On Petition for a Rehearing.
Elliott, C. J.It is not necessary to again discuss the questions considered in our former opinion, but there is one point made in the brief on the petition for a rehearing, which, perhaps, requires notice. It is said: “The injunction was granted by a judge in vacation whose jurisdiction depended not upon the summons in the case, but on the notice and service thereof, which notice and service thereof are not questioned.”' Prom this premise, counsel reach the conclusion that jurisdiction could not be challenged by a verified answer. This is a novel doctrine, for it impliedly assumes that the powers óf a judge in vacation are greater than those of a court in term; whereas, as is well known,,the powers of a court in term are very much greater than those of a judge in vacation. It surely needs no argument to prove that a judge in vacation can not have a greater jurisdiction than a ■court in term. The counsel’s position is untenable for another reason, and that is this: It tacitly assumes that the plea did not fully challenge the jurisdiction of the court, when, in fact, the plea did deny the jurisdiction of the Ma*152rion Circuit Court to proceed at all in the case. The injunction, as counsel asserted over and over again in argument, was a mere ancillary proceeding, and, certainly, where there is no jurisdiction of the person as to the principal, cause of action, there can be none over a mere auxiliary proceeding wholly dependent upon the principal cause. There is yet even a stronger reason against the position of counsel, for, as all the members of the court agree, there was no jurisdiction of the subject-matter of the action so far as it sought an injunction, so that acts done in that branch of the case by the relator could not possibly confer jurisdiction of the person of the appellant.
The question of jurisdiction was the first question for decision, and of this question there were two branches: First Whether the court had jurisdiction of the subject-matter. Second. Whether the court had jurisdiction of the person.
The formal grounds of the judgment of reversal were, that the action was not brought in the proper county, and that the circuit court had no jurisdiction to issue the injunction, and upon those points all of the judges agreed. Upon the other branch of the question of jurisdiction, that is, jurisdiction of the subject-matter, there was a diversity of opinion. The majority agreed in holding that in this case the court had no jurisdiction of the subject-matter; but, as to the line of reasoning by which that conclusion was reached, they did not in all things agree. All of the members of the court regarded the question of the jurisdiction of the subject-matter as before the court for decision, and, as two of the judges were of the opinion that the court had jurisdiction, while the other judges thought otherwise, it was deemed proper by the court that each of the judges should submit his individual views upon that branch of the question. Judges Mitchell and Howk expressed opinions upon the question as to the rights of the parties respecting the office in controversy, because they regarded a decision of that question as essential to a decision of the question of jurisdiction; but the *153majority declined to express any opinion upon that question,, for, in their judgment, their power was exhausted and their duty done when they affirmed that there was no jurisdiction.
Petition overruled.
Filed March 11, 1887.
Individual Opinion.
Niblack, J.As the petition for a rehearing brings this case again before us for such further consideration as we may feel it to be our duty to extend to it, I avail myself of the opportunity of adding something to the individual views I expressed at the former hearing. I am induced to adopt this course partly on account of the prominent relations which the cause has been made to sustain towards current public affairs in the State, and partly on account of the misapprehension which seemingly exists in the minds of many persons as to the reasons which restrained a majority of the members of this court from the expression of any opinion upon the actual merits of the controversy which caused the institution of this suit.
In the views which I formerly submitted I discussed and expressed an opinion upon some matters which were only incidental and collateral to the question of jurisdiction I was then considering. Such merely incidental and collateral matters were referred to and commented upon as illustrative of the peculiar nature of the contest then being waged between the appellant and the relator, Smith, and as, at least, indirectly sustaining my position that the courts of the State were utterly without jurisdiction over the subject-matter of that contest, and for no other purpose.
The main features of the contest which followed the Presidential election, held in the year 1876, have become a matter of history, and are, hence, within the reach, and in consequence presumably within the common knowledge, of all. The Electoral Commission created to assist in the settlement, of that contest was not in any proper view a judicial tribu*154■nal. Its duties were kindred to those of a referee in a judicial proceeding. It was authorized to examine and tó report to Congress upon certain questions referred to it, without trenching upon the right of the two Houses of Congress to ultimately decide who, if any one, had been elected either President or Vice-President of the United States.. It was organized upon the accepted theory that the final decision as ,to who had been so elected rested ultimately with. Congress, .and could not, under the Constitution of the United States, ■be delegated to any other tribunal, and that, consequently, whatever such electoral commission might report, or recommend, would be in its nature advisory only.
Congress acted upon that theory when the commission reported, and the evidence of title which Mr. Hayes thereafter received was made to rest, and still rests, upon the subsequent action of Congress, which in its effect declared him to have been duly elected. During the continuance of the contest, some of the friends of Mr. Tilden, becoming discouraged with the prospect of obtaining a. favorable decision otherwise in his behalf, inaugurated a movement to have Congress pass an act conferring jurisdiction over all the matters in dispute upon some court of the United States, and authorizing such court to determine all questions of title arising out of the conflicting claims of the contestants. But after considerable debate, and very general consultation, an informal, but none the less final and decisive conclusion was reached by those feeling themselves most interested, that the contest was, in all its essential features, a political contest, the decision of which the Constitution had devolved exclusively upon the two Houses of Congress, and that, consequently, Congress could not convert it into a judicial question, and confer upon a court the power to hear and to finally determine it.
The conclusion, thus informally reached, has since been generally accepted and acquiesced in by the country, as the more recent debates in Congress on the subject will fully *155establish. Moved and quickened by the events attending that remarkable contest, Congress has, within the -past few months, enacted a law specifically providing for the manner in which all contests concerning the election of either President or Vice-President shall hereafter be settled by the two Houses of that body, and the exclusive power of Congress to determine all such contests will probably never again be considered an open question.
If any person will take the trouble to compare the several sections of our State Constitution having reference to the election and induction.into office of Governor and Lieutenant-Governor, with the corresponding provisions of the Constitution of the United States concerning the election and induction into office of President and Vice-President, he will readily perceive that all matters in any manner affecting the election and title of Governor or Lieutenant-Governor, are more expressly conferred upon the General Assembly than are similar matters touching the election and title of President and Vice-President devolved upon Congress.
As to some features of the difference between a political and a judicial controversy, see the case of Luther v. Borden, 7 How. U. S. 1.
' I have, therefore, believed from the first, and further investigation has ripened that belief into an imperative conviction, that the court below did not have, and that neither it nor any other court of the State could, under the Constitution, have conferred upon it, jurisdiction over the question as to whether any person has been lawfully elected Governor or Lieutenant-Governor. The consequent impropriety of any member of this court, who had reached the same or a similar conclusion, expressing an opinion as to whether the appellant holds a valid claim to the office of Lieutenant-Governor, and thus endeavoring to forestall and to control the action of the General Assembly, which alone, as we believe, has power to decide the question, appears to me to be too manifest to require extended comment. If this court, in com*156mon with the other courts of the State, has no jurisdiction over the subject-matter of the appellant’s claim to office, then any opinion we might give, however* unanimously, on the subject-matter of that claim, could be at most only advisory. But this court is neither required nor authorized to give merely advisory opinions. The Attorney General is the law officer of the State provided for that purpose. He is charged with the duty of giving advisory opinions at the request of the Governor, or any other State officer, or of either House of the General Assembly. R. S. 1881, section 5667.
The late Attorney General, several months before the last general election, gave an advisory opinion that there was then a vacancy in the office of Lieutenant-Governor, and that the vacancy was one which could be filled at that election.
The State Senate, acting upon its own judgment, as it had the power to do, and in accordance with the independent views of a majority of its members, came to a conclusion entirely adverse to that reached by the Attorney General, and proceeded with the business of the session accordingly. If this court, whether acting unanimously or through a majority of its members only, had, at the former hearing, assumed to decide, notwithstanding our announced want of jurisdiction over the question, in accordance with the opinion given by the Attorney General, our decision would have afforded the Senate no authoritative reason for changing the line of policy which it had adopted, and we have no assurance that, under the circumstances, any such a change of policy would have resulted. On the contrary, if, acting as above, we had assumed to decide that the alleged election of the appellantwas invalid, our decision would not have bound the House of Representatives, which from the first recognized the appellant as the lawfully elected Lieutenant-Governor. Such a decision would doubtless have been treated by that body as an intrusion upon its exclusive authority as a co-ordinato branch of the General Assembly. Thus, whatever opinion *157we, of the majority, might have announced, would, in the very nature of the controversy, have become a new cause of exasperation between the two Houses, and would have tended to crystallize more firmly the disorganization which already existed between them.
It was, as it seems to me, unreasonable to expect that, in a most exciting political crisis like that through which the General Assembly has just passed, and in relation to a most important and momentarily overshadowing question, the opinion of an Attorney General, or the voluntary, extra-judicial and merely individual views of any judge, or set of judges, would have been accepted as a finality by those representing adverse interests, or holding radically different views.
Then, too, the promulgation of any majority opinion upon the merits would have needlessly connected this court -with an exciting and 'bitter political controversy, which it had no power to control, or even to mitigate in the smallest degree. Those of us who think -we have no power to pass upon the appellant’s title, ought certainly not to have been expected to go out of our way to give it moral support on the one side, or to merely besmirch it on the other.
As to those of our number who believe the courts of the State have jurisdiction over the subject-matter of this proceeding, there was an evident propriety in their expressing their views on the merits of the contest for the information of those most interested, as well as for that, of the inferior courts; but for those of us who maintain an entire want of jurisdiction, common consistency enjoined a discreet and respectful silence upon the merits. It would certainly not be consistent for this court to first hold that jurisdiction of a cause, inadvertently before it, belonged exclusively to the Supreme Court of the United States, and then, notwithstanding, to proceed to decide it upon its merits. Such a decision' would settle nothing, and could, hence, do no practical good, and might mislead and do positive harm. When, therefore, to speak may mislead, silence ought to be carefully observed.
*158In my view, there is nothing we can proclaim either as to the official or non-official status of the appellant which the General Assembly may not, at any time, when in session, overrule, and when we should be so overruled it would be our duty to acquiesce, howevePdamaging it might be to our consistency or to our authority as a court.
If an act of the present General Assembly, whether passed at the regular or some special session, shall come before us, signed by the appellant on behalf of the Senate, and otherwise duly certified and approved, it will be our duty to assume that the appellant was, at the time he affixed his signature, the acting and qualified Lieutenant-Governor of the State, and that he had been so recognized.by the two Houses of the General Assembly. On the other hand, when an act of the current General Assembly shall come before us, signed by the relator, Smith, or some other person, as President pro tempore of the Senate, we will be required to assume that the person so signing was elected to preside over the Senate at a time, and under circumstances, which authorized his election. So that the Senate settles for us, and not we for it, who, for any occasion, is its proper presiding officer.
The Constitution plainly contemplates a concurrence of action between the two Houses in all matters which pertain to the organization of each, as well as in those things which require the joint action of both, but when the two bodies fail to concur, each must necessarily determine for itself everything that relates to its own organization. Ho means are provided by our scheme of State government by which unity of action between the two Houses can be constrained, or either House coerced, to act against its will. There is no appeal from what either House may do, except to the people through the medium of the ballot-box.
The executive department may aid in preserving the public peace, but nothing more.
It is due to frankness to state that, believing as I have from the first that the courts of the State have positively *159nothing to do with the validity or invalidity of the appellant’s title, I have never examined the questions made concerning it with that care which would enable me to promulgate an opinion on the subject worthy of the occasion, or by which I might hereafter be willing to be bound in the light of future events. I have so far refrained, and I expect to continue to refrain, from the formal expression of any opinion in that respect, which might be urged against, or brought into conflict with, any action which the General Assembly may have taken, or may hereafter take, in regard to the appellant’s claim to official recognition. As a citizen and a member of a co-ordinate branch of the State government, I stand ready to acquiesce in whatever action, if any, that body shall at any time take on the subject.
If the disorganization which has so far existed shall continue to the end, I can then only regret what I, in common with others similarly situated, have no power to relieve.
Filed March 11, 1887.