Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548 (1900)

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Taylor and Marshall v. Beckham (No. 1)

No. 603

Argued April 30, May 1, 1900
Decided May 21.1900
178 U.S. 548

ERROR TO THE COURT OF APPEALS

OF THE STATE OF KENTUCKY

Syllabus

By the Constitution and laws of Kentucky, the determination of contests of the election of Governor and Lieutenant Governor is, and for a hundred years has been, committed to the General Assembly of that Commonwealth.

The Court of Appeals of Kentucky decided that the courts had no power to go behind the determination of the General Assembly in such a contest, duly recorded in the journals thereof; that the office of Governor or of Lieutenant Governor was not property in itself, and, moreover, that, under the constitution and laws of Kentucky, such determination being an authorized mode of ascertaining the result of an election for Governor and Lieutenant Governor, the persons declared elected to those offices on the face of the returns by the Board of Canvassers only provisionally occupied them because subject to the final determination of the General Assembly on contests duly initiated. Held:

(1) That the judgment of the Court of Appeals to the effect that it was not empowered to revise the determination by the General Assembly adverse to plaintiffs in error in the matter of election to these offices was not a decision against a title, right, privilege or immunity secured by the Constitution of the United States, and plaintiffs in error could not invoke jurisdiction because of deprivation, under the circumstances, of property or vested rights, without due process of law.

(2) That the guarantee by the federal Constitution to each of the states of a republican form of government was entrusted for its enforcement to the political department, and could not be availed of, in connection with the Fourteenth Amendment, to give this Court jurisdiction to revise the judgment of the highest court of the state that it could not review the determination of a contested election of Governor and Lieutenant Governor by the tribunal to which that determination was exclusively committed by the state constitution and laws, on the ground of deprivation of rights secured by the Constitution of the United States.

This was an action in the nature of quo warranto brought, under the statutes of Kentucky, by J. C. W. Beckham against William S. Taylor and John Marshall, for usurpation of the offices of governor and Lieutenant Governor of Kentucky, in the Circuit Court of Jefferson County in that commonwealth.

The petition averred that at a general election held on the 7th of November, 1899, in the Commonwealth of Kentucky, William Goebel was the Democratic candidate for Governor and J. C. W. Beckham was the Democratic candidate for Lieutenant Governor, and that at said election, William S. Taylor and John Marshall were the Republican candidates for the said offices, respectively; that, after said election, the state Board of election commissioners, whose duty it was to canvass the returns thereof, canvassed the same and determined on the face of the returns that said Taylor and said Marshall were elected Governor and Lieutenant Governor, respectively, for the term commencing December 12, 1899, and accordingly awarded them certificates to that effect, whereupon they were inducted into those offices.

The petition further alleged that, within the time allowed by law, said William Goebel and J. C. W. Beckham gave written notices to Taylor and Marshall that they would each contest the said election on numerous grounds set out at large in the respective notices; that said notices of contest were duly served on said Taylor and Marshall, filed before each house of the General Assembly, and entered at large on the journals thereof; that thereafter Boards of contests were duly selected by each house of the General Assembly, and sworn to try said contests as required by law; that at the time appointed for the hearing, the said Taylor and Marshall appeared, and each filed defenses and counternotices, and the evidence of contestants and contestees was heard by the Boards from January 15, 1900, until January 29, 1900, inclusive, and upon January 30, 1900, said contests were submitted without argument to the Boards for decision.

That thereafter, the Boards, having considered the matters of law and fact involved in the contests, did each separately decide the contest submitted to it, and made out in writing its decision, and reported the same to each house of the General Assembly for action thereon.

That in the contest for Governor, the Board determined, and so reported to each house of the General Assembly, that William Goebel had received the highest number of legal votes cast for Governor at the election held on November 7, 1899, and that he was duly elected Governor for the term beginning December 12, 1899, and that in the contest for Lieutenant Governor, the Board determined and so reported that the contestant Beckham had received the highest number of legal votes cast at said election, and was duly elected to the office of Lieutenant Governor for said term.

The petition also alleged that the reports and decisions of the Contest Boards were thereafter duly adopted and approved by both houses of the General Assembly in separate and in joint sessions; that there were present in the house of representatives at said time 56 members and in the senate 19 members, which was a quorum of each house, and that there were present 75 members in joint session, and that the General Assembly did then and there decide and declare that William Goebel and J. C. W. Beckham had each received the highest number of legal votes cast at said election for the offices of, and were duly elected, Governor and Lieutenant Governor as aforesaid. The journals of both houses of the General Assembly showing the proceedings and facts aforesaid were referred to and made part of the petition, and attested copies thereof filed therewith.

It was further averred that, after the determination of said contest by the General Assembly, the said William Goebel and J. C. W. Beckham were duly sworn and inducted into the offices of Governor and Lieutenant Governor of the commonwealth and at once entered upon the discharge of their respective duties. That thereafter, on the third of February, 1900, William Goebel died, and by law said Beckham was required to discharge the duties of the office of Governor, and accordingly on that day he took the oath prescribed by law, and immediately entered on the discharge of the duties of said office.

It was further alleged that the powers of Taylor as Governor and of Marshall as Lieutenant Governor immediately ceased on the determination of the contest by the General Assembly, but that, notwithstanding the premises, the said Taylor and Marshall had usurped the said offices of Governor and Lieutenant Governor, and had refused to surrender the records, archives, journals, and papers pertaining to the office of Governor, and the possession of the executive offices in the capitol in the City of Frankfort.

The prayer of the petition was

that the defendant, William S. Taylor, be adjudged to have usurped the office of Governor of this commonwealth, and that he be deprived thereof by the judgment of this court; that this plaintiff be adjudged entitled to the said office and be placed in full possession of said office of Governor, the executive offices provided by the commonwealth for the use of the Governor, and that all the records, archives, books, papers, journals, and all other things pertaining to the said office be surrendered and delivered to this plaintiff by the said Taylor, and that the said Taylor be enjoined and restrained from further exercising or attempting to exercise the office of Governor of this commonwealth; that the said John Marshall be adjudged to have usurped the office of Lieutenant Governor of the commonwealth, and that he be deprived thereof, and declared not entitled to the same by the judgment of this Court, and enjoined from assuming to act as such Lieutenant Governor; that plaintiff, Beckham, be adjudged the lawful incumbent of said office; and, finally, the plaintiff prays for his costs in this behalf expended, and for all proper relief.

Defendants Taylor and Marshall filed answers and amended answers and counterclaims, denying any valid proceedings in contest, and alleging in substance that the action of the Boards of contests and of the General Assembly in the contests was the result of a conspiracy entered into by the members of the Boards and the members of the General Assembly to wrongfully and unlawfully deprive contestees of their offices; that in the execution of this design, the members of said Boards were fraudulently selected, and not fairly drawn by lot, as required by law, and that a majority of those selected were persons whose political beliefs and feelings, inclinations, and desires on the subject of the contests were known in advance. That the entries on the journals of the General Assembly were false and fraudulent and made in pursuance of said conspiracy, and that the pretended decisions were fraudulent and utterly void. That the senate lacked a quorum at the time of the pretended adoption of the Contest Boards’ reports, and that defendant, Taylor, as Governor, on January 31, 1900, refused to permit the members of the General Assembly to meet as the General Assembly at Frankfort because he had previously adjourned the General Assembly to meet on February 6 at London, in Laurel County.

The notices of contest were averred to have been exactly alike, mutatis mutandis, and the notice in respect of the office of Governor was set out as given in the margin.{1}

The following are paragraphs from the answers and amended answers:

Further answering herein, defendants, W. S. Taylor and John Marshall, say, each of them is over forty years of age, has been a citizen and resident of the State of Kentucky all his life, and likewise a citizen and resident of the United States all his life. They say further that, as hereinafter more specifically stated, the said Taylor was, on November 7th, 1899, duly elected Governor of the State of Kentucky, and the said Marshall duly elected Lieutenant Governor for the State of Kentucky, by the qualified voters thereof; that each of them afterwards received in due form a certificate to that effect from the State Board of Election Commissioners of the Commonwealth of Kentucky, and each of them thereafter duly qualified as such officers by taking the oath of office prescribed by law therefor, and thereby each of them became charged with an express public trust for the benefit of the people of the State of Kentucky. They say that the proceedings referred to in the petition herein, by which it is alleged that the contests over the offices of Governor and Lieutenant Governor were tried and determined, and by which it is alleged that the authority of these defendants to act respectively as Governor and Lieutenant Governor was terminated, were and are utterly void and of no effect for the reasons hereinafter stated, and if effect be given to them, and these defendants be thereby deprived of their respective offices of Governor and Lieutenant Governor of Kentucky, and plaintiff, Beckham, be thereby installed in the office of Governor or Lieutenant Governor of Kentucky, these defendants will be thereby deprived by the State of Kentucky of their property without due process of law, and both they and the people of Kentucky and the qualified voters thereof will be deprived of their liberty without due process of law, and will be denied the benefit of a republican form of government, all of which is contrary to the provisions of the fourth section of the fourth article of the said Constitution and to the Fourteenth Amendment to said Constitution, the benefits of which provisions are hereby specially set up and claimed by these defendants both for themselves and for the people of Kentucky and the qualified voters thereof whose representatives and trustees these defendants are.

* * * *

Defendants further say that, if the state, after having furnished to its citizens and electors in a number of its counties official ballots upon which it required them to vote, or not vote at all, in the election of a Governor and Lieutenant Governor, shall reject their votes, and thus refuse to allow them to participate in the election of such officers merely because they used in voting the ballots which the state required them to use, and if the state shall, thereby and on that account refuse to allow the persons respectively chosen for the office of Governor and Lieutenant Governor by the majority of the qualified voters of the state, including those using the ballots aforesaid, to take their seats and perform the duties of Governor and Lieutenant Governor, and shall in lieu of them seat other persons, then the state will thereby deprive the said citizens and electors, all of whom are both citizens of Kentucky and citizens of the United States, of their political liberty without due process of law, in violation of the Constitution of the United States, and will thereby deny to them the benefits of a republican form of government in violation of the Constitution of the United States, and will thereby also deprive these defendants of their property without due process of law, all of which is contrary to the provisions of the Constitution of the United States.

* * * *

And defendants further say that if any such pretended meeting of members of the General Assembly was held either on January 31 or February 2 at which any action was taken or attempted to be taken on the reports of said contest committees, the said meetings were held secretly, without any notice to any of the Republican members of the General Assembly and without any notice to either of these defendants that such meeting was to be held, and without any opportunity either to the said Republican members or any of them to be present, or any opportunity for either of these defendants to be present at such meetings at which the said contests were to be heard and determined. And if any such meetings were held or attempted to be held on either of those days, and any determination of either of said contests was pretended to have been had, it was utterly void on account of lack of notice and opportunity to be present or to be heard as just herein stated, as well as for the other reasons heretofore given. And to deprive these defendants or either of them of their offices by such action would be to deprive them of their property without due process of law, and would be to deprive defendants and the other people of the State of Kentucky, and especially the qualified voters thereof, of their political liberty without due process of law, and to deny to them the benefits of a republican form of government. All of which is contrary to the provisions and guaranties of the Constitution of the United States as well as that of Kentucky.

* * * *

Defendants further say that both the offices of Governor and Lieutenant Governor are offices created by the Constitution of Kentucky, and therefore not subject to abolition by the General Assembly of Kentucky. And furthermore it is provided by the Constitution of Kentucky that "the salaries of public officers shall not be changed during the term or which they were elected," and defendants say they were elected, as heretofore shown, to the offices of Governor and Lieutenant Governor, respectively, of the State of Kentucky on November 7, 1899, for a period of four years each, and then and thereby became entitled to exercise the functions of said offices and to receive the salaries and emoluments appertaining thereto, which are large and valuable, and were such when they were thus elected, the salary of the Governor being then and now fixed by law at $6,500 per annum, and to take from them their said offices and their said salaries and emoluments by the aforesaid action of said contest tribunals would be to deprive them of their property without due process of law, contrary to the provisions of the Constitution of the United States, and especially of the Fourteenth Amendment thereof.

* * * *

Defendants say that the power vested in the houses of the General Assembly of Kentucky to try contests over elections of Governor or Lieutenant Governor is judicial in its nature, and is subject to the same limitations and restrictions to which the exercise of judicial power is ordinarily subject; that, by the Constitution of the State of Kentucky and also by the Constitution of the United States, especially the Fifth and Fourteenth Amendments thereof, the exercise of absolute and arbitrary power by the state or any department thereof, whereby any person shall be deprived of life, liberty, property, or the pursuit of happiness, including therein the enjoyment of honors and the occupation of positions of public trust and emolument, is forbidden. But defendants say that if effect be given to the alleged decisions by the said boards of contest or the said houses of the General Assembly as to the said contested elections for Governor or Lieutenant Governor, and these defendants be thereby deprived of the offices of Governor or Lieutenant Governor, and the plaintiff Beckham be thereby vested with the power of Governor of Kentucky, then not only will the people of Kentucky be deprived of their political liberty without due process of law, but these defendants will also be deprived, without due process of law, of the right to hold the said offices of Governor and Lieutenant Governor, which are both profitable and honorable, all of which is contrary to and forbidden by both the provisions of the state constitution and of the Constitution of the United States above referred to, and defendants say that if, by a proper construction of the Constitution of Kentucky, the absolute and arbitrary power is given either to the boards of contest or the houses of the General Assembly to take from these defendants the offices of honor, trust, and emolument to which they were elected by the people of the state as heretofore alleged, under the false guise of a trial of a contest over said offices, then the said constitution of the state is itself contrary to the aforesaid provisions of the Constitution of the United States.

The prayer of the defendants was that the bill be dismissed, that J. C. W. Beckham be adjudged a usurper, and that William S. Taylor and John Marshall be respectively adjudged the Governor and Lieutenant Governor of the commonwealth.

The answers were in large part disposed of on demurrer and motion to strike out, and the case was submitted to the circuit court for determination on the law and facts without the intervention of a jury, and defendants "moved the court to state in writing the conclusions of fact found separately from the conclusions of law," but it was agreed that the court might adopt its opinion on demurrer as its statement of its conclusions of law. This the court did, and found the facts in its judgment, which findings included, among others, these:

Second. William Goebel and J. C. W. Beckham inaugurated a contest for the offices of Governor and Lieutenant Governor, respectively, before the General Assembly of Kentucky on the second day of January, 1900, against William S. Taylor and John Marshall, and the said contest was finally determined by the General Assembly on the second day of February, 1900, at which time it was adjudged and determined by each house of said General Assembly, acting separately and also in joint session, that the said William Goebel was duly elected Governor of the Commonwealth of Kentucky for the term beginning December 13, 1899, and was entitled to said office of Governor, and it was then and there in like manner determined by said General Assembly and by each house, acting separately and in joint session, that the said J. C. W. Beckham was duly elected Lieutenant Governor of said commonwealth for the same term.

Third. Immediately after the said determination, the oath of office of Governor as provided by law was administered to said Goebel, February 2, 1900, and the oath of office as Lieutenant Governor, as provided by law, was in like manner administered to J. C. W. Beckham.

Fourth. Said William Goebel died on the third day of February at 6:45 P.M., and shortly thereafter upon said day J. C. W. Beckham as Lieutenant Governor was sworn, as required by law, to discharge the duties of the office of Governor of the commonwealth.

Judgment of ouster was rendered in favor of plaintiff and against defendants.

The case was then carried on appeal to the Court of Appeals of Kentucky and the judgment affirmed, 21 Ky.L.Rep. 1735, whereupon a writ of error from this Court was allowed by the chief justice of that court.

The journals of the two houses, attached to the petition as part thereof, showed that the General Assembly convened on January 2, 1900, and that, on the third day after its organization, boards of contest were appointed pursuant to the statute; that of February 2, 1900, the board in each of the contests reported to the two houses that they had heard all the evidence offered by the parties, and that William Goebel had received the highest number of legal votes cast for Governor; that J. C. W. Beckham had received the highest number of legal votes cast for Lieutenant Governor, and that they were duly elected and entitled to those offices. The journals further showed that, on the same day, both houses, with a quorum present, approved and adopted, separately and in joint session, the reports of the contest boards, and declared that William Goebel and J. C. W. Beckham were duly elected Governor and Lieutenant Governor, respectively.

It appeared that thereupon said Goebel and Beckham on that day, February 2, took the oath of office; that, on January 30, William Goebel was shot by an assassin, receiving a wound from which he afterward died on February 3, and that, on January 31 defendant Taylor as Governor issued a proclamation declaring that a State of insurrection existed at Frankfort, Kentucky, adjourning the General Assembly until February 6, and ordering it then to assemble at the Town of London, in Laurel County.

The sessions of the General Assembly on February 2 were not held at the state house, for the reason, as recited in the journals, that it was occupied by a military force which would not allow the General Assembly to meet there, and thereupon the General Assembly met on that day in the Capitol Hotel, in the City of Frankfort. On February 19 the General Assembly met at the state house, and the senate on that day adopted the following resolution:

Whereas, on the 31st day of January, 1900, the acting Governor of the Commonwealth of Kentucky, by the use of armed force, dispersed the General Assembly, and has until recently prevented the senate and house from assembling at their regular rooms and places of meeting; and,

Whereas the General Assembly and each house thereof, after public notice, met in joint and separate sessions in the City of Frankfort, a full quorum of such bodies being present, and adopted the majority reports and resolutions of the Board of Contest for Governor and Lieutenant Governor of the Commonwealth of Kentucky, unseating the contestees, W. S. Taylor and John Marshall, as Governor and Lieutenant Governor, and seating the contestants, William Goebel and J. C. W. Beckham, as Governor and Lieutenant Governor, respectively, all of which proceedings, reports, and resolutions are set out in the journals of the two houses of the General Assembly; and,

Whereas, this joint assembly is now enabled to meet in its regular place of meeting, and, whilst it adheres to the belief beyond doubt that the action of the General Assembly therefore taken in reference to said contests is valid, final, and conclusive, to remove any doubt that may exist in the minds of any of the people of the commonwealth; now, be it

Resolved By the General Assembly of the Commonwealth of Kentucky, in joint session assembled, to the end that all doubt may be removed, if any exists, as to the validity and regularity of the action and proceedings at the times and places shown by the journals of the two houses, other than its regular rooms provided by law, that all the acts, proceedings, and resolutions of the senate and house and of the joint assembly of the two houses upon or touching the report of the majority of the Boards of Contest for the offices of Governor and Lieutenant Governor, unseating the contestees and seating William Goebel and J. C. W. Beckham and declaring them to have been elected Governor and Lieutenant Governor, respectively, on the 7th day of November, 1899, is hereby reenacted, readopted, and reaffirmed and ratified at this, the regular place of meeting provided by law at the seat of government in Frankfort, Ky.

The same resolution was adopted by the house, and on February 20 by both houses in joint session.

The Court of Appeals regarded the disposal of the following contentions of Taylor and Marshall as decisive of the case, namely: (1) that the proceedings of the legislature of February 2 were void because the legislature had then been adjourned by the Governor until February 6, and no legal session could be held in the meantime; (2) that William Goebel having died on February 3, the contest for the office of Governor thereby abated, and the action of the legislature on February 19 and 20 was therefore void; (3) that the legislature took no action on February 2, and that the journals of these meetings were fraudulently made by the clerk in pursuance of an alleged conspiracy between certain members of the assembly and contestants; (4) that the General Assembly acted without evidence and arbitrarily.

The Court of Appeals held that the Governor had no power to adjourn the legislature, and that his attempt to do so was wholly void, and did not interfere with the right of the legislature to proceed with its sessions at Frankfort. The only authority relied on to sustain his action was section 36 of the Constitution of Kentucky, as follows:

The first General Assembly, the members of which shall be elected under this Constitution, shall meet on the first Tuesday after the first Monday in January, 1894, and thereafter the General Assembly shall meet on the same day every second year, and its sessions shall be held at the seat of government, except in case of war, insurrection, or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere.

This, the court held, did not provide for the adjournment of the General Assembly by the Governor after it had assembled, but for the designation of another place at which it might assemble for the time being and organize, when prevented by the causes named from doing so at the capital, and that it was not intended to authorize such action as was taken was clear from section 80, which provided, among other things:

In case of disagreement between the two houses with respect to the time of adjournment, he [the Governor] may adjourn them to such time as he shall think proper, not exceeding four months.

This showed that the Governor had no power over the time of adjournment of the two houses except in cases of disagreement as to that matter between them, and no such disagreement existed here. And even then it did not confer upon him power to name any other place than that in which the legislature might be sitting.

Section 41 also provided:

Neither house, during the session of the General Assembly, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which it may be sitting.

By this section, either house might, with the consent of the other, adjourn for more than three days, or to any other place than that in which it was sitting, but it could not have been intended that the Governor should have like power. On the contrary, the powers of the state government were divided into three distinct and independent departments, and the state constitution was intended to maintain the absolute independence of each.

The court further decided that the death of William Goebel on February 3 did not affect the right of Beckham. If Goebel was elected Governor and Beckham Lieutenant Governor, Beckham on February 3 became entitled to the office of Governor, and had the right to continue the contest to secure what the Constitution guaranteed him, so that, if the legislature had not acted until February 19, it had a right then to act on the contest, and its action would be nonetheless valid because not taken in Goebel’s lifetime.

As to the validity of the entries in the journals and the effect to be given them, the court ruled, citing many authorities,{2} that evidence aliunde could not be received to impeach the validity of the record prescribed by the constitution as evidence of the proceedings of the General Assembly, and that the court was without jurisdiction to go behind the record thereby made. Among other things, the court said:

There is no conflict between the action of the State Canvassing Board and that of the legislature in these cases. The State Canvassing Board were without power to go behind the returns. They were not authorized to hear evidence and determine who was in truth elected, but were required to give a certificate of election to those who on the face of the returns had received the highest number of votes. For the state board to have received evidence to impeach the returns before them would have been for them in effect to act as a Board for trying a contested election, and if they had done this, they would have usurped the power vested in the General Assembly by the Constitution, for, by its express terms, only the General Assembly can determine a contested election for Governor and Lieutenant Governor.

But the certificate of the State Board of Canvassers is no evidence as to who was in truth elected. Their certificate entitles the recipient to exercise the office until the regular constitutional authority shall determine who is the de jure officer. The rights of the de jure officer attached when he was elected although the result was unknown until it was declared by the proper constitutional authority. When it was so declared, it was simply the ascertainment of a fact hitherto in doubt or unsettled. The rights of the de facto officer, under his certificate from the Canvassing Board, were provisional or temporary until the determination of the result of the election as provided in the constitution, and upon that determination, if adverse to him, they ceased altogether. Such a determination of the result of the election by the proper tribunal did not take from him any preexisting right; for if not in fact elected, he had only a right to act until the result of the election could be determined.

In respect of the allegation that the action of the General Assembly was void because without evidence and arbitrary, the court held that it must be presumed that the legislature did its duty in the premises, and further that the objections that the notices of contest were insufficient and that the evidence was equally insufficient, that the Contest Boards were not fairly drawn by lot, and that certain members of the Boards were liable to objection on the ground of partiality were all in respect of matters confided to the General Assembly to deal with as made by the constitution the sole tribunal to determine such contests.

To the argument that if all the specifications of contestants were true, the election was wholly void and no one elected, the court replied that it had no means of knowing the grounds on which the General Assembly reached its conclusion; that the presumptions were in favor of their judgment, and that

when they found as a fact that the contestants received the highest number of legal votes cast in the election in controversy, we are not at liberty to go behind their findings.

The court further held that the proceedings were not in violation of the Fourteenth Amendment, and said:

The office of Governor being created by the constitution of this state, the instrument creating it might properly provide how the officer was to be elected and how the result of this election should be determined. The provisions of the constitution on this subject do not abridge the privileges or immunities of citizens of the United States. Such an office is not property, and in determining merely the result of the election, according to its own laws, the state deprives no one of life, liberty, or property. In creating this office, the state had a right to provide such agencies as it saw fit to determine the result of the election, and it had a right to provide such a mode of procedure as it saw fit. It is wholly matter of state policy. The people of the state might, by an amendment to their constitution, abolish the office altogether. The determination of the result of an election is purely a political question, and if such suits as this may be maintained, the greatest disorder will result in the public business. It has always been the policy of our law to provide a summary process for the settlement of such contests, to the end that public business shall not be interrupted; but if such a suit as this may be maintained, where will such a contest end?

Of the seven members of the tribunal, Hazelrigg, C.J., Paynter, Hobson, and White, JJ., concurred in the principal opinion by Hobson, J., and Burnam and Guffy, JJ., in the result, in a separate opinion by Burnam, J., on the ground

that there is no power in the courts of the state to review the finding of the General Assembly in a contested election for the offices of Governor and Lieutenant Governor as shown by its duly authenticated records.

Du Relle, J., dissented, holding that the boards of contest had no jurisdiction in the matter which they undertook to try, and that the demurrer should have been carried back to the petition and sustained.

The present Constitution of the State of Kentucky of 1891 provides, section 90:

Contested elections for Governor and Lieutenant Governor shall be determined by both houses of the General Assembly according to such regulations as may be established by law.

This was taken verbatim from the 24th section of article 3 of the Constitution of 1850.

Section 27 of article 3 of the Constitution of 1799 provided: "Contested elections for a Governor and Lieutenant Governor shall be determined by a committee, to be selected from both houses of the General Assembly, and formed and regulated in such manner as shall be directed by law."

The statutes of Kentucky provide:

SEC. 1535. No application to contest the election of an officer shall be heard unless notice thereof, in writing, signed by the party contesting, is given.

1. The notice shall state the grounds of the contest, and none other shall afterward be heard as coming from such party, but the contestee may make defense without giving counternotice.

2. In the case of an officer elective by the voters of the whole state or any judicial district, the notice must be given within thirty days after the final action of the Board of Canvassers.

* * * *

§ 1596 A . . .

8. CONTESTED ELECTION OF GOVERNOR AND LIEUTENANT GOVERNOR. When the election of a Governor or Lieutenant Governor is contested, a Board for determining the contest shall be formed in the manner following:

First. On the third day after the organization of the General Assembly which meets next after the election, the senate shall select by lot three of its members, and the house of representatives shall select by lot eight of its members, and the eleven so selected shall constitute a board, seven of whom shall have power to act.

Second. In making the selection by lot, the name of each member present shall be written on a separate piece of paper, every such piece being as nearly similar to the other as may be. Each piece shall be rolled up so that the name thereon cannot be seen, nor any particular piece be ascertained or selected by feeling. The whole so prepared shall be placed by the clerk in a box on his table, and after it has been well shaken up and the papers therein well intermixed, the clerk shall draw out one paper, which shall be opened and read aloud by the presiding officer, and so on until the required number is obtained. The persons whose names are so drawn shall be members of the Board.

Third. The members of the Board so chosen by the two houses shall be sworn by the Speaker of the House of Representatives to try the contested election, and give true judgment thereon, according to the evidence unless dissolved before rendering judgment.

Fourth. The Board shall, within twenty-four hours after its election, meet, appoint its chairman, and assign a day for hearing the contest, and adjourn from day to day as its business may require.

Fifth. If any person so selected shall swear that he cannot, without great personal inconvenience, serve on the Board, or that he feels an undue bias for or against either of the parties, he may be excused by the house from which he was chosen from serving on the Board, and if it appears that the person so selected is related to either party, or is liable to any other proper objection on the score of its partiality, he shall be excused.

Sixth. Any deficiency in the proper number so created shall be supplied by another draw from the box.

Seventh. The Board shall have power to send for persons, papers, and records, to issue attachments therefor signed by its chairman or clerk, and issue commissions for taking proof.

Eighth. Where it shall appear that the candidates receiving the highest number of votes given have received an equal number, the right to the office shall be determined by lot under the direction of the Board. Where the person returned is found not to have been legally qualified to receive the office at the time of his election, a new election shall be ordered to fill the vacancy; Provided, the first two years of his term shall not have expired. Where another than the person returned shall be found to have received the highest number of legal votes given, such other shall be adjudged to be the person elected and entitled to the office.

Ninth. No decision shall be made but by the vote of six members. The decision of the Board shall not be final nor conclusive. Such decision shall be reported to the two houses of the General Assembly, for the future action of the General Assembly. And the General Assembly shall then determine such contest.

Tenth. If a new election is required, it shall be immediately ordered by proclamation of the Speaker of the House of Representatives to take place within six weeks thereafter, and on a day not sooner than thirty days thereafter.

Eleventh. When a new election is ordered or the incumbent adjudged not to be entitled, his powers shall immediately cease, and, if the office is not adjudged to another, it shall be deemed to be vacant.

Twelfth. If any member of the Board willfully fails to attend its sessions, he shall be reported to the house to which he belongs, and thereupon such house shall, in its discretion, punish him by fine or imprisonment or both.

Thirteenth. If no decision of the Board is given during the then session of the General Assembly, it shall be dissolved unless by joint resolution of the two houses it is empowered to continue longer.