I concur with the conclusion reached in this case, that, upon the facts disclosed by the record, the court below had no jurisdiction over the person of the appellant, and that, for that reason, if for no other, the judgment appealed from ought to be reversed.
I also agree that, having reached the conclusion that there was no jurisdiction over the person of the appellant, there is nothing we can say on the merits of the controversy which can properly be considered as of binding authority as a decision in the cause. But I trust that, under the circumstances, it will not be deemed inappropriate for me to express some individual views on some of the questions discussed by my brother judges who have preceded me.
I am further of the opinion that the court below did not have, and could not be made to have, any jurisdiction over the subject-matter of the action.
Sections 4, 5 and 6, of article 5, of the present Constitution of this State, as they are known by their original numbers, are as follows :
“ Section 4. In voting for Governor and Lieutenant-Governor, the electors shall designate for whom they vote as Governor and for whom as Lieutenant-Governor. The returns of every election for Governor and Lieutenant-Governor shall be sealed up and transmitted to the seat of government, directed to the Speaker of the House of Representatives, who shall open and publish them in presence of,both Houses of the General Assembly.
“ Section 5. The persons, respectively, having the highest number of votes for Governor and Lieutenant-Governor shall be elected; but in case two or more persons shall have an *116■equal, and the highest, number of votes for either office, the General Assembly shall, by a joint vote, forthwith proceed to elect one of the said persons Governor or Lieutenant-Governor, as the case may be.
“Section 6. Contested elections for Governor or Lieutenant-Governor shall be determined by the General Assembly, in such manner as may be prescribed by law.”
These provisions of the Constitution, as I believe, confer upon the General Assembly .of this State exclusive power and control over: First. Acting in part through the Speaker of the House of Bepresentatives, who is charged with the duty of opening and publishing the returns, the matter of computing the votes cast at any election for Governor and Lieutenant-Governor respectively, and of determining and-declaring the result arrived at by such computation. Secondly. The matter of electing both the Governor and Lieutenant-Governor when, by reason of a tie in the votes cast, there has been no choice by the people. Thirdly. All matters of contest arising out of the alleged election of any person either as Governor or Lieutenant-Governor, and, consequently, all questions affecting the rights of any person to hold the office of either Governor or Lieutenant-Governor.
The phrase “ contested elections ” has no technical or legally defined meaning. An election may be said to be contested whenever an objection is formally urged against it which, if found to be trae in fact, would invalidate it. This must be true both as to objections founded upon some constitutional provision as well as upon any mere statutory enactment.
The primary meaning of the verb “to contest” as given by Webster is, “ To make a subject of dispute, contention, or litigation; to call in question; to controvert; to oppose; to dispute.” It is further defined as meaning, “ To defend, as a suit or other judicial proceeding; to dispute or resist, as a claim, by course of law; to litigate.” The power, therefore, to determine “contested elections” for Governor or Lieutenant-Governor necessarily carries with it jurisdiction *117over every possible objection which may, under the Constitution or any statute, be urged against the so-called election of any person to either one of those offices. Section 4743, R. S. 1881, and the nest three succeeding sections, prescribing the manner of proceeding in contesting the election of State officers, were evidently intended to carry into effect the provision of the Constitution concerning contested elections for Governor and Lieutenant-Governor, but the subsequent section 4756, which states generally the causes for which an election may be contested, does not specifically enumerate the objection presented in this case against the validity of the election of the appellant as Lieutenant-Governor, as a cause of contest, and it is for this reason claimed that the General Assembly has no jurisdiction to hear and determine such a contest as the complaint in this case was intended to present, and that hence, there being no other remedy, the courts must have jurisdiction to hear and determine such a contest. This does not by any means fo.llow. As applicable to a tribunal having only statutory jurisdiction to hear and determine a contested election case-, the claim might have much plausibility, but, as applicable to a tribunal upon which the Constitution has conferred complete jurisdiction, such a claim can have no foundation.
It must be borne in mind that the Constitution says that “ Contested elections for Governor or Lieutenant-Governor shall be determined by the General Assembly.” This is equivalent to saying that all such contested elections must be so determined. The failure, therefore, of the General Assembly to provide that a particular state of facts which, under the Constitution, ought to render an election for Governor or Lieutenant-Governor invalid, shall constitute a cause of contest, is simply a failure on its part to fully meet all the requirements of the Constitution, and, in the very nature of things, no authority is thereby conferred upon the courts to supply the omission.
As I construe the various sections of the Constitution hav*118ing some bearing on the subject under discussion, in the light of the principles and usages governing American elections, the election of a Governor or Lieutenant-Governor may bo contested for causes other than those specifically enumerated in the statute. If the person receiving the highest number of votes should prove to be an idiot or insane, and hence incapable of either comprehending the nature of the oath he would be required to take, or of discharging the duties of the office to which he has been elected, might not such a palpable disqualification be made a ground of contest ? So, if the person receiving the greater number of votes, should, after the election, commit some high crime or misdemeanor, amounting to an impeachable offence under the Constitution, if committed after taking office, might not the General Assembly, upon a contest, declare him to be incapable of taking the office?
If there was no vacancy in the office at the time the election was held, or if the vacancy was one which the people were not authorized to fill at that time, could not either one of such facts be brought .to the attention of the General Assembly by an elector, under the provisions of sections 4743 and 4744 of the statutes, above referred to, and the validity of the election be thus contested? If not, why not? But however that may be, I, for the reasons given, maintain that, whatever power the courts might otherwise have had to adjudicate controversies arising out of elections for Governor or Lieutenant-Governor, all jurisdiction over such questions has been conferred upon the General Assembly, to be exercised by it in such manner as has been, or may hereafter be, prescribed by law, and that, consequently, the courts of the State are wholly without jurisdiction to determine such controversies. The constitutional provisions, which I have above set out, take this case out of the rules of decision on kindred questions in some of the other States, and’render many of the cases cited and relied on in- argument totally inapplicable as precedents at the present hearing.
*119A careful examination of the Constitution and existing laws will disclose that all that pertains to the returns, and the contesting of the elections for Governor and Lieutenant-Governor, and to the counting in and inauguration of those officers, stands upon a footing different from that of other State officers. The Governor and Lieutenant-Governor receive no commissions as muniments of title to their offices. The only authentic record of any matter relating to their election is found in the journals of the two Houses of the General Assembly. All the State officers, who receive commis■sions, must have their oaths of office endorsed upon their respective commissions, and certified copies of such oaths must be filed in the office of the secretary of state.
Section 5519, R. S. 1881, prescribes the oath which every public officer of the State is required to take before entering upon the duties of his office. Section 5521 further enacts that “ Members of the General Assembly shall take such oath before taking their seats, which shall be entered on the journals ; and the Governor and Lieutenant-Governor shall each take such oath, in presence of both Houses of the General Assembly in convention, and the same shall be entered on the journals thereof.” Thus it will be seen that every thing having relation to the returns and contests of their elections, to counting them in, and to the inauguration of Governor and Lieutenant-Governor, is wholly committed to the General Assembly, as much so and as exclusively, I respectfully submit, as each House is made the judge of the ■election, returns and qualifications of its own members. The Governor and Lieutenant-Governor may, for cause, be impeached by the House of Representatives, and tried and removed by the Senate, or may, in common with other State ■officers, be removed by a two-thirds vote of both Houses. 'The courts, for the causes stated, have absolutely nothing to do either with inducting the Governor and Lieutenant-Governor into office or with excluding them therefrom, in the first instance, or in .getting them out of office after they may *120have forfeited their right to remain in. Under the peculiar structure of our State Constitution, these are political and hence not judicial questions, and are committed to the General Assembly as the chief representative of the political power of the State.
But it is claimed that the case presented is that of two persons claiming the , right to discharge the duties of the same office, and that in such a case the statute expressly authorizes a proceeding in the nature of quo warranto to settle' such a controversy, independently of any provision of the Constitution concerning contested elections for Governor and Lieutenant-Governor. But the appellant bases his claim of right to preside over the Senate upon the assumption that he is the duly elected and qualified, and hence acting Lieutenant-Governor of the State.
The relator of the appellee bases his claim to be recognized as the presiding officer of the Senate, upon the assump-v tion that there is at present a vacancy in the office of Lieutenant-Governor, and that, being a member of that body, helms, under the Constitution, been elected President pro tempore of the Senate, which confers upon him the exclusive-right of presiding over Its deliberations. Each, therefore,, bases his claim to preside over the Senate upon a title essentially different from the other.
Conceding all the relator claims, he has not thereby become,, in any proper sense, the Lieutenant-Governor of the State. He is still a Senator, and as such entitled to vote upon all questions coming before the Senate. He does not occupy, and, while remaining a Senator, can not be made to occupy, those supernumerary relations to the Senate which are, by the Constitution, imposed upon the Lieutenant-Governor.
There is'nothing in the Constitution or laws of this State which prescribes the duties of a President pro tempore of the Senate, or confers upon him any fixed tenure of office. Under the parliamentary law, to which we must alone look in the-absence of any constitutional or statutory provisioii on the; *121subject, the President pro tempore of the Senate is only its-presiding officer during the pleasure of that body. He may be removed at any time by a vote of the Senate, or the election of some other Senator to the same position. At all events, his term can not extend beyond the legislative term during which he is elected. Every fourth year, therefore,, his term of office must at the utmost expire about two months-before the end of the current term of Lieutenant-Governor. On this subject see section 3, article 4, of the Constitution also section 9, article 5, of the same instrument. Consequently the relator and the appellant can not, with propriety, be considered as claimants to the same office. The points of collision between them are sui generis, and do not, as I conceive,, present a case either authorizing or requiring judicial intervention.
The condition of. things complained of is really one of disorganization between the two Houses of the General Assembly, one recognizing the appellant as the lawfully elected and duly qualified Lieutenant-Governor of the State, and the-other denying his title to that office.
This condition of disorganization develops a controversy over which the courts, on general principles, have no jurisdiction, and concerning which no court can exercise even the slightest control. It presents a case for legislative, and, consequently, not judicial arbitrament.
So far as I am able to perceive, the Senate has the unquestionable right to determine who is entitled to act as its presiding officer.
Section 16, article 4, of the Constitution, declares that “Each House shall have all powers necessary for a branch of the legislative department of a free and independent State.”' This provision is nothing more than an affirmation of the-principles of the parliamentary law as applicable to the separate powers and relative independence of the .two Houses of a legislative body like our General Assembly.
Each House is entitled to decide every question which falls *122within its own exclusive jurisdiction. When, therefore, there is a contest as to which of two persons is entitled to preside over the Senate, the question, from the very necessity of the situation, becomes one which the Senate must decide. It may, as a matter of abstract law, decide incorrectly, but if it should, I know of no tribunal this side of the ballot-box which is authorized to review its decision. It has all the •organization and official force necessary for the enforcement -of its own rules and orders, and as much power in that re.•spect as any other tribunal which does not command the military forces of the State. It may, under parliamentary law, punish persons guilty of a contempt of its authority. -See Cushing Par. Law, paragraphs 655 and 671. This is, ■also, recognized as an existing power by sections 14 and 15, article 4, of the Constitution. In short, neither House either needs or is entitled to receive any aid or assistance from the courts in the performance of the various duties which the ■Constitution has devolved upon it. Then, too, I know of nothing in the Constitution, or in any statute, or prescribed by any rule of parliamentary law, which designates any •officer as the person entitled to preside when the two Houses ■meet in joint convention. The right of a particular person or officer to thus preside might be established by a joint rule of the two Houses, but the complaint in this case makes no mention of such a joint rule. Assuming, therefore, that no such rule is in existence, I have no reason for believing that, when the two Houses assemble in joint convention, an aggregate majority of the body, thus composed, may not call whomsoever it pleases to the President’s chair and authorize him to preside for the occasion.
It has most usually been the custom in this State for either the Lieutenant-Governor, or President pro tempore of the ■Senate, to preside on such occasions, but the custom thus most usually observed has not ripened into, or ever been accepted .as, a precedent of binding authority. If, therefore, a joint ■ convention may select whomsoever it pleases to preside over *123its proceedings, it.is too plain for argument that no court can inhibit the person thus selected from so presiding. I, consequently, know of no principle on which theTestraining order granted in this case can be sustained, conceding that the court below had jurisdiction over the person of the appellant.
In response to much that has been said on the subject in argument, I feel quite assured that the Senate of this State is not, like the Senate of the United States, a continuous body. In the Senate of the United States, a majority constitutes a •quorum, and as there is always more than a quorum of qualified Senators holding seats in that body, its organic existence is necessarily continuous. . But in the Senate of this State two-thirds of its members are necessary to make a quorum. As one-half of its members go out of office at the end of •each legislative term of two years, that is to say, on the day after each general and biennial election, it becomes at the end of each such legislative term, a disorganized body, and, as the officers of the Senate comprise an essential part of its organization, it necessarily results that the terms of such officers expire when the body becomes disorganized for want of a quorum. See section 3, article 4, of the Constitution, above referred to. This, of course, includes the President pro tempore when one has been elected. Cushing, supra, paragraphs 283 and 296.
I might still further enlarge upon some of the views I have thus expressed, but I deem it unnecessary for any practical purpose.
Filed Feb. 23, 1887.
Individual Opinion.
Elliott, C. J.It will not, I trust, be thought improper for me to add something to what I have said in the foregoing opinion, for, in that opinion, I spoke for the court, expressing in part, but not in full, my own views. I fully •concur in the opinion of my brother Isiblack, that the courts have no jurisdiction of the subject-matter of this *124action, and. as the subject has been by him so fully and so ably discussed little can be added.
I began the investigation of this question with the impression that the courts had jurisdiction of the subject-matter, but I leave it with the firm conviction that they have not. This impression arose from a belief that it is better and safer that such controversies as this should be settled by soma other tribunal than the Legislature, but, while still impressed with that belief, I am compelled to yield to the settled rules, of the law and the clear words of the Constitution. Whatever may be the views of a court or judge upon a question of constitutional policy, the expressed will of the people, as written in their Constitution, must be obeyed and enforced. I am convinced that the framers of the Constitution have conferred upon the General Assembly exclusive authority over such controversies as this, although, regarded as a question- of policy, I am persuaded that it would have been wiser to have entrusted the authority to some other tribunal. The-makers of the Constitution had power to vest the authority in the Legislature, and they have done it. To their judgment all must yield.
The grant of power to the Legislature can not be defeated upon the presumption that it will not be justly exercised. On the contrary, it is the duty of the judiciary to assume that-legislators will faithfully and impartially perform the duty imposed upon them by the Constitution they have solemnly sworn to support. Courts must accord to the Legislature the. same solemn sense of duty, and the same conscientious resolution to perform it, unmoved by improper motives, that they can claim for themselves.
In Brown v. Buzan, 24 Ind. 194, it was said: “The judiciary ought to accord to the Legislature as much purity of purpose as it would claim for itself; as honest a desire to obey the Constitution, and, also, a high capacity to judge of its. meaning.”
It is, therefore, natural and reasonable to conclude that-*125-the framers of the Constitution, influenced by this principle, believed that the Legislature would impartially hear and determine all controversies, and, acting upon that belief, inserted in that instrument the provision investing the General Assembly with power to determine all contests for the offices of Governor and Lieutenant-Governor.
There, was a time in our history when eminent men, statesmen and jurists, believed that the courts had arrogated to themselves a power which did not belong to them, and that its assumption was hostile to the spirit of our institutions. So thought Jefferson, Madison, Jackson, Randolph, Van Burén and Bancroft in the earlier years of the Republic, and so thought Abraham Lincoln in the more recent years. Bancroft’s History of Const., II., 198, 202; Garland’s Life of Randolph, 327 ; Van Buren’s Political History, chapter 8; Lincoln’s first inaugural address. The illustrious lawyers and .statesmen of the early years were leaders of men, and their utterances did much to mould and give tone to public opinion. Their most radical views prevailed with many in their own times, and are advocated by lawyers of our own day. Mr. Street’s address before American Bar Association, 1883. The influence of those great men was widespread, and there is no doubt that their views controlled in a great measure the members of the constitutional conventions of the older States, and inspired them with the belief that the public good demanded that bounds be set to the power of the judiciary. Our own conventions,- that of 1816 and that of 1851, borrowed from the older States, and, influenced by the same reasons as those which had moved the conventions of those States to limit the power of the judiciary in matters of a political nature, distributed the power by investing authority ■over controversies respecting the title to the executive offices in the General Assembly.
The members of the convention which framed the Federal Constitution believed that the courts should only decide purely judicial questions. One of the historians of the de*126bates of that body gives us substantially this account of the: action of its members: Dr. Johnson, that historian says, moved an amendment to the provision relating to the jurisdiction of the courts, whereupon Mr. Madison said: He “ doubted whether it was not going too far, to extend the jurisdiction of the court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a judiciary nature. The right of exj>ounding the Constitution,, in cases not of this nature, ought not to be given to that department. The motion of Dr. Johnson was agreed to, nem. eon., it being generally supposed, that the jurisdiction given was constructively limited to cases of a judiciary nature.”1 5 Elliott Debates, p. 483.
It is now firmly settled, and, as I believe, wisely settled in accordance with sound governmental policy and true principles of jurisprudence, that the judiciary has power to decide in all cases over which it has jurisdiction, upon the constitutionality of legislative and executive acts, but this just result, was only reached after a fierce and stubborn conflict. Judges who asserted this principle were denounced in< the bitterest, terms in high places and in the public prints. Nor did the attack made upon them end in words. In 1796, during the troublous times in Ehode Island, so well described by Mr. McMaster in his history of the American people, the judges of the superior court were impeached for deciding an act of the Legislature to be unconstitutional, and, although they were acquitted, they lost their offices. In 1806, two of the judges, of the Supreme Court of Ohio, Judges Tod and Pease, were impeached for making a similar decision, but, after a. bitter contest, they were acquitted. These contests were the subject of much discussion, and the conduct of the judges was in many quarters wrathfully assailed, and in others stoutly defended. Denunciations of what was asserted to be a tyrannical usurpation of authority rang throughout the land, and many men, some of them great leaders, declared that the power of the judiciary must be confined within narrower-*127limits. The strife profoundly agitated the public mind, and its influence was felt in the halls of the conventions, and it led to a limitation upon .the power of the courts.
It is always proper to examine the history of the country and study the discussions .of the times in order to ascertain the meaning of constitutional provisions. It is, indeed, often necessary to do so, and from these sources light is oftentimes-obtained that clears away obscurity and difficulty. Cooley Const. Lim. 81. In this instance history supplies material aid, for it informs us that there was a reason for limiting the power of the judiciary and a purpose to be accomplished' in. doing it.
A reason urged by some who denied the power asserted by the courts was, that a power so great should not be entrusted, to men whose terms of office were for life, as in the earlier years of the Republic were the terms of the judges of the State and Federal courts. It was thought by many, whether-justly or not it is not for the judiciary to decide, that it was wiser and better to place the authority of determining contests respecting the right to office in the hands of those officers whose terms of office were not of great duration. Ohio, Kentucky, and other States have taken the entire power from the courts and placed it in special tribunals. Our own court has recognized the general principle that it is often best to-entrust high power to officers whose terms are short.
In Brown v. Buzan, supra, it was said : “ Thus, to whatever extent this court might err, in denying the rightful authority of the law-making department-, we would chain that authority, for a long period, at our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government may slightly overstep the limits of its constitutional powers, it should be that one whose official life shall soonest' end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes.”
This reasoning supplies grounds for sustaining the policy *128•of distributing the power of settling contests for office; for, if that power is lodged in the Legislature, the people can, at short and often-recurring intervals, rebuke where rebuke is needed, and approve where approval is merited.
Another reason given in support of the policy of placing contests for office under the jurisdiction of special tribunals is thus stated by the highest court of Kentucky: “ The very purpose of providing these boards was to prevent the ordinary tribunals of justice from being harassed, and indeed overwhelmed with the investigations, and involved in the ex•citements to which these cases may be expected to give rise.” Newcum v. Kirtley, 13 B. Mon. 515.
This argument is not without force. The wider the separation between judicial questions and political ones the better, for courts should be kept, if possible, entirely beyond the domain of political controversies. But, this is aside from ■our path, for it is not for the courts to judge of the strength •or soundness of reasons which influenced the framers of the ■Constitution to enact the provisions there written; it is quite •enough for them to know that there was a reason and a purpose in the minds of the men who wrought the Constitution -of the commonwealth.
The power of determining who is, or who is not, rightfully -entitled to the chief executive offices of the State, is, indeed, .a very high one, and if the courts have that power, then, as they do undoubtedly have it over all other offices, except the legislative, they would have control over all offices save the legislative, and there was, therefore, at least some reason to -doubt whether it was wise that they alone should wield a power of such great magnitude. It is, at all events, very •evident that the makers of our Constitution deemed it wise to limit the power of the courts by investing the General Assembly with authority to decide all contests involving the title to the two principal executive offices of the State. There certainly are plausible, if not convincing, reasons for a distribution oflthe high power of determining titles to office, *129since, as has been shown, if it is left wholly in the courts, they are invested with the highest power in the government, and one that some have not hesitated to affirm is autocratic. It is, indeed, claiming very much for the courts to assume that they possess the supreme power to decide all contests involving titles to office, and it is evident that the framers of the Constitution, regarding it as better to divide the power .and limit the authority of the courts, placed all contests for the chief executive offices under the jurisdiction of the Legislature.
If it was not intended to take contests involving the title to the executive offices from the judiciary, there would have been no necessity for any specific provision upon the subject, and it can not be inferred that the framers of so solemn an instrument as the Constitution have done a vain and fruitless thing. But the provision is in the Constitution, and it is there for a reason. Because it v^as deemed wise to divide the power it was written: “ Contested elections for Governor or Lieutenant-Governor shall be determined by the General Assembly.” The meaning of the word contested is neither doubtful nor obscure, as my brother TTiblack has shown, and as any one may see, by turning to the works of lexicographers. We are to interpret the Constitution by assigning to the words employed their usual meaning. Chief Justice Marshall said: “The enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 9 Wheat. 1, 188. Judge Cooley says : “ What a court is to do is to declare the law as written.” Cooley Const. Lim. 55.
The Constitution vests in the General Assembly sole and supreme jurisdiction over all disputes, controversies, or questions, whatsoever form or posture they may assume, arising ■out of a contest for the office of Governor or Lieutenant-*130Governor. The authority is to decide all phases of the controversy, not some part or parcel of it. This is the plain import of the language employed, neither clouded by doubt-nor obscured by uncertainty. It is a settled principle that where jurisdiction of a subject is conferred upon any tribunal it has jurisdiction of every part of it, and of every question of law or of fact that can possibly arise from the beginning to the end of the controversy. Once jurisdiction attaches, it exists for all purposes, all questions are within the authority of the tribunal, and no other tribunal in the world has a right to interfere with its decision except where there is a right of review or appeal. The rule rests on a solid foundation, for, if one tribunal might decide one part of a controversy and another some other part, there would be a hopeless confusion that no power could clear away, and a disastrous conflict that no tribunal could reconcile.
If it were conceded that the power to hear and determine' contests involving the title to the office of Lieutenant-Governor is purely a judicial power, it would not impair the force of the constitutional provision referred to, for it can not be doubted that the people, in their sovereign capacity and as the source of all power, may invest the Legislature with pure judicial power. They have, indeed, done so in more instances than one. It is a mistake to assume that the Constitution confers power upon the people, for the people’s power is primary, original, inherent, and supreme. Constitutions limit, but they do not create, the power of the people. The constitution is the creature, not the creator, of the people’s power.
In many instances powers of a judicial nature are conferred 'upon the Legislature, and it has always been held that where such a power is conferred, it is exclusive and supreme. No other tribunal can share in its exercise, nor can any court control it. People v. Mahaney, 13 Mich. 481, 492; State v. Gilmore, 20 Kan. 551; State v. Tomlinson, 20 Kan. 692; Dal*131ton v. State, 43 Ohio St. 652; Smith v. Myers, ante, p. 1, and cases cited.
A high tribunal has been established by the Constitution for the trial of contests involving the title to the offices of Governor and Lieutenant-Governor. That tribunal has all authority over the subject or it has none. It is not possible to assume that it may decide some questions, but not all, without contravening the long established rule that jurisdiction over the subject is jurisdiction over every question that can arise. The high tribunal provided by the Constitution is the special one to which all questions arising in a dispute, contest or controversy, involving the title to either of the executive offices, must be submitted. Where exclusive authority is vested in a special tribunal, courts have no jurisdiction to control, supervise or review its decisions.
In Wright v. Fawcett, 42 Texas, 203, it was said, in speaking of judicial power: “ To decide the result of an election is a question o.f a different character, ‘part of the process of political organization, and not a question of private right/ Hulseman v. Rems, 41 Pa. St. Rep. 396, and see Arberry v. Beavers, 6 Texas, 469; and Baker v. Chisholm, 3 Texas, 157; Walker v. Tarrant Co., 20 Texas, 16. Where the law has provided a mode of deciding cases of contested elections, designed to be final, the courts have no authority to adjudicate such cases, other than that the law may give to them. Batman v. Megowan, 1 Met. Ky. 533; Grier v. Shackleford, 3 Brevard, 491; Skerrett’s Case, 2 Parsons, 509, as reported in Brightly Lead. Cases on Elec. 320; Ewing v. Filley, 43 Pa. St. 389.” This principle is again asserted in Rogers v. Johns, 42 Texas, 339.
It was decided in the case of State v. Harmon, 31 Ohio St. 250, that “The authority conferred on the Senate to try contested elections is not judicial power within the meaning of* * the Constitution.” In State v. Marlow, 15 Ohio St. 114, a similar principle was declared, the court saying: “Jurisdiction being thus specially conferred upon other tribunals, *132and the mode of its exercise prescribed, it can not be inferred that it was intended by the Constitution to be differently exercised by a proceeding in quo warranto, as at common law, or by the Supreme Court and district courts, under a mere general grant of jurisdiction in quo warranto.”
The Constitution of Arkansas contains this provision: “ Contested elections shall likewise be determined by both Houses of the General Assembly in such manner as is or may hereafter be prescribed by law.” And the Supreme Court of that State held that a controversy between claimants to the office of Governor must be determined by the Legislature, the court saying: “Under this Constitution, the determination of the question as to whether a person exercising the office of Governor has been duly elected or not, is vested exclusively in the General Assembly of the State, and neither this nor any other State court has jurisdiction to try a suit in relation to such contest, be the mode or form what it may, whether at the suit of the Attorney General, or on the relation of a claimant through him, or by an individual alone claiming a right to the office. Such issue should be made before the General Assembly. It is their duty to decide, and no other tribunal can determine that question.” State, ex rel., v. Baxter, 28 Ark. 129.
Xo contest, controversy or dispute respecting the right to an office can ever be determined without deciding both questions of law and fact. Every controversy of a legal nature involves two elements, law and fact, and a tribunal having jurisdiction over the subject must, of necessity, have power to decide both the law and the fact. Without this power no progress could be made, and an adjudication would be impossible. The elements of law and fact which enter into all controversies are so blended and interwoven as to be absolutely inseparable. The law is the arbiter, and the facts invoke its powers. Without law there is no power to decide, for, without it, there would be no rule to determine the force and effect of the facts. On principle, it is plain that juris*133diction to hear and determine involves power to decide all questions of law and fact. But authority is not wanting.
In Batman v. Megowan, supra, it was said, in speaking of a special tribunal, that “ Its decisions are final on all questions of both law and fact, which may be involved in the investigation of the rights of the claimants to the office in contest.”
Courts unhesitatingly decide all questions, whether of law or of fact, in election contests, and, surely, what the courts may do, the high constitutional tribunal, composed of the law-makers of the commonwealth, must do.
It is not necessary to go through the cases, for, beginning with Waldo v. Wallace, 12 Ind. 569, it has been the uniform practice to decide all questions of law, the grave as well as the trifling, which the contest involves. This is the rule everywhere, in the legislative halls and in the courts. One of the many examples where Congress decided a pure question of law was that of Gholson and Claiborne, decided in 1837, where the question was, as here, the right to hold an election. Contested Election Cases, 9. Howard v. Cooper, is another illustration, for, in that case, the question was as to the validity of an election. Ibid. 275, 282. In the case of Grafflin, of Virginia, the question was purely one of law, and was as to the right to hold an election at the time Mr. Grafflin claimed to have been elected. Ibid. 464.
Precedents, however, are not needed, for it can not be conceived that power to determine a contest, dispute, or controversy, means nothing more than authority to deterinine the facts.
A high tribunal has been designated by the people to determine all contests for the office of Lieutenant-Governor; there the people have placed that great' power, and there it must rest until the people in their sovereign capacity shall change their Constitution.
Filed Feb. 23, 1887.
*134Individual Opinion.
Zollars, J.When the questions here involved, are examined, it is not at all surprising that the honorable gentlemen, parties to this litigation, have honestly differed as to their rights, and the proper method of having those rights settled. Nor is it at all strange that their able and learned counsel have also differed, both as to the rights and the forum in which those rights are to be ascertained and settled.
The novelty and importance of the questions involved, and the want of entire harmony upon each proposition, have seemed to render it proper for different members of the court to submit their individual views upon some of the questions about which there is a difference of opinion.
At the bottom of the controversy, is the controlling question, as to whether or not the election for Lieutenant-Governor in November last was authorized by the Constitution and statutes of the State. Upon that question the relator, Smith, seeks a decision by the court.
That question, on the other hand, the respondent, Eobertson, claims the court can not decide, because it has not jurisdiction so to do:
First. Because it has no jurisdiction over the subject-matter of the controversy; and,
Second. Because it has no jurisdiction over his person.
We are thus met, in limine, with the question of jurisdiction.
Jurisdiction is not a question of propriety, policy or choice, but one of power. Jurisdiction is the power to decide. When the question is made, the court must first examine and determine whether or not it has jurisdiction. When it is ascertained that it has not, both the power and the duty of the court are at an end.
When a question is before a court for decision, it is its duty, without hope of commendation or fear of censure, to decide it. And when a court has once determined that it has *135■not jurisdiction to decide and adjudicate, it should have the •courage, without hope of commendation or the fear of censure, to say so, and to refrain from the expression of an opinion that will be amere dictum, and from making an adjudication that will bind no one.
An opinion, or an adjudication, without jurisdiction, is a mere brutum fulmén, not only not binding on the parties to the suit, but which the humblest citizen of the State may disregard with impunity.
Such adjudications might well tend to destroy that confidence which, it is to be hoped, the people have in the conservatism and integrity of the courts.
The courts are the great conservators of organized society. If, by decisions extra-judicial, or by thoughtless, biased.and unjust criticism, the people shall utterly lose confidence in them, then, indeed, shall we be at the beginning of the end, when anarchy shall take the place of order.
The question of jurisdiction, as made here, is two-fold. As I have said, it is insisted by the respondent, Robertson, that the Marion Circuit Court had not, and, hence, this court has not, jurisdiction over his person, he being a resident of Allen ■county. That he was and is a resident of Allen county, and not of Marion county, is admitted on all hands.
After a careful examination of the question, we all agree, that by reason of his not being a resident of Marion county, the Marion Circuit Court did not have jurisdiction over his ■person.
Upon that branch of the case I agree fully with what is said by Elliott, C. J.
The respondent, Robertson, might have waived the point of the want of jurisdiction over his person. He did not do so. On the contrary, he insisted, and still insists, upon the objection. The courts can not compel such a waiver. We have no reason to assume, or presume, that he will, in any ¡event, change his attitude in that regard.
The novel and difficult branch of the question of jurisdic*136tion, which is before us for decision, is, as to whether or not the court had, or has, jurisdiction over the subject-matter; in. other words, whether the court had, or has, the power to decide in this ease, and as between the parties here litigant, the-legality and constitutionality of the election for Lieutenant-Governor in November last. That question has challenged the greatest research, and the best thought of each one of us.
I agree with Judges Niblacic and Elliott, that in this case, the court has not jurisdiction of the subject-matter. I do not, however, agree with all of the reasoning by which, they reach that conclusion.
Upon that question, the arguments of counsel have taken a wide range, involving the structure of the State government, and the checks and balances, as established by the Constitution. It is argued on the one hand, that an adjudication by the courts of the questions here involved, would be an unwarranted interference with, and an unwarranted infringement upon, the duties, functions and prerogatives of the legislative department of the government, by the judicial department.
As applied, simply, to the judicial and legislative departments of the government, as such, the argument, in my judgment, is not sound.
Article 3 of the Constitution, R. S. 1881, section 96, is as follows: aThe powers of the government ai’e divided into* three separate departments; the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this Constitution expressly provided.”
By section 16, of article 4, of the Constitution, R. 8.1881, section 112, it is ordained, that each House of the Genera! Assembly shall have all the powers necessary' for a branch of the legislative department of a free and independent State. The primary object, and the proper function of the legislative department of the government, as such, is not to settle *137controversies between citizens, nor to adjudicate upon their rights, whether those rights relate to private property or public office.
The primary object of the department, and its proper function, is to determine upon policy, and to carry that policy, by legislation, into laws. In distinguishing between judicial' and legislative acts, the United States Supreme Court in the Sinking-Fund Gases, 99 U. S. 700, 761, said: “The one determines what the law is, and what the rights of parties, are, with reference to trañsactions already had; the other prescribes what the law shall be in future cases arising under it.” So, in the case of Wayman v. Southard, 10 Wheat. 1, 46, Chief Justice Marshall said: “ The difference between the departments undoubtedly is, that the legislature makes5. the executive executes, and the judiciary construes the law.”
In speaking of the difference between a judicial and legislative act, the Supreme Court of Tennessee, in the case of Maybe v. Baxter, 11 Heisk. 682, 690, said: “The one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a pre-determination of what the law shall be for the regulation of all future cases falling under its provisions.”
As a member of, and in the convention which framed our Constitution, Judge Biddle said: “ What is the legislative power? It is that power by and through which a State makes it laws. * * * The General Assembly has no other duty or power than to make laws. After a law has-been enacted this department has no further power over the subject. It can neither adjudge the lav/ nor execute it.”
So far as the legislative department settles, or may settle the State policy, it may properly be called the political department of the government.
The question upon which the relator, Smith, here seeks an adjudication, however, very clearly, is neither a political nor a legislative question. It is not what ought to be done as a matter of State policy, nor what manner of laws ought to be. *138passed for future cases, or as a rule of future action. It is purely a judicial question, involving the proper construction of the Constitution and the laws already in existence, upon the question of the terra and the election of a Lieutenant-Governor. It is, therefore, not a question that belongs to the legislative or political department of the government as such.
If the Legislature has authority, either concurrent or exclusive, to decide the question, it is not because it is in the legislative department of the government, but because provisions of the Constitution, and statutes enacted in pursuance thereof, other than I have yet referred to, clothe that body with the extraordinary power, which is neither legislative nor political, but judicial. As we have seen, one of the co-ordinate branches of the government is the judicial.
It is ordained by section 1, of article 7, of the Constitution, R. S. 1881, section 161, that “The judicial power of the State shall be vested in a Supreme Court, in circuit courts, and in such other courts as the General Assembly may establish.”
This is a general grant of all judicial power to the judicial department of the government, to the exclusion of the other departments, and with appropriate legislation in pursuance of the grant, carries into the courts for final adjudication all judicial questions, unless there are other constitutional provisions lodging judicial power, in certain cases, elsewhere.
The Constitution is the people’s; they made it, and they are sovereign. They had the right to lodge the judicial power of the government, which they established, wherever they saw fit. And if we shall find that from th§ general grant cf judicial power to the judicial department, they have, by the same Constitution, carved out a certain portion as to certain cases, and lodged it elsewhere, there is no choice for the courts but to respect and to give force and effect to what they have done, whatever may have been the preconceived notion of the individual judges as to the existence or the propriety of such special grant.
*139Section 4, of article 5, of the Constitution, provides that “ The returns of every election for Governor and Lieutenant-Governor shall be sealed up and transmitted to the seat of government, directed to the Speaker of the House of Representatives, who shall open and publish them in the presence ■of both Houses of the General Assembly.”
Section 5, of the same article, provides that “ The persons, respectively, having the highest number of votes for Governor and Lieutenant-Governor shall be elected; but in ease two or more persons shall have an equal, and the highest, number of votes for either office, the General Assembly shall, by joint vote, forthwith proceed to elect one of the said persons Governor or Lieutenant-Governor, as the case may be.”
Section 5521 of the statutes, R. S. 1881, provides that the Governor and Lieutenant-Governor shall each take an oath of office in the presence of both Houses of the General Assembly in convention, and that the same shall be entered upon the journals thereof.
The two Houses thus canvass the votes for Governor and Lieutenant-Governor, not because they constitute the legislative department of the government, nor because the duties are legislative, but because the Constitution imposes the duty, and clothes them with the power in the way of a special .grant.
In my judgment, by the Constitution, the two Houses are constituted a special tribunal, in the nature of a board of canvassers, to open and publish the returns of the votes' for Governor and Lieutenant-Governor.
And I do not think that the grant is any broader, simply because it is to the two Houses. I think that in the same words, the grant would have carried with it just as much authority had it been to the State officers, constituting them a .special tribunal to canvass the votes for Governor and Lieu'tenant-Govcrnor, and to make a record of the result. Would ¡such a grant constitute the State officers a judicial tribunal, in such a sense as that their determination upon the returns *140before them would be conclusive as to the validity of the election, and as to the election of the persons declared elected Governor or Lieutenant-Governor ?
It is not the publishing of'the votes by the Speaker of the House, nor his declaration of the result, that makes the persons voted for Governor or Lieutenant-Governor, but the. number of votes received. So the Constitution declares.
Hoes the grant of power to the two Houses to publish the-returns and declare the result, constitute them a judicial tribunal in such a sense as that their -determination, and declaration upon the returns before them, are conclusive as to the validity of the election, and as to the election of the persons declared to be elected ? I think not. I think that the action of the two Houses in publishing the returns, and in declaring the results, is purely ministerial. They declare the result upon the returns before them, but back of that, there may be a sufficient number of illegal votes to change the result, and the majority candidate may be ineligible. Ho authority seems to be given to the two Houses, when thus in joint convention, to summon the interested parties before them, to send for, or to examine witnesses as to the illegality of votes, or as to the ineligibility of the persons voted for.
In the State of Wisconsin, the Attorney General, the Secretary of State, and the State Treasurer were by statute constituted a board of State canvassers. As such board, they had the authority, and it was made their duty, “ ‘ 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 Governor, Lieutenant-Governor, Secretary of State/ etc., * * to certify such statements to be correct, and f thereupon’ to determine the result.”
It was held by the Supreme Court of that State, that the duties were not judicial, but purely ministerial. Attorney General, ex rel., v. Barstow, 4 Wis. 567 (781). In that case, *141the proceeding was an information in the nature of quo warranto, to oust from the office a person who was claiming to be Governor by virtue of an election, and who had been declared elected by the board of State canvassers.
It was contended by Mr. Carpenter, with great ability, learning and research, that the suit could not be maintained: First. Because the determination of the board of State canvassers was final; and, Second. Because it would be an unwarranted interference with the executive department by the judicial department of the government.
The argument was answered by the court’s holding, that the board was not a judicial tribunal, and that the proceeding was not to affect the executive department, but to oust a person who had wrongfully intruded into the office of the Chief Executive. See the comments of Cooley on that case. Cooley Const. Lim. (5th ed.) 624. See to the same effect, also, Dickey v. Reed, 78 Ill. 261; Gass v. State, ex rel., 34 Ind. 425.
Clearly, a proceeding by information against a usurper into an executive office, is not an encroachment upon the executive department of the government.
It has been frequently held by this court, that the judiciary may control executive action as to matters purely ministerial. Governor v. Nelson, 6 Ind. 496; Biddle v. Willard, 10 Ind. 62; Baker v. Kirk, 33 Ind. 517; Gray v. State, ex rel., 72 Ind. 567 (577).
And yet this court has steadily maintained the independence of the co-ordinate departments of government, refusing to yield its jurisdiction, and refusing to exercise functions belonging to the legislative or executive departments. Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185 (196); Butler v. State, 97 Ind. 373; Johnson v. Board, etc., 107 Ind. 15 (24), and cases there cited; Columbus, etc., R. W. Co. v. Board, etc., 65 Ind. 427; Shoultz v. McPheeters, 79 Ind. 373.
The record of the canvass by the two Houses, of the declaration of the result, and of the oath, is doubtless prima *142facie evidence of the election of the persons declared to be elected Governor or Lieutenant-Governor, just as the certificate of election, and the commission issued to other officers, axe prima facie evidence of their election.
In a collateral proceeding, such record is, doubtless, conclusive evidence of the election, but it is not conclusive in a direct proceeding, authorized by the Constitution and laws y and especially is it not conclusive, as to whether or not there was a valid election under the Constitution and laws. As to the force of decisions by boards of canvassers, and of certificates of election and commissions, see Cooley Const. Lim. (2d ed.) 623; State, ex rel., v. Shay, 101 Ind. 36; O’Ferrall v. Colby, 2 Minn. 180; Prince v. Skillin, 71 Maine, 361 (36 Am. R. 325).
If the Constitution contained no provision upon the subject under discussion, other than those so far examined, I am satisfied that a claimant for the office of Governor or Lieutenant-Governor would have a right, under existing statutes, to go into the courts and contest the validity of the election, of the person declared elected by the two Houses. And especially am I satisfied that the law-officers of the State, moving in behalf of the people, would have such a right. McCrary Elections (2d ed), section 264.
Each House is the judge, and the exclusive judge, of the election and qualifications of its members. That right they get partially from the Constitution, and partially from the usages and laws of parliamentary bodies. But the right thus acquired has no application to the Lieutenant-Governor, because he is not a member of either House.
The Constitution assigns to him certain duties, as President'of the Senate, but that does not make him a Senator, or a member of that body, in such sense as that the Senate may pass upon his election and qualification as a member. See Winter v. Thistlewood, 101 Ill. 450.
There is, however, another provision of the Constitution, which, in my judgment, enlightened by much research, and *143the best thought I have been able to give to the subject, is controlling and conclusive against the right of the relator, Smith, to maintain this action.
The conclusion which I have been constrained to reach, I may say, is not in accord with my first impressions. The provision of the Constitution to which I refer is section 6, of article 5, R. S. 1881, section 132, and is as follows: “ Contested elections for Governor or Lieutenant-Governor shall be determined by the General Assembly, in such manner as. may be prescribed by law.”
That section, without doubt in my mind, invests the General Assembly with judicial power to hear and determine contested elections for Governor and Lieutenant-Governor, and to the extent, and no further, that such powers are thereby granted, they diminish the general grant of judicial powers to the judicial department proper.
The clause, “ in such manner as may be prescribed by law,” had no reference to the grant, of power. It neither enlarges nor lessens the grant. It has reference only to the manner or mode of executing the powers granted. The power thus granted to the General Assembly can not be augmented or abridged by legislation, nor by a failure of legislation. The statute provides, that the election of any person declared elected by popular vote to a State office, may be contested by any elector who was entitled to vote for such person.
It also provides, that such contest shall be tried before a committee of seven, chosen from each House o'f the General Assembly; that the committee shall report their judgment in the premises to both branches of the General Assembly; that it shall be entered on the journals of the respective Houses, and shall be conclusive. R. S. 1881, section 4746, et seq.
Section 4756, of the statutes, specifies certain causes as grounds of contest. That the election was without constitutional and statutory authority, is not specified as one of such causes. If, however, in the case before us, the election for Lieutenant-Governor in November last was without consti*144vtutional authority, the respondent, Robertson, has no right to the office.
The infirmity in his title to the office, in such case, would ■arise out of the invalidity of the election. And as such invalidity, if it exists, is to be determined by an examination of the Constitution and the statutes, I think it might be assigned as a cause of contest, although it is not specifically named in the above section of the statute as such cause. But .as said by Niblack, J., to concede that the invalidity of the election is not specified in the statute as a cause of contest, .and that to be made available it must be there specified, would not change the matter.
The Constitution creates the General Assembly the exclu■sive tribunal for the determination of contested elections for Governor and Lieutenant-Governor. It remains such exclusive tribunal, whatever be the character of the legislation .as to causes and mode of procedure, or whether there is any legislation at all upon the subject. The jurisdiction of that ■tribunal, being established by the Constitution, can not, as I have said, be changed by legislative enactment.
The statute, as we have seen, establishes the General Assembly a tribunal for the trial and determination of contested elections for other State offices. The jurisdiction to try con■tested elections for such other offices, being conferred by statute, may be limited by the statutes which confer it, or by ■ other statutes. As to such contests, the statutes may confer upon the courts concurrent jurisdiction in a like or different mode of procedure. That, as we shall see, has been done in this State.
It is argued by counsel, that the case before us, instituted by the relator, Smith, is not a case of contested election, nor in the nature of such a proceeding. Clearly, this is a contest over an office. The relator asserts his rights as President of the Senate, and seeks to have those rights settled in this contest with the respondent. He asserts that the respondent was elected Lieutenant-Governor at a general elec*145•tion in November, but is not Lieutenant-Governor, because that election was without authority. His success, upon his theory, depends upon the question as to whether or not that election was valid or invalid. The respondent, as stated in the complaint, claims that by virtue of that electión, he is Lieutenant-Governor, and, as such, entitled to preside over the Senate. That claim the relator contests, or, to use the definition of the word “ contest,” that claim he “ calls in question,” “contends against,” “controverts,” “disputes,” “opposes,” “ resists,” and seeks to “ litigate ” in this proceeding. He is “ calling in question,” “ contending against,” “ controverting,” “disputing,” “resisting,” “contesting” the election of the respondent to the office of Lieutenant-Governor.
To say that the election through which the respondent claims was without authority, that for that reason there was no election, in the eye of the law, and that, therefore, the relator is not contesting, or seeking to contest an election, will not do. Whether or not there was a valid election, is ■the very question in contest. The relator’s complaint shows that the respondent is claiming to have been elected Lieutenant-Governor at the last general State election; that that election was in all regards conducted according to the forms of law, and that the respondent received a majority of the votes cast for Lieutenant-Governor. His election to the office, however, is disputed, contested, on the ground that the election for Lieutenant-Governor was without authority—in violation of the Constitution.
An examination of the statutes under which this proceeding was instituted, will show that the proceeding is, and must be, a contest for an office, and, when an election is involved, a contest of that election. ■ So far as material here, that statute is as follows:
Section 1131, E. S. 1881. “An information may be filed against any person * * in the following cases : First. When any person shall usurp, intrude into, or unlawfully hold or *146exercise any public office or any franchise within this Statey or any office in any corporation created by the authority of this State.”'
Section 1132. “ The information maybe filed by the prosecuting attorney in the circuit court of the proper county, upon his own relation, whenever he shall deem it his duty to-do so, or shall be directed by the court or other competent authority, or by any other person on his own relation, whenever he claims an interest in the office, franchise, or coi’poration. which is the subject of the information.”
Section 1134. “Whenever an information shall be filed against a person for usurping an office, by the prosecuting attorney, he shall also set forth therein the name of the person rightfully entitled to the office, with an averment of his right thereto; and when filed by any other person, he shall show his interest in the matter; and he may claim the damages he has sustained.”
Section 1136. “In every case contesting the right to an. office, judgment shall be rendered upon the rights of the parties and for damages the relator may show himself entitled to, if any,” etc.
Section 1137. “ If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the officey after he has been qualified as required by law; and the court shall order the defendant to deliver over all the books,” etc.
Section 1141; “ Whenever any person shall be found guilty of any usurpation of, or intrusion into, or unlawfully exercising any office * * within this State, * * * the court shall give judgment of ouster against the defendant, and exclude him from the office,” etc.
Section 1144. “When an information is filed by the prosecuting attorney, he shall not be liable for costs; but when it-is filed upon the relation of a private person, he shall be liable for costs, unless the same are adjudged against the defendant.”
There are no italics in the above statutes, as printed; they *147are used here to direct attention to certain portions which I regard as important in this case.
Under that statute, when any person shall intrude, etc., into a public office, an information may be filed by the prosecuting attorney upon his own relation, or by any other person, “ whenever he claims an interest in the office.”’ He must show his interest in the office. “ In every case contesting the right to an office,” judgment shall be rendered “upon the rights of the parties.” “ If judgment be rendered in favor of the relator, he shall proceed to exercise the functions of the office.”
Other statutes provide for contesting elections for county, township and city offices. In some instances, special tribunals are created. These statutes also prescribe a mode of procedure. R. S. 1881, section 4758, et seq.
The tribunals thus created, as well as the tribunal for the determination of contests in the case of State offices, other than Governor and Lieutenant-Governor, are statutory, and, as I have said, the authority which created them may give the courts concurrent jurisdiction.
It has often been contended in this State, that the special and statutory tribunals for the determination of contested elections have exclusive jurisdiction, and that such contests can not be determined in a proceeding by information. The contention has always been disregarded, and it has been held that the election of all officers (except for Governor and Lieutenant-Governor, as to which there has been no adjudication) may be contested and determined in a proceeding by information. Those holdings were rested upon the ground that the tribunals for the trial of such contests were statutory, and not constitutional, such as the tribunal established by the Constitution for the determination of contested elections for Governor and Lieutenant-Governor.
It has uniformly been held, too, that in order that a private person may prosecute a proceeding by information, he must show that he has an interest in the office. When he *148has shown this, he may, in that proceeding, contest the election of the adverse claimant, if he claims through an election. And when the claim of the adverse claimant is, that he is entitled to the office by virtue of an election, the contest waged by the relator, although in the form of a proceeding by information, is, in every practical sense of the term, a contest of an election. The election relied upon by the adversary in such case, is contested, and for all practical purposes, the proceeding is one of contested election. See State, ex rel., v. Shay, 101 Ind. 36, and cases there cited; State, ex rel., v. Adams, 65 Ind. 393.
In the case last above, it was said: “ This court has frequently held that the right to an office may be contested by an information, during the time the statute for contesting elections was in force.” See, also, Reynolds v. State, ex rel., 61 Ind. 392; State, ex rel., v. Gallagher, 81 Ind. 558; Elam v. State, ex rel., 75 Ind. 518; Gass v. State, ex rel., 34 Ind. 425.
It is not necessary to a contested election that both parties shall have been voted for at the election. Any citizen qualified to vote at the election may be a contestor. R. S. 1881, section 4743.
We must judge of the nature of the relator’s case by the facts he states in his complaint. He does not claim to be Lieutenant-Governor, but he does claim that as President pro tempore of the Senate, he has the right to perform the duties which belong to the office of Lieutenant-Governor. To that extent, he claims to have-an interest and right in the office of Lieutenant-Governor. That right he asserts against the respondent. And, as I have said, he shows in this complaint, that the respondent received the majority of the votes of the electors of the State, at the general election in November last, for the office of Lieutenant-Governor; that the election was in all things regular, and that the respondent claims to have been, and was, elected to that office, if the election was authorized by the Constitution. He contests *149the respondent’s claim upon the ground that the election was invalid, being without constitutional sanction. He contests the election. The controversy is purely a private one, between the relator and the respondent.
The end sought is an adjudication that the respondent was not elected Lieutenant-Governor, and hence is not entitled to preside as President of the Senate, and that, therefore, the relator is entitled to preside as President of the Senate, having been duly elected to that position.
This is not a case where there has been no election at all. Whatever may be said as to the constitutionality of the election, the respondent comes into the contest through an election at which all the people voted.
Although not in name, in my judgment, this is a proceeding to contest the election of the respondent to the office of Lieutenant-Governor. The relator is thus waging a contest in the courts, which by the Constitution belongs exclusively to another forum. It must be waged and settled before the General Assembly. That tribunal alone has jurisdiction of the subject-matter.
It has exclusive jurisdiction, too, over everything that pertains to the controversy, both of law and fact. See People, ex rel., v. Mahaney, 13 Mich. 481.
There is no partition of the jurisdiction, giving to the General Assembly authority to determine the questions of fact, and to the courts authority to determine the law in the same case.
If the tribunal created to determine contested elections for Governor and Lieutenant-Governor were established by statute, and not by the Constitution, the relator might avail himself of the proceeding by information, as here attempted. The tribunal being established by the Constitution, he must seek his remedy in that tribunal.
This conclusion is fully sustained by the authorities cited by EwnoTT, C. J., and which I need not cite here at length.. *150State, ex rel., v. Baxter, 28 Ark. 129; Baxter v. Brooks, 29 Ark. 173.
It has been held in some of the States, that when special tribunals are established by statute for the determination of contested elections, their jurisdiction is exclusive, as against any proceeding by information in the courts, on the part of a claimant to the office. Commonwealth, ex rel., v. Baxter, 35 Pa. St. 263; Commonwealth, ex rel., v. Leech, 44 Pa. St. 332; State, ex rel., v. Marlow, 15 Ohio St. 114.
It does not result from the holding, that the courts have not jurisdiction of the subject-matter of this controversy, that the parties are without remedy. They have open to them the tribunal ordained by the Constitution of the State.
It ought to be presumed, that that tribunal is a capable and impartial one. The fathers had sufficient faith in it to establish it. We must respect their work, and trust it.
Possibly, it might have been better to have lodged in the judicial department of the government the jurisdiction to try contests involving the chief executive offices of the State.
However that may be, we must take the Constitution as we have received it, and yield obedience to its several provisions until they may be changed, if change is' desirable.
What I have said in the foregoing, is with strict reference to the precise case before us.
Where there has, in fact, been an election, as in the case before us, and one of two pei’sons claims an office through such an election, and another, disputing such an election, claims an interest in the same office, or its duties and emoluments, they must settle that contest in the tribunal established by the Constitution, and can not settle it in the court in a proceeding by information.
When we have determined that the court below was without jurisdiction, we have determined that its orders and judgments, whatever they were, must be reversed.
I do not say, that in no case can the courts, in a proceeding by information in the nature of quo warranto, upon the rela*151tion of the proper law officer, oust from the office of Governor or Lieutenant-Governor, a wrongful intruder and usurper. That question is not before us. I may add, that there is a very marked difference between a proceeding by information, instituted by private persons, and a proceeding by information in the nature of quo warranto, upon the relation of a public prosecuting attorney. In the one case, the private person seeks to settle and protect private rights in a public ■office; in the other the officer moves in behalf of the sovereign people. See the following cases: Reynolds v. State, ex rel., 61 Ind. 392 (403); People v. Holden, 28 Cal. 123; Commonwealth v. Burrell, 7 Pa. St. 34; Hesing v. Attorney General, 104 Ill. 292; Vogel v. State, ex rel., 107 Ind. 374.
Filed Feb. 23, 1887.