeleton in the anatomy ■of. pleading. The commencement is bad, the conclusion worse, and the balance a mere void. In this last particular it is em■phatically unlike nature — instead of abhorring, it admires a ■vacuum. What kind of plea it shall be christened, must be, of ■course, left to the respondent, his counsel, or to the curious in wild fowl.
Mr. Orton, in support of the plea.
The mind of the court is presumed to be elosed against any -impressions or knowledge, beyond the legal points of the plea and demurrer. I do not presume this court will be influenced by any other considerations. But it is the nature of the human ■mind to receive impressions from views repeatedly insisted upon —not enough perhaps to create an established bias, but to prevent that perfect freedom and impartiality of opinion which are just and necessary. We have been fed with what are claimed to be the facts in this case. They have been served- up in the morning paper, with our breakfasts; are continually before us in some form, or other. And it requires great independence of •mind to resist the impression so sedulously sought to be created, I regret that counsel have gone out of the record — that they have gone beyond the pure, naked question of law involved. Everything else is entirely foreign to the consideration in which we are engaged.
In the first place, I deny the whole ground of the argument— that the plea admits the facts in the information, and I demand their authority. A plea in abatement, a dilatory plea, does not admit the facts, but a plea.in bar is compelled to admit or deny. But in a'dilatory plea the facts are neither admitted or denied— they are kept in entire abeyance. ,
It might be that a motion would admit them, for a motion i-s in the nature of a demurrer, but a plea is not. We are not compelled’ to deny the facts, in a plea in abatement. The argument ■based upon .the statement that -we are, is misapplied. *694The facta in the information are not admitted. On the other hand, the demurrer does admit the facts pleaded, if they are well pleaded. So, we come into court, with the facts in- the plea admitted, and those in the information- neither admitted nor denied.
The first objection of the counsel to-the plea, is that “it discloses no other jurisdiction where the right can be tried.” This objection, if to a plea in a court of general jurisdiction and in a transitory action, would be well founded. But here are neither of these requisites. This is not a court of general jurisdiction, and if there is a local action in the world, a quo warranto is one. Neither is this an action. It is a high prerogative proceeding of the government, against one of its members. If this was a plea of privilege, would it require another jurisdiction to be disclosed ? If a member of the legislature, brought up here, during the session, should plead his privilege, and deny the jurisdiction, would he be obliged to disclose another jurisdiction, when no court has jurisdiction?
The gentlemen wish us to name our plea. I suppose that it is j-ust as good without a name. If it is a good plea, no particular name is necessary. I will, however, for the information of the counsel, give the authority for the plea. It is in the same form as that for Senator Blount, who was a member of the United States Senate from Tennessee, and was impeached by the House of Representatives of the United States, for high crimes and misdemeanors. See Wharton's State Trials of the United States, 260. The following was the plea:
11 In the Senate of the United States: The aforesaid William Blount, saving and reserving to himself all exceptions to the uncertainty and imperfections of the articles of impeachment, by Jared Ingersoll and Alexander James Dallas, his attorneys, comes and defends the force and injury, and says that he, to the articles of impeachment preferred against him by the House of Representatives of the United States, ought not to be compelled to answer because, he says, that the eighth article of certain amendments to the constitution of the United States, having been ratified by nine states, after the same was, in a constitutional manner, proposed to the consideration of the several states in the Union, is of equal obligation with the original constitution, and now *695forms a part thereof, and that by the same eighth article it is declared and provided, ‘that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, -which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to~have compulsory process for obtaining witnesses in his favor, „and to have the assistance of counsel for his defence.’ That proceedings by impeachment are provided and permitted by the constitution of the United States, only on charges of treason, bribery, or other high crimes and misdemeanors, alleged to have been committed by the president, viee-president, or any civil officer of the United States, in the execution of their offices .held under the United States, as appears by the fourth section of the second article, and the seventh clause of the third section of the first article, and other articles and clauses contained in the constitution of the United States.. That, although true it is, that he,- the said William Blount, was a senator of the United States from the state of Tennessee, at the several periods , in the said articles of impeachment referred to, yet that he, the said William Blount, is not now a senator, and is not, nor was at the several periods so as aforesaid referred to, a civil officer of the United States, nor is he, the said William, in and by the said articles, charged with having committed any crime or misdemeanor in the.-execution of any civil office held under the United States, nor with any mal-conduct in a civil office, or abuse of any public trust in the execution thereof.
“That the courts of common law, of the criminal jurisdiction of the states wherein the offences recited in the said articles, are said to have been committed, as well- as those of the United States, are competent to the cognizance, prosecution and punishment of the said crimes and misdemeanors, if the same have been perpetrated, as has been suggested and charged by the said articles, which, however, he strictly denies. -All which the said William is ready to verify, and prays judgment whether this high court will have further cognizance of this suit, and of. the said impeachment, and whether he, the said William, to the said articles'of impeachment, so as aforesaid preferred by the House *696of Representatives of the United States, ought to be compelled to answer.”
This was the plea of Senator Blount. It was simply a plea to the jurisdiction. They had no trouble in naming it. And the plea was sustained as a good one by the Senate, by the rejection of a resolution declaring him a civil officer of the United States, and liable to impeachment, and by the adoption _ of an opinion as follows:
“ The court is of opinion that the matter alleged in the plea» of the defendant, is sufficient in law to show that this court ought not to hold jurisdiction of the said impeachment, and that the said impeachment is dismissed.”
Our own plea is in exact conformity to that of Blount, it is simply a plea to the jurisdiction of the court.
Much has been said of the case of Mostyn. Now what is that case? The very authority read, Lord Mansfield’s opinion, was that if it was a suit against Mostyn as governor, to remove him from, office, to control his acts in office, the court would have no jurisdiction.. But what was the case? Governor Mostyn had committed a high handed act in Minorca, an outrageous trespass upon a citizen. When the governor returned to England he was sued for trespass, in the Court of the King’s Bench. The governor pleaded his office and the sacredness of his person. Why did Mansfield say that if the suit “lie against no other man, it must emphatically lie against the governor.” This is why. I read from the opinion of the court:
“ For it is truly said, that a governor is in the nature of a viceroy; and therefore locally, during his government, no civil or criminal action will lie against him. But here the injury is said to have happened in the Arraval of St. Phillips, where, without his leave, no jurisdiction can exist. If that be so, there can be no remedy whatsoever, if it is not in the king’s courts, because when he is out of the government, and is returned with his property into this country, there are not even his effects left in the island, to be attached.”
It will be seen that the very reason given why the Court of the King’s Bench should have jurisdiction, and why “though the suit lie against no other man, it must' lie against the governor,” was, that in Minorca, where the offence was committed, and *697where Mostyn was governor, no court could try him. As the government of that district, he was above his own courts. Had he been sued there, his plea would be a good one. And for this reason it was that in the Court of King’s Bench, in England, he must be tried, or nowhere. If we had a court of king’s bench under his Royal Excellency Franklin Pierce, Governor Barstow might be tried there, but not by any courts under his own government of Wisconsin.
The same opinion says, that if the trial were for his acts as governor, or his removal from office, it must be before the king in council.
The same opinion says:
“ Complaints made to the king in council, tend to remove the governor, or to take from him any commission,” &c.
It would not be very difficult to prove that Governor Barstow is as much a governor as the holder of letters patent in Minorca, and is as little subject to the courts of his government.
It is again objected that the plea is not verified by affidavit. The great seal of the state verifies the plea, and no affidavit is necessary. And the very facts of the plea are within the judicial.knowledge of the court. It is conceded that the court has judicial knowledge of the election. Is it not a necessary deduction that they must know that the officers of the law sat in canvass and declared and published in the official papers of the state the result of the election ? Greenleaf says:
“ They (courts) will also judicially recognize the political constitution or frame of government; its essential political agents, or public officers, sharing in its regular administration, and its essential" and regular political operation and action. Thus notice is taken by all tribunals of the accession of the chief executive of the nation or state under whose authority they act, the genuineness of his signature, etc.”
The-court must judicially know what is the proper and constitutional legislature of the state, who is governor, and by what authority he acts. This is the authority. It is just as clear that they must know the action of the state canvassers, a body appointed by the constitution and laws under it. They must know all the essential allegations of the plea, and if they know it, there *698is no need of an affidavit. The exhibits are a 'part of the plea, and prove the facts.
It is again said that we are too late with the plea. I never heard before that a plea in abatement was not a sufficient plea at any time. I don’t care what the English rule is about im-parlances. We have no such cut throat practice here. Nor is the plea to be technically scanned. It is to be as liberally .examined as any other plea. And especially a plea to the jurisdiction of the court, which is always the first question to be considered and decided, is entitled to fair candid treatment.
“ The question raised in the plea has already been adjudicated.” This objection is sufficiently refuted by their authorities. Two dilatory pleas cannot be introduced in the same degree, but we may introduce two dilatory pleas in different degrees. This is in a different degree. Before, it was a motion to dismiss. Now it is a plea to the information. If it were not so, it would not be demurrable. It might be a good cause for striking off, but not a cause of demurrer.
It is again repeated that we come acknowledging our wrong. I have before denounced it as a fallacious proposition. With no such admission do we come into court. No such form does our argument assume on this plea. No facts have been before the court except those admitted in the demurrer. But we have been treated from first to last, as if it was a clear and confessed case of guilt. It has been assumed here and elsewhere, now and before, that there was not a question, but that the respondent here was a bold and outrageous usurper, without, or in defiance of law and by the grossest frauds. That is another of the peculiarities of this case. All the human and Christian principles of law must be ignored. The cry of the populace is echoed here to swerve or blind the course of justice. Though Pontius Pilate say “ there is no fault in the man,” the rabble cry “ away with him, crucify him ! crucify him l” Such is the treatment we receive. We do not stand here' as men who must be convicted of crime before they are condemned for crime. . Against this we do solemnly protest. We protest against being assumed guilty before we are proved so. We claim the merciful doubts of the law, and protest against the violent and unlawful presumptions of guilt. The plea does not admit a fact in the information. We do not argue *699the case as if fraud, perjury and forgery were admitted by us. We argue it upon legal questions involved in the facts of the plea which the,demurrer admits.
ISF-Their next position is, that the plea is not a finality. In the argument of this proposition, the counsel (Mr. Ryan) supposes that a British fleet lands in Madison, though whether the fleet came over the railroad, or how.it is to “land” here, is not explained. It is a terrible case — it is, to use the language of the gentleman, monstrous, that a British fleet should do any such thing. But we will admit that they do it, and that they induce the canvassers to make a British officer governor. We are asked, if the rightfully elected governor cannot come into this court, and ask the British officer by what authority he. holds that office. . Suppose a little farther. Suppose they bribe the canvassers, after driving you from those seats, to canvass three British judges into your places. What is going to be done then? Supposed little farther, that they canvass in a legislature. What remedy then? Oh, “the law is above us all” — “no wrong without a remedy.”' The law may be above us all, except the lawgivers. They make and repeal the laws, and are above it. Now what are we going to do? Why we have either got to resist, or submit. There is no judicial remedy for any such wrong.
We now come to the criticism, or definition, or emasculation of our term sovereignty. I agree most perfectly with his definition of the-term. It was our position in the previous argument. And I am proud, that as a politician as well as a lawyer, the gentle-mán can be so independent of party, and so sound in his views. I do .not agree with him that sovereignty is nowhere, but do agree with him that it is not in the people. Squatter sovereignty is only another word for border ruffianism. There, is no such sovereignty in the people of this government. Where is popular sovereignty in the people of Wisconsin ? ■ Where is it as. against this department of the government ? Popular sovereignty. would allow any fellow citizen presént in this court, to walk up and tweak the noses of your honors. The court would probably order the sheriff to take his popular sove-reigntyship off to jail for the commission of a contempt on one of the departments of the government of the state. The definition 'of-such a word as sovereign can be easily settled. The *700common law of England has settled the definition of sovereign there, to be the person that wears- the crown. The decisions of the Supreme Court of the United States and of this state, have settled the definition of sovereign, by applying it to the states. The different states are called sovereign states. The sovereignty of the state is in the government of the state, it is in the organized departments of the state government.
It is all nonsense to talk of our liberty slumbering in popular sovereignty. How do the people go to work to form a state ? They elect their delegates, who come to Madison. They here form the government' — if I may use a figure — they build a Capitol — erect its pillars and its massive walls — they crown it with a dome; surround it with bulwarks; establish its constitutional limits and balances. It is complete — they disperse and leave it here. They have established the government, divided it into its several departments, provided for a governor in one, a legislature in another, a judiciary in another. The people then send its occupants — they elect the officers of the departments. They, when elected, come up here, they hang the walls' of 'the temple with frescoes and ornaments, fill it with articles of beauty and necessity. Now what do the people do — this sovereign people ? The work of their hands is complete. The building is here. They send up yearly, or every two years, its occupants, and that is all the sovereignty possessed by the people. They have established the sovereignty. They have placed it in the departments of the government. They have only to say who shall administer the departments.
If the people are sovereign they are above the law — they are above the constitution. But can any one man — any ten men — • a majority of the people, defy the law, violate the law. Suppose they all went on a certain day, and voted to destroy the constitution — is it destroyed ? The waves of popular tumult may dash •against it in vain. The constitution cannot be changed except constitutionally. It provides in itself j ust how it may be amendedj and it can be amended in no other way.
Can the people meet to-morrow, and vote to strike out article •5 ? They can’t do it. It can only be done by the course provided in the constitution itself. And if the people cannot amend it, they certainly cannot abrogate it.
*701Laws must originate in the supreme power. Where do ours originate? In tlmpeople, as is often popularly said ? No. They send men here to make the laws. After they are here, members of the law making body, the people have no further control over them. They can vote, act and pass just such laws as they please.
Bjut, says the gentleman, the sheriff exercises a share of the supreme power; a justice of the peace exercises a share of it. So they do. But they exercise and hold it as subordinate to the highest department of the state government.
^The gentleman joins issue with pantheism. In his haste to escape pantheism, he has run into another heresy quite as objectionable to orthodox views. He has gone to unitarianism to escape from pantheism. In our government there is a trinity of powers. We have three departments of government, and these three are one; each supreme, independent, co-equal, and all together forming the government. And if one intrenches upon the other, if one invades the duties of the other, controls the other, disposes of the other, the integrity, harmony and stability of the government are quite as effectually destroyed, as if the gentleman’s British fleet already covered Lake Mendota.
The gentleman says, that the law is supreme, and that the court being the mouthpiece of the law, must be supreme. In what is it supreme ? It is not supreme over the acts of the other departments of the government. You are the supreme judges of the law, of the rights of man and man, but because the law is over the court, the legislature and the governor, you are not also over the court, the legislature, and the governor. There has been given you no such God-like unity, no such supremacy over all the other powers and departments of the government.
The gentleman complains that we go into “ stale politics.” If the court pleases, this is a fast age. This is a wise age, a remarkably wise age. It is an age of great wisdom, of magnificent dis.covery, so much so, that we stand on our conspicuous eminence, we look back at the honored graves of our fathers and call their wisdom stale, and abjure their pious precepts. The patriotism of the -founders and statesmen of the republic — their wisdom, their foresight is “ stale, flat and unprofitable !” Why, where shall we go for light, but to the age and the minds which formed our government — where but to those sources of knowledge coeval *702with its formation ? We go for authority to the common law of England, whose foundations were laid in an age of barbarism and ignorance — go back hundreds of years to the turbid streams of barbaric law and justice 5 but if we stand at the graves where moulder the bones of the fathers of the republic, and drink in wisdom as it fell from their lips, and urge it in a modern court of justice, it is hooted out of courts as “the stale politics of the past,” fit only for the street or the stump. Where shall we go for authorities upon the constitution and the laws, but to those who framed the constitution and the laws ?
It is strange that in all the history of close and fraudulent elections in the United States a quo warranto never has been thought of to oust a closely or fraudulently elected governor from office. The court is familiar with the case of the election in Pennsylvania some years since.
Justice Smiths — You refer to the period known as the time of the “Buckshot War ?”
Mr. Orton. — I believe the events are better known by that appellation. Here it was alleged that 5,000 fraudulent votes were cast. Violence took,place in the legislature. 'The entire state was on the verge of civil war. The laws of Pennsylvania on the subject of canvassing were similar to our own, except that the votes were canvassed by the two houses of the legislature. The law of quo warranto is also similar to our own. But no one ever thought of contesting the possession of executive power by an appeal to the Supreme Court of Pennsylvania.
Take also, the case o.f Governor Morton, in Massachusetts, who was elected by a majority of one. Could there not have been in all Massachusetts, one fraudulent vote foúnd to impeach the election ? But they never thought of trying it in the Supreme Court.
Mr. Orton here read from the statute upon the subject of the canvass:
“ They (the state canvassers) shall certify such statements to be correct, &c., and they shall thereupon determine what persons ■have been elected.”
“Sec. 76. The secretary of state shall record, * * such *703certified statement and determination so made by the board of state canvassers.”
Now what is the language of the constitution, giving this court jurisdiction of writs of certiorari, quo warranto, &c? See Const, art. 7, sec. 3.
“ The Supreme Court. * * ■ shall have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari and other original and remedial writs, and to hear and determine the same.”
It will be seen that the same judicial power, by the same language is given to the board of canvassers, that is given to this court. They are to “ determine.” Does “ determine ” mean one thing when a grant of power is made to this court, and another when a grant of power is made to the state canvassers ? The canvassers are to “ declare and determine,” the Supreme Court to “ hear and determine.” Is this precisely similar to the New York law ? See also, another section of the Rev. Stat.' on the powers of the state canvassers. Chap. 6, sec. 95.
“ Whenever it- shall satisfactorily- appear that any person has received a plurality of legal votes cast at "any election, for any office,'the canvassers shall give to such person a certificate of election, notwithstanding the provisions of the law may not have been fully complied with, in noticing or conducting the election, or canvassing or returning the votes, so that the real will of the plurality may not be defeated by any informality.”
Is this “precisely similar to the New York law?” What power more ample, more discretionary, more final, could' be given to any tribunal ? They are not only to “ determine,” they aré to set aside all forms, to disregard all laws, to hear, consider and determine all facts to show what the real plurality of the votes may be. Is this “mere ministerial power,” as the gentleman has urged ? Are the canvassers “ mere arithmeticians?” Is this “ merely adding up a column of figures?” Is not the power full, judicial, ample and conclusive ?
Justice Smith. — Mr. Orton, do you hold that that applies as well to town-and county canvassers — renders them final?
Mr. Orton. — No, sir. By no means. It expressly says “ in *704canvassing or returning the votes.’-’ Tbe votes are “ canvassed and returned ” by the town and county canvassers. It is their informalities and illegalities which the state canvassers are empowered to disregard. It can only apply to the state canvassers.
But it is said that this forms an unsafe tribunal, from whose action there may be no remedy. Why unsafe ? Is it to be presumed that we never shall have honest and safe officers of the state ? Is it urged here, to annul the law, that officers of honesty and integrity never can be had to execute it ? If so, we had better leave the state. It is the presumption of law that all public officers will do their duty. This-boárd consists of the attorney-general, the legal officer of the state into whose hands is confided this very high prerogative proceeding of the court— the treasurer, the custodian of the treasure of the state — and the secretary of .state, to whose honesty is confided the financial accounts of the state — or in the absence of one of them, the clerk of this very court. They may be unsafe. They may be dishonest. If so, they are liable to impeachment. This court may be corrupt. The whole body politic may be diseased. 'The head may be sick and the heart faint — the extremities paralyzed and thrown off in a putrescent mass, sending a baneful thrill along every nerve and artery to the very seat of life — and where is our remedy ? The whole government of the state may reek with partisan corruption and partisan malice, and yet there be no remedy. But the wise presumption of the • law is, that public officers will be faithful, that they will be honest, that they will be true to the constitution. The same argument would be fatal to the delegation of power to any department of government, and would be equally conclusive that no power had been delegated to any.
Let us go to the constitution. It is there provided how it may be amended. An act to amend'it must twice pass the legislature and be submitted to the people. Their vote is to be. returned and canvassed in the same way as is that for state officers. How is this court ever to be satisfied that an amendment to the constitution has been adopted ? It is by the certificate of the board of canvassers. Suppose twenty years hence a case arise under an amendment of this kind. Is the court to go back to the for*705gotten, obliterated and destroyed town and county canvasses, to poll lists and to voters, to ascertain if the amendment was adopted? Or is not the certificate of the state canvass final ■evidence that it was ?
Take the banking law. Suppose a quo warranto sued out to inquire by what authority Alexander Mitchell, or the State Bank, issues bills and exercises the franchise of banking. Will the court seek evidence behind the.certificate of the state canvassers, that the banking law, giving them their franchises, was adopted, and became a parasite, clinging to the constitution, if not almpst a part of it, and unalterable as itself?
In all cases the certificate of the state canvassers, their declaration published in the official paper of the state, is final and ■conclusive. If not, we are all afloat. This Supreme Court itself does not know that its members are elected. The departments of state are held more loosely than by a rope of sand. We know not where we are. We are without rudder or compass. There is no finality anywhere.
Justice Smith. — Let me call your attention, Mr. Orton, to still ■another article of the constitution, providing for the submission ■of colored suffrage to the people. If you will recollect, it provides that a majority of the votes cast shall be required for its adoption. There was a plurality, but not a majority of all the votes cast at that election.
Mr. Orton.-*-1 suppose that the statement of the canvassers is ■final, sir.
Justice Smith. — Their decision that it requires a majority of all the votes cast, or whether only a majority of the votes upon that subject, would be final, you think?
Mr. Orton. — Yes, sir. And finally upon the adoption of the •constitution itself. Can I set up frauds in that election, for your inquiry, to test that question. Would a batch of quo warrantos, sued put against the first elected officers of the state, before the ■Supreme Court of the territory, alleging frauds in the constitution, be entertained ? They certainly would not.
*706The board of state canvassers is a constitutional tribunal. ■Const, art. ■ — , sec. 4 — “The legislature shall have power * * to provide by law for the organization of a separate Supreme Court.” The legislature has done so. This court is a constitutional court, the same as if it had been organized by the constitution itself. The law has a constitutional force and sanction, being specifically ordered by the constitution. Now see sec. 3, art. 5, Const. “ The returns of election for governor and lieut. govern- or shall be made in such manner as shall be provided by law.”
The board of state canvassers are formed under this constitutional grant of power to the legislature. When they are formed they are a constitutional tribunal. Constitutional power is vested in them, the moment they are formed, to the full extent that it is vested in this court.
The court having assembled, Mr. Orton resumed his argument.
I was commenting when I concluded, the previous day, upon those parts of the constitution which required a canvass of votes upon other questions than the elefction of state officers, and where their canvass and statement of the result would be final. I find in sections 82, 83 and 84, of chapter 6, Eevised Statutes, the provisions for canvassing the votes on all amendments to the constitution. They are to make a statement of the votes and “ determine ” whether it is adopted or not. The same language is used as that directing their duties in canvassing the votes for state officers. It does not say that their certificate «hall be final. But they shall determine the question. They «hall make out and publish a statement of the votes. They shall “ record such determination.” Now when that determination is made, when the statement is published in the official paper of the state is it not final ? is it not conclusive ? is it not •a public record of the state behind which no court cau go, in its inquiries whether the amendment was adopted or not? It certainly is. And the language is essentially the same in defining the duties of the state canvassers in canvassing the vote for state officers. The process for canvassing is the same. The same rules apply to it. The canvass of'the votes for governor is made a matter of the same prudent, cautious record. And when it is made, it becomes a part of the archives of the state, an indestructible record, and the conclusive evidence for all *707time to come, of the result. If these determinations, and the same rule applies to all, are not good now, they never will be at any future time, however remote. Fifty years to come, there may be inquiry into the fact of the adoption of the constitution, and the state may be rummaged 'for town canvassers and poll lists and voters, to ascertain the fact when they are no longer in existence, as to whether it was adopted or not. But the law has wisely obviated any necessity for this labor. It has required the final, conclusive proof of its adoption to be placed in the books of the secretary of state, a perpetual, recorded proof of the fact.
The banking law was passed by a vote of the people. It was not a law when the governor signed it, not till a majority of the people had voted for it. Where is the proof that it ever passed, if the statement and certificate of the canvassers who canvassed the votes is not proof?- Have you now, to go back of the canvass to every precinct in the state ? It is nonsense to suppose such is the case.
Justice Smith. — Suppose, Mr. Orton, the vote on the adoption of the law had been very close, and frauds in the vote by which the majority in favor of its passage was obtained, were obvious; would not the court have a right to inquire into it, upon the question arising immediately after its. passage ?
Mr. Orton. — If you could then, you could now, you could at any time in the future. You wo’uld be obliged to when there were 300 banks established in the state, you would have it to do in every case, if suits were brought against them. If that canvass was not final, we are all unsettled, and must forever remain so.
Justice Smith. — Why, would not our adjudication settle it?
Mr. Orton; — Not if other cases arose, you would have to try the same question every time.
Chief Justice. — If the law is once settled, it is the law in Ml future cases of the same kind.
Mr. Orton. — -Well that is what I claim for the state canvass. *708I argue that it is a final and conclusive judicial determination that settles the fact, and ends the matter.
Chief Justice. — You do not differ from the position of the other counsel there, except in the change of form.
Mr. Orton. — Perhaps not. No, sir. I claim that the board of canvassers judicially settles the question.
Justice Smith. — But in the case I supposed, if there is specific-fraud, in the election could it not be inquired into b.y this court, under a quo warranto proceeding, as that would be the proper' proceeding against a bank, to inquire by what authority it exercises its franchises ?
Mr. Orton. — Well, if the court will assume that there is fraud, will assume fraud, any way, whether it is proved or not, it puts a very hard case. But I imagine that fraud cannot be assumed till proved. The plea does not admit frauds averred in the information. - No fraud is admitted, and never can be assumed till proved. The only facts that are admitted, or that, can be assumed, are those of the plea, which are admitted by the demurrer, that-there was an election, that its result was “ determined" by the board of canvassers, and. that their statement and certificate .are conclusive of the fact.
Chief Justice. — But you have not pleaded an election.
Mr. Orton. — Does the court intimate that we have not pleaded an election ? It is conceded by all that the fact of an election is in the judicial knowledge of the court.
Chief Justice. — We may have judicial knowledge of the election, but not of who is elected.
Mr. Orton. — We pleaded the certificate and statement of the canvassers, as evidence that Governor Barstow was elected — the public records of the state, of which the court must take judicial knowledge, whether they are pleaded or not. We show that he is governor, and the authority by which he is known to be governor, not only by the court, but throughout the state and throughout the country. We hold that the certificate of the can*709vassers is conclusive, tbat if it is not of this matter, it is of none, and that we are all unsettled, that there is no government, that no court sits on that bench any more than there is a governor sits in the next room. For if that certificate is nothing in his case, it is not in any case — if you nan go behind it in one, you can in all.
But, it is urged — and, of course, that settles the case — that this is a government of law without force. Of course, if this be so, '.it ends the case. If all power is in the judiciary, if it is1 the law and the government, it is settled. But is it so? Is it true that this is a government of law without force? What*is our executive for ? What is our military for ? Civil government cannot exist without force. Laws are nothing without force to execute them. Penalties enforce every law. Why not abolish the jails and penitentiaries ? What does the sheriff stand there for day by day ? Without force government has no strength- — no tenacity. Force must stand behind the law to execute it. Without it, jaw is of no avail — our rights are without protection — the strong would trample upon the weak — there would be no security for property, liberty or life. What would be our government without force, with every despotism of the world ready to attack and enslave or destroy it. We would be like a sheep among wolves — all ready to rend and devour us. Our force only protects us. - We should be in a poor condition indeed, if there were no more force in the government than there is in the gentleman’s argument.
The constitution says, that “ the executive power shall be vested in a governor.” It is not vested in the department — not ■ in that room yonder. It is in the man, the governor. Whether the governor is in that office, or in Milwaukee, he is the executive of the state, and in him is vested the executive power. How, then, can you dispose of him without reaching his office ? If you bring the governor into court, do you not bring the executive into court ? If you bring him into court, you bring in him in whom the constitution has invested “ the executive power of the state.” He has all the force of the state at his command. If the state is invaded -to-morrow, he calls out the forces of the state to repel it. What could this court do ? You would sit there declaring judgment and construing the law, while the invaders invested the *710capítol and burned tbe town, and be powerless to command tbe force of tbe state to resist them. In our government we have to borrow supremacy from the idea of the head of a monarchy, and vest it somewhere. We have vested it in- a governor. He is always present, and represents the state. He is the sole representative of the sovereignty of the state during the recess of the legislature and this court. He stands by the sovereignty of the state when you are asleep and we are asleep, guarding it, watching it, defending it from assault and destruction.
Again, the constitution gives him the power to remove every administrative officer in the state, except the heads of departments. He may remove them all — every civil officer in the state. There is power — there is force. And yet, it is said, the executive is nothing, it is “ a government of law without force.”
The main idea of my argument, the total distinction between an office, a mere subordinate position in the administration of government, and a department — a branch of the government itself, is so eloquently set forth in one of the opinions of this court that I will read it. See 1 Wis. Rep. 610, 611 and 612. The learned judge says:
“ Constitutions and laws are made for the practical benefit of the people. The powers of the government are divided and distributed for the convenience and safety of the people.”
“ There is to be observed a wide difference between the fundamental law, by which a government is organized and its powers distributed, and those laws by which the government delegates subordinate powers and imposes duties upon inferior bodies or tribunals. While the one is regarded as the creation of the several indispensable departments through which the sovereign power of the state is to be exercised, the other is the mere delegation of authority, limited and special, by which the detail of administration is to be conducted. The failure or imperfection of the latter, may, at all times, be remedied by the existing government, while the failure of the former might operate the suspension or abrogation of the sovereignty, and become destructive of the government itself. The rule, therefore, here contended for (and which seems to have found favor with Justices Bronson and Jewett in their dissenting opinion in the case of Oakley vs. Aspinwall, 3 Comst. 564), ‘ that whenever a power is delegated *711to- several persons, without any provision that it may be exercised by a smaller number, they all must joindoes not apply to this case. The learned and venerable jurist, who delivered that dissenting opinion, seems to have lost sight of the distinction between the distribution of powers in the organization of a state or government, and the mere delegation of authority by the state to inferior tribunals or bodies. When the state, the primary repository of the sovereign power, delegates authority to a certain number of persons, it may well, require that all of the persons thus intrusted shall be required to participate in the execution ■of the trust.' In the latter case, authority is injjrusted to the persons for a special and limited purpose. In the organization of the government, its powers are not distributed to or among persons or individuals of a certain number, but to and among certain departments. To each department its appropriate powers are assigned, not as new powers created for the occasion, but as part and parcel of those already-existing ,as inherent in, and .pertaining to the very nature, and inseparable from the complete idea of government. In no sense can it be said to be a delegation of authority to individuals, or a certain number of persons. The powers and functions attach to the departments, -to be exercised from time to time, by the person or persons who may succeed to the offices.”
How perfectly -is this in point in support of our position that the governor is not a mere officer — that no department is a mere “office.” He is “a power of the government.” You are not dealing with a mere officer. You are dealing with a department of the state — a sovereign power of the government. You are dealing with sovereign power, and laying your hand upon one of the three pillars which sustain the sovereignty and uphold the power of the state.
I will proceed to read two authorities upon the point of the finality of a certificate of election. I read, first, from 1 Me-•Cord, 46. This is a case where -the law provided that there should be eight managers of election who were 'to canvass the votes and-award the certificate, and five of-whom should form a quorum. The question was-, whether a majority of the five, being but three out of the entire number, could grant a certificate of ■election. It was held by the court, that a majority of'thequorum *712was sufficient to decide the question. Justice Bay, at chambers* gave the relator leave to file an information. On this an appeal was taken to the full bench, on the ground that the certificate of the managers was final and conclusive. Upon this question the court held the same as was held in another case of the same nature, that as the legislature had constituted the managers a tribunal to “ hear and determine ” the question* their decision was final and conclusive, and the court had no control over them.
The next case that I will read is from 5 Ohio JSeports, 359. This was a writ of quo warranto brought against Lemuel Moffit, associate jud^e of the Court of Common Pleas. On the journal, of the House of Eepresentatives it appeared that Samuel Moffit was elected to that office, while on the Senate journal it appeared as Lemuel Moffit. Depositions were introduced of several members and officers of the general assembly to prove that Lemuel, not Samuel, was the individual voted for and elected. Lemuel Moffit also took the oath of office and acted as judge, but had received no certificate of election, or commission from the governor. Judge Hitchcock, in delivering the opinion of the court, said:
“ The evidénce is such as to induce a belief that the defendant, Lemuel Moffit, was elected. * * * But whether this be the appropriate evidence to prove before a judicial tribunal the fact of an election by the two houses of the general assembly, is a more serious question. * * * The testimony of an individual member could not be received to contradict a statute* and, if not, why receive it to contradict an entry upon the journal ? Besides, the principle that an election might be proved by parol would be fraught with danger. Where is the man* who has been for years a member of the legislature* possessed of a memory so tenacious that he can undertake to state the names of individuals for whom he has given votes for the office of associate judge, or for other offices. I presume he cannot be found.”'
Again: “ Almost every officer of this state is elected by the legislature or the people. And the laws have made ample provision for the evidence with whicih the individual shall be furnished of his election. If these laws were to be disregarded* and the fact of the election should be left to be proved by the frail memory of the electors* it is not possible to conceive of the *713confusion that would follow. Still, this is substantially tbe principle we are urged to adopt, and wbicb we must adopt in order to justify tbe course pursued by tbe defendant. We cannot do it.”
Learned, wise, prudent judge! Tbe law bad declared that a certificate of election, and a.commission of office, should be evidence of right to office. He could not violate the law, and tbe plain dictates of reason and prudence, by deciding that other evidence should be presented against it. The fugitive recollection of voters, scraps of hearsay and supposition, stuff, perhaps, trumped up for the very purpose of being produced as testimony, had no weight with him against the evidence of title which the law provided and prescribed: Lemuel Moffit may have been elected, but he had no legal evidence of title to office, and the court could not declare one thing evidence, when the law had said another thing should be. The case here is precisely similar. We have placed before the court the highest and only evidence of title to office known to our laws, and upon it asked the judgment of the court. These two cases, both exactly in point, I put against the solitary authority in New York; for there was in fact but one, the others being based entirely upon it.
It is again said, that the canvassers are not a safe tribunal, because they are the administrative officers of the government. Suppose the law had given the same power to this court, that is given to the canvassers, by the same language. Suppose, and I understand there is a proposition to so amend the law, the only change in it had been that, instead of the “secretary of state, treasurer and attorney,” it should have read “ the three judges of the Supreme Court,” that you were to count and canvass, to “ declare and determine ” the result, to disregard all forms, and be guided only by “ satisfactory evidence ” in arriving at the “ real will of a plurality,” and that your clerk was to record your determination — it becoming a part of the perpetual records of this court — would it be judicial power then? If it was mere ministerial, you need not accept the power granted to you. But would you not accept it as judicial power? And when your action was recorded, would it not be final ? No new power is added by conferring it on the court — it is the same in you as in the state canvassers. Suppose, in the changes of politics, George *714B. Smitli and Alexander T. Gray should occupy the seats of your honors, to exercise the same power, would it be ministerial then ? Is it more ministerial now than it would be then ? There is no reason why they should not occupy your places. They are lawyers and members of your bar. And. I will say, that however they may have been assailed, it has been unjustly and unwarrantably. As public officers, I know of nothing to impeach their honesty, their fidelity and integrity. And I will be affected by neither the calumnies of newspapers, falsehoods of the pen, or of the tongue, till such proof is brought as is conclusive.
Dark, indeed, would be the political history of this court, if this power was conferred upon it. Lampoons of political newspapers — complaints of defeated politicians — whole parties rising in rebellion to its judgments, if such was their duty. And such will be the case if this court have the power here claimed for it-It will be filled with defeated candidates at every election, and the excitement, the turbulence, the high political feeling of every canvass will invade it — money will be staked, and bets decided by its judgments. But leave the power where it is — it is final. It will preserve to this court, far removed from the political ring, its equanimity, its respect and its impartiality.
This decision is as conclusive as any other judgment. If it was objected that it was fraudulently obtained, they might impeach it. Fraud vitiates everything. But their information alleges no fraud.
There is a distinction in the duties between the different departments of government. Thus the court cannot do what the sheriff could do. They cannot go out into the street and serve their own processes. One justice has not jurisdiction over another. .One cannot take jurisdiction of a case from another. No court can interfere with a case to which the jurisdiction of another court of concurrent jurisdiction has attached.
The judiciary is no greater, it is no less, than the other departments. It is their equal, it is independent of them, it is coexistent with them, but not above them. They are its equal, independent of it, co-existent with it, but not below it. "When it usurps a superiority, it becomes not a sun, giving heat and light, shedding a healthful influence wherever it shines, warming, *715blessing and protecting, but a baneful fire which withers and consumes.
I will not say how serious and important are the results of your action. It will not be a “finality” of action on this subject. Decide that you have all power, and your court will be thronged with political suitors from year to year. It is not the individuals whose interest are concerned; it is the importance of the constitutional question involved. Bashford and Barstow are nothing, but your adjudication is for all time; its effects will be felt when they, and you, and I are in our graves. It is whether, when the governor of the state appears before you, and places upon your records his investment of the powers which he' holds —the same title to office by which you hold the seats you occupy — you must not dismiss the suit against him. You have no right to question his election beyond the legal evidence before you. He has no right to question yours. If either had, the harmony between the executive and the judiciary must cease at once, and if that ceases, it exists nowhere.
It is true, in the argument of the previous motion in this case, he may have appeared in the light of a usurper, with no legal evidence of right to his office. He does not stand so now. He has placed on your records the highest evidence of right to his office. He appears with the executive power of th.e state vested in him, which you can neither disturb, interfere with or control, without destroying the order and harmony of the government, and in the end producing conflicts of power and sovereignty, that must destroy the government itself.
Mr. Howe closed the argument for the demurrer. No time will be consumed in discussing the formal objections taken to the respondent’s plea. My associate has stated these very clearly, and has sustained them conclusively. His argument upon these points in the demurrer has not been answered and cannot be answered. I will only recapitulate the points.
We object then, first, that the plea is to the jurisdiction, and it is put in without oath or affidavit of the truth of its contents. 4 Allen, chap. 16, sec. 11; 1 Chit. Pl. 445.
We object, secondly, that it is pleaded after a general impar-lance — after, indeed,. several imparlances, and must thus be *716overruled upon demurrer or be set aside upon motion. 1 Ghit. PI 437.
We object, thirdly, that the respondent’s plea, while it denies the jurisdiction of this court, yet shows no court which has jurisdiction. It does not deny the cause of action stated in the information — that can only be done by a traverse of its allegations. It does not deny that a cause of action is stated — that might be done by demurrer, and has been done by a motion to dismiss, and when this court denied that motion it conclusively decided that a cause of action was stated. If, then, a cause of action be stated in the information, some court must exist competent to try it. No judge can ignore this proposition — no lawyer will deny it, unless he be driven to denial by extreme stress of weather. No stronger language perhaps can be found in support of that proposition than was quoted by my associate from the opinion of Lord Mansfield in the case of Governor Mostyn. It has been said, indeed, that the respondent fills an office of much higher dignity than that occupied by Grov. Mostyn. I apprehend that opinion was advanced without due consideration. To be sure dignity is rather difficult to measure; but it may safely be asserted that the governor of this state represents the people only in a limited capacity. He is at the head of only one of the departments of this government — Grov. Mostyn, on the contrary, represented the king of England. Within his province he stood at the head of each department of the government, and could no more be impleaded in the courts of his own province, for any cause, than the queen of Great Britain can in the courts of her own realm.
But we need not rely upon the case of Governor Mostyn, nor upon the opinion of Lord Mansfield. We have higher authority nearer home. Our own bill of rights declares that “ every person is entitled to a certain remedy in the laws, for all injuries or wrongs which he may receive in his person, property or character.” Const, art. 1, sec. 9.
If then the relator has been injured as he avers, he is entitled to a remedy in the law. If the respondent will deny the authority of this court to afford that remedy, it behooves him to show what court can do so. But if some of these objections to *717the form of tbe plea are not insuperable — there are objections to its substance which cannot be overcome.
The relator avers that he is entitled to the office of .governor, and that the respondent has intruded into it. The plea does not deny this, but it sets up a certificate of election' issued to the respondent by the state canvassers, and prays judgment if the court will have further cognizance of the action. Now, whether this plea be good or bad in substance as a defence to the action, it is beyond all question bad as a plea to the jurisdiction. We regret that this is so, and we hope the court.will go beyond the mere technical question, and decide, what we all claim should be decided — the question intended to be raised by this plea — as to the conclusiveness of the state canvass. I repeat, if that canvass be conclusive, it offers no- objection to the jurisdiction of this court.
If that certificate be conclusive evidence of title, it is a good answer to the averments of the information. Then the relator is not entitled to the office — then the respondent is not a usurper —then there has been no intrusion. But where, before, in the history of jurisprudence, has title been pleaded in abatement? If the respondent were sued in ejectment for a parcel of land, of which he had a patent from the government, he surely would not plead that patent in abatement.
The certificate of the state canvassers, is no more conclusive than a judgment of this court in an action of trespass or replevin.
But what lawyer would plead to either of those actions a former recovery in bar of the jurisdiction ? If this mode of pleading was not condemned by all authority, and by the uniform practice of courts, it would be condemned by the very absurdity in which it would involve us. This court is asked to adjudge the respondent’s certificate to be conclusive evidence of his title to the office, and if you so adjudge, then you are to decide that you cannot give judgment at all. You are called upon to determine this very question in the case, in order to ascertain whether you can determine the case or not. You are seriously urged to say, that you cannot try the allegation that the respondent is a usurper, because he exhibits a good title to the office, and consequently is not a usurper.
*718If the fact be as averred by the respondent, and tbe law is as assumed by bis counsel — in other words, if in fact be have a certificate, and if, in law, that certificate have the effect claimed for it, then this court cannot dismiss the cause, but it must give judgment for the respondent, and award him bis costs against the relator.
But we desire to meet the only proposition which can ever avail the respondent as a defence, and we deny that the certificate of the state canvassers is conclusive evidence of title to the office.
I have been a little troubled to ascertain the precise ground upon which counsel intended to rest that proposition. Sometimes they have urged the extraordinary dignity of the office as a reason why this court cannot inquire into the title of the tenant of it. Sometimes it is contended that the constitution and laws of our state contain provisions which deprive the court of jurisdiction. The two propositions are not quite consistent with each other. But, when driven from one, counsel have beat over to the other, and when beaten from that, they have just drifted back again.
I need not discuss the former position that was overthrown by the judgment of this court upon the motion to dismiss. We already understand that there is nothing in the executive chamber so sacred as to afford immunity to usurpation and intrusion. It only remains for me to consider what tribunal is charged by our laws with the duty of determining finally when that office is held lawfully and when unlawfully, wffien it is rightfully exercised, and when usurped.
Let me congratulate the court that we are already free from the difficulty, which was pressed upon our attention with great earnestness upon a former argument. It was then insisted that notwithstanding the respondent stood upon the record a confessed usurper, yet his usurpation was successful and complete. Moreover, it was of the office of governor, no less — an office to which belonged the right to grant pardons and to command the militia, by express grant of the constitution — and a salary of $1,250 per annum, by express grant of the legislature; that having succeeded in ■ his usurpation he had proceeded to quiet his title by his own judgment, and upon examination had *719pronounced it perfect — and that there remained to the judiciary of the state no authority to review that decision or to reverse that judgment; that if this court assumed so to do, it would result in a conflict of jurisdiction, in a conflict between the judicial and executive departments — departments which.were said to be co-ordinate and co-equal, indeed, of such exact equality as would have induced us to believe that conflict must result in the annihilation of both, only it was hinted that the executive by dint of the militia, was likely to prove a little the strongest.
No such peril, I am happy to say, hangs on the decision of this question. The respondent no longer claims under his own decree. He pleads now the judgment of a very different tribunal, designated by his counsel as the “ court of state canvassers,” a court which, as it never had command of the militia and has long since ceased to exist, is not likely to offer any formidable opposition to the judgment of this court.
The respondent’s counsel has advocated his’ cause with great ingenuity and marked ability, but he seemed to exhibit a strange sensitiveness touching the distinction which we claim to exist between the office and the tenant of the office — between the department and the person who occupies it. We have been told over and over again, that if you deal with the tenant you deal with the department. But surely this cannot be so. If the governor makes a contract no one doubts but he may be sued upon it. If he commit a crime he may be punished for it. If he.commit murder, and-the penalty by law was capital, he might be hung. It is absurd tp say that the executive department would swing. If the governor commit an assault and battery, he may be arraigned before a justice of the peace. Would the executive department appear there ? The consequences might be sad, indeed, if this doctrine were. true. We may have a governor at some future time who will not observe the precepts of the Maine law, and the executive department may be seen hanging about the St. Julien calling dubiously and incoherently for one more brandy smash. To my mind there is a clear and broad distinction between determining the right of an individual to an office, and determining .how -he shall exercise the office while in it.
Before I proceed to state the grounds upon which I maintain *720the jurisdiction of the court over this cause I wish to notice-briefly the historical cases to which we have been referred by the other side, and from which an argument has been raised against that jurisdiction. The counsel first referred us to the controversy which arose in the state of New York between Judge Jay and Governor Clinton.
The latter received the certificate; it was alleged there, and is assumed here, that he received it wrongfully- — and it has been triumphantly demanded why, if the judiciary are so powerful, was not the judiciary appealed to?
' The answer is obvious — Governor Clinton received his certificate from the legislature. We have no sufficient evidence that it was not rightfully issued to him. But, right or wrong, that decision was undoubtedly beyond the- review of any of the courts of the state — and for this reason, the constitution of New York had given no power whatever to the courts — -it had created no courts — it had made no disposition of judicial power — that was left to the disposal of the'legislature. The legislature created what courtsitpleased,andgavetothemsuchautkority as it pleased. The courts were the creatures of the legislature — whatever the creator had done, therefore, it is evident the creature could not undo. The legislature, which gave to Clinton the office of governor, might have tried and determined an action of replevin, or exercised any other judicial power.
We were next cited to the case of Ritner and Porter, which arose in the state of Pensylvania. That "was more a contest between the two branches of the legislature, than between the two claimants for the office. I was gratified to notice that my friend upon the other side, when bringing in a file of old newspapers, and even reading the address of the central committee of a political party as legal authority before this court, exhibited a sensitiveness which clearly indicated that he appreciated the novel nature of his authority.
We were next referred to the case of Governor Morton, who was declared by the legislature of Massachusetts to be elected by a majority of one vote. Is it not possible, asks the counsel, that if the courts had been appealed to, that one illegal vote could have been shown to have been cast for Governor Morton ?
I answer, that such an event is quite probable. But it waa *721never denied, as I remember, but tbe decision of tbe legislature upon tbe evidence before them, was entirely just. And although it is quite probable that a judicial inquiry would have ascertained more than one illegal vote cast for Governor M., it is quite as probable that as many illegal votes would have been proved to have been cast for his opponent. But I do not claim that either of the courts of Massachusetts, or of Pennsylvania, had authority to institute any such inquiry, or to determine any such inquiry. I do not think they had any such authority, and for'the same reason that the courts of this state have not power to try an impeachment — because the constitution of each of those'states expressly delegated that power upon their legislatures. It was so much judicial power abstracted from the' courts, and conferred on the legislatures.
But the constitution of this state makes no such or similar provision. It declares that the person receiving the highest number of votes for governor “shall be elected.” It provides that the “ returns of election for governor and lieutenant govern- or shall be made in such manner as shall be provided by law.”
But the constitution does not declare who shall return finally the.result of an election for governor. Where, then, shall such determination be had? We assert that it is not the exercise of executive power, because it is the duty of the executive to execute the laws and not to make them, or to interpret them, or to define rights under them. It is not the exercise of legislative power, because it is the province of the legislature to make laws and not to expound them or to execute. them. If then, this duty has not been delegated to either the executive or legislative departments, it must of necessity belong to the judicial department, because these three make up the sum of the government.
Indeed counsel seemed to concede that such declaration is the exercise of judicial power, and to qualify them for that duty he has created the state canvassers into a court, and has called them the “ court of state canvassers.”
My answer to this assumption is two-fold. 1st, the legislature has no power to create any such court, and 2d, it has never attempted or intended to do so. The legislature cannot create atiy such court, because with the exception of the power to try im-*722peacbments, tbe constitution bas vested tbe whole “judicial power of the state, both as to matters of law and equity ” in “ a supreme court, circuit courts, courts of probate, and in justices of the peace.” Oonst. art. 7. sec. 2.
It is true that by tbe same section, power is given to the legislature to establish other courts, but only upon two conditions. They must be established “ within the several counties,” and they must be “ inferior.” It will not be contended that the court of state canvassers complies with either of these conditions, but if it complied with both, this court would clearly have the right to review its decisions, because to this court is given, not only general “appellate jurisdiction” but also a superintending control over inferior courts. See Const art. 7, sec. 3.
If the legislature, then, may, in defiance of these constitutional provisions, create one new court, and vest in it final jurisdiction in any class of cases, it may create as many as it pleases, and so may strip this court and every other nominated in the constitution, of all jurisdiction whatever.
But I say, secondly, that the legislature never attempted or intended to create a court of the state canvassers, never intended they should possess the functions of a court, or exercise any judicial power whatever; it was only intended they should act ministerially, collect the returns from the different counties, to foot them up and to furnish to the several persons whom they judged to be elected, a certificate of such election, which certificate doubtless gives as good title to office as the governor or the president’s patent does to land. Neither the certificate or the patent constitute title, but only evidence of title; if they are issued in conformity to the laws neither can be controlled, but if not, either can be. It is the duty of the canvassers not to establish rights like a court, but to furnish evidence of rights like a court commissioner. It is true the act defining the duties of the state canvassers, declares that upon examining the returns of votes, they shall “ determine” who has been, by the greatest' number of votes, elected governor. The respondent’s counsel has laid great stress upon the use of that word “ determine,” and he insists that of itself, it gives final and conclusive jurisdiction over the subject. But certainly he is mistaken in this opinion. The word can have no such controlling force. In the very same *723clause.(R. S. chap. 6, sec. 74), the same tribunal is authorized to 11 determine” who has been elected treasurer, secretary of state ■and attorney-general. It was conceded by one of the counsel who argued the motion to dismiss, and not denied by any one, •that such determinations were not final. The learned counsel who has argued this demurrer, now insists that the determinations of the canvassers are final upon each of those offices. But •in the same clause the canvassers are authorized to “ determine ” Who have been elected as representatives of the state in Congress. Surely no one will contend that such determination -is final. By section 66 of the same chapter, the district canvassers are authorized to “ determine ” who have been elected members •of the legislature, but each house can and does review such determinations. By sec. 58 of the same chapter, the same power is given to the county canvassers in reference to county officers) 'but such determinations have frequently been reviewed and revised both in this court and in many of the circuits of the state. I cannot conceive why an effect should be given to that word in one clause which it clearly does not have in others, nor even in all cases in the same clause.
But by the 73d section of the same chapter, the canvassers, when assembled, are directed “ to make a statement ” of the whole number of votes given for each of the state officers, from the governor to the state superintendent; “ each of which statements shall show the names of the persons to whom such votes shall have been given, for either of the said offices, and the whole number of votes given to each ; s distinguishing the several districts and counties in which they were given.” By the 74th section, they are required, upon such statement, to determine who-have been elected to the several, offices; and by the 76 th section, the secretary of state is directed to certify such statement and determination, and to publish the same in a newspaper» To what end is the publication made if no fraud or error, which may be exposed in the statement, can be corrected ? The opinions of this court are required tobe published, and why ? Because they are a part of the law of the land, and prescribe a rule of action for its citizens and a rule of decision for its courts in like eases.
These published u statements ” can subserve no such purpose. *724The people, to be sure, are interested to know which of the candidates for governor has received a majority of votes in tbe state, but they have no interest in knowing how many votes each candidate may have received in each of the counties of the state, except for the purpose of correcting errors in the statement. Suppose it to appear from such published statement, that the canvassers have made a mistake in footing up the returns, whereby A. has received the certificate to which B. was entitled. Will it be any satisfaction to the people of the state to see that error exposed when it cannot be corrected ? Suppose the clerk of Grant returns that the whole vote of the county was given to one candidate, when it is known in every town of the county that the whole vote of that town was given to another. Suppose the true return from that county is lost, or purloined from the mails and a forged and false return is substituted and reaches the capítol, but which changes the result of the election in the state. Is it not worse 'than idle to inform the people of Grant of the fraud that has been committed upon them, and at the same time tell them they are without redress ? The deliberations of the canvassers are exparte, they act upon ex parte testimony, they have no means of distinguishing between genuine and false returns, and if, under such circumstances their determinations are to be held final, it is not easy to enumerate the frauds and impositions that might be practiced upon the people and the elective franchise. It would be hard enough to expose the people to such wrongs, but it would be cruel to require a statement of such wrongs to be published, taunting thus the people with their helplessness.
I have always thought that one of the most striking illustrations of fiendish malice I had ever witnessed, was that of Cruikshank, which pictures the ugliest of mortals, Daniel Quilp, sprawling upon the ground just out of the reach of a chained mastiff, kicking his heels, snapping his fingers, and taunting the enraged but helpless animal to bite him. But if the people of this state are to be bound down by the iron decision of the state canvassers, and are then to be told circumstantially by them — we have made the man of our choice governor, not the man of your choice, and this is the way we did it — we discriminated liberally in favor of our favorite, in, all cases where different persons, each *725claiming to be clerk of the samé county, made returns of votes from different portions of the same county. We greatly improved upon°the returns of some counties, upon the strength of private letters received by us — and better than all, only the day before we “finally determined” who was governor, we received a refreshing shower of returns from precincts not known to us, to the people or to the law, but which we presume to be genuine, because they are absolutely necessary to the result we had predicted weeks before they arrived, and because they are made upon paper exceedingly common, about the capitol wherein we inhabit, which we know to be genuine paper; and’because if they are not genuine, there is not a man living in the wilderness from which they purport to come, to impeach them: we have done' it, and you cannot help yourselves. If such deeds can be done, and such language used by the doers, under sanction of law, then I, think Cruikshank may improve his picture, by borrowing an idea from the legislature of Wisconsin.
But I conclude, that the law will sanction no such transactions. I believe the decisions of the state canvassers are’not final, and were never intended to be; and that they were never intended to be clothed with any j udicial authority. Their proceedings are not after the form of judicial proceedings — they meet whenever they please before the 15th of December succeeding a general election — they meet without notice to parties interested — they act'upon such evidence as they have before them — the evidence is ex parte — in three days from the time they assemble, the board is dissolved, and its authority terminated. If they are dishonest, they have every opportunity to impose upon the people; if they are ever so honest, they cannot protect themselves from imposition.
An argument in support of the finality of the canvassers’ certificate has been framed upon the 95th section of the 6th chapter. It has been claimed that that section confers upon the state canvassers a discretion not confided to any other canvassing board, and^ which, like all discretionary power, cannot be controlled by any other tribunal. My answer to that extraordinary position is, first, that the section gives no discretion, but only imposes a plain and imperative duty to the end “ that.the real will of the plurality may not be defeated ” — that if discretion cannot be con*726trolled, duty can be enforced. And second, that if discretionary-power is conferred by that section, it is conferred upon every canvassing board alike. That section is the last of eleven, under the head of miscellaneous provisions, which close the chapter. Each of the first nine sections refer expressly either to county or town officers, or canvassers. The last section is in these terms r “ Whenever it shall satisfactorily appear that any person has received a plurality of the legal votes cast at any election, for any office, the. canvassers shall give to such person a certificate of election,” etc. If that is intended only for the guidance of the state canvassers, it was most unfortunately drawn, for the state canvassers never see the votes for county or town officers, and yet it is not so easy to believe that the legislature was more anxious to have the real will of the plurality observed in the choice of state officers, than of town and county officers. If, therefore, the state canvassers have a discretion under that clause, by reason of which their decisions are conclusive, both upon parties and people, then the decisions of county and town canvassers are equally conclusive ; but that the latter are conclusive, has probably never been asserted by a single lawyer in the state, and is denied by the uniform practice of our courts.
I hardly need to enforce these views by reference to the office of the quo warranto, or to the motive of the proceeding by information. I will simply remark, that by our statute this proceeding is given to remove a person who shall “usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, within this state.” It is difficult to deny that the governor fills an office — it is so termed in the very first section of that article of our constitution, which treats of the executive power — it is so termed throughout that instrument, and throughout the body of our laws. The use of the information is not restricted to any particular grade of offices; it may be employed to remove an-intruder into any office.
How unrestrictedly it has been employed for that purpose we may see by looking into any book of practice — -judges, treasurers and secretaries of state, and almost every denomination of town and county officers have been removed by information, and no cáse has been found in the long catalogue in which the court has expressed the opinion advanced here by the respondent’s *727counsel, that the determination of a board of canvassers was a bar to the information.
I go further; I not only insist that such determination is no bar, but I assert that there is not a rational man in the state who has not a deeper interest in the event of this suit than he has in good government, who would have it so. I do not doubt that there are many men in the state who would rather have the respondent continued in office than to see the relator installed in it, but very few I think, who, to have him continued in office, would consent to establish as a rule of law the doctrine here contended ’for. Let us look for a moment at the consequences which must ensue from a rule holding the certificate of our canvassers final and conclusive. I concede that judges may be as corrupt as canvassers — I concede that canvassers may be as intelligent as courts; but even if judges were invariably corrupt, and canvassers were invariably honest, still these controversies had better be determined finally in courts than by canvassers, and for these reasons I have already indicated the course of procedure before the state canvassers. Suppose them to be perfectly honest, how are they to distinguish between true and false certificates, between forged and genuine returns. No witnesses are sworn before them, no parties are cited by them, no opportunity is given for a contest. The county clerks may be dishonest and send up false returns— ■ genuine returns may be purloined from the mails or from the post-offices — returns may be forged and forwarded in their stead - — clerks may be honest also, and yet err in footing up the vote of their counties (and they are only required to return the aggregate vote of their county for each candidate), returns may be sent up which the county canvassers never saw. How, I ask, is even honesty in the state board to guard against all these opportunities for deception, imposition and mistake ? And yet, within three days after they first assemble, they are required to determine the right to all the most important offices in the state — after three days have expired their powers are terminated; they cannot correct their own decision, no matter how glaring an error may have been committed, or how gross a fraud may have been perpetrated, they themselves can afford no help. It must be acknowledged that if only in the state canvassers we have hope, we are of all states the most miserable.
*728But on the other hand suppose judges are corrupt — yet there are lengths to which even corruption cannot go in the open day, and courts must work constantly in the open light and exposed to the public gaze. Moreover they are governed by established and well known forms of procedure. All parties in interest are cited before them and may if they choose, have counsel to assist them. The highest court in the state cannot determine the title to an old kettle, without the claimants having an opportunity to be heard — all the evidence upon either side is exposed to the criticism of the opposite side — time is given to dispute every allegation of fact. Counsel are heard upon every question of law, and if the facts are controverted, the judges cannot settle them, but they are referred to the determination of twelve impartial, disinterested, unbiased men. Let any sensible man say for himself-which of these tribunals is the more likely to elicit the truth of a case or to mete out justice to contending parties! If, however, the judges and the canvassers are equally honest or equally corrupt, the odds in favor of the former are greatly increased; and if again the judges should happen to be honest and the canvassers dishonest, as is possible they maybe — the chances for justice with the latter would bear no comparison with the former.
' May it please the court: I have professed to believe that the questions stated during the progress of this case have been of a light and trivial nature, not at all difficult to solve. I have been-sincere in such professions. I do not now doubt of the decision of this court. But I am conscious I have pressed the argument with something more of earnestness than I have exhibited on any former occasion.
That has not happened, because I consider the fate of this demurrer more doubtful than I did the motion argued upon another occasion; but I have been incited perhaps to a little more show of zeal by the manifestation from the other side. Still, I have not seen fit to point the court to the possible consequences of its judgment. Still, I say, it may or may not be executed. The only judgment to be pronounced is the one which law and justice dictate, not that which the executive arm can most easily execute.
I have somewhere read the story of a boy whose sublime heroism filled me with admiration. I cannot tell it; but at the com*729mencement of a naval engagement, bis father, who commanded the ship on which the boy served, placed him at the helm, with directions not to leave his post until ordered bj himself. During the battle the father fell, unseen by his son, and the ship took fire. As the flames spread over the vessel, and spar and yard went hissing into the sea, the mariners fled from it, but the hero helmsman stood at his post; the order for his release had not been received. Unbeknown to him, the voice that should have is■sued that order was hushed forever, and the last that was seen of that ship as she plunged beneath the wave was the form of that hero boy going to his death as promptly as he would go to his manual exercise, at the word of command. The command of the constitution to the judiciary is, to stand fast at the post prescribed to it. No matter what confusion prevails elsewhere, the tribunals of justice must stand at the helm. I am a lawyer. I have an honest pride in the great names which have adorned the bar,' and almost glorified the bench; and if the time shall ever come — which may God forbid — when discontent, violence and anarchy shall succeed to law and order — when the people and public officers shall depart from the constitution and desert the ship of state, I have a hope that the last glimpse that will be caught of organized government will be the judiciary — that courts may be seen as long as any vestige of a state shall remain, still ready to direct- — still speaking the law with an even mind, ’ and dispensing justice with an even hand, sitting serene and unmoved, above the influence of fear and of faction, still abiding by that motto so peculiarly their own — ;fiatjustitia, mat ccelum.
By the Court,
WhitoN, Q. J.The information in this case is in the usual form. ' It avers that there was an intrusion into, and a usurpation of the office of governor ; that the respondent exercises the duties of the office without right, and also sets up the right of the relator to hold the office. In point of form, this information is presumed to be unobjectionable, as no objections have been raised before the expiration of ’the time fixed for the respondent to plead. A motion was made to dismiss the proceedings, because the court had no jurisdiction to consider the matter. The court decided that it had jurisdiction, because the governor is an officer, although of a high character, still undoubt*730edly an officer. It was stated, in tbe opinion of the court, that by the filing of the motion, the facts in the information were admitted. Although it was stated in the opinion as true, still the court did not consider it necessary in order that they should have jurisdiction. When the motion was overruled, the defendant was required to answer, and has put in his plea.
There is no doubt of the character of this plea. The counsel on both sides agree that this is a plea to the jurisdiction of the court. It is designed to oust the court of jurisdiction. The plea sets up the fact that at a canvass on the 15th of December, the state canvassers declared that the respondent was elected governor. The argument is, that although the court might have jurisdiction in the case of a mere intruder, it would not have in the case made by the plea.
We have stated _ before, and we repeat, that we shall decide questions no farther than they are raised by pleas, or in the proper manner to put upon record. The question of the finality of the canvass, the validity of the title of the respondent under the certificate which is presented by the plea, we shall not decide. We have all come to the conclusion, that though the matter of the plea might be good as a plea in bar, it is not good as a plea to the jurisdiction. The case is likened to a case of privilege, and therefore the governor should not be held to answer in this shape. We know that a legislator, during the session, and for some specified time previous and after, cannot be arrested for debt. This does not seem analogous. We have already decided that we have jurisdiction of the case. If the governor should plead his certificate of election-in bar, and maintain that plea, he could not be ousted; but the court must have jurisdiction to pass upon that plea.
For these reasons the demurrer is sustained, and the respondent is required to answer over.
Justice Smith. — It seems to me very clear, that the matter here pleaded does not go to the jurisdiction of the court. The facts stated in the plea are, that a canvass was had, and that a certificate of election was awarded to the respondent. Suppose a judge of the Supreme or Circuit Court should be impeached, and thereby disqualified for holding any office in the state; the people, *731notwithstanding this, elect him governor; the canvassers canvass the votes ; they having no power to try and determine his qualifications, but finding he has a plurality of the votes cast, declare him elected, and the usual certificate is awarded. The constitution declares that he, and such as he, shall not be governor. Is this certificate to override the mandates of the constitution, and preclude any inquiry into these constitutional disabilities ? Is he to hold the office by virtue of the certificate, notwithstanding, and in defiance of, the inhibitions of the constitution ? That instrument has provided the means for its own preservation. It is vain to say, that any person can hold the office of governor if he is declared elected, and that the constitution has provided no means by which its inhibitory provisions shall be executed — that it contains no sustaining, self-preserving vitality. ■ The question of the right to hold office must often become a judicial question, and the constitution provides for this.
The provisions relative to the writ of' quo warranto unequivocally show that the framers of the constitution conceived that such questions might occur in such manner and form as to require a judicial investigation by means of that writ, and that whenever they did so arise they should be judicially determined.
It has been said that there are three departments of the government. This may be true. But there are not three governments, nor three parts of the government deriving power from separate sources. They all derive power from the same source. When the executive department acts, the whole government, and not a part of it, operates through that department — the state with all its sovereign power is in motion. Just so with the legislative and judicial departments. Though the executive power is vested in a governor, it is not vested in any individual who may by accident, mistake or fraud obtain possession of the office. The constitution declares that the governor shall have certáin qualifications. These are a sine qua non to his being governor. It is idle to say that any person, if elected, may hold the office, whether, or not he has these qualifications; that if he gets a certificate of election that is conclusive, and that there is no power to correct any wrongj accident, mistake or fraud, but the power of the sword. If this be so, then these prescriptions and requi*732sitions of the constitution are a mere idle collection of words, the annunciation of which is vox et prceterea nihil.
It is said that we are exercising a dangerous and delicate power in taking jurisdiction of this question. Delicate I admit and feel it to be, but not dangerous. It is delicate, because it is a delicate duty to ascertain the extent of one’s own power. I dare not exercise this or any other judicial power unless it is clearly granted by the constitution, nor do I dare refuse to exercise any of the powers and duties assigned me by the constitution and the laws, when properly called upon so to do.
The matter of the plea may be proper in bar, but in form it is to the jurisdiction, and must hence be overruled.
The respondent was then ruled to plead over within four days.
Mr. Carpenter, on the day fixed by the rule for the respondent to plead, addressed the court after referring to the case, as follows :
“Mr. Arnold, Mr. Orton and myself appeared at your bar at the commencement of these proceedings, as the counsel for Grov-ernor Barstow, to object to your jurisdiction. We have presented the objection in all the forms known to the law, and the court have asserted and re-asserted its determination to proceed with the cause and hold and exercise full and final jurisdiction over it. We can take no further step without conceding the jurisdiction of the court, and we have so informed the governor; and in reply he has directed me to withdraw from the cause and to present to the court a communication from him as governor of the state which I now present to the court.
“ For Mr. Arnold, Mr. Orton and myself, I now formally withdraw from the cause, as counsel, and terminate all connection with it. 'We leave this cause without regrets for the past— without fears for the future.”
On retiring Mr. 0. handed up to the court the following communication from the respondent:
“ MADISON; March 8th, 1856.
“ To the Honorable, the Supreme Court of the State of Wisconsin:
“ It is of course known ro you, that on the 17th day of January last, I was summoned by a writ issued out of your honor*733able court, to app'ear in said court and show by what warrant I bold and exercise the office of governor of the state of Wisconsin. •
“ At that time, I was firmly of opinion that, the court had no jurisdiction, whatever, to entertain such a proceeding against the person in whom the constitution had vested the executive power of the state, and then discharging the duties of that department of the government, which, by the nature and necessity of the government itself, is co-ordinate, co-equal,- and independent with your own. But that no seeming disrespect to your department might be chargeable to the executive, I at once employed able legal counsel to examine the question of your jurisdiction in the premises, and to take such steps as they might deem advisable to fully present the question, and urge the legal and constitutional reasons why the court should dismiss the proceedings.
“ This has been done in all forms known to the .law, without consenting to a jurisdiction, which, if exercised by the court, it must be obvious to any impartial mind, would at once destroy the harmony and balance of the three sovereign departments of the state government, and concentrate into the judiciary, an imperial power which would be the end of republican government in any form. The canvass and determination of the vote of the state for governor, at the last general election, by the board of state canvassers, the tribunal in which the legislature have vested the fullest judicial power and discretion in the matter, their decision and the certificate declaring me duly elected as the governor of the state, together with my oath of office, have been twice presented and spread upon the records of the court, first, by stipulation and consent, and afterwards by plea, to inform the court of'my official character as governor, by the same evidence by which the Supreme Court itself is known teethe other departments to be in legal existence, and the present incumbents of the bench to be the judges.'
“ It has been properly urged to the court, that these public-records, and the action of the copstituted authorities of the state, are within the judicial knowledge of the court, without plea or proof; but to leave no doubt upon the subject, they have thus been twice submitted to. the court, authenticated by-the great seal'of the state.
*734. “This was all I could do without compromising-the integrity and independence of the executive department, and submitting to a transfer of the sovereign powers of that department to whom* soever the judiciary might deem the proper or the favorite person to administer it.
“ Whatever my political opponents may have charged as to the frauds in the township and county returns of the vote of the state, to meet the emergencies, and accomplish the ends of a defeated party, the law at least presumes, and the court ought to presume, that all the officers of .the state have done their duty until the contrary appears. How far the court have been gov* erned by this obvious principle of law in these proceedings, or yielded to political exigencies, I shall leave those to judge who have had personal cognizance of their peculiar decisions and rulings in the progress of the case.
“ It is enough for me to know, and say, that I have no knowledge of any unfairness, much less of any frauds in the vote or canvass by which I have been declared the elected governor of the state; and I am clearly satisfied that I was elected by an unquestionable majority. If I believed the constitution had created any tribunal to revise the proceedings of the state canvassers, I should cheerfully meet any issues of law or fact which might arise in the fullest investigation of the election, from the decision of the state canvassers to the real vote and will of every elector in the state.
“ But believing as I do, that no such tribunal does, or, without doing violence to the government, could exist, I most respectfully decline submitting my official rights and powers to the determination of a co-ordinate department, usurping a jurisdiction unprecedented in the history of our country, without legal or constitutional warrant, and fraught with the greatest danger to our institutions. I therefore respectfully, but peremptorily, and officially, protest against any further interference with the department under my charge as the governor of the state, on the part of the court, either by attempting to transfer its powers to another, or direct the course of executive action.
“Deeply impressed with the responsibilities under which I act, and of the solemnity of the oath which I have taken to support the constitution of the state, to no infraction of which can I sub*735mit or consent, and believing that tbe Supreme Court will best subserve the interest of tbe people of the state, and answer the constitutional purpose of its creation, by discharging its legitimate functions without arrogating to itself the high prerogative of transferring the sovereign powers of the government to partisan claimants, I hereby take my leave of the court and of these unwarrantable proceedings, in which the court seem but too willing to receive my full and unreserved submission; and I shall deem it my imperative duty to repel, with all of the force vested in this department, any infringement upon the rights and powers which 1 exercise under the constitution.
.(Signed) “ William: A. Barstow,
Governor of the State of Wisconsin
"Whereupon the counsel for the relator moved for judgment upon the default of the respondent.
The attorney-general desired some time to consider what should be done on the part of the people, and the further hearing was postponed until March 18th, on which day he appeared, and said; he “ wished to call attention to the motion made by the counsel of Bashford,-in the case of the Attorney-General ex rel. Bashford vs. Barstow, for a final judgment in favor of the relator. That motion was submitted without any consultation with the attorney-general, and I will now present the court with a paper which I desire should be regarded as a motion in the case. The paper is as follows
“ The State of Wisconsin, on the relation of Coles Bashford, vs. William A. Barstow. In Supreme Court. Information in nature of a quo warranto. — The attorney-general, in behalf of the people of the state of Wisconsin, has heretofore submitted to the court his views in regard to the position which he occupies in this case. He has respectfully stated, that as"between the relatar and defendant, a question has been raised on the claim of Goles Bash-ford to the office of governor of the state of Wisconsin, against William A. Barstow, who is alleged to have usurped the said office; yet the whole people of the state havin'» an abiding interest in the case, and in such question, the attorney-general considered that his official duty cpuld not be correctly discharged without having all the facts in the case legally spread before the court, in' order that the claim of the relator should be legally *736established, the usurpation of office of the defendant made manifest, and the great question of right as between the two claimants of the office of governor of the state, be fully examined into, and the result of such examination be legally ascertained and determined.
“ The proceedings which have thus far been had in this cáse, have not yet produced as matter of record any proof of usurpation of office on the the part of the defendant, other than such inference as may be drawn from the absence of any plea on his part which has been submitted to the court, to the information filed against him; nor has the relator as yet produced as matter of record any proof of claim on his part to the office in question, other than the allegations contained in the information. The great, and to the people of the state, the all important question of. “ Who is the rightful governor of the state?” has not yet in such manner been inquired into, as the only one by which the attorney-gen eral considers that the rights of the people of the state may be protected, and their just expectations satisfied.
“ The court having asserted its jurisdiction over this case, may, according to legal practice, in the absence of a plea on the part of the defendant, enter against him a judgment of default; although the judgment might properly be entered at first as interlocutory, yet by the ruling of the court it may become final; such final judgment may be that of ouster as against the defendant, who has refused to plead; but the attorney-general submits to the court that such judgment can extend no farther; it cannot be rendered to an extent to place the relator in the office which he merely claims, when there is a total absence of any proof whatsoever to substantiate his claim, beyond the averment set forth by himself in the information filed in this case.
“In cafe such a result should flow from the judgment which may be rendered in this information, the attorney-general considers that the rights of the people of the state of Wisconsin would receive an outrage, to the. perpetration of which he cannot, even by implication, consent, and against which he respectfully, yet most earnestly, in the name of the people of the state of Wisconsin, whom he here represents, enters his solemn protest, and by virtue of his authority as attorney-general, does hereby dismiss this information, and says to the court here, that *737be will no more prosecute the same in the name of the state of Wisconsin.
“In taking this course of action, the attorney-general has no hesitation, no reluctance; up to this period in the progress of this case, all motions, pleadings and rulings of the court, have been made, entered and decided on, as between .the relator and respondent, while the interests of the people of the state in' the important questions involved in the information, have never in any manner or degree, been considered or inquired into; the name of the state of Wisconsin has been used for the relator, in the in-. formation, as by all legal forms in cases of quo warranto, is known to the practice of courts and the laws of the land ; beyond this, the attorney-general has taken no part in the pleadings; he has 'been, openly before the court, denied by the relator to be of his counsel, and in the very first stage of these proceedings an effort was made by the counsel of the relator to exclude the attorney-general from having any participation whatsoever in conducting this case, but such effort was unsuccessful.
“ The attorney-general respectfully asks the court that this written dismissal may be filed among the records of this information, “William: E. Smith,
“ Attorney -General of the; State of Wisconsin. Madison, March 15th, 1856.”
DECEMBER TEEM, 1855 — IN SUPREME COURT.
“ State of Wisconsin, on the relation of Coles Báshford vs. William A. Barstow, on information in the nature of a quo warranto. — And now, to wit-: this 10th day of March, 1856, William E. Smith, attorney-general of the state of Wisconsin, comes into court and gives the court -here to understand that he will no farther prosecute this suit, in the name of the state of Wisconsin, against William A. Barstow, and the above-case is hereby discontinued and dismissed, so far as'the state of Wisconsin is concerned.
“ William E. Smith,
“ Attorney- General of State of Wisconsin.
■“ To Lafayette Kellogg, Esq.,
“ Clerk of Supreme Court of State -of Wisconsin.”
I ask that this document be placed upon the records of the court.
*738The counsel for the relator protected against the right or power of the attorney-general to dismiss or discontinue the case to the prejudice of the rights of the relator; that whatever might be his power or discretion to dismiss the proceeding so far as the people were concerned, he should not be permitted to turn the relator out of court without his consent.
March 19. The court proceeded to the decision of the motion of the relator’s counsel for judgment of ouster against the respondent and in favor of the relator,, as well as upon the motion of the attorney-general to dismiss the suit.
By the Court;
Cole, J.Before passing upon the motion which has been made for a judgment of ouster against the respondent and establishing the right of the relator to the office mentioned in the information filed in the cause; and also upon the motion of the attorney-general, made yesterday, to dismiss all further proceedings herein • before, I say, passing upon these motions, I deem it proper to review the proceedings thus far had, and with as much brevity as possible, place upon record my reasons for thinking that the court has properly entertained jurisdiction of the cause, and has the power to give a final judgment. I do' not propose entering upon an extended discussion of many of the questions raised before us, and shall refrain from elaborating, any view taken by the court in the decisions already given. Som'e repetition may unavoidably occur, but no more, I hope, than necessary to make my observations clear' and intelligible.
On the 15th day of January, 1856, the attorney-general, the law officer of the state, filed in this court an information in the-nature of a writ of quo warrdnto upon the relation of Coles Bash-ford, giving the court to understand and be informed that the respondent for the space of one day and upwards then last past, had held, used and exercised, and still did hold, use and exercise the office of governor of the state of Wisconsin without any legal election, appointment, warrant or authority therefor } and that at a general election of state officers of said state in the several counties thereof, on the 6th day of Nov ember, "1855, the relator was duly elected and chosen governor of the state aforesaid, and that the said relator hath ever since the -7th day of January, 1856, and still is, rightfully entitled to hold, use and exer*739,cise the said office; which said office of governor aforesaid the respondent, on the said 7th day of January, usurped, intruded into and unlawfully held and exercised, and still doth usurp, intrude into and unlawfully hold and exercise, in contempt of the people of this state, and to tbeir great damage and prejudice; and prayed for due process of law against the respondent in this behalf to be made, to answer the said people by what warrant he claims to hold, use, exefcise and enjoy the office of governor of this state.
In compliance with the prayer'of this information, a summons in due form was issued, returnable on the 5th day of February, 1856, which summons was returned served according to law.
On the 22d of January, the relator, by his counsel,'filed a motion to discontinue the information filed by the attorney-general, and for leave to file in lieu thereof, an information in the nature of a quo warranto upon his own relation, different from the one already filed, and for liberty to prosecute and control the same, by himself or counsel as he should be advised ; and for such other or further order as the court should deem proper in the premises.
This application was based upon two grounds: 1st. That .the attorney general having refused to file a special information prepared by the relator, but filing a different one, the relator’s right to file one on his own relation and prosecute it to final judgment became perfect under the act of 1855, chap. — ; and 2d. An alleged hostility or unfriendliness upon the part of the attorney-general to the interests, rights and success of the relator. The motion was resisted on argument by the attorney-general on behalf of the state, and by the counsel for the respondent, who that day entered his appearance in the cause. The motion was overruled; the court holding upon the first point that the attorney-general had substantially complied with the act of 1855, in filing an information adequate to all the purposes of the suit; and upon the second point, that the attorney-general might control the proceeding so long as he prosecuted with fidelity ; but if he should act in bad faith towards the relator, or attempt to fritter away his rights, the court would interfere for the protection of them.
*740On the 25th a rule was entered by the attorney-general, re--quiring the respondent to plead to the information in such time as the court should direct. The court required the respondent to plead on or before the 5th of February ensuing.
On the 2d of February, the counsel for the respondent filed their motion to quash the summons issued herein, and to dismiss the same, and all proceedings, for the reason that the court had no jurisdiction in the premises. By order of the court, the argument of this latter motion came on for argument on the 11th of February, and the counsel for the respondent then endeavored; with great zeal and earnestness, to sustain their motion, by insisting upon and establishing the position, that even where there is an usurpation of the office of governor of this state, by a person not lawfully entitled to exercise its duties, this court has no constitutional power to entertain a proceeding for his remova^ but that the p'erson thus intruding could only be reached and removed by revolutionary force. This doctrine appeared to me bold and startling when advanced, and does still, for the reason, probably, that I had supposed we were living under a constitutional government,' and that there was, or should be, under such a government, a peaceable redress for a political evil of this nature. The court thought the position an unsound one, and overruled the motion, deciding the principle, that where there was au intrusion without color of right, even into the office of governor of this state, it had the power of entertaining a proceeding to inquire into the right of the'person thus holding the office, and to remove the intruder.
On the 25th of February, the respondent filed a plea in abatement to the jurisdiction of the court, setting forth in said plea, that by the laws of the state of Wisconsin, regulating the manner of conducling general elections,' and the canvass of votes thereat,' applicable to the election stated in said information, it became and was the duty of the board of state canvassers, upon a statement of the whole number of the votes given at said election, and for whom given for the said office of governor to be by them made, and certified to bo correct, and subscribed by their names, to determine what person was, by the greatest number of votes, duly elected to said office, and to make and subscribe on such statement, a certificate of such determination, and deliver the same *741to tbe secretary of state, and thereupon, it became and was the duty of the said secretary of state, without delay, to make out and transmit to the person thereby declared to be elected to the office of governor, a certificate of his election, certified by him under his seal of office; that in fact .Alexander T. Gray, Secretary of State, Edward H. Jansen, State Treasurer, and George B. Smith, Attorney-General, who then constituted the said board of state canvassers, met together'at the office of the secretary of state in the capitol, at Madison, on the 15th day of December, A. D. 1855, the day duly appointed pursuant to law for that 'purpose, and did proceed according to law to make a statement of the whole number of votes giyen at said election for the said office of governor, showing the names-of the persons to whom such votes were given for said office, and the whole number given to each one, distinguishing the several counties in which they were given, and did certify such statement to be correct, and subscribe their names thereto, and that they did thereupon determine and certify that by the greatest number of votes polled at said election, the respondent was duly elected to said office of governor for the term of two years commencing on the first' Monday in January, 1856, and that they did, in pursuance of law, make and subscribe on such statement, a certificate of such determination in due form of law, and did duly deliver the same to the secretary of state ; and that thereupon, in pursuance of lj.w, the said secretary of state did make out and transmit to said respondent, a certificate of his election to the said office of governor, of said state for the term aforesaid, in due form of law, and duly certified by him under his seal of office. And that said certificate was duly received by said respondent, who thereupon duly qualified himself, by taking the customary and proper oath of officevas such governor, and entered into possession of said office as he lawfully might; duly certified copies of which said statement and certificates authenticated under the great seal of the state, the said respondent here in court produces and shows to the court. Certified copies (under the seal of the secretary of state) of the statement made by the board of state canvassers, of tbe official oath of the respondent, and of the certificate of election, accompanied this plea as exhibits. The plea was demurred to, several causes of demurrer being assigned. The demurrer *742was sustained upon the ground that the matters, contained in tbe plea, if good at all, should be pleaded in bar to the action, and did not go to the jurisdiction of the court. "Consequently judgment of respondeas ouster was given on the demurrer, and the' .respondent had four days, until the 8th instant, tó file his plea in bar. He has purposely made default. On the 11th, the counsel for the relator moved for final judgment. While this motion for judgment was under advisement, the attorney-general, on the 8th instant, filed a motion to discontinue the proceeding, and this motion is resisted by the relator. I have been thus minute in giving a full, history of the cause; have stated the motions made therein as it progressed, and given the rulings of the court, in order that we might have the whole case fairly before us. We now see what has been done, and we now naturally arrive at the important question involved in the case, that is, whether the court in entertaining this proceeding has usurped a power not given .to it by the constitution and laws of the state? If it has, the path of duty is plain. It should go no further, but retrace its steps, and cease to make encroachment upon the other powers of the government. 'But, if in all this matter it has exercised a function delegated to it by the constitution ; if it has proceeded in this, as in all other causes which come before it, merely in the discharge of its appropriate duty of determining and settling the rights of parties, and not creating these rights, then it'must go forward to judgment, however unpleasant and delicate a duty that may be, and regardless of any, £tnd all consequences, that may result from its constitutional action. All that we can know is our duty. We cannot look beyond that. Here we must firmly stand to our posts of public trust, until the constitution fall about Us in ruins. And it may not be altogether inappropriate, after what has fallen from counsel in court, and imputations made elsewhere, for me to say that I enter upon this discussion with all the candor and impartiality I am able to exercise, and with the directness that the gravity of the subject demands. I am deeply sensible of all my responsibility at this moment. I am unconscious of any partisan bias or personal prejudice that could warp my judgment, or cloud my understanding, and least of all, have I any desire to extend *743■the j urisdiotion of this court one hair beyond its constitutional limits.
It could not, of course, be expected, that in the examination ■of a question of constitutional law, we should shut out of view 'entirely the nature and origin of our government. I propose to make but one remark upon it, in passing,- for it seems to me that if our conceptions of our government be erroneous, our whole reasonings upon it cannot fail to be confused and unsound. I ■suppose we are living under a popular .government, one which originated with the people — the rightful source of all political power. In the exercise of a natural right, the people established our present constitution, delegating to it just so much power, and •distributing it among the departments in just such a manner as they thought necessary to insure domestic tranquillity and promote the general welfare. And as the people established the ■constitution, so they can alter, amend or destroy it, and frame a new one whenever they may deem it necessary and proper. A particular mode of effecting such alterations has been agreed ■upon in the constitution; and it would likely be found most convenient to adhere to it. And the power which the people have not delegated to this government, or to the Federal government, they have reserved to themselves. Whether it is philosophically correct to say, that in this country the people are sovereign, I will not stop to inquire, because ‘it is not very material to the purpose. Some of the most accurate, eminent and discriminating writers upon- our political institutions, say that sovereignty resides with the people. And I think, if it is to be found at all in -our country, it will truly be found to be in the people. But I do not think that sovereignty is to be found in the departments ■of the government, as contended upon this argument. That is .perfectly incomprehensible to my mind. A department of this government is nothing but a division of the powers of the government, nothing more, as I understand it. But sovereignty is ■not in one of these departments, nor in all'of them.
There is another feature of our government, and that a striki áng and distinguishing one, which must not be overlooked. This is not only a popular government, but it is a representative government — one where the officers are but the agents, and not the truters, of .the people; one where no man is so high as to be above *744the constitution,, and no one so low aso to be beneath, its protection.
Such, briefly, is my view of this government; its nature, origin and character. And such I had! supposed, until this discussion,, was the general and almost universal view of it • and that a man who should argue upon these propositions, would argue without an opponent, for the reason, that here they are considered as political axioms. But-to the point before the court.
It will be borne in mind, that this court decided in the case of the Attorney-General vs. Levi Blossom, (1 Wis. R. 317), that it had original jurisdiction of the writ of quo warranto, by virtue of section 3, article 7, of the constitution of this state. The correctness of this decision stands unquestioned. It is also apparent that the legislature, in chapter 126, R. S., have substituted an information in the nature of a writ of quo warranto, for the former practice, and that this proceeding is under that statute. It will not be denied that it was perfectly competent for the legislature to prescribe a practice more prompt and comprehensive than the old one, if they deemed that the objects of the writ of quo warranto would be best attained thereby. Section 1 of this statute provides that “ an information in the nature of quo war-ranto may be filed in the Supreme Court, either in term time or vacation, by the attorney-general, against individuals,, upon his own relation, or upon the relation of any private party, and without applying to such court for leave,, in either of the following cases:
“ 1st. When any person shall usurp, intrude into, or unlawfully hold or -exercise any public office, civil or military, or any franchise within this state, or any office in any corporation created by the authority of the state.” The subsequent sections of the statute make ample provisions by. which the proceeding can be prosecuted to judgment, and authorize the court to pass as well upon the right of the respondent to hold the office, as upon the right of the person setting up his claim thereto. The scope and object of the statute evidently is, to provide a method by which contestants to office could try their respective rights., Then is the office of governor, which is now in controversy, a public and civil office within the meanings of this statute? We have already decided that it was, and the chief justice has stated *745tbe grounds of that opinion. Tbe reasons for considering tbe office of governor a civil office, under tbe constitution and laws of tbe state, and nothing more than a civil office of high dignity and trust, appear to my mind perfectly irresistible and conclusive. But I do not deem it necessary to go over with them. I am willing to rest tbe question upon tbe argument contained in tbe opinion to wbicb I have referred, and which is before tbe people of the state. The people are as capable of understanding tbe merits of tbe objection, that tbe office of governor is not a civil office under the constitution, and within the meaning of this statute, as professional men. I do not think that the word “office” is used either in tbe constitution or in this statute in a restricted sense; but in its most popular and general acceptance. It applies to any place wbicb imposes upon him who occupies it tbe performance of duties of a public nature'.
I anticipate an objection that will be made to this liberal construction of tbe statute. It will be said that the place of a member of tbe legislature is an “ office,” while confessedly tbe court has no right under this statute, to try tbe claims of contestants to a seat in the legislature. Obviously not; and for tbe reason that tbe constitution expressly declares (sec. 7, art. 4), that “ each house shall be tbe judge of the elections, returns and qualifications of its own members.” It is a familiar rule of construction, that a general grant of power, or a general statute, may be controlled in a particular case by a special grant. And this must be so, in order to give effect to the whole instrument, and render it consistent with itself. To my mind this is a full and satisfactory answer to the-whole objection. And here, it seems to me, we might safely stop. For if an argument could not be drawn from any other source in favor of tbe jurisdiction of this court over this proceeding, it might be rested upon section 3* article 7 of tbe constitution, and chapter 126 of the Eevised Statutes; and it would stand upon impregnable grounds. Concede that this court has original jurisdiction of the writ of quo warranto by the constitution — concede that chapter 126, under which this proceeding is bad, is constitutional,' and all tbe rest follows as irresistibly as tbe law of reason. There is no escape from it. But tbe argument in favor of tbe jurisdiction of this *746•court is not exhausted. And let us look at this matter in another light.
Section 2, article 7 of the constitution reads as follows: “ The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate,'and in justices of the peace. The legislature may also vest such j urisdiction as shall be deemed necessary in municipal courts, and shall have power to establish inferior courts, in the several counties, with limited civil and criminal jurisdiction, providing,” &c.
Here, it will be observed, by words the most apt, in language most clear, comprehensive and explicit, that the judicial power of the state is vested in certain courts. Of course, this grant of power is to be taken in connection with the exceptions elsewhere contained in the constitution. The Senate is made the court for the trial of impeachments, sec. 1, art. 7. And there may be some other exceptions, though none such occur to my mind at this moment. But otherwise, this entire judicial power is vested in the courts, without limitation or restriction. Whether this was a wise grant of power, is not now open for controversy. Were we framing a constitution with new powers, instead of administering one of clearly defined powers, then the inquiry would be pertinent; but it is not now. We then might inquire whether such an extensive grant of judicial power should be given to the courts of the state. But as the people have seen proper to delegate it to the courts, they must exercise it when called upon or set in motion, or prove recreant to the duty imposed upon them by the constitution. I then ask, is the determination of the rights of persons claiming to hold and exercise the office of governor of this state, the proper and legitimate exercise of j udicial power? Is such a matter a proper subject for judicial inquiry and investigation ? If nay, why not ? Is it because the controversy is about an office of high dignity and importance ? But does the high character of the office render the right of him to hold it less valuable, or less an object of the protection of the law ? Courts of justice inquire into and settle the conflicting claims of persons to the office of constable, or justice of the peace, a sheriff of the county, and other subordinate officers.
The rights of those officers are not considered beneath the pro*747tection of tbe court. And it would seem that the right to the high office of governor should not be. That is the personal aspect of the question. How is it upon the ground of public policy ? The public interests are most deeply involved in the matter. For there does seem to me to be a greater political necessity for some constitutional power for removing an intruder from the office of governor than there is for removing an intruder from an office of inconsiderable importance. In the latter case the public welfare may not be seriously endangered. The existence and tranquillity of the state may not be imperiled. But if a man can usurp the executive chair, and there be no power to remove him, constitutional government is at an end. There is no use in trying to disguise the matter. For if a man can usurp the chair of the executive department for a day, and cannot be reached, he can continue his power at will. We all .know that the office of governor is one of grave responsibility. The proper discharge of its duties requires no common degree of talents, of sagacity and moral integrity. The dignity, the peace, the honor of the state are often committed to the prudence of the governor. He is to see that the laws of the state shall be faithfully executed. So that it does not appear to me that, whether the controversy is regarded as involving a private right, which is, if possible, to be protected ; or if it is regarded in a broader and more general aspect-, as involving the interests of the state, a writ of quo war-ranto ought to lie to inquire by what warrant a person acted as governor.
The office was evidently regarded as one of great consideration by .the framers of the constitution. Hence, we find that certain qualifications are necessary to entitle one to- be eligible to it. He must be a citizen of the United States, and a qualified elector of this state, sec. 2, art. 5. But if the office is an inviolable one, and there is no power in the state competent to inquire into the right of a person -to hold it, what is the value of these constitutional safeguards? Are they parchment guaranties without efficiency and without value? Suppose a person not possessing the qualifications, being neither a citizen of the United States, or an elector of this state, receives votes for the office of govern- or, claims to be elected, takes and subscribes the oath of office, gets possession of the records and papers belonging to it, is there *748no redress ? Is there no power competent to inquire into his right to hold the office, and protect the constitution from invasion?
Take another case. Suppose the governor should be impeached before the court of impeachment, for corrupt conduct in office and for crimes and misdemeanors, and should be found guilty by the court. The constitution says, that such a judgment shall not only be a disqualification forever after holding any office of honor, profit or trust, under the state, but shall be a sufficient cause of removal the instant the judgment is rendered. That is the spirit if not the exact letter of the provision. Still the person thus disqualified, insists upon acting as governor. Is there no way that his right so to act can be inquired into and a judgment of ouster given ? It may be said that these are improbable cases, or very extreme ones. But are they so improbable, or so remote as never to happen ? And if they should happen, where is the remedy ? What power of the state can give relief? Are we remediless ? Instances of this kind might be multiplied to any extent. I put them, because they were many of them stated during the progress of the argument, and they are cases, too, easily understood. And the question returns upon us, where is the protection of the people against them ? Counsel seem to feel the necessity that there should be some remedy for them, and they significantly hinted where that remedy was to be found. It was to be found in a revolution. Ah ! but that is not a constitutional remedy. It'is one above the constitution. But we are now considering what means the constitution has provided for its own preservation. For if it has not those means, ample, adequate and equal to the political emergency of such, and other like cases, it is hardly worth spending any breath upon.
Again; section 3, article 5 of the constitution reads as follows: “ The governor and lieutenant governor shall be elected by the qualified electors of the state, at the times and places of choosing members of the legislature. The persons respectively having the highest number of votes for governor and lieutenant governor shall be elected.” A contest arises between two citizens of the state, who were candidates for the office, as to who has received the highest number of votes; for whoever it may be, who has received the highest number of votes, unless constitutionally ineligible, must be governor. So the constitution-declares. It cannot be said that this is an imaginary or *749improbable case. It bas already happened, and in this popular government, is quite as likely to happen again. Now, in what forum is this to be settled ? Where, and by whom is it to be determined, as to who received the highest number of votes ? By the legislative, by the executive, or by the judicial department of the government ? Perhaps it will be said that there is created by statute, a competent tribunal to settle and determine all such questions, to wit: the board of state canvassers. But can any one point to a provision in chap. 6 of the Rev. Stat., and that is the only law we have upon the subject of canvassing votes for state officers, which by the remotest implication, in case of a contest for a state office, authorizes the board of state canvassers to make up an issue, impannel a jury, summon witnesses, take proof as to alleged frauds, errors or mistakes on the part of the town and county board of canvassers, and judicially determine who, under the constitution, is entitled to the office ? No such provision can be found. The legislature never gave them any such power, and it does not appertain to their office under the constitution. Whether it would have been competent for the legislature — under the constitution which delegates all of the judicial power of the state to the courts of the state — to give to the board of state canvassers judicial authority to settle and adjudicate rights of this nature, it is not necessary to inquire. They have not given them any such power. Their duties are strictly ministerial.
. They are to add up and ascertain, by calculation, the number of votes given for any office. They have no discretion to hear and take proof, as to frauds, even if morally certain that monstrous frauds'have been perpetrated. The 95th section of this statute gives them no such power. And it is idle to look for it elsewhere, for they have not got it. So the question again recurs, what power of the government can give a specific and adequate remedy ? What power of this government is to settle this controversy ? I think that the conclusion is irresistible, that it is the judicial power. If the contest cannot be settled in the courts of the state, it cannot be settled at all. And if redress cannot come from that source, it can only come in a violent man- • ner by revolution. And is this government thus powerless, impotent to correct an evil of this kind, impotent to shield its own *750bigb offices from usurpation ? I cannot believe it. Ordinarily tbe courts have been found entirely adequate to settle and determine contests for office. It has been done in almost numberless instances in England. In the state of New York, under a constitution which distributes tbe 'powers of the government, and where there is a statute for canvassing the votes substantially like' our constitution and our statute upon that subject, this power to determine the rights of persons to office has been repeatedly settled by the courts. The leading cases are The People vs. Clark, 4 Cowen, 95; The People vs. Richardson, 4 do. 57; The People vs. Ferguson, 8 do. 102 ; The People vs. Vail, 20 Wend. 12 ; Ex parte Heath et al., 3 Hill, 42 ; The People vs. Seaman, 5 Denio, 410; Cook vs. Welch, 4 Selden; same case, 14 Bar. Sup. Ct. R. 259, and the recent unreported case of Davis vs. Cowles. These offices were ,town, county and state offices. The court in Massachusetts have also, had like suits before them, and I am not aware that in any of these cases, the jurisdiction of the courts was seriously questioned. This court has likewise adjudicated and settled the rights of contestants to office, in two instances at this term. State ex rel. Carpenter vs. Ely, and State ex rel. Ege vs. Rust et al. And one of the able counsel for the respondent (Mr. Arnold) admitted upon an argument in this cause, that the court could inquire into the right of a person holding any state office, other than that of governor. And he failed, I think, to show that the same power might not also settle and determine the right of persons claiming that office.
The objection to the exercise of the jurisdiction of this court to' entertain a proceeding, to determine the right of a person to hold and enjoy the office of governor, is, that it is dangerous to the independence of the executive department of the government. . The executive power of the state is vested in the' governor by the constitution, and hence it is said, you cannot interfere with the person acting as governor without disturbing the department. Who does not see the fallacy of this reasoning and the utter confusion of ideas in the very statement of the proposition ? It assumes, in the first place, the very point in controversy — to wit: the right of the person acting as governor, to the office. This inquiry proceeds upon the hypothesis, that this right is disputed, contested; that the respondent is an usurper. *751Eat whether he is or not is a question of fact to be established by proof alone. It is certainly very illogical to commence reasoning upon a proposition by begging the question. 'The question here is, who is entitled to hold the' office of governor of this state ? The answer given is, that the respondent is the governor, and there the argument ends. Concede it, and there is nothing to inquire into} no right to be ascertained, no subject for judicial investigation. But whether the respondent is the governor or not, is the issue. But a still greater error in the reasoning upon this case, consists in confounding the person who holds an office with the office itself. By the general theory and principle of our government, the legislative, executive and judicial departments are equal, co-ordinate and independent; each within the sphere of its powers. Admit it, and what follows? It is said that the person holding the office of governor, is the executive department, or to state the proposition more intelligibly, the department and person are one and indivisible. Here is the vice of most of the reasoning upon this subject. Gentlemen will not discriminate, or do not discriminate between the office and the officer, a department of the government and a person exercising and acting in that department. Yet, to my mind, there is no difficulty whatever in making a distinction, I can easily conceive how an intruder may be removed from a department without interfering with, or disturbing or impairing one jot or tittle of the powers of such department. Were it not for the conceded ability of the gentlemen who have advanced this argument, vitiated by this palpable fallacy, involved in it, I should not deem it worthy a moment’s examination. As it is, it must be treated with sufficient respect to explode, if possible, the absurdity. And I therefore say that there is not, and from the nature oí the case there cannot be, any resemblance, any similitude, any necessary connection, much less identity, between a department of the government, and the person exercising the duties of the department. A department is a division or classification of a certain kind, of the powers of the government. It is not necessary to define what a person is, only negatively, and say that a person is not a department. Consider that the agents, the officers of these departments have been successively changing since the adoption of* the constitution. Yet the de*752partments remained unchanged. Some have died perhapá, and others removed from the state; but the departments whose duties they discharged, are still unimpaired. So that this court can sit, examine and decide upon the rights of contestants to the office of governor, and give judgment against one, and for another, without breaking down or disturbing the executive department of the government.
Another conclusion, more alarming, and more inconsequent tial than any yet noticed, is said to follow from the independence and co-equality of the departments of the government. It is the power of the person holding the office of governor to determine his own right to it. Whence does he derive this power ? As observed by the chief justice, in the opinion delivered by him, you look in vain through the constitution and the laws for a provision giving him this power. If he has it at all it is unde-rived, and inherent in the office. It is a high prerogative not claimed by royalty itself, unless in the person of a despot. I shall be slow to believe that it belongs to any officer of this government.
Much has been said about what this court must take judicial notice Of; as that it must judicially know that the board of state canvassers canvassed the votes cast at the last election; determined upon such canvass that the respondent in this cause has received a majority of such votes-; that they made the statement required by law, certified to it, and filed it in the office of the secretary of state, and that thereupon the secretary gave the respondent a certificate of election under the seal of the state, and that the respondent is the acting governor of the state : I suppose we do take judicial notice that the respondent is the acting governor in the same sense, and in no other, that we take judicial notice of who is the acting sheriff or circuit judge of this county. The right of persons to hold office cannot be inquired into collaterally. It can only be done by a direct proceeding of this nature. The determination of the board of state canvassers, and the certificate of election, we can only take notice of when it is set up in a proper plea before us. This has not been done, the counsel declining to plead them in bar to this proceeding. But this court cannot know, except by a laborious, long continued and systematic inquiry, all about the votes cast *753at the last election — whether there were any frauds or mistake in the canvassing or return of votes that affected or destroyed the right of a person to an office. And I suppose this rule is one of general application. These observations might be extended, but I do not deem it necessary. I have given some of the reasons which have led me to the conclusion that, under our constitution and laws, this court’has jurisdiction of this proceeding. That is really the great question in the case, and the only one of abiding interest which the court has been called upon to decide. I desire that this point should stand boldly out upon the record of the case, and I shall not attempt to divert the public attention from that point to minor issues. I am prepared to take my share in the responsibility of this decision. This court has not sought this discussion, this apparent conflict with the other powers of the government. The questions have been presented here in the regular order, and we have decided no more nor no faster than the record compelled us to decide. And after the angry passions of this hour • shall have become stilled, and the inconsiderate heat of party feeling subsided, when men’s minds shall have, become calmer and reáson again assert her supremacy over them, I cannot but believe that this decision will be generally approved by all the candid and thinking citizens of the country. But I take leave of this question, and come to the motions yet undecided.
In the first place, I am clearly of the opinion that the attorney-general cannot now dismiss this cause. If he could, I think all the objects of the statute of 1855 might be defeated. That statute gives any citizen, claiming an office which has been usurped, the right to file an information in the nature of a quo warranto upon his own relation, without the consent of the attorney-general, and prosecute the same to final judgment: provided, he shall first have presented the information to the attorney-general and he shall refuse to file the same. Now, as has been correctly said, this is an enabling statute, passed for the purpose of giving contestants a right to determine their respective claims to an office, when the attorney-general is unwilling to move in the matter, making the relator responsible for the costs of the proceeding. And when the attorney-general upon request, as in this case, files an information substantially com*754plying with this statute, and the cause progresses as this has done, I think the attorney-general cannot defeat the relator’s rights by dismissing the proceeding against the relator’s consent. The case of entering a nolle prosequi upon an indictment, is not analogous to the one before the court.
Now as to the motion for judgment. Without doubt, judgment of ouster can be given against the respondent, he having confessed all the allegations of the information to be true which are well pleaded. Such is the legal effect of this default. One of those allegations is, that he has usurped and intruded into the office of governor, and now holds it without any lawful authority. It cannot now be necessary to go on and take proof and establish this allegation; if it is, a party would obtain a great advantage 'over his adversary by refusing to plead and make up an issue. I believe the authorities generally say, that though in form this is a criminal proceeding, yet that in character it is a civil one; consequently the same effect is given to a default as in an ordinary, civil action. This was the practice adopted in the recent contest about the office of supreme judge in the state of New York. Upon the default of Cowles, judgment of ouster was rendered against him.
But what is the effect of this default upon the rights of the relator? In the case just referred to — as I understand it — -upon Cowles’ making default, the court not only gave judgment of ouster against him, but a judgment establishing the right of Davies. And I am inclined to think that this is the general and perhaps correct practice. And in this case I regret that it is so. I wish that there was some way in which an issue could be made up and tried, and the relator’s rights to the office could be affirmatively established by the most competent testimony. But I know of none. I have thought that on account of the importance of this office, and the very great interest which seems to be felt throughout the state in reference to the cause, and after the action of the attorney-general and the communication which he has made to the court, that we might require the relator to show at least a prima facie right to the office by exhibiting proofs before us. I do not say that it is necessary for him to do so ip order to entitle him to a judgment upon the authorities. According to strict technical rules of practice, I believe that the *755relator is now entitled to a judgment establishing his right; and though this is so, and notwithstanding the practice may be ■anomalous, yet for the reason above assigned, I do not think it an undue caution, an unreasonable exercise of the discretion of the court — if we have such discretion, and I think we have— •to require of the relator some proof, which will show, that pri-ma facie, he has a right to the office, before we give a final judgment in his favor.
Smith, J.This case has now assumed an importance, and has arrived at a stage in the course of its procedure, that will justify, if not require, a careful review of the several steps of its ¡progress, the decisions which have been made, the principles attempted to -be established, and an examination of its present posture.
I have not felt called upon by any consciousness of duty heretofore, to reduce to'writing the conclusions to which my mind has been impelled from time to time, as questions have been raised, argued and determined-questions in no respect or degree affecting the merits of the controversy-; nor to enter into an -elaborate exposition of the reasons which have led to such conclusions. I have rather -been disposed to wait until the case should have approached some matter touching,-if not involving, the merits, when it might be proper for the court; and for each •of its members, to give written expressions of the opinion and judgment to which they might have arrived.
But the neglect or refusal of the respondent -to plead to the •merits of the information, and his default necessarily following, precludes the necessity of further consulting the precise order-and time of expression, and justifies, if it does not demand, a full, careful and candid examination of the several propositions raised by the respondent, and the law on which it is claimed they rest.
It is a fundamental maxim with us, that the powers of government, whatsoever they may be, are derived from the people. The maxim is just and true. It is the basis of our political creed. Whatever power is exercised by any officer or department of tbe government is derived from the people who created ■the office or department. It is competent for the people to vest *756all the powers of government in one individual officer, or to separate and distribute them among several officers or departments, in such proportions and degrees as they shall deem proper. It is competent for the people to create three departments, co-equal and independent, unequal and still independent, or, all equal, yet each dependent upon the other.' The judicial may be dependent upon the legislative for the enactment of laws to administer, and the legislative upon the judicial for the administration of the laws, and both upon the executive for their due execution ; while the latter, without the other two, would have nothing upon which it could operate — a naked sword beating the empty air.
At the time when the people of the territory of. Wisconsin resolved to change the form of government under which they had theretofore lived, and to organize a state government, they were at liberty to form it as they chose, limited only in regard to its character — that it should be republican in form. By the ordinance under which they were invited to settle the wild lands of the territory, they were permitted to form such a state government, and. were guarantied admission into the Union as a state, subject to only a few material restrictions or conditions, among which were two; viz: that there should be no slavery or involuntary servitude, except for the punishment of crime, whereof the person should be duly convicted, and that their government should be republican in form.
Acting upon the rights thus guarantied, to the people of this territory, they resolved to form a state'government. That government was required to be republican in form. The people did so form a government not only republican in form, but in compliance with the limitations and restrictions imposed upon them by the ordinance aforesaid.
Subject to such limitations and restrictions the people were at liberty to establish such a government as they saw fit. They did so. They ordered a convention of delegates of the people to form a constitution, which should be proposed to the people as the fundamental law of the state, not for the guide and government of the agents to be employed under the government only, but also for the guide and government of the people of the state, to abide and continue until .they should amend or *757alter the same according to the forms bj them prescribed. The constitution thus adopted was submitted to the people, and was by them ratified and confirmed, as their primary and fundamental law, by which the people solemnly pledged themselves to abide, and to the provisions of which they exacted a strict conformity on the part of all the agents of the government that' might be deemed necessary, by personal oath, in the administration of the affairs of the state.
Then, for the present, discarding theoretical disquisition, it seems obvious, that we should all turn our attention, not to the vague theories of political essayists, but to the provisions of that great fundamental law under which we hav.e all most solemnly agreed to live,, and which we are all most solemnly bound to support and sustain.
Nor, can we fail to be eulpable in the judgment of our Creator, «of our fellow men and of posterity, if we fail to adhere to that fundamental instrument under which we all hold and enjoy all the rights most dear to freemen, and to the support of which we are all bound by the most solemn obligations which can possibly be imposed upon members of a social or political organization.
In view of the obligations imposed upon me, or rather voluntarily assumed by me when I gave my assent to our present form of state government, and more especially, in my present position, I have felt bound to. sustain that fundamental law, —the constitution of the state, according to its true intent and meaning. That is the great charter of our rights, to which the humblest may at all times appeal, and to which the highest must at all times submit.
Let us then look to that constitution, - adopted by the people of Wisconsin, and endeavor to ascertain its true intent and meaning, the distribution of the powers of government which it has in fact made, and the ageneies which it has provided, whereby those powers are to be executed. And here, let it be remarked that our conclusions- must be guided and determined, not by theories of speculators upon the science of government, not by the opinion of jurists of other states reasoning upon philosophical abstractions or political postulates, but by the plain, simple, but authoritative and mandatory provisions of our own constitution. We made it ourselves. We are bound to abide by it, *758until altered, amended or annulled, and we must construe it, and; support it, not according to the vague, conjectural hypothesis-of volunteer expounders, resident in other states,, having-no career interest in the government, and having no knowledge of the constitution of our state,, but according to its plain letter and meaning, as the oath-bond of our safety — as the palladium of our rights and liberties — as the vital principle of our social' and political organism.
The people then made this constitution, and adopted it as their primary law. The people of other states made for themselvesrespectively, constitutions which are construed by their own appropriate functionaries. Let them construe theirs — let us construe, and stand by ours.
By our constitution were created certain offices. By it officers were not created. Provision was made by which the created offices should be filled. The persons constitutionally designated to fill the offices thus created' became officers for the time being, and for the term which the constitution prescribed. The officers serve their term and retire ;■ they die, resign or are removed, and thus they depart; but the offices remain. The Tatter are as permanent as the constitution-which creates them;, the persons who fill them are subject to all the changes of accident and time, and more especially are they subject to the peculiar prescriptions of that constitution which grants them admission and defines their tenure.
Nor should we be misled by terms. Whether the constitution-defines the agencies by which its functions shall be performed, by the term “ office,”1 or u department,” 'the same idea is in fact conveyed, and by the terms employed in the constitution, are the people to judge of it.-
We are now prepared to examine- that fundamental law by which we have all'agreed to be governed, and to which we have-all agreed to submit, and by the provisions of which we have all most solemly pledged ourselves to abide.
This one truth must therefore be evident, that whatever power-one “ office,” or “ department,” can rightfully exercise, must be, and is, derived ’ from the constitution which the people have themselves adopted.
It may serve the purposes-- ofi reckless men,, in and out of *759power, to devise terms and phrases by which their own minds may be obscured if not deceived. But names do not alter substance ; phrases, however adroitly constructed, can neither pervert ideas, nor strangle truth with intelligent minds. To talk of “sovereign departments” created'by our constitution, is simply to talk, not to think, and much less to think rationally. We have no sovereign departments. We have no triple sovereignty. Much, indeed, was said in the course of the several arguments in this case, concerning sovereignty. But this whole matter has been settled by judicial construction,, and were it not so, it would seem too plain to require argument for its elucidation. The theory of our government is, that all its powers are derived from the people. They are equal, and as equals have agreed that certain powers shall be exercised through agencies, and according to forms, by them prescribed, for the common good of the whole. The power thus created, is the constitutional sovereignty. The power to frame the government, and to prescribe its forms and limitations, is the ultimate sovereignty and rests in the people. When the people have created their government, and defined its powers, and designated the agencies by which such powers should be executed, there is then constituted what we call the state. Each one of the people is a component part of the state, but he is also a subject of the state. The state then becomes the organism through which, and in the name of which, all the functions of the government are to be performed. But no one department, or officer of the state, can claim to be the sovereign. There was a time in the history of the world, when one man intoxicated with despotic power, gave expression to tyranical pride, and exclaimed “ L'etat, c'est moi I ” “ The state, I am the state.” But that man was the tyrant of Erance. He was not the constitutionally elected executive of this free state. That was the language of the 17th, not of the 19th century. .
Whenever the powers conferred by the constitution, of whatsoever character, are exercised, they are exercised by the state. It is the state acting through the agencies provided by the constitution. The writ of quo warranto, or rather-the summons which issued upon the filing of the information, was not the writ of this court. It was not the writ of the justices, but was the mandate of the state. It was the state’s writ, going in con» *760formity with constitutional provision, to accomplish the purpose for which the constitution designed it, viz: to inquire whether one 'of the offices created by the constitution' had been usurped, or invaded without legal warrant or authority.
On the 17th day of January, lb'56, the state of Wisconsin sent its writ of quo warranto, or rather its summons upon the information filed by its attorney-general, to a citizen of this state, requiring him to show by what warrant or authority he exercised the office of governor. The state did not send its summons to the governor of the state. But the attorney-general, the attorney for the people and the state, one authorized to speak for the state, informed this court that a certain individual had'intruded into one of the offices created by the constitution, without any legal warrant or lawful authority, and had usurped its powers, and asked of this court that the state’s writ might issue, not to the governor, but to the person who, as it was alleged, had invaded unlawfully, one of the state’s offices. He did not ask for any writ of the court, nor did the court issue its writ, but the court allowed the state's writ to go in the name of the state, and by the authority of the state to perform its appropriate functions, of which I shall speak hereafter.
The framers of the constitution took care to provide by what power or authority, and in whose name, the judicial writs of the state should run.. Sec. 17 of art. 7 declares the will of the people in this respect. These writs do not run in the name of the Supreme Court, or of the legislature, or of the governor, but in the name and by the authority of the state of Wisconsin. It is not the court, therefore, calling upon the governor to answer, but it is the state calling upon Wm. A. Barstow to answer its, the state’s summons. When this court, or a circuit.court, allows a writ of attachment; or any other process, to issue, such process is the process of the state, not of the court that issues it. The time has not yet come when any man is beyond the reach of state process. The officer, or department (if the term is more agreeable), has not yet become superior to the state. . The authority of the state is yet superior to that of an office or depart-menfof the state. Let it be distinctly understood that this proceeding is - one in which the state calls upon, one of its citizens to answer its process. This it is. No more, no less. The writ *761issued, is issued in the name and by the authority of the state— a wilt carefully preserved by the constitution itself, for the very purpose of protecting the offices or departments created by it, from unlawful intrusion; and yet, it is now said, that the person to whom the state has directed it, is superior to the authority of the state, and may, with impunity, defy the" mandate of the very writ which the constitution-has preserved to guard and defend itself from violation? Such is the doctrine advanced. It is no less than this. Let us meet it in all its baldness — in all its force — in view of all its direful consequences, and decide upon it as we shall answer to God at the great day.
It is known to all that the object of the writ of quo warranto is to guard and protect the constitutional offices of the state from usurpation and intrusion, to guard against such offices being filled by persons other than those who have the constitutional qualifications, and are legally elected or appointed. Eor such purpose and object did the framers of the constitution expressly preserve the writ of quo warranto, in order' that there might be a legal, peaceful and constitutional mode of deciding the title to office, and to avoid the sanguinary strife which has marked and disgraced the history of our race, in other times and in other countries, but thanks be to God not yet in our own. But if the citizens or persons to whom this writ is directed in the name and by the authority of the state, can be permitted to defy the state’s authority, and to claim exemption from the power of the state’s writ, on the ground that he has already succeeded in his intrusion or usurpation, then indeed, was the work of the framers of the constitution a mere sound, an empty expression — and the constitution itself is utterly helpless — open to invasion, unguarded, undefended, stripped of its armor, a declaration of principles without sanction, an idle covenant without obligation — a pompous pretension to supreme and fundamental law, but in fact a supple instrument in the hands of ambition, to be moulded at convenience or defied at will, as the occasion may suggest.
Let us meet and answer these questions as it becomes men, having upon themselves the responsibility of maintaining a government of law. Nay, we must meet them. They meet us at the very threshold of our inquiry. Words and phrases can neither amuse nor divert us longer. The simple proposition is *762before us, whether the constitutional writs of the state are to be preserved and obeyed, or whether the authority of the state is to be defied, and these state writs annulled and our state constitution stripped of its defensive or conservative armor? We may not deceive ourselves by speculations concerning the co-equality and independence of departments of the government — the question brought home to us is, not whether the departments are equal and independent, but whether the person who may chance to occupy them for the time, is superior to the law. Suppose this defendant were indicted in the Circuit Court of this county, for an offence against the law, would his arrest and trial be resisted on the ground of the co-equality of the executive department ? Suppose he should be charged with assault and battery, or breach of the peace, would the magistrate who issued the war- . rant for his arrest, be chargeable with an attempt to usurp and control the executive department ? No one for a moment would thus presume. And yet this defendant is charged by the attorney-general, in the usual and legal form, with intruding into and usurping one of the high offices of state created by the constitution, and the manner of filling which is prescribed by the same authority, and this high law officer of the state asks that this charge may be judicially investigated, according to the forms of the constitution and the law — and we are told by the person thus charged, that it is no matter by what, or whether by any authority he has entered into this office of the people, there-is no power to examine the fact and no remedy for the offence which he is perpetrating against the constitution and the law, but that of force, of civil war — of revolution. We are told that this high office created by the constitution, may be usurped, and if the usurpation be successful there is no legal remedy ; that force, and force only, is to decide the issue. The constitution has prescribed certain qualifications for the office of governor, and yet we are told that the incumbent of that office is the sole and ultimate judge of his own qualification. The constitution provides that no person but a citizen of the United States, and a qualified elector of this state, shall be eligible to the office of governor; yet we are told that whosoever can usurp or intrude into that office is the sole and ultimate judge of his own qualification, and that there is no power to inquire whether he be in fact a *763citizen or a qualified elector of the state. Any man who can intrude into the office is to decide upon his own qualification, declare himself a citizen and an elector, or at least a successful intruder in defiance of the constitutional pre-requisites!
Again ; the constitution provides that the person having the highest number of votes shall be governor; yet we are told that any man, who by force or fraud can get possession of the office, must be the sole and ultimate judge of his own election ; that not the highest number of votes shall constitute him governor, but his own judgment must decide thé matter, and his own will is the ultimate tribunal by which his election is to be determined f
Again ; the constitution provides that “in case of the impeach'ment of the governor, or his removal from office, death, inability from mental or physical disease,” &c., “ the powers or duties of the office shall devolve upon the lieutenant governor,” and yet he is the sole and ultimate judge of his own qualifications, of his own “ impeachment,” of his own removal from office, of his own “ inability from mental or physical disease!” If the mental disease amounts to lunacy, yet he is the sole and ultimate judge of his own sanity ! If he be removed from office, yet he is the sole and ultimate judge of that fact, and of the jurisdiction of the authority by which he is removed ! These, and the like, are the doctrines which this court is called upon to declare as the law of the land. If the lieutenant shall chance to imagine the govern- or insane, and take upon himself the duties of the office, and get possession of the “ department,” the governor might not be satisfied with the decision of the lieutenant, and yet both would be the sole judges of their respective sanity, while the secretary of state might deem them both mad, and mentally disabled, and himself pronounce the “ ultimate ” decision in his own favor, and act the governor while he should think the disability continued!
To such confusion, not to use a term less mild, do the propositions assumed and insisted upon, lead us. While “ the soil of England has been drenched by the best blood of her sons ” in the process of determining the’right of contestants to the chief magistracy of the realm, it is the boast of the states of this Union that they have provided peaceful and constitutional means by which pretensions to the executive magistracy shall be deter*764mined. To avoid the danger of usurpation, they have prescribed certain qualifications, without which no man can gain accession to the office. To secure fidelity to the trust, and responsibility for its due execution, they have prescribed short terms of office, at the close of which the incumbent retires from the place, to be filled again by himself or another, as the people shall elect. But if all these constitutional requirements can be overridden by any bold and temporarily successful aspirant, every one must perceive that all these constitutional safeguards are vain and useless, and our soil is liable to be drenched with the best blood pf our people at every returning gubernatorial election, and instead of the protection of the constitution and the law, we are solely dependent for the peace of the state, and the supremacy of the law, upon the mere forbearance of the retiring incumbent, or the aspiring candidate.
It is made a subject of complaint that the court construed the motion to dismiss this information, into an admission of the facts contained therein. Yet every one knows, and the counsel for the defendant, from time to time, during the course of the argument admitted, that such was the effect of the motion ; that it was in the nature of a demurrer, admitting all the allegations in the information-; and still this court had no jurisdiction — still there was no remedy but force, there was no law to reach the evil, no court to pronounce the law. Time after time, the case was put, of a bald, palpable, avowed usurpation of the office of governor, and yet there was no legal remedy, as the counsel contended from the commencement to the close of the argument. At the very close of the argument, the last counsel who argued the motion, in answer to a question from the bench, declared that he preferred to put the case for that time, upon that ground, and upon no other. Such was, undoubtedly, the effect of the motion to dismiss the information. Such did the counsel admit its effect to be, when before the court. I will not ask, therefore, with what propriety, candor or justice, it is made a matter of complaint, that the court thus construed its effect. .
But, it is contended, that the 5‘ court is bound to take judicial notice of who is governor of the state; when he was inaugurated ; the genuineness of his signature, &c.” This is true to a certain extent. But counsel have mistaken its just limits. Let us ex*765amine the proposition. The court take judicial knowledge every day of, not only who is governor, but of who is circuit judge, who is secretary of state, who is treasurer,, who is attorney-general, who is clerk of the Circuit Court of the various counties, who is district attorney, who is sheriff of the county.; but that judicial knowledge only extends to these officers de facto, or when their title to'their office is- undisputed. When, however, that title becomes a question de jure, this judicial knowledge ceases. While Mr. Ely was acting as district attorney for Eock county, the court took judicial knowledge of that fact, but that did not prevent the court from inquiring into his title tó the office, or from ousting him when it was made to appear that another person had the legal and .constitutional right to the office. The fact that the court took judicial knowledge of his official action and character, did not bar the question of his legal right from becoming the'subject of judicial inquiry. The court took judicial knowledge of the official character of the clerk, of the Circuit Court of Columbia county, but when his title to that office became the subject of judicial inquiry, such judicial knowledge became -ipso facto suspended, until the question was determined, and then there followed a like judicial notice'of the. person who was ascertained to have the legal title. As I said before, the court takes knowledge of the fact who is circuit judge of the first circuit, recently appointed to fill the vacancy occasioned by the resignation of the late incumbent. But suppose, for the sake of the argument, that it should be ascertained that the appointee was actually holding an office of profit or trust under the United States, or was consul for- some foreign power, which would disqualify him from holding any office under this state, will any sane man assert that the fact that the court took judicial knowledge of his appointment precluded this court from inquiring into his constitutional qualifications, or into the facts which the constitution declares shall preclude him from any office created by it? Illustrations without number crowd upon the mind, showing the mistaken view which counsel have taken of the scope and extent of judicial knowledge. Courts take judicial knowledge of a statute, yet they willinquire, when the question is raised, what is a statute. The Supreme Court and the Court of Appeals in New York¡ took judicial *766knowledge of the election in that state of treasurer., yet those courts proceeded to inquire by quo warranto into the title of the respective claimants to that office, when that title was disputed.
Again; it is said that the government is divided into three departments, legislative, executive and judicial, each of which is co-equal, co-ordinate and independent of the other. By what authority is this proposition made, or attempted to be sustained ? Not, certainly, by any reference to our constitution. It is true the constitution vests the legislative power in a Senate and Assembly, yet they are by no means independent, for the governor may veto any of their legislative acts. It vests the executive power in a governor, yet he may be impeached by the two houses,-and hence it is not independent. The judicial power is vested in certain courts, yet the legislature enacts the law which they are bound to administer, and their judgments and' decrees depend for their execution, in most cases, upon the executive and administrative branches of the organism. Political speculators may dream of “departments,” of “co-ordination, co-equality and independence,” but a practical common sense, guiding a practical and legal administration of public affairs, soon discovers such ideas to be the “ stuff which dreams are made of.” The judicial power is vested in a supreme court, circuit courts, county courts, and justices of the peace. These constitute what is called in the argument the “judicial department, co-equal and co-ordinate,” and yet the governor, in spite of its assumed independence, may remove the judges upon address of the two houses, and appoint incumbents to fill vacancies which may occur, and j'et no alarm is felt, lest the executive -should usurp the functions, or control the action of the judicial department.
Again; while the constitution provides, that the executive power shall be vested in a governor, it also provides in the same article, that sheriffs, coroners, registers of deeds, and district attorneys, shall be elected in the several counties. These offices are, some, if not all, intimately connected with, and are a part of the executive department. Yet sheriffs, coroners and district attorneys are officers of, and obey the mandates of the courts. It was indeed alleged with great apparent earnestness by one of *767tbe counsel for the defendant, that the governor by one swoop may remove all these officers and appoint others in their places. This assertion must have been made without reflection. The governor has no such power.' It is true he may remove these officers, but it must be upon charges preferred and after an op* portünity given to be heard in their defence. A removal otherwise made would be unconstitutional and void, and an appointee to fill a vacancy thus created could be ousted by quo warranto. He would be as much an usurper of the office, as would be an alien, or one not a qualified elector of the state, who should attempt to exercise the functions of governor.
Rut it is useless to discuss this and similar propositions, touching the co-equality and co-ordination of the several departments in this stage of the proceedings. No such question is presented by the pleadings. The counsel for the defendant on the argument of the motion, preferred to place the question of jurisdiction upon the admitted, the avowred fact of successful usurpation of the office of governor, without any legal or constitutional warrant or authority, resting the whole question upon the fact that the defendant had possession of the office, and would hold that possession not of right, but because he had succeeded in getting there and that he chose to remain there.
Other departments or officers of the state government are ordained by the constitution, and unless the governor holds his office by a like warrant of the constitution, he cannot claim to be co-ordinate with those who do admit the supremacy of that instrument and bow to its authority.
But enough has been said to show that there is nothing in the office of governor that exempts the person holding it from obe'dience to the constitution and the law, any more than any other person holding any office under the same.
But it is contended, that if the person acting as governor is subject to the writ of quo warranto, or to any process or proceeding by which his right or title to the office can be be examined and tried, the independence of the department is destroyed, and placed at the control of another. This, if true, is no objection to the exercise of constitutional power,'and is no reason for placing the acting executive above and beyond the provisions of the constitution. But it is not true. On the argument of the *768motion to dismiss the information, it was conceded by the counsel for the defendant, that this court had jurisdiction to inquire by quo warranto into the title of the office of secretary of state, treasurer, attorney-general, &c., but who, ever supposed that an examination of the title of contesting claimants to the office, was usurping a control over the office. The title of the contesting claimants to the office of district attorney, has been tried at this term, but is this court usurping that office ? and are the"duties of the person found rightfully entitled at all different? does the court control, modify or enlarge his powers ? The persons holding the office of sheriff of Washington and Columbia counties have been ousted by judgment of this court, but no one claims or pretends that the court has usurped or controlled those offices, or that the persons declared entitled by the judgment are, or have been any the less independent in the discharge of their duties, than others, or that their duties are in the slightest degree modified. So, whichever of the present contesting claimants to the. office of governor should succeed in establishing his title, would not the constitutional and legal duties of the office remain precisely the same ? Could this court direct the approval or rejection of a bill? the pardon of a convict? the signing of a patent?
Nor is it true that the court takes upon itself to displace one man and install another. The proceeding is not, in any just sense, a removal of the officer. It is a proceeding to ascertain the person whom the people have elected. And to show how vain and fallacious are the assertions that the court by this process makes the governor, or appoints him, it is only necessary to look for a moment at the nature and character of the proceeding. In the first place, the attorney-general, a high law officer of the state, must file his information, charging the intrusion, and averring the title of the relator, before the court can take one step of progress; then a summons issues, and answer is put in, an issue is made up, if of fact; is sent to a jury to be tried, witnesses are sworn and examined, a verdict is rendered and judgment is pronounced, and all this is done in open day, in the full gaze of the public, and above all, every step of the proceedings is watched and contested by learned and zealous counsel — a singular mode of usurpation indeed ! an admirable plan to control *769the action and direct the policy of the executive department! It cannot be necessary to pursue such objections as these. So long as the constitution has prescribed certain qualifications for the executive office, and the people have hedged it about with •inhibitory safeguards, I unhesitatingly affirm, that if the writ of "quo warranto could reach an intruder into no other office, that writ, or some other adequate process, should reach the office of governor. Were it not so, of what avail these cautious constitutional provisions ? What avail to declare that he shall hold his office but for two years if there is no power to remove him at the end of his term ? Of what avail to provide for his impeachment, if he could barricade the halls of the capítol and bid defiance to all judicial authority, which alone can impeach, and which alone is competent to try the record of impeachment? 'Of what avail to declare that the person having the highest number of votes shall be the governor, if there be no power to determine in behalf of the people, and the person entitled, who has in fact the highest number of votes ? The time may come when some bold bad man may obtain the office of governor, and from time to time refuse to submit to all legal forms to ascertain the results of the election, declare himself elected and •re-elected from term to term, and thus plunge the people into civil strife, or leave them the only alternative, to submit to his •usurpation and despotism so long as it might suit his interest or pleasure to ride rampant over the constitution and the law, to trample upon the rights and liberties of the people, and to riot upon their substance. Who does not perceive that such doctrines-are utterly subversive of every principle of constitutional liberty — utterly destructive to every element of popular government, shocking to the moral sense, repugnant to every suggestion of right and justice, and terrible in their results.
This court has, on several occasions, and upon every occasion when it has been applied to, refused to interfere in any manner with the duties of the executive department. We have dis. claimed all power to control its action. We still disclaim all such power, and do now and at all times repel, with earnestness and truth, the intimation that we desire to have or claim the power, of controlling the governor, or any other officer in the discharge of his duties. But the powers which the constitution *770has conferred upon the court, we are compelled to exercise, when properly called upon to do so. We can no more refuse to do what is right, than we can do what ps wrong. We shall be careful not to do wrong — we must do. what we believe our duty demands of us.
But it is said, though the writ of quo warranto goes to other offices, it does not reach that of the governor. A few plain provisions of the statute and of the constitution settle this question.
Chapter 126 of the Bevised Statutes, provides as follows:
“ Sec. 1. An information, in' the nature of quo warranto, may be filed in the Supreme Court, either in term time or vacation, by the attorney-general, against individuals, upon his own relation, or upon the relation of any private party, and without applying to such court for leave, in either of the following cases:
“ 1. When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state; or any office in any corporation, created by the aztr thority of this state.'1
Here is the statute, the declared will of the people through their legislature. Has any person ever yet pronounced it to be unconstitutional ? Never. Here, then, is one of the sources of the jurisdiction of this court. The attorney-general has informed the court that the defendant has, ever since the 7th day of January, usurped and intruded into the office of governor; that such office rvas one of high character and dignity in the state; that he had no legal or constitutional warrant or authority for exercising the functions of the same.
But in answer to the information, or rather in objection to the court’s considering the information, the counsel come into court and contend that the office of governor is not a civil office, but a “ department.” Here again we are brought to the trial of the truth of allegations like this, by the test of the constitution. That is the basis on which all facts of this kind rest, which constitutes the organism of our government, and which is the source of all the powers of this state that can be lawfully exercised.
The statute provides that the attorney-general may file an information in the nature of a quo warranto, when any person shall *771usurp, intrude into or unlawfully hold or exercise any public office, civil or military. Does the constitution then regard the office of governor as a civil office ? Is this defendant a “ person ?” Let us look to the constitution and be governed by its provisions.
Sec. 1, of art. 5, of the constitution of this state, provides that “ the executive power shall be vested in a governor who shall hold his office for two years.” Is this office so denominated, civil or military ? It certainly is one or the other, or a mixture of both, and hence within the purview of the statute before cited.
Sec. 7, of art. 5, provides that “ in case of the impeachment of the governor, or his removal from office, death or inability from mental or physical disease, &c., the duties of the office shall devolve upon the lieutenant governor.” Is the governor here deemed an officer or a “ department ?” The department is not impeached, is not removed, does not die, does not become insane, nor remove out of the state.
Again ; section 8 of the same article, provides for a vacancy in the “office” of governor, on account of any casualty happening to the lieutenant governor, while acting as governor, when the secretary of state shall act as governor.
Again; section one, of article 7, declares that “ the House of Representatives shall have the power-of impeaching all civil officers. On the trial of an impeachment against the governor, the lieutenant governor shall not preside.” Here the governor is spoken of as a civil officer, not as an independent and coordinate department of the government, but as an agent of the government, rendered directly responsible to its tribunals. It is a confusion of all terms, of all ideas, to confound the departments of the government, or the offices of the government, with the persons who fill them for the time being. Even if the departments were sovereign, the citizens chosen to administer them are not sovereign. In our free, happy and constitutional government, every individual, whether in or out of office, is amenable to the law, to the process of the law, and to the tribunals erected by the constitution. Suppose one of the gentlemen who were candidates for seats upon this bench, or any other citizen, should apply for and obtain process against one of the justices *772of this court, either to test his title to the' office he holds, or for any other purpose, could he bid defiance to such process of the law, on the ground that he is a sovereign department of the government ? On the contrary, every citizen, whether in office or out, is subject to the process of the courts of the state in all cases, but those which are specially excepted by the constitution or the statute.
It is clear, from the provisions of the constitution, and the law above cited, that the office of governor is a civil, office, that the incumbent of the office is subject to the process of the law, and that proceedings by quo warranio are especially provided to protect all the civil offices of the state from usurpation and intrusion. We have seen that the sole and exclusive-object of the writ of quo warranto is to guard and protect the offices and franchises of the state from unlawful usurpation. We have seen that the constitution has prescribed certain qualifications requisite to enable a person to occupy the offices created by it, and we have only now to look to the Sd section of the 7th article to ascertain in what department or branch of the government the constitution has deposited the control of this, the state’s writ. “ The Supreme Court shall have power to issue writs of habeas corpus, mandamus, injunction, QUO WARRANTO, and to hear and determine the same.”
It is a sufficient answer to all objections which -have been urged to this use of the writ of quo warranto; such as a pretended usurpa-tation by the judiciary of executive functions; an attempt to control the executive and direct its action; to say that when this court attempts to direct the governor what to do, or what not to do, or how he shall perform any of the duties appertaining, to his office, then it will be time to apprehend encroachment from that department; when it shall assume to appoint military or civil officers, or remove the same; when it shall assume to convene the members of the legislature,. or send messages to them ; when it shall attempt to transact business with the other officers of the government, civil or military ; in short, when it shall attempt to perform any of the functions of the executive department, or direct how they shall be performed; then, and not till then, will gentlemen be justified in charging upon it, or its members, usurpation or dictation. There can be found no *773instance of the kind, none has been alluded to, and, for the palpable reason that none exist. But, moreover, when it is recollected that this writ of quo warranto was especially and specifically preserved by the framers of our constitution in all its original vigor, and its well known character and scope, for the very purpose of enabling the government to protect the liberties of the people, and to enable the state to protect itself — and the constitution to execute through its own agencies, its own per-scriptions and sanctions — and to that end, and to preserve, pure and unimpaired, the precise channels and agencies through which the power of the state should be exercised or administered —to the end that the people of the state might know whether or not the powers which they had delegated were exercised by constitutional agencies; no attorney or counselor of this court, nor any party to this constitutional writ, is authorized to attempt to impair its efficacy, or evade its exigencies by setting up a pre-tence of usurpation on the part of those to whom the constitution has intrusted its control. It is foreign to the objects and functions of the writ of quo warranto to direct any officer what to do. It is never directed'to an officer as such, but always to the person — not to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorized to perform any act in, or exercise any functions of the office to which he lays claim.
Here is the full, perfect, express grant of jurisdiction, direct from the people, which this court can no more refuse to exercise, than it can do what it is not authorized to do.
It is idle to say that it does not reach the office of governor, for the constitution declares that to be a civil office, and the statute extends the scope of the writ to all civil offices.
But it is said that there is no precedent for a proceeding by quo warranto against a person claiming and exercising the office of governor. This is no objection. Gases frequently arise for which no precise precedent can be found. It is rare indeed that two cases precisely alike can be found in the books. But all are found to fall under some principle of legal or equitable j uris-prudence. Never before was a cause defended, or the jurisdiction of a court denied, on the ground that the counsel had been amable to find any case exactly like it. On the contrary the *774counsel and court search for analogies in the law, and apply the principles deduced from such analogies. So in this case; analogies innumerable are found in all the books, and1 positive provisions of the constitution and the statute not only recognize the j urisdiction, but demand its exercise.
But the reasons for the absence of precedents are obvious. First, when the governor has been elected by the people in the several states, the majorities have generally been so decisive as to render a contest hopeless. Secondly, in many of the states, the returns of the election for governor and lieutenant governor are made directly to the presiding officer of one or other branch of the legislature, opened and counted in the presence of both houses, and the result declared, and made definitive by express provisions. And thirdly, in many of the states provision is made by their respective constitutions for a special tribunal before which a contest for the office of governor can be tried. Those who assert that no tribunal can be created for the trial of a question of this kind without doing violence to the government and destroying the harmony and balance of the “ sovereign departments,” have read the constitutional law of these United States to little purpose. If my memory serves me correctly, there are, no less than ten states, and perhaps more, whose constitutions specifically provide for contesting the election for governor. And yet the framers of these constitutions never dreamed that they were doing violence to the government by questioning the title of a person who might assume to be their governor. Some of these constitutions provide a specific tribunal for that purpose, some authorize the legislature to provide for one, while others, like our own, have classed the office of governor among other civil offices in the state, and guarded it from invasion and usurpation, by cautiously and specifically preserving the prerogative writs of the state, and endowing their judicial tribunals with the control of them. ''
Reference has been made to two, and only two, cases in which there has been any dispute, in the states of this Union, as to the person elected to the office of governor — one in New York, in 1792, and one in Pennsylvania, in 1838.
The counsel was quite unfortunate in the citation of the case in Pennsylvania. He said that was a state in which the common *775law prevailed -in peculiar force and purity, and be asked why, in the controversy in regard to the election in 1888, when Gov-Porter and Gov. Ritner were candidates, when the most stupendous frauds were charged, why was not the remedy by quo war-ranto invoked, instead of muskets and buck-shot.? It is believed that if the counsel had examined the history of that case more closely, it would have become apparent to him, that probably ■one very adequate reason why a writ -of quo tvarranto was hot thought of or suggested, was, that when the.controversy arqse, the -term of the incumbent of the office had not yet expired'; that the votes for the candidates for the succession had not been counted; that Gov. Porter had not entered into the office; that there was no intrusion, therefore, to be inquired into. And a further examination would have discovered the fact, that the legislature had not yet organized; that the returns were by the constitution required to be made to the speaker of the Senate, who was to open and publish the same; that as yet there was no senate ■organized, and no recognized speaker chosen, and no returns opened and published. A still further examination would have ■discovered-the fact, that after the-Senate was organized, a speaker chosen, the returns opened and published, the results declared, ■the muskets and buck-shot were of no further use; and that no one chose té contest the election as its result was announced, although ample provision for that purpose existed, had any one chosen to do so, without -“ destroying the harmony of the government,” or “ the independence of the departments.” See vol. 54 Niles' Register, pp. 237—273 et seq.; Const. Penn., art. 2, § 2, Statutes of Penn.
The case in New York was between George Clinton and John Jay. In that case the canvass of the votes was by a joint committee of the two houses, and their decision was declared by statute to be final and conclusive, and upon the result being so declared, Mr. Jay advised his friends to submit to the determination of the tribunal which the law made “final and conclusive.” The case was never made the subject of judicial inquiry, nor, although the law of that state made the decision of the canvassing committee appointed by the legislature “final and conclusive,” it was never intimated that the matter could not become a subject of judicial as well as of .political inquiry. It is quite-evident *776that an inquiry by the legislative department into the title of the person holding the office of governor, is equally incompatible with the independence and co-equality of the executive department, as a judicial investigation would be.
Having now endeavored to dispose of the material objections urged to the jurisdiction of the court, which were urged upon the argument of the motion to dismiss the information, it may be proper to direct our attention for a time to the plea subsequently interposed.
After the motion to dismiss was overruled, the counsel for the defendant interposed a plea in abatement, going to the jurisdiction of the court. This plea set up the canvass of the returns of the late election by the board of state canvassers, the certificate of election issued to the defendant, and the oath of office taken by him — not in bar of the action, but as matters which necessarily ousted this court of jurisdiction — the substance of which was, that because a board of canvassers had decided the matter, therefore the supreme judicial tribunal of the state, by the action of such board, was ousted of all jurisdiction in the premises.
It is not denied that it was competent for the people in the organization of their government to have provided for a tribunal to whose determination alone should a question of this kind be submitted. But have they done so ? To answer this question we must appeal again to the constitution and the law. Eor this-purpose we will examine the various provisions on this subject.
But before proceeding to a review of these constitutional and statutory provisions, it may be well to recall to mind what is the precise subject matter under inquiry, of which it is claimed the facts stated in the plea, ousts this court of jurisdiction..
Two persons claim to be entitled by the constitution and the law, to hold and exercise the office of governor, to receive the salary pertaining thereto, and to enjoy the honor belonging to the station. The attorney-general, acting under his oath of office, has informed the court in the most solemn manner known to the law, that Coles Bashford, the relator, at the general election held on the 6th day of November last, received the highest number of votes cast by the electors of the state for the office of governor. The constitution declares that the person receiving the highest number of votes for such office shallbe elected^ The *777defendant, by the plea says, not that he was elected, not that he received the highest number of votes cast for the office of governor, not that he possesses the requisite constitutional qualifications for the office, but that the board of state canvassers had “ determined ” that he was elected, and that he had received the certificate of his election, and taken the oath of office, and that, therefore, whether or not any other person had in fact received the highest number of votes, whether any other citizen was entitled to the honor and emoluments of the office, this court had no power to inquire, and that it was an attempt on the part of the court to remove the governor, by instituting an inquiry as to the fact, which one of all the free and equal citizens of the state, is in fact, and in law the governor ; that to ascertain who is the legally elected governor, is to remove a governor; that to determine the right of the person elected by the people, is to appoint a governor; and that to guard this high and important office of the people from unwarrantable intrusion, is to remove a governor ; and hence there was no power or jurisdiction in this court to do anything of the kind. This is the simple translation of the plea, with this addition, viz: that though this court may have jurisdiction and power to oust a bold usurper of the office of governor, yet, if the state canvassers shall declare that he is not a usurper, the court has no power in the premises to inquire whether he is such or not; that although the constitution declares that the Supreme Court shall have jurisdiction of the writ of quo warranto to protect the offices of the state from usurpation, the board of state canvassers think differently and “ determine ” otherwise.
To sustain these novel doctrines, it is contended that the legislature has created the board of state canvassers, consisting of the secretary of state, attorney-general and treasurer, a judicial tribunal, with power to determine who is elected to the office of governor, and whose decision is final and conclusive. Admitting for the sake of the argument (but by no means as a correct legal proposition), that this position is correct, it does not affect the jurisdiction of this court. At most it can only be urged in bar of the information. Had the defendant pleaded the canvass and the certificate of the board of canvassers in bar, and produced the same as evidence conclusive of his title, an*778other question would have been presented. But he has not done so. The purport of the plea is, that “ because I aver that another tribunal has decided the subject matter of this investigation ; therefore, this court must instantly cease all further cognizance of the case; that it cannot even inquire as to the genuineness of the recordfor be it remembered, the exhibits accompanying the plea are not presented as evidence of the truth of the facts alleged in the plea, but as matters which, ipso facto, deprive the court4of a jurisdiction which it would otherwise possess, and be bound to exercise.
To a legal mind profert of a record is a novelty, and especially is such profert a novelty when made in a plea to the jurisdiction. As oyer cannot be craved of a record, so profert is not necessary, and when thus made, it is not evidence. What are called “ exhibits ” accompanying this plea, are no part of the plea itself. They neither strengthen the plea, nor enlarge its scope. If the allegations of the plea are good, for the purpose for which they are made, they require no proof until they are traversed. If they are not sufficient, evidence of their truth does not make them better, for they are admitted to be true for th.e purposes for which they are made. It was demurred to, as a plea to the jurisdiction, and was treated as such, and avowed to be such by the defendant’s counsel.
But I prefer to lay aside all technical objections to the plea, and meet the arguments which have been presented to sustain it. And here it is proper to remark, that much of the argument upon the demurrer to the plea was substantially based upon the propositions assumed in support of the motion to dismiss the information, and need not be again referred to. So far as the argument was based upon the effect of the canvass and the certificate issued thereon, it is proper to discuss the positions assumed, and the provisions of the statute cited to sustain them. All of the counsel for the defendant admit that the canvass and certificate of the board of county canvassers is not final and conclusive, but that the court has jurisdiction to inquire behind the certificate in proceedings by quo warranto. One of the gentlemen distinctly admitted, in direct terms, that the court had jurisdiction to reach by quo warranto the secretary of state, state treasurer and other state officers, notwithstanding the can*779vass, but insisted that such was the nature of the executive office as to preclude the operation of the writ upon the person holding the same; while the gentleman who last argued in support of the plea, contended that the canvass of the board of state canvassers, and their certificate, was not only final and conclusive as to all state officers, but absolutely precluded any inquiry, by any power or tribunal, by any process or means whatsoever, from inquiring into the right to office, of the person holding the same. It is not for ús to harmonize these different positions, but it is difficult to perceive how they can affect the question of jurisdiction. If the court has the power to oust a mere intruder without color of right or warrant, the necessary consequence follows, that the person in office may be called upon to show by what warrant he holds. If, being thus called upon, he exhibits his warrant, that is in -bar to further action, not in ^denial of the jurisdiction to make the inquiry.
But it is contended that the board of state canvassers is a judicial tribunal, whose determination is absolutely conclusive. If this be so, the court has jurisdiction to oust a person who has usurped an office, without any such determination in his favor. It must therefore be pleaded in bar of the action, not in denial of the power of the court to ascertain whether he has it or not. If a person is indicted a second time for an offence whereof he has been duly acquitted by the final judgment of a court of competent jurisdiction, he cannot plead such acquittal to the jurisdiction of the court in which he is last indicted, but in bar to the prosecution. A person is sued in trespass or replevin for unlawfully taking the property of another, and he defends the action by pleading in bar, that he was sheriff and took the property by due process of law, but he does not insist that the court has no power to inquire by what warrant or authority he thus acted. Numerous instances might be cited precisely analogous, and there is no person in so high authority in the state i¡hat he is not bound to answer the process of the state issued by the proper tribunal. Suppose this defendant was sued in an action of trespass for ordering property to be seized; could he defy the process of the law and refuse to answer ? Could he say to the court, you have no right to inquire into this matter, because I am a sovereign department ? Or would he not plead *780in bar of the action, that the property seized was the property of the state, and that he as governor was rightfully entitled to the possession ? Suppose he should take from a warehouse or depot, property purchased and brought hither for the use of the state, and the carrier should attempt to replevy the property to enforce his lien thereon for freight, would he resist the process of the law upon the pretext that he was a department of the government, and was sovereign and independent? And when the same person is asked by the state by what warrant he has taken possession of one of its high offices, can he reply that in his judgment he is governor, a sovereign and independent department, and therefore the state had no business to ask the question ? And when this is not satisfactory, shall he reply again that he has a certificate of election from the state’s secretary, and had taken the oath of office, and therefore it is high-handed usurpation even to have put such a question to him ? It would be all very well to produce his certificate and oath of office in answer to the process, and these would be 'prima facie, if not conclusive evidence of his right to take possession of and hold the office, but they do not defeat the authority of the state to make the inquiry. This, however, the defendant has not done, and this he refuses to do, on the ground, as the counsel allege, that it would subject the executive department to.the control of another department, co-equal with itself. Let it still be borne in mind, that this and the like process is the process of the State, not of the court — the mandate of the people, not of the judges; that it is directed to the defendant, not to the executive department; not to dictate or control the action of the department, but to ascertain by what warrant the defendant is in possession of it.
And here I may be permitted to repeat, that the higher and more sacred an office created by the constitution may be, the stronger the reason and the greater the necessity for guarding it against unwarrantable intrusion. The minor offices of the state, county or town might be intruded into and usurped for a time, without seriously affecting the public welfare ; but a successful usurpation of the highest office of the state, is in truth and in effect, the overthrow of the government itself. If the success continues, the constitution is destroyed, and irresponsible and self-constituted power reigns, riots and ruins.
*781But, although, from the fact that the defendant has refused to plead his election, the canvass, the determination of the board of canvassers, and the certificate of election, in bar of the claim set ■up by the attorney-general in behalf of the relator, the whole subject matter of the plea in abatement might here be dismissed ; yet-1 should be unfaithful fo the trust reposed in me, should I fail to notice some other positions here assumed, lest silence might be construed into acquiescence, in their correctness.
It is said the legislature has erected’ the board of state canvassers into a judicial tribunal, supreme, final and unquestionable. This is indeed strange doctrine. The board of state canvassers consists, by the provision of the statute, of the attorney-general, secretary of state and state treasurer, two of whom'shall constitute a quorum, and if only one of said officers shall attend on the day appointed for the canvass, the clerk of the Supreme Court shall be notified by the one attending on such day, and shall attend without delay, and with such officer shall form the board. B. S. chap. 6, sec. 69. And it is gravely contended that the attorney-general and the clerk of this court can be erected into a judicial tribunal by the legislature superior to the Supreme Court itself 1 And this, too, in the very teeth of the constitution, which id eclares that the judicial power of this state “shall be vested in a supreme court, circuit courts, courts of probate, and justices of the peace, and that the Supreme Court shall have a general superintending control over all inferior courts.” Besides, can this board of canvassers be considered a judicial tribunal, when they have no power to issue a subpoena for, nor to compel the attendance of witnesses, to summon parties before them, to grant a trial by jury, nor to do any act but “ upon the certified statements of elections, made by the board of county canvassers, to examine and make a statement of the whole number of votes given at any such election for the offices of govern- or, lieutenant governor, secretary of state,” &c. (chap. 6, sec. 74), to certify,such statements to be correct, and “thereupon ” to determine the result. These are not judicial but purely ministerial acts. Strong, petitioner, p. 497.
In this case, Mr. Justice Morton, in deciding this very question, says: “It cannot be maintained that the decision of the *782examiners (canvassers) was an act within their legal discretion. Whether their determination as to the reception or rejection of returns would be deemed a judicial decision, may well be doubted. But nothing can be clearer than that the counting the votes and ascertaining the majorities, and giving certificates of the result, are merely ministerial acts. They have no discretion in determining which of the candidates shall be elected. It must be the result of pure, inflexible mathematical calculation.” The same doctrine was held in the case of the People ex rel. Cook vs. Welch (14 Barb. S. C. Rep., 4 Selden), and more recently in the case of Cowles vs. Davis, upon quo warranto, relating to the title to the office of judge of the Supreme Court of the state of New York.
Indeed, the contrary doctrine has never been asserted until now, and its assertion stands without authority.
But it is said that, it is presumed that these officers have done their duty until the contrary appears. So it is presumed; but the position of th.e counsel lor the defendant precludes the exercise of any possible j urisdietion or authority by which the contrary can be made to appear, whatever the facts might be. Most undoubtedly the courts and the people of the state presume that the. officers have done their duty. Their certificate is prima facie evidence 'of the facts it asserts. But when it is asserted that the clerk of this court and the attorney-general, can be invested with judioial power above and beyond the supervisory control of the Supreme Court, created by the constitution, and this courtis asked to sanction such doctrines, we should be faithless to the constitution, which has itself vested the judicial power of the state, if we did not assert the supremacy of the constitution, in terms at once unmistakable and definitive.
Again; much stress is put upon the word “ determine,” used in the 74th section of chap. 6 of the Revised Statutes. The statute has, however, most carefully restricted the meaning of that word. The canvassers cannot “ determine ” according to their discretion, who is elected, but they must certify the statements which they have made of the returns of the county canvassers, and certify such statements to be correct, and “ thereupon,” that is, upon a computation of such returns and statement thereof, determine. They must determine “ there-upon,” not *783upon any other hypothesis or statement, but solely and exclusively upon the statements made from the footings of the returns of the county canvassers.
Suppose a public defaulter should be elected to the office of state treasurer, in defiance of the constitutional inhibition, the board of state canvassers are bound to examine the statements of the election made by the county canvassers, and “ thereupon,” to make a statement of the whole number of votes given for such person for the office of state" treasurer, and to certify such statement to be correct, and, “ thereupon,” to determine him elected to the office of state treasurer, although the constitution expressly forbids his holding that or any other office; would the canvass and certificate absolutely preclude any court or power from inquiring into the fact whether the person to whom the certificate had been given was in fact a defaulter or not ?
This question and the like answer themselves.
Again; it is said that the defendant’s title to his office is evidenced in the same manner as that of any of the members of this bench. So is the. fact; but if any of the persons who were candidates at the election for the incumbents of this bench, had chosen, or still choose, to file-an information in the nature of a quo warranto against me, to inquire by what warrant or authority I exercise the duties of this office, could I resist the writ and its exigencies, on the ground that I am a “sovereign department” of the government, and therefore not amenable to the judicial process of the state? or that the “court of canvassers” had determined my right?
Again; it is said that the S¿5th section of chapter 6 of the Revised Statutes, gives to the state board of canvassers the broadest judicial discretion to examine the whole matter of the election, and empowers them to declare whomsoever they shall see fit, to be elected to any office.
It is a sufficient answer to this proposition to say that this section refers as well to. the town and county canvassers as to the state canvassers, for its language is too explicit to be mistaken, re'ferring to any person, to any election and to ant office, and to the canvassers, without distinguishing the one board from another, but in terms comprehending them all. And all admit that the “determination” of the town and county canvassers can *784never have the effect which is here sought to be given to that of the state canvassers.
It is apparent from an examination of the statute, that precisely the same powers are given to the county and district boards of canvassers, as are given to the state board. Each board is required to make the statement from returns received, and thereupon to “ determine,” that is, to foot up, and declare the result.
It is admitted on all sides, that the “determination” of the county board of canvassers for county officers cannot be conclusive — that the county board of canvassers áre'not a judicial tribunal — and yet the language of the statute conferring power upon the one and the other, is essentially the same. The sections of chapter 6 of the Revised Statutes which grant to the several boards of canvassers, for town, county, district and state officers, are couched in almost the same precise language, and can admit but of one — the same and uniform construction.
Sections 52 and 53 relate to the county canvass, and are as follows :
“ Sec. 52. Each statement shall be certified as correct, and attested by the signatures of the said county board of canvassers, and filed in the office of the clerk'of the board of supervisors, and the same shall be recorded by him in a suitable book to be provided and kept in his office.
“ Sec. 53. They shall then determine the persons who have been by the greatest number,, of votes, elected to the several county offices, and members of the Senate and Assembly, when the county constitutes one or more senate or assembly districts; and such determination shall be reduced to writing, certified as correct, and attested by the signatures of the said clerk and justices, and be annexed to the statement of votes given for such officers respectively, and filed and recorded by said clerk with the same.”
The powers and duties of the district canvassers, as to their “determination” of results, are expressed as follows:
“ Sec. 61. The canvassers shall then determine the person or persons elected to office within the district, as shall appear by such statements, and shall certify such determination under their hands, and annex the same to their said statement, and deliver the same to the clerk of the board of supervisors of the county *785in which their meeting shall be héld, who shall file the same in his office.”
The powers and duties of the state canvassers will be seen from the following provisions of the same chapter:
“ Sec. 73. The board when thus formed, shall, upon the certified statements of elections made by the board of county canvassers, proceed to examine and make a statement of the whole number ofwotes given at any such election for the offices of governor and lieutenant governor, secretary of state, treasurer, attorney-general, and state superintendent, or either them; and another statement of the votes given for representative in Congress in each congressional district; each of which statements shall show the names of the persons to. whom such votes shall have been given for either of the said offices, and the whole number of votes given to each; distinguishing the several districts and counties in which they were given.
. “ Sec. 74. They shall certify such statements to be correct, and subscribe their names thereto, and they shall thereupon determine what persons have been by the greatest number of votes duly elected to such offices or either of them, and shall make and subscribe on each statement a certificate o.f such determination, and deliver the same to the secretary of state.”
“ Sec. 16. The secretary of state shall record in his office, in a book to be kept by him for that purpose, each certified statement and determination so made by the board of state canvassers, and shall without delay, make out and transmit to each of the persons thereby declared to be elected, a certificate of his election, certified by him under his seal of office; he shall also forthwith cause a copy of such certified statements and determinations to be published in a newspaper printed at the seat of government.”
Now after examining all these provisions of the statute carefully, it is impossible to find that any more force or effect, or any wider scope is given to the “ determination ” of the board of state canvassers than to that of the town, county and district canvassers. If the “ determination ” of the town and county canvassers can oust the judicial tribunals erected by the constitution of all supérvisory jurisdiction, and can finally conclude; beyond appeal, all the right of the people involved in an elec*786tion, then may the “ determination ” of the state canvassers do the same, for their power is the same.
But it is contended that the 96th section of the act in question confers a broader discretion upon the state canvassers. It is found among the miscellaneous provisions of the chapter con* cerning elections, and is in the following words:
“ Sec. 95. Whenever it shall satisfactorily appear that any person has received a plurality of the legal votes cast at any election for any office, the canvassers shall give to such person a certificate of election, notwithstanding the provisions .of law may not have been fully complied with, in noticing or conduct* ing the election, or canvassing or returning the votes, so that the real will of the plurality may not be defeated by any informality.”
It is perfectly apparent that this provision extends to the whole chapter, and is intended to direct all the various boards of canvassers. alike. The language of the section absolutely precludes any special application of its provisions to the board of state canvassers. “ Whenever it shall satisfactorily appear that any person has received a plurality of the legal votes cast at any election, for any office, the canvassers shall give to such person a certificate,” &c., evidently referring to, and directing the conduct of the several boards of canvassers provided for by the statute. If the decision of one board is final and conclusive, so is that of all and each. If the decision of one board can oust the supreme judicial tribunal of the state of jurisdiction, and paralyze its functions, so can another. The clerk of a board of supervisors and two justices of the peace of his own selection, become the court of first and last resort, in which the most sacred rights of freemen are adjudged and determined without appeal: and that too, without a chance of being heard, without process, without testimony, without a jury, without the privilege of appearing before the power which' may pronounce upon their rights. By the same construction the clerk of this court and state treasurer may constitute a “judicial” tribunal, superior to the court of which one of its members is clerk, and so, “ deter* mine ” that the services' of the supreme judicial tribunal may be dispensed with.
I would not have felt justified in quoting and arguing upon these provisions of the statute so far as I have, were it not for *787the fact that such an extraordinary position has been assumed, ■and with apparent earnestness. I shall dwell upon it no longer; but barely remark, that the constitution has vested the judicial power of the state in certain courts, and there it must remain until it is otherwise, disposed of by an amendment of the constitution, or by “ revolution.” Time after time, since the organ-isation of this government, and at all times, without question as to jurisdiction, have the courts of the country been called upon to inquire into the right of contesting claimants to public office. But never before in any court, or in any country, was it contended that the determination of a town, county or state board' of canvassers could wrest from the highest judicial tribunals of the state, jurisdiction o'f the appropriate writ, whereby such right or title could be tried and established. And when it is perceived that the powers of the-county, district and state board of canvassers are precisely the same, it would seem that further comment upon a proposition so new and startling, so incompatible with the premises of the counsel who contend for it, and so destructive to the conservative defences of the constitution, was wholly unnecessary.
IJpon these and the like considerations we have felt ourselves impelled to overrule this plea to the jurisdiction. Thereupon an order was entered for the defendant to answer over, and a term of four days was ordered for the respective parties to plead until an issue should be made up, when it was hoped questions of fact might be raised to determine which, would require the introduction of evidence and the intervention of a jury. But on the 4th day of March, the time for pleading over having elapsed, the defendant made default, and afterwards on the 11th day of March, the counsel for the relator moved the court for judgment by default. This motion was argued by the counsel for the relator, and the attorney-general, being present, was asked 'if he, as the representative of the people, had anything to propose, when he answered that he had not, nor should he have until judgment should be pronounced.
• 'Upon this state of the record we have'carefully and anxiously «considered of the judgment proper to be rendered.
It is needless to say that I would gladly have avoided the labor and anxiety which this case'has occasioned. But my duty *788to the office I hold Has left me no alternative, but to proceed in the discharge of such duties as the constitution and the law have from time to time demanded.
On Tuesday last the attorney-general came into court and discontinued the suit and all proceedings, so far as the people of the state were concerned. But he had made the relator a party. The relator had rights involved in the suit. He had employed counsel who had appeared with the assent of the attorney-general. He had been kept two months in court, attending upon the progress of the case, and, though the attorney-general might think proper to withdraw from the case so far as the people were, in his judgment interested therein, he had no power to withdraw the relator from the case against his own will. The defendant having made default, and the attorney-general having withdrawn on behalf of the people, but one party is left before the court, and that party is the relator.
It is most deeply regretted that such is the state of the case. It would have been much more satisfactory had the parties made up an issue, and enabled the court to award process that would meet all the exigencies of the case. But the conduct of the defendant in making default, and of the attorney-general in withdrawing, has rendered such a proceeding impossible. By the strict rules of legal practice, probably, judgment might now pass of ouster against the defendant, and also establishing the right of the relator. The default of the defendant most certainly confesses the allegations of the information, so far as he is concerned, and perhaps might have like force upon the claims of the relator. But owing to the importance of the office in dispute, we think the relator should be required to show by proof, at least a prima facie title.
Chief Justice. — The court has no doubt but that everything which was well pleaded in the information was confessed by the default of the respondent. By strict usage a final judgment would follow ; but the court has come to the conclusion to call upon the relator to adduce proof showing his right, at such time as will be most convenient.
March 20ih. Chief Justice. — Yesterday we intimated that we *789would indicate the amount of proof necessary to establish the •claim of the relator. We assume the statement of the board of canvassers to be true and correct until disproved.
Mr. Ryan, for the relator, intimated his readiness to produce his proofs.
Mr. Attorney-General said: “ In the exercise of what I deemed an act of justice to the people of the state, I, day before yesterday, filed a motion to dismiss these proceedings. The ruling of the court upon it, went no farther than to acknowledge the right of the attorney-general to withdraw from the case. The attorney->general does not now appear for the relator, but to inquire ' in what position he shall appear, in order to protect the interests of the people. The people will not be satisfied with anything less, nor can I, as their elected officer, be satisfied with anything less than a full investigation. I want to know my position. I want to know to what extent the judgment of the court goes, in indicating the amount of proof demanded. I now demand a full investigation of the election throughout the state. I deny on the part of the state, that an issue can be created in the canvass of one particular county. I now ask, if the whole case is to be opened up, and the whole state to be canvassed. If this is to be done, I wish to obtain such evidence as it may be possible for me to obtain to a thorough, complete and satisfactory investigation of all the facts. Nothing less than all the facts. Nothing less than all the facts, and their thorough investigation, can I, as the representative of the people — the most important party .to this suit, be satisfied with. For such a labor I am not now prepared. I enter my solemn protest against any proceeding short of the most complete inquiry and investigation, and against any other proceeding than the most thorough canvass of the state, and I am not now ready for so laborious a task. I want the court to tell me my position.”
The court then proceeded to hear testimony at length, touching the character of the returns of election made to the state canvassers, showing gross frauds and forgeries in such returns to the state board, as well as several returns made to the state board of elections held, or' purporting to have been held, at towns and precincts, which had never been returned to, or canvassed by *790the county boards of canvassers, modifications and corrections made by tlie state board, from statements made, or purporting to have been made, by the clerks of the board of supervisors, as to. the action of the county boards, in canvassing the votes and in making their statements, &c., from all of which it appeared by the finding of the court, that Coles. Bashford, the relator, had received a majority of the legal votes east and returned in conformity to the law.
As the judgment of the court is not based entirely upon the particular points of evidence produced, and as from the testimony adduced, it appeared that the relator had received the highest number of the legal votes cast at the election, and as the points both of fact and of law determined by the court, are considered-in the opinion, it is not deemed necessary to report the evidence given on the bearing.
By the Court,
WhitoN, C. J..After the very full expression which we have given of our opinions in regard to this case, it will not be necessary in finally disposing of this' motion, to say more than is required to show our views upon the questions which have arisen since we.concluded to call upon the relator to- show his title to the office by testimony, notwithstanding the default of the respondent. In the opinions which were given on a previous occasion, it was stated that under our statute, according to strict legal right, the court was authorized, by the default of the respondent, to pronounce a judgment, which would not only oust him from the office, but which would also establish the right of the relator to it; but that, as the office was one of great importance, and as the people of the state had a deep interest in the question as to the right of the relator to fill it, we would call upon him to show by testimony that he had this right, so that, while our judgment would oust an intruder, it would also establish the right of the relator upon the foundation of an election by the people. We have deeply regretted that the course which the respondent and the attorney-general have pursued, has put it out of our power to refer this question to the determination of a jury, but, while we have thus regretted it, we have not allowed it to deter us from the endeavor to ascertain the truth in regard to the alleged election of the relator,, by the *791only means remaining in our power. In pursuing this inquiry, we have considered the canvass of the vote for governor by the state canvassers as correct, granting the relator permission, however, to impeach it by testimony. A statement of this canvass has been laid before us, and shows that the respondent received at the late election thirty-six thousand, three hundred and fifty-five votes for governor, and that the relator received at the said election for the same office thirty-six thousand, one hundred and ninety-eight votes. It however appears, from the returns of votes in the office of the secretary of state, that in. order to arrive at the result above stated, the state canvassers allowed the relator and the respondent certain votes, statements of which were not sent by the town canvassers to themlerk of the board of supervisors of the county, as provided by law, and that the votes were not canvassed by the county canvassers, nor any statement of them sent by the clerk of the board of supervisors to. the governor, secretary of state and state treasurer, as the statute requires ; but that in some way not explained to us, statements of the town or precinct canvass came to the possession of the state canvassers, and that the votes, statements of which were thus before them, were allowed to the respective candidates. .
It also appears from the returns of votes in the office of secretary of state, that, in some of the counties, the county canvassers, after they had canvassed the votes given in the several towns in the manner provided by law, and after the statement of the votes cast in the counties had been sent to the governor, secretary of state and state treasurer, by the clerk of the board of supervisors, as the statute provides, made supplementary statements of votes, which were received by the state canvassers, and that the votes mentioned in these statements were allowed to the candidates.
It also appears from the said returns,- and from the statements of the votes made by the state canvassers, that, in some instances the state canvassers allowed votes -to the candidates which had been rejected by the board of county canvassers, when the reason for the rejection had been stated by the county canvassers in the paper containing the statement of the votes made by them, or when the rejection of the votes was established, or attempted to be established, by other testimony.
It also appears from the said returns, and from the said state* *792ment of the state canvassers, that the state canvassers added to the number of votes which the candidates received in some counties as determined by the county canvassers, ¡and deducted from,the number which the candidates received in others, as determined by the same authority. This was done in cases where the number of votes, as ascertained and determined by the county canvassers, did not correspond with a tabular statement of the votes cast in the several towns in the county contained in the same paper with the statement of the votes! made by the county canvassers. '
It also appears from the said returns, that twó statements of the votes from Waupacca county were before the state canvassers, purporting to come from two different clerks of two different-boards of supervisors, each being authenticated by a seal; and it further appears, that the votes mentioned in one' of these statements were allowed to the candidates, and that the votes mentioned in the other statement were rejected.
Before proceeding to state our views in regard to the law regulating the canvass of votes by the state canvassers, we propose to consider, how far the right of a person to an office is affected by the determination of the canvassers of the votes cast at the election held to choose the officer. Under our constitution, almost all our officers are elected by the people. Thus the governor is chosen, the constitution providing that the person having the highest number of votes for that office shall be elected. But the constitution is silent as to the mode in which the election shall be conducted, and the votes cast for governor shall be canvassed and the result of the election ascertained. The duty of prescribing the mode of conducting the election, and of canvassing the votes, was, therefore, devolved upon the legislature. •They have accordingly made provision for both, and the question is, whether the canvass, or the election, establishes the right of a person to an office. It seems clear that it cannot be the former, because by our constitution and laws it is expressly provided, that the election by the qualified voters shall determine the question. To hold that the canvass shall control, would subvert the foundations upon which our government rests. But it has been repeatedly contended in the course of this proceeding, that, although the election by the electors determines the *793right to the office, yet the decision of the persons appointed to canvass the votes cast at the election, settles finally and completely the question, as to the persons elected, and that therefore no court can have jurisdiction to inquire into the matter. It will be seen that this view of the question, while it recognizes the principle, that the election is the foundation of the right to the office, assumes that the canvassers have authority to decide the matter finally and conclusively. We do not deem it necessary to say anything on the present occasion upon the subject of the jurisdiction of this court, as that question has already been decided, and the reasons for the decision given. Bearing in mind, then, that under our constitution and laws, it is the election to an office, and not the canvass of the votes, which determines the right to the office, we will proceed to inquire into the proceedings of the state canvassers, by which they determined that the respondent was duly elected. Before, however, we proceed with this inquiry, we will call attention to the duty of the inspectors of town elections, and also to the duty of the county canvassers, as the powers and duties of those officers are intimately connected with the question under consideration.
The provisions of the Revised Statutes, chap. 6, secs. 4.3 to 50, inclusive, are as follows:
“ Sec. 43. As soon as the poll of the election shall be finally closed, the inspectors shall immediately proceed to canvass the votes given at such election; and' the canvass shall be public, and continued without adjournment until completed.
“ Sec. 44. The canvass shall commence by a comparison of the poll lists from the commencement, and a correction of any mistakes that may be found therein, until they shall be found or made to agree. The box shall then.be opened, and the ballots contained therein taken out and counted, by the inspectors, unopened, except as far as to ascertain whether each ballot is single, and if two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be' laid, aside until the count of the ballot is completed; and if, upon a comparison of the count and the appearance of such ballots, a majority of the board shall be of opinion that the ballots thus folded together were voted by one elector, they shall be destroyed.
Sec. 45. If the ballots in the box shall be found to exceed *794in number the whole number of votes on the poll lists, they shall be replaced in the box, and one of the inspectors shall publicly draw out and destroy therefrom so many ballots unopened, as-shall be equal to such excess.
“ Sec. 46. The ballots and poll lists agreeing, or being made to agree, the board shall then proceed to count and ascertain the number of votes.
“ Sec. 47. The canvass being completed,- the inspectors shall draw up a statement of the result in. writing, and cause a duplicate thereof to be made; which statement and duplicate they shall certify to be correct, and subscribe with their names.
“ Sec. 48. Such statement' shall set 'forth in words at length, the whole number of votes given for each office at such .election, the names of persons for whom such votes were given, and the number of votes so given for each person.
“ Sec. 49. One of said statements shall forthwith be delivered to the town clerk, to be filed and' preserved by him, or if made in any ward of a city, then to the clerk of such city for the like purpose, and the other, together with one of the poll lists, shall be carefully inclosed, sealed up, and directed to the clerk of the board of supervisors of the proper county, and delivered to the chairman of the board of supervisors of the town, or some one of the county board of supervisors; and such officer to whom such statement and poll list shall be so delivered, shall, within seven days after the election, deliver the same, with the seals and envelopes unbroken, to such clerk, without charge for mileage, when they receive mileage as members of the county board.
“Sec. 50. The inspectors shall carefully envelope and preserve all ballots rejected as defective, and deliver the same, together with the other poll list, to the town or city clerk, as the case may be, to be filed in his office ; all the other ballots shall then be destroyed, and the board of inspectors shall be- dissolved.”
It will be seen, that after the canvass is completed, the inspectors are to, make a statement of the whole number of votes given for each office, the names of the persons for whom the votes were given, and the number of votes given for each person. That a copy of this statement is to be made, that the statement and duplicate are to be certified by the inspectors to be correct, *795that one of tbe statements is to be forthwith delivered to the town or city clerk, and the o.ther carefully sealed up and directed to the clerk of the board of supervisors of the proper county. As the duties of these officers are wholly created by the statute, and in it clearly defined, it is quite apparent that they can rightfully do no act which the statute does not enjoin upon them. Their duty in regard to tbe statement of the votes which are given at the election, is defined with particularity, and any attempt upon their part to give any other effect to the statements than that which the statute authorizes, must be unavailing. They have no authority to transmit "a copy of this statement to the state canvassers, and if one should be sent, it could not be rightfully considered as evidence of any fact before that body.
. We will now proceed to*a consideration of the duty of the county canvassers as it is defined in the statute, so far as relates to the.canvassing of votes for state officers.
Sections 51, 52 and 56 of chapter 6 of the Revised Statutes are as follows:
“ Sec. 51. On the Tuesday next following the election, the clerk of the board of supervisors shall take to his assistance two justices of the peace of his county, who together with such clerk shall constitute the county board of canvassers, and proceed to open said returns, and make an estimate and statement of the votes as follows:
“ They shall make a separate statement writtén outin words at length, containing the whole number of votes given in such county for the offices of governor, lieutenant governor, secretary of state, treasurer, attorney-general, state superintendent, and representatives in Congress; the names of persons to whom such votes were given, and the number of votes given to each; another similar statement of the votes given for electors of president and vice-president; another of the votes given for senator, when the county aloné does'not constitute a senate district; another of the votes given for members of Assembly, when the-county alone does not constitute an assembly district; another of the votes given for county officers ; and another of the votes given for senator and members of Assembly, when the county constitutes one or more senate or assembly district, specifying *796the number of votes for each person for senator and member of Assembly in eacb sucb district respectively.
“ Sec. 52. Eacb statement shall be certified as correct, and attested by the signatures of the said board of canvassers, and filed in the office of the clerk of the board of supervisors, and tbe same shall be recorded by him in a suitable book to be provided and kept in his office.
“ Sec. 56. Of tbe statement and certificate of the votes given for the offices of governor, lieutenant governor, secretary of state, treasurer, attorney-general, state superintendent, and representatives in Congress, or either of them, the clerk of the board of supervisors shall prepare three certified copies under his signature, and sealed with his seal of office. Of these copies he shall, within three days next after the county canvass, send by mail one to the governor, one to the secretary of state, and one to the state treasurer.”
It will be seen that this body is to determine the number of votes cast in the county for state officers, from the statements of the votes sent to the clerk of the board of supervisors by the town inspectors, that they are to make a statement of the votes so given, and to certify the statement to be correct; that of the statement and certificate of the votes given for state officers, the clerk of the board of supervisors is to prepare three copies, one of which is to be sent by mail to the governor, one to the secretary of state, and one to the state treasurer.
The same observations apply to the powers and duties of county canvassers as to town inspectors. Their powers and duties are clearly defined in the statute, and ' they can do no act which is not enjoined upon them. They are authorized and required to make a statement of the votes given in the county for state officers and to certify that statement to be correct. The statute speaks of one statement, and of but one; and it seems clear that but one is authorized. Having made the statement and certified to its correctness, their duty in that respect, is fully discharged, and their authority ended. The statute authorizes them to assemble at the time appointed, for-a specified purpose and object, and that object having been accomplished, they have no power to assemble at other times or for other objects than those which the statute authorizes. They can have no authority, *797therefore, after having complied with the statute by making a statement of the votes given for state officers in the county, to re-assemble at other times and make additional or supplementary statements of the votes, for the simple reason that such an act is wholly unauthorized by the statute. Deriving their authority wholly from the statute, when they have performed their duty under it, their authority is gone and their power ended ; such additional or supplementary statements, therefore, if made, must be wholly unavailing for any purpose, and the state canvassers would not be authorized to consider them, in determining the number of votes given in the county for state officers.
We now come to the consideration of the law applicable to the duty of the state canvassers.
Sections 69, 70, 72, 73, 74, 75 and 76 of chapter 6 of the Devised Statutes prescribe that duty, and are to be considered in connection with section 95 'of the same chapter.
These sections are as follows :
“ Sec. 69. The secretary of state, state treasurer and attorney-general, shall constitute the board of state canvassers, two of whom shall be a quorum for the transaction of business ; and if one only of said officers shall attend on the day appointed for a meeting of the board, the clerk of the Supreme Court at Madison, on being notified by the officer so attending, shall attend without delay, with such officer, and with him shall form the board.
“ Sec. 70. The secretary of state, upon the receipt of the certified statements of the votes given in the several counties, directed to be sent-to him by the clerks of the boards of supervisors, shall record the same in a suitable book to be kept by him for that purpose; and if from any county no such statement shall have been received by him, he shall, obtain the same from the go'vernor or state treasurer, if received by either of them, and when obtained, record the same in like manner.”
“Sec. 72. For the purpose of canvassing and ascertaining the result of elections, other than for electors of president and vice-president, the secretary of state shall appoint a meeting of the state canvassers to be held at his office, on or before the fifteenth day of December next after a general election, and within forty days after a special election, and shall notify the other members of the board of the same.'
*798“Sec. 73. The board when thus formed, shall, upon the cer-tilled statements of elections made by the boards of county canvassers, proceed to examine and make a statement of the whole number of votes given at any such election for the office of governor and lieutenant governor, secretary of state, treasurer, attorney-general and state superintendent, or either of them ; and another statement of the votes given for representative in Congress in each congressional district) each of which statements shall show the name of the persons to whom such votes shall have been given for either of the said offices, and the whole number of votes given to each ; distinguishing the several districts and counties in which they were given.
“S'ec. 74. They shall certify such statements tobe correct, and subscribe their names thereto, and they shall thereupon determine what persons have been by the greatest number of votes duly elected to such offices or either of them, and shall make and subscribe on each statement a certificate of such determination, and deliver the same to the secretary of state.
“ Sec. 75. The said board of canvassers when organised, shall have power to adjourn from day to day, for a term not exceeding three days.
“Sec. 76. The secretary of stare shall record in his office, in. a book to be kept by him for that purpose, each certified statement and determination so made by the board of state canvassers, and shall without delay make out and transmit to each of the persons thereby declared to be elected, a certificate of his election, certified by him under his seal of office ; he shall also forthwith cause a copy of such certified statements and determination to be published in a newspaper printed at the seat of government.”
“Sec. 95. Whenever it shall satisfactorily appear that any person has received a plurality of the legal votes at any election, for any office, the canvassers shall give to such person a certificate of election, notwithstanding the provisions of law not have been fully complied with in noticing or conducting the election, or canvassing, or returning the votes, so that the real will of the pluralitj'- may not be defeated by any informality.”
It will be observed that according to the 73d and 74th sections above quoted, the board are, upon the certified statements of *799-elections made by the boards of county canvassers, to make a statement of the whole number of votes given for state officers, which shall show the names of the persons to whom such votes shall have been given, &c., and that thereupon they shall determine what persons have been, by the greatest number of votes duly elected.
It is clear from these sections of the statute, that the state canvassers are to make their statement and determination from the certified statements of the county canvassers alone. All other testimony is excluded from their consideration. The statute is too positive and explicit upon this subject to admit of any doubt. Mo language could have been used in the statute which would have expressed more clearly the intention of'the legislature to confine the state canvassers to the statements of the county canvassers, than that contained in these sections.
But it was contended by the counsel for the respondent in an argument submitted to the court on a former occasion, that section ninety-five above quoted, gave almost unlimited discretion to the state canvassers, and enabled them to receive other testimony as to the number of votes given in the several counties, for a state office, and to determine from such testimony, that a person had received a plurality of the votes, although such a result might not be established by the statements of the county canvassers. We cannot assent to this construction of the provision of the statute in question. This section provides that whenever it shall satisfactorily appear that any person has received a plurality of legal votes, &c. How is this fact satisfactorily to appear? Manifestly by the statements made by the county canvassers. There is no intimation in this section, that any other testimony is to be resorted to by the state canvassers for the purpose of determining the question submitted to them, than that which the statute prescribes, viz: the statements of the county 'canvassers. To allow the construction of the statute contended for, to prevail, would be to dispense with the necessity of a statement of votes by the county canvassers in all cases, and to permit the state canvassers to substitute' any proof which they might choose to hear.
'This section of the statute further provides that the canvassers shall give to the person who has received a plurality of legal *800votes a certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, or canvassing or returning the votes, &c.
We think that this provision does not authorize the canvassers to hear other testimony than such as the statute prescribes. It gives the canvassers power to decide, that a person who has received a plurality of the votes, shall receive a certificate of election, although the statements which show this fact, may not be in all respects, in strict conformity with the statute. But it by no means gives the canvassers power- to consider statements of votes made by other persons than those who by law are authorized to make them, nor by those persons, unless the statements themselves are authorized by the statute. It appears to us that this must be the correct exposition of this section of the statute, for the reason that unauthorized statements of votes made by inspectors of town elections and by county canvassers, •upon general principles of law, cannot be evidence for any purpose. It is only when these officers are authorized to make these staterhents than any effect can be given to them. It may be replied to this construction of the statute, that a person who has a plurality of votes for an office, may be defeated on account of the neglect, fraud or ignorance of those whose duty it is to canvass the votes given at an election and to certify the result.
We have already stated that an election by the qualified electors of the state, and not a canvass of the voles, confers a right to office; and although those whose duty it is to canvass the votes are ministerial officers, and are allowed to perform no acts which are not prescribed by the statute, courts which have the power to entertain proceedings by quo warranto, have authority to determine who has this right, without being compelled to limit the proof of the right, to the acts of those who by law are appointed to canvass the votes and make statements of them. This court has, in repeated instances, decided that the failure of the officers áppointed 'by law to canvass the votes given at an election, to perform their duty, does not deprive a person who has been duly elected of his right to the office. We have in all cases given effect to the election, and have uniformly decided that a person who proved the fact of his election to an office, by *801competent testimony, was entitled to the office, although another person might have the certiñeafce-of the canvassers. It follows from the view which we have taken of the law applicable to the powers and duties of the state canvassers, that the statements made by town or precinct inspectors of election-which the state canvassers had before them, and also the additional or supplemental statements which came from the clerks of the board of supervisors, furnished no evidence that the votes mentioned in the statements were given at the election, for the reason that the statements were wholly unauthorized. We aTe also of opinion that the additions which the state canvassers made to, and the deductions made from the votes mentioned in the statements of votes made by the county canvassers, for the reason that such statements did not correspond with the tabular statements of the votes of the several towns, were wholly unauthorized; because the tabular statements were not authorized by law, and of course could not be evidence of the facts stated in them. ■ ,
In regard to the two statements of votes made by the two separate boards of county canvassers in the county of Wau-pacca, we give no opinion. There could of course be but one lawful board of county canvassers in the county, and we> have no evidence before us to show which of the boards was authorized to canvass the votes and make the statement of them which the statute specifies."
Testimony was introduced tending to show that frauds of a very gross character were perpetrated either by the inspectors of elections of one of the towns in the county of Waupacca, or by the board of county canvassers of that county" whose statement of votes was considered authentic by the state canvassers^ Testimony was also introduced tending to show that some of the additional or supplementary statements were fraudulent, and that the statements of votes purporting to be made by town or precinct inspectors, and which came to the possession of the state canvassers, were many of them forgeries. Upon this testimony we do not intend to comment. As the judgment which we are about to pronounce in this case, will not in any degree be based upon it, we desire to pass it by iti silence. But we cannot refrain from again expressing our regret that the course which the respondent and the attorney-general have seen fit to pursue, has *802prevented us from referring these questions to a jury in order to Rave the facts in the case judicially determined.
Note, — The great interest felt in this ease, the character of the parties, as well as the dignity of the office in dispute, and the questions raised in the course of the proceedings, seemed to render a full report essential to its due appreciation. Anything short of this would have failed to satisfy the demands of justice, and to present the case here as it was presented and conducted in court. — Repobteb.It has been repeatedly said by this court that the default of the respondent authorized the court to give a judgment of ouster against him, and also a judgment in favor of the relator, establishing his right to the office.
In addition to this, it now appears from the state canvass, and from the returns in the secretary’s office, by rejecting the votes mentioned in the additional, or supplementary stateménts, and the statements made by the town or precinct inspectors before mentioned, which‘were wholly unauthorized, and by allowing the respondent and the relator each the number of votes mentioned in the statements of the county canvassers lawfully made, that the relator was elected to the office of governor by a plurality- of votes.
It follows from the view which we have taken of the matter, that there must be a judgment of ouster against the respondent, and also one in favor of the relator.
Judgment accordingly.