Taylor v. Beckham

JUDGE HOBSON delivered the opinion- op the majority op the 'Court. A separate opinion-was delivered by JUDGE BURNAM, CONCURRING WITH THE CONCLUSIONS OP THE MAJORITY, AND WHICH WAS ADOPTED BY JUDGE GU'EFY. • JUDGE DUREDLE delivered a dissenting opinion. At the November election, 1899, appellailt W. S. Taylor and William Goebel were opposing candidates for Governor of Kentucky. Appellant John Marshall and appel-lee J. O. W. Beckham were opposing candidates for Lieutenant Governor. On the face of the returns, Taylor received a majority of 2,383 over Goebel, and Marshall a somewhat larger majority over Beckham. The State canvassing board, on the face of the returns, issued certificates of election to Taylor and Marshall. Goebel and Beckham then gave notice of contest, and the matter was brought before the General Assembly, which, under the Constitution, is the tribunal to determine contests for these officers; section 90 providing as follows: “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.” The Statute passed pursuant to this provision of the Constitution regulating the determination of such contests is found in section 1596a, sub-sec., 8, Kentucky Statutes, and provides that on the third day after the organization of the General Assembly a board shall be chosen by lot, and have power to send for persons- and papers. Its decision shall be reported to the two Houses, and the General Assembly shall then determine the contests. The General Assembly convened on January 2,1900, and on the third day after its organization, as shown by the journals of the two Houses, a board of contest was appointed pursuant to the statute. The journals also show that on February — 286 — 2, 1900.) the board in each .of these contest's reported to the two Houses that they had heard all the evidence offered by the contestants and contestees, and that William Goe-bel 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 said offices. The journals further show that on the same day both Houses, with a quorum present, approved and adopted separately and in joint session the reports of the contest board, and declared that William Goebel and appellee J. C. W. Beckham were duly elected Governor and Lieutenant Governor at the election referred to. Goebel and Beckham were on that day sworn in accordingly. Oh January BOth William Goebel was shot by an assassin, receiving a wound from which he afterward died on February 3d. On January 31st appellant Taylor, as Governor, issued a proclamation declaring that a state of insurrection existed at Frankfort, Ky., adjourning the General Assembly to February 6th, and ordering it to then assemble at the town of London, in Laurel county. The sessions of the General Assembly on February 2d were not held at the State house for the reason' that it was held by a military force of appellant, Taylor, that would not allow the assembly to meet there, and for this reason met on that day at the Capital Hotel, in the city of Frankfort. On February 19th the Legislature met again 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 meet — 287 — ing; 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, amd adopted the majority reports and resolutions of the boards of contests 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. Beck-ham, 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 heretofore 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 twq 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 re-enacted, readopted, reaffirmed, and ratified at — 288 — this, the regular place of meeting' provided by law, at the seat of government in Frankfort, Ky.,” This resolution, though not filed with the exhibits in these cases, is copied in the petition, and is admitted by the answer to have been entered on the Senate journal. The same resolution was adopted by the House, and by both Houses in joint session on February 20th. Appellants insist that all these proceedings were void, and did not affect in any way their rights to the offices of Governor and Lieutenant Governor. A great many matters have been presented in the argument, but only such as seem decisive can be considered! without unduly extending this opinion. It is insisted: (1) That the proceedings of the Legislature on February 2d are void, because the Legislature had then been adjourned by the Governor until February 6th, and no legal session could be held in the meantime. (2) That, Goebel having died on February 3d, the contest for the office of Governor thereby abated, and the action of the Legislature on February 19th and 20th was, therefore, void, (3) It is averred that the Legislature took no action on Februáry 2d, and that the journals of these meetings were fraudulently made .by the clerk, and pursuant to a conspiracy between certain members of the assembly and the contestants. (4) It is averred that the General Assembly acted without evidence, and arbitrarily. These contentions will be considered in the order stated. 1. As to the Governor’s power to adjourn the Legislature. If the Governor had the power to adjourn the Legislature from January 31st to February 6th, of course no valid action could be taken by it in the interim. It is therefore necessary to determine whether he had such power. The only authority relied on to sustain his action is section 36 of the Constitution, which is as follows: “The — 289 — 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.” At first blush it must strike any one that the thing in the mind of the framers of this section was not an adjournment of the General Assembly after it had assembled, but a provision for a place of assembling. Until an assembly is organized, it can not control its movements; and in case of an .insurrection or pestilence preventing it from meeting at the capital it was necessary for some one to have power to name another place at which it might assemble for the time being, and organize. This seems, on its face, ■ to be all the section was intended to provide for, and that it was not intended to authorize such action as was taken in this case is clear from section 80, which provides, 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.” From this provision it is clear that the Governor had no power over the time of adjournment of the two Houses, except in case of disagreement between them. There had been no disagreement between the two Houses here, and, if the Governor could have adjourned them from January 81st to February 6th, he might have made the time one month or' four months, and then, by a similar proclamation, adjourned them again, and indefinitely prevented action upon the com> — 290 — test. It is also to be observed that, while the Constitution gives the Governor power with respect to the time of adjournment in case of disagreement between the two Houses, it confers upon him no such power to name another place than that in which the Legislature may be sitting. Section 41 provides: “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.” Under familiar rules of constitutional construction, either House, by virtue of this section, may, with the consent of the other, adjourn for more than three days, or to any other place than that in which it is sitting. It was never intended by the Constitution that the two Houses might name a time or place of adjournment, and that the Govern- or could also have like power; for this would be not only to create confusion, but to destroy the independence of the legislative branch of the government. By section 27, the powers of a government are divided into three distinct and independent departments, and by section 42 the regular sessions of the General Assembly are limited to 60 legislative days. If the Governor can, without its consent, adjourn it from time to time, or from place to place, as he may see proper, he might be able to prevent it from talcing any action that he might be opposed' to. The legislative branch of the government more .nearly represents the ¡people than any other branch, and it is charged by the Constitution and laws of this State with many important interests directly affecting the people, to secure which their independence of the executive is absolutely necessary. Section 41, above referred to, is taken literally from the Federal Constitution. After showing that Congress i*s, with the single exception of a disagreement, between — 291 — the two Houses in respect of the time of adjournment, - wholly independent of the President, Judge Story adds: “In no other case is the President allowed to interfere with the time and extent of their deliberations. And thus their independence is effectually guarded against any encroachment on the part of the executive.” Story, Const., section 848. The reasons leading to the insertion of such a clause in the Constitution of the United States amd in all the Constitutions of this State were the danger of executive control over the Legislature, and the fact that the colonial Governors exercised this power to destroy the effectiveness of the -colonial Legislatures. We are clearly of the opinion that the State Constitution was intended to maintain the absolute independence of the legislative branch of the government; that the power claimed by the appellant Taylor is in conflict .with both the letter and the spirit -of the instrument, and that his attempt to adjourn the Legislature from January 31-st to February 6th was void, and did not interfere with the right of the- Legislature to proceed with its sessions at Frankfort. 2. As to the de'ath of Goebel. The death of Goebel on February 3d did not affect the right of the appellee Beck-ham. If Goebel was elected Governor and Beckham Lieutenant Governor, in November, Beckham, upon Goebel’s death on February 3d, became entitled to the -office of Governor, and had the right to -continue the contest to secure what the Constitution guaranteed to him. So that, if the Legislature had not acted until February 19th, it had a rigiht then to act upon the contest, and its action would be none the less valid because not taken in- Goebel’s lifetime. But, as the legislative action of February 19th and 20th is assailed on substantially the same grounds as that on February 2d, this view of the case is not important, as — 292 — tbe question remains, was either action valid? This brings ns to th'e consideration- of the third point. 3. As to the validity of the entries in the journal, .and the effect to be given them. It is alleged that the journals are fraudulent, the work of a conspiracy between the clerks of the two Houses, certain of the members, and the contestants, and that the facts shown by the journals as to the presence of the members of the two Houses, and the action taken by them, are untrue. The question is, therefore, can the court hear evidence of this character assailing the integrity of the legislative journals? Section 40-of the Constitution provides: “Each house of the General Assembly shall keep and publish daily a journal of its .proceedings; and the yeas and nays of the members on any question shall, at the desire of any two of the members elected, be entered on the journal.” The journal of each House of the General Assembly, kept pursuant to this provision of the Coinstitution under the supervision of the House, is, .when approved by the House, not the act of the clerk, but the act of the House itself, and is entitled to the same respect ¿as any of its other official acts. So far as we have seen, the authorities are uniform that evidence caifi not-be received in court to impeach the verity of the record provided by the Constitution as evidence of tlje legislative proceedings. Thus, in Cooley, Const. Lim. p. 220, it is said: “And although it sometimes has been urged at the bar that the court ought to inquire into the motives of the Legislature where fraud and corruption were alleged, and annul their action if the allegations were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon. The reasons are the same here as those which preclude an inquiry into the — 293 — motives of the Governor in the exercise of a discretion vested in him exclusively. He is responsible for his acts in such a case, not to the court, but to the people.” In Wright v. Defreese, 8 Ind. 298, which was a quo 'warranto proceeding, involving the exercise of a franchise under an act of the General Assembly, it was alleged that the act was secured by fraud, corruption, and bribery. The court refused to hear the evidence. It is said': “The powers of the three departments are hot merely equal. They are exclusive in respect to the duties assigned to each. They are absolutely independent of each other. It is now proposed that one of the three powers shall institute an inquiry into the conduct of another department, and form an issue to try by .what motives legislators were governed in the enactment of a law. If this may be done, we may also inquire by what motives the executive is induced to approve a bill' or withhold his approval, and, in case of withholding it corruptly, by our mandate compel its approval. To institute the proposed inquiry would be a direct attack upon the independence of the Legislature, and a usurpation of power subversive of the Constitution.” A similar question was presented in McCulloch v. State, 11 Ind., 424, where not only fraud, corruption, ,and bribery were alleged, but also that one member of the assembly, whose vote was recorded in the affirmative, in fact voted in the negative, and that, without his vote, the bill did not receive a constitutional majority. The court said: “The facts thus alleged raise the question whether the journals of the Houses- of the General Assembly can be contradicted or impeached on the ground of mistake or fraud. The affirmative of this inquiry can not, in our opinion, be maintained. Article 4, section 12, of the Constitution requires each House to keep a journal of its proceed — 294 — ings., and publish the same. This journal must be held conclusive evidence of the facts which appear on its face, because it must be presumed that the members, as a body, inspected it, and made all necessary corrections, before they allowed it to assume the character' of a journal of their proceedings. As well might evidence be received to contradict a statute, to show that it contained certain provisions inserted through mistake, as to contradict an entry made upon the journal. The House keeping the journal is the only tribunal .by which it can be corrected, and, until corrected by such authority, it must be considered conclusive as to the facts which it contains. State v. Moffitt, 5 Ohio, 358; Turley v. Logan Co., 17 Ill., 151. We must, therefore, hold that the members alleged to have been absent when the bill passed over the Governor’s veto were present and voted as averred in the journal, and that McMurray did vote in favor of the bill on its final passage in the House.” In the case of State v. Moffitt, 5 Ohio, 358, above referred to, the question was whether Lemuel Moffitt had been elected judge of the Common Pleas court by the General Assembly. The Senate journal showed his election by the Senate, but the House journal showed the election of Samuel Moffitt. Depositions from members and officers of the General Assembly were offered to prove that Lemuel and not Samuel Moffitt' was the individual actually voted, for and elected in the House, but the court held the evidence inadmissible to impeach the journal, and that Lemuel Moffitt was not entitled to the office. The court said: “In the ninth section and first article of the Constitution it is required that each House shall keep a journal of its proceedings and publish them. This journal when taken in connection with the — 295 — laws and resolutions, would seem to be the appropriate evidence of legislative actions. It is not the action of a single member of the Legislature of which I speak, but of the whole body of the General Assembly. The former might, with propriety, be proven by parol testimony, but the latter is evidenced by evidence of a higher nature. The testimony of an individual member could not be received to contradict a statute, and, if not, why receive it to contradict an entry upon the journal?” In Wise v. Bigger, 79 Va., 269, it was alleged that only nineteen Senators voted aye on the passage of the bill, and that it did .not receive, in fact, the affirmative vote of two-thirds of the senators present, and never became a law, although the contrary appeared on the Senate journal. The court said: “In the face of this solemn record, in' which the Senate of Virginia certifies its proceedings, 'in a matter of fact, relating to its own conduct, in the .apparent performance of its legal functions, this court is asked to inquire into or dispute the veracity of that certificate. To do this would be to violate both the letter and the spirit of the Constitution; to invade a co-ordinate and independent department of the government, and to interfere with the separate and legitimate .power and functions of the Legislature.” In a similar case the supreme court of Pennsylvania- also said, where fraud and corruption were charged on the Legislature, and the cour.t was asked to hold its action void for this reason: “We can not hesitate a moment on this question. We have no such authority, and ought not to have. However far the Legislature may depart from the right line of constitutional morality, we have no authority to supervise and correct their act on the mere ground of fraudulent or dishonest motives. We know of no such check upon legislation, and would not — 296 — desire to see such a one instituted. The remedy for such an evil is in the hands of the people alone, to be worked; out by an increased care to elect representatives that are honest and capable. If the judiciary have such authority, then every justice of the peace is competent to sit in judgment upon every act of legislation which disorderly moralists or knavish or ignorant anarchists may choose to charge as fraudulent. Nay, more, if the question may be raised in a judical proceeding, the judges and justices of the peace will be bound to investigate and decide it, and the principal judicial business then might become that of testing, not cases by the standard of the law, but the standard itself by the infinitely various and uncertain judicial notions of morality.” (Sunberry & Erie R. R. Co., vs. Cooper, 33 Penn. Stat., 283.) Any number of similar quotations may be made from other State courts. The decisions are all uniform. The same rule has been applied by the United States supreme court. Fletcher v. Peck, 6 Cranch, 87, (3 L. Ed., 162); Ex parte McCardle, 7 Wall., 506, (19 L. Ed.. 264); U. S. v. Old Settlers, 148 U. S., 466, (13 Sup. Ct. 650), (37 L. Ed., 509); U. S. v. Des Moines Nav. & Ry. Co. 142 U. S., 544, (12 Sup. Ct., 317), (35 L. Ed., 1109). In the case last cited the court said that: “The knowledge and good faith of a Legislature are not open to question. It is conclusively presumed that a Legislature acts with full knowledge, and in good faith.” The learned counsel for the appellants do not question the soundness of these decisions, but seek to distinguish them from the case before us on the ground that appellants have a pre-existing right, and that the rule referred to only applies to legislative acts operative for the future. But none of the cases rest on this ground: The ground — 297 — of all the decisions is that the judiciary have mo power to sit in judgment upon the motives of an independent branch of the government, or to deny legal effect to the record' of its action solemnly made by it pursuant to the Constitution. If this were allowed, .it would soon follow that the independence of the Legislature would be destroyed altogether. When our system of government was formed, not a few publicists pronounced it impracticable, and foretold that sooner or later one of the three equal departments of the government would overshadow and supervise the others. So far these prophecies have proved groundless, but, if the contention of the appellants were sustained, this court would, in substance, assume supervisory power over the action of the Legislature and, as our jurisdiction is only appellate, the same power might be exercised by every subordinate court in the State in cases within its jurisdiction. The Constitution of this State creates the offices of Governor and Lieutenant Governor. It provides how they shall be filled by election. It also • provides how the result of that election shall be determined. In each of the four Constitutions of this State the General Assembly has been made the exclusive tribunal for determining this matter. This shows a clear and settled purpose to keep this political question out of the courts. We have no more right to supervise the decision of the General Assembly in determining the result of this election than we have to supervise the action of the Governor in calling a special session of the Legislature, or in pardoning a criminal, or the action of the Legislature in contracting debts, or determining upon the election of its members, or doing any other act authorized by the Constitution. There is no conflict between the action of the State canvassing board — 298 — 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 do jure officer. The rights of the do 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 pre-existing right, for, if not in fact elected, he had only a right to act until the result of the election could be determined. We are therefore unable to see how this case can be distinguished from any other legislative action taken in a'matter over which the Constitution has — 299 — given the Legislature exclusive jurisdiction, and are, therefore, of the opinion that the courts are without jurisdiction to go behind the record made by th'e Legislature un-te the Constitution-. Such a record seems to us entitled to every presumption in its favor that the records' of this court kept under its supervision would 'be entitled to receive at the hands of the Legislature in a matter before it. 4. As to the action of the Assembly -being void because without evidence and arbitrary. The report of the contest board to the General Assembly shows that it heard the evidence offered by the contestants and contestees, but the report does not, on its face, show that the evidence taken by the board was submitted by it to the General Assembly. The journals also fail to show this fact. It is insisted that therefore the General Assembly acted without evidence in determining the contest. But there is a clear distinction between the failure of the journal to show a fact where the journal is merely silent on the subject, and a fact expressly shown in the journal. Here the journals are only silent as to what evidence the General Assembly heard, and, as it was a question requiring evidence for its proper determination, it must be presumed that the Legislature did its- duty, and had before it such evidence as was satisfactory to it. Thus, in Cooley on Constitutional Limitation, it is said, in disposing of the question of the constitutional power of the Legislature; “In any case in which this question is answered in the affirmative the courts are not at liberty to inquire into the proper exercise of power. They must assume that the legislative discretion has been properly exercised. If evidence is required, it must be supposed that it was before the Legislature when the act was passed, and, if any special finding was required to warrant the passage of — 300 — the particular act, it would seem that the passage of the act itself might 'be held equivalent to such finding.” Cooley, Const. Lim., p. 220. In McCulloch v. State, 11 Ind., 433, the court well said: “Presumptions are often indulged in support of the proceedings of courts, and it would be difficult to perceive why their proceedings should be entitled to 'more favor than those of the Legislature. It has been repeatedly decided that, where the record of a court possessing general powers is silent as to whether a party defendant had notice of suit, it will be presumed that the steps necessary to give jurisdiction of the person were properly taken. There is, indeed, no reason why legislative records should be more full and perfect than judicial.” In those States where the enrolled bill is not held conclusive, it is uniformly held, where the journals are merely silent, that the presumption is absolute that the required steps were in fact taken. Lafferty v. Huffman, 99 Ky., 88, (35 S. W., 123), (32 L. R. A., 203). Under these principles it must be presumed that the Legislature in the case before us did its duty. A copy of the proof taken before the contest board has been filed with this record, comprising. about 1,700 tyewritten pages. Of course, it is mot presumed that each member of the Legislature read all this. It is only meant that the Legislature should learn the facts of the case from- those appointed for that purpose, for this is all that is practicable in such bodies. There is nothing in the record before us to raise the presumption that this was not done. It is also insisted that the notice of contest was insufficient, and that the evidence was equally insufficient; but these were matters to be determined by the Legislature, which the Constitution has made the sole tribunal to determine such a contest. Whether their decision in these — 301 — matters was right or wrong we have no power to inquire. In the distribution of the powers of the government certain power was, by the Constitution, assigned to the courts, and other powers to the General Assembly. For us to attempt to review its action would be as improper as for it to interfere in a case that this court had decided. It is said, that, if this is. true, great injustice might he done by the Legislature. To. this the supreme court of Indiana, in Evans v. Brown, 30 Ind., 514, responded thus: “Public authority and political power must, of necessity, be confided to officers, who, being human, may violate the trust reposed in them. This perhaps can not be avoided absolutely, but it applies to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with, truth to sáy that its high places have not been disgraced. The framers of our government have not constituted it with faculties to supervise co-ordinate departments, and correct or prevent abuses of their authority. It can not authenticate a statute. That power does not belong to It. Nor can it keep the legislative journal. ... It is neither modest nor just for judges thus to impeach the integrity of another department of government, and to claim that the judiciary only will be faithful to its obligation.” Speaking of contested elections for public office, this court, in Batman v. Megowan, 1 Metc., 538, said: “The law has'designated the manner in which such questions shall be ascertained and determined: A board is to be constituted as prescribed by. the statute to examine the poll books and issue certificates of election. Another board is to be organized in the case of a contested election for determining the contest between the claimants. TJpon this last-mentioned board the law devolves the duty — 302 — and confers the power of deciding who is entitled to the office. The courts have no right to adjudicate upon these questions, or to decide such contests.” In the later case of Stine v. Berry, 96 Ky., 63, (27 S. W., 809), this court again said: “We understand, and so adjudge, that the statute in regard to contested elections for State and county officers is exclusive. . . . Such statutes are enacted! with remedies providing for the speedy determination of such questions, and to take from the courts all original supervisory power over such contests.” See, also, Anderson v. Likens (Ky.) 47 S. W., 867; Booe v. Kenner (Ky.) 49 S. W., 330. This whole subject was fully examined in the case of Baxter v. Brooks, 29 Ark., 173, which was, like this, a contest for the office of Governor. The court said: “The office of Governor does not exist by virtue of the common law. It is a creation of the Constitution.. And it is well settled that where a new right, or the means of acquiring it, is conferred by a Constitution or a statute, and an adequate remedy for its infringement is given by the same authority which created the right, the parties injured are confined to the redress thus given.” In a review of this 'contest, quoted in this opinion, Judge Cooley said (page 186): “To our mind, there can be no plausible suggestion that the decision of the General Assembly on such a contest is open to judicial review after-wards; but it may not be inappropriate to refer to Grier v. Shackleford, 2 Tread. Const., 642; Batman v. Megowan, 1 Metc., 533; State v. Marlow, 15 Ohio St., 134; People v. Goodwin, 22 Mich., 496,—as in point.” It is also argued that the contest board was not fairly drawn by lot; that certain of the board were liable to objection on the score of partiálity, and that, therefore, this board was not properly constituted. If any of these ob — 303 — jections were well founded, tbe General Assembly bad full power to take sucb action as was proper in tbe premises. It does not appear that any of tbe objections urged; were presented to tbe General Assembly, but, if they were, and it refused to make a correction, it must be presumed that it bad sufficient reasons for its action. Besides, tbe board was only a preliminary agency to take evidence, and report tbe facts to tbe General Assembly. Tbe Assembly itself finally determined the contest. It is also urged that under the specifications of tbe notice of contest, if all were true, tbe election was void, and the General Assembly should have so determined. But we have no means of knowing that-the General Assembly reached sucb a conclusion. The presumption is in favor of their judgment, and when they have found as a fact that tbe contestants received the highest number of legal votes cast at tbe election in controversy we are not at liberty to go behind their finding. In Com. v. Jones, 10 Bush, 725, tbe board found that Jones had accepted a challenge to fight a duel, and was,.therefore, disqualified to bold office. But as, under tbe Constitution, a conviction of tbe offense was necessary to disqualify Jones from bold-ing office, this court disregarded the finding of the board, for tbe reason that it related only to an immaterial matter. In this case, however, tbe Legislature finds tbe fact that determines tbe rights of tbe parties. There is nothing in their finding to show the election was void, and, as we can not go behind it (10 Bush, 747, 748), the cases of Leeman v. Hinton, 1 Duv., 38, and Hocker v. Pendleton, 100 Ky., 726, (39 S. W., 250), have also no application. It is also insisted that the legislative proceedings are in violation of the fourteenth amendment to the Constitution of the United States, which provides: “No State shall — 304 — make or enforce any law which shall abridge the privileges or immunities of citizens of the United- States, nor shall any State deprive any person of life, liberty or property, without due process of law.” 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 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 a 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? To illustrate, section 38 of the State Constitution provides: “Each House of the General Assembly shall judge of the qualification, elections and returns of its members, but a contested election shall be determined in such manner as shall' be directed by law.” Whatever inherent power either House might have had to determine the election of its- members if the Constitution had been silent, its power under this — 305 — section is limited to the grant. It will be observed that the phraseology is 'substantially the same as section 90, relating to contested elections of Governor and Lieutenant Governor. Suppose these suits had been brought by two members of the General Assembly, alleging, in effect, the same facts as- are alleged in this case, would any body suppose that the judiciary of the State would have the power to go behind the legislative journals, or to supervise the propriety of the legislative action, in determining the election of its members? Could a member of the General Assembly, who had received a certificate from the canvassing board, and' been afterwards ousted from the House to which he belonged on a contest, allege and show that the House had acted arbitrarily, depriving him of a pre-existing right, and denying to him the emoluments of the office for the term? Could it be maintained that such action by either House of the General Assembly violated any protection afforded him by the Constitution of the United States, or that for this cause the action of the State authorities under the State Constitution, by virtue of which he claimed to have- been elected, might be overruled? This question was presented to the United States Supreme Court in Wilson v. North Carolina, 169 U. S., 586, (18 Sup. Ct., 435), (42 L. Ed., 865), where an .officer arbitrarily removed from office applied to that court for redress. His case was dismissed for want of jurisdiction. If the State may arbitrarily remove an officer once appointed, we see no reason why it may not provide such means as it sees proper for the determination of its own elections. -If-.it has not such power, then its sovereignty as a State exists only in name. The Congress of the United States has, by the Constitution, the power — 306 — to judge of the qualifications, elections, and returns of its. members. In not a few cases it has been supposed to have acted arbitrarily in such matters, but it was never maintained that one who was ousted of his seat in Congress on a contest could take the matter into the courts t'o 'supervise the action, of Congress on such grounds as are alleged in this case. Yet the power of Congress, under the Constitution, in determining which of two claimants was in fact elected! to a seat in that body, both being admittedly qualified, is, under the Constitution, just the same as the power of our General Assembly in determining a contested election for Governor and Lieutenant Governor. It is earnestly argued that the General Assembly was wrong in its decision of this case, and that it is a very serious matter thus to overthrow the will o-f the people. Whether the Assembly was right or not in its decision, it is not our province to determine. But a much more important question is involved in the case, which is the integrity of our form of government as founded by our forefathers. If the action of the Legislature may be disregarded by the courts, then it is no longer an equal and independent branch of the government within its Constitutional jurisdiction, but the courts become the final depository of the supreme power of the State. Judicial tyranny is no less tyranny because couched in the forms of la>w. There was great wisdom in dividing the powers of a republic between three equal and independent sets of officers. One operates as a check upon the other, and no greater blow to the perpetuity of our institutions could be given than to destroy this check. For these reasons we are of the opinion that the courts of this State are without authority to enter into the in — 307 — quiry sought in this case, and that the journals oí the General Assembly are conclusive of the controversy. The judgment of the lower court, being in accordance with these views, is therefore affirmed.