TERM, 1870.] Howard, et al. v. McDiarmid. fix the precise length of time the list shall be filed in the clerk's office before the election. The response shows it to have been filed on the Saturday before the election, which evidences the fact that, so far as the clerk is concerned, he knew who the judges of election, appointed by the board of registration, were. Whether the judges thus appointed were legal judges, is a question the clerk had no power to decide, nor can he question the validity of their appointment in this proceeding. The response states, that the clerk had no information as to armed mobs seizing and usurping the polls, and preventing the judges appointed by the board of registration from acting. This denial, it is presumed, is intended to refer to the pollbooks of the townships of Ashley, Campbell, Gray, Badgett and Eastman. In the opinion delivered on yesterday, we said, that inasmuch as but one set of poll-books came up from those townships, the clerk was bound to presume in favor of their correctness, and certify them to the secretary of State. As to the township of Eagle, and the first and third wards of Little Rock, the response says but one set of poll-books were returned into his office, and that said returns show that the judges appointed by the board of registration had failed to open the polls in the time prescribed by law; all of which the clerk says will appear by reference to exhibits. By reference to these exhibits we find what purports to be a copy of a letter written, which is not even certified to as being a correct copy of a letter on file in the clerk's office, by persons who sign themselves as deputy sheriffs, wherein the clerk is informed that at the hour of eight o'clock, the time fixed by law for opening the polls, there being no judges of election present, certain persons therein named were selected. as judges of election. The response admits the return of the election returns held by the judges of election, appointed by the board of registration, in the township of Eagle, and the first and Howard, et al. v. McDiarmid. [DECEMBER third wards of the city of Little Rock, but says on account of "official information and satisfactory indubitable testimony," he certified the election returns of the election held by the judges elected by the people, to the secretary of State. The only information the clerk seems to have had, as to the failure of the regular judges to act, was the letter purporting to have been received from some person signing himself deputy sheriff, and this constituted the "official information and indubitable testimony" on which he based his action. In our opinion, this is not sufficient to overturn the returns of the regular judges, who made a return, showing they had acted. And, even if it did raise a question in the mind of the clerk, he has no authority or power to decide it. His duty was to presume in favor of the regularity of the action of the persons who were appointed, in the manner prescribed by law, to perform the act of holding the election. The law makes it no part of the duty of deputy sheriff's to write such letters, and, in the absence of such a provision of the law, the deputy sheriff's letters are entitled to no more credence than those of any other citizen of the State. Judges of election, by the provisions of the sixth section of the election law, continue to be judges of election until the next general election; and in every case where an election is held by persons other than the regular judges, the poll-book itself ought to show the absence of the regular judges, or some reason why the regular judges did not act. In cases where a special judge is elected, the record always shows that the election was made because the regular judge did not appear, or that he was in some manner disqualified by some provision of the law, and there is no good reason why persons not known to the law, as judges of election, should be excused from showing by what authority they have assumed to discharge duties enjoined upon another. A letter from a deputy sheriff, directed to this court, informing it that the regular judge failed to appear, as the law provides, and that the bar elected a judge, TERM, 1870.] Howard, et al. v. McDiarmid. would hardly supply the deficit in a record, nor would it show any authority in the judge to hear and determine cases. The object of this mandamus, and its prayer is, that the clerk of Pulaski county make out an abstract showing the number of votes cast at the election, held on the 8th day of November, 1870, for persons voted for for representatives in the General Assembly of the State of Arkansas, whereon will be shown the whole number of votes cast, according to the returns on file in the county clerk's office, for each candidate in the townships of Eastman, Clear Lake, Richwoods, Ashley, Gray, Prairie, Caroline, Peyatte, Plant, Cypress, Bayou Meto, Mineral, Maumelle, Owen, Fourche, Big Rock, Union, Campbell, Badgett, and the second and fourth wards of the city of Little Rock, and whereon will be shown the vote cast at the election held by the judges of election, appointed by the board of registration, in the township of Eagle, and the first and third wards of the city of Little Rock. It is no response to say, that the clerk has certified certain townships already. What the petitioners want, is an abstract showing the information prayed for, and, to use the exact expression of the law, "on a separate sheet of paper." The peremptory writ is awarded, and the clerk of this court will issue it forthwith. GREGG, J., dissenting, says: The plaintiffs bring their original petition, in this court, praying for a mandamus against the defendant, as clerk of Pulaski county, to compel him to certify what they allege to be the proper abstracts of election returns of said county, of the election held the 8th of November, 1870, and to file the returns, so certified, with the secretary of State. The defendant responds that, before the filing of this petition against him, he did make and file abstracts and statements of all the votes cast at said election, etc., and of all returns, or pretended returns of said election, presented or filed in his Howard, et al. v. McDiarmid. [DECEMBER office, and returned and certified the same, and filed them with the secretary of State; and by a demurrer clause in his response, he submitted that this court had no jurisdiction in this suit, and that we should not take jurisdiction of the matter. Upon the latter proposition, we have been unable to find any sufficient reason to change our views from the opinion expressed by the minority of the court, in the case of Price & Barton against Page, as treasurer. Our understanding of the Constitution of our State, and the whole theory of our judicial system, convinces us that the Supreme Court of the State was, and is, intended as a tribunal of last resort; that its leading object and intent was, and is, the hearing of appeals and the correction of errors; the holding of general supervision and control over inferior tribunals, and that it is not the intent and spirit of the Constitution, and was not the design of its framers, that this should be a court of first impression; that writs of this and a similar character should not be originally issued, and heard, and determined in this court; that, if so, no revisory power anywhere exists to correct the errors likely to be often intermixed in the haste of original trials. But, in this case, we will content ourself with these few general remarks on this subject, without quoting the various provisions in our Constitution that have led us to this conclusion, and giving, at length, the cogent reasons why the people, in convention, should have intended, and did intend, that the Constitution be interpreted as we understand it. The other question raised by the demurrer is, whether the case presented here, is a proper subject for judicial investigation in this court. We also assume the negative of this position. Our State Constitution, in reference to the Legislature, Sec. 4, Art. 5, declares that: "each house shall choose its own officers, determine the rules of its proceedings, judge of the qualifications, election and return of its members," etc. To our mind, it is clear that the object intended to be accomplished by this clause was, to commit the whole subject of the election and qualification of members to that house, in TERM, 1870.] Howard, et al. v. McDiarmid. which membership is claimed, for consideration and determination; and that no co-ordinate department of government was expected to influence or control them in their action. The majority of the court admit that the legislative branch of the government alone is authorized to judge of the election, return and qualification of its members; but, they say, we are only asked, herein, to compel the clerk of Pulaski county court to send up to the secretary of State proper returns. Now if we can, under this Constitution, judge as to what are proper returns, and compel the clerk to make out such returns, can we not judge, also, as to the election or qualification of the members? The Constitution declares each house shall judge of the qualification, election and return of its members. Now, if we can disregard that clause in this Constitution, that declares that the house shall judge of the return, can we not, also, disregard that, which says it shall judge of the election and qualification of its members? Wherein is the difference? If we assume one function belonging to another department, can we not assume others? And, if we do this, are we not assuming a power that is given to a co-ordinate department, and not granted to us? In section 556, "Law and Practice of Legislative Assemblies," by Cushing, p. 225, the law is stated as follows: "It being a principle of parliamentary law that a legislative assembly is the sole and exclusive judge of the returns and elections of its own members, it follows that the validity of an election, or return, cannot be drawn into question, on a claim of privilege, for, otherwise, the independence of the Assembly would be placed completely at the discretion and in the power of other co-ordinate branches of the government," etc. The law here declares that the return and election of members is within the sole and exclusive control of the Assembly. No distinction is here made by which a court can judge of the returns, and leave the house to judge of the elections alone. This writer declares that the election, or return, cannot be drawn in question, etc. Not election and return, but or return, etc.; other |