# Howard v. McDiarmid > Supreme Court of Arkansas · December 15, 1870 · 26 Ark. 100 URL: https://www.frixlaw.com/law-library/cases/6539714 ## Case - **Full name:** Howard v. McDiarmid - **Court:** Supreme Court of Arkansas - **Decided:** December 15, 1870 - **Citations:** 26 Ark. 100 - **Precedential status:** Published - **Opinion:** Dissent by Gre - **Judges:** Gre, Itariuson, McClure, Moclüre - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6539714 ## Opinion text GRE&g, 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 ■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 4he election and qualification of members to that house, in -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 aloné. This writer declares that the election, or return, cannot be drawn in question, etc. Not election and return, but or return, etc.; otherwise the independence of the Assembly would be placed completely at the discretion of other co-ordinate branches of the government, etc. It is to maintain this distinctiveness, and keep the one department of government free from the .interference and control of the others, that our Constitution has so-expressly and carefully conferred these powers upon the respective houses of the General Assembly; and, as Mr. Cushing says, “given them the sole and exclusive control over the election and return of its members.” In England the returns were made and returned into chancery (while here they are made to the secretary of State,) and there recorded, and this return and record was the evidence of a member’s right to his seat, and in the work referred to, sec. 1050, this author says: “But as this record is made up from the returns in the first instance, and as they are received,, which cannot be altered but by the authority of the house, and as the house, which is the sole judge of the returns and election of its members, may, afterwards, upon investigation, find that a particular return is wrong, and that some other person should have been returned: it then becomes necessary, by analogy, to-legal proceedings in certain cases, that the record should be made to conform to the facts. Inasmuch, however, as the-record is in the chancery, and the power to rectify it exists-only in the house, the method of proceeding is for the house to direct the returning officers, if necessary, and the clerk of the crown, in chancery, to attend in the house and there, in its presence, to make the requisite alterations.” ¡See. 1051. “These officers may, also, be directed to perform other official acts connected with the election and return of members, and are subject to the censure and punishment of the house for any neglect of duty,” etc. Nothing is here said of the returning officers being amenable to the courts, but it is said the house may punish, and it is here said, as to this return and record made in the crown office in chancery (with us in the office of the secretary of State,) “ The power to rectify it exists ofly in the house,” etc., while, in the matter before the court we are urged to have tbo returns corrected, that the secretary may correct his records or lists and certify accordingly. But again, in sec. 140, this author says: ‘As to the general duty of returning officers, it has been a point much agitated in England? whether it is wholly ministerial, or whether it is in any degree judicial.” In reference to this question, the writer already referred to, remarks: “There can be no doubt that in those branches of their duty, wherein the law has marked out a definite line, it is ministerial, etc., * In the judicial decisions of this country, where this point is adverted to, it seems to be considered that the returning officers are chiefly judicial in their character,” etc. Sec. 141. “It remains to be observed, in conclusion, that the proceedings of these officers, from the necessity of the case, are, in the first instance, uncontrollable by any other authority whatever; so that if, on the one hand, notwithstanding an election has been effected, the returning officers refuse or neglect to make the proper return, the party thereby injured is without remedy or redress until the assembly, to which he is chosen, has examined his case"and adjudged him to be duly elected; and, on the other hand, if the returning officers make a return when no election has, in fact, taken place, or if not eligible, the person returned, will not only be entitled, but it is his- duty tO' assume and discharge the functions of a member until return and election are adjudged void.” I have thus quoted at some length from this standard author, to show that the return, as well as the election of members, is solely under the control of the legislative department, and, as stated, the Constitution contemplates that it shall be entirely free from the influence or control of the judiciary and executive departments of the government, and that this may be placed beyond all question, the returning officers of elections are, by this law, declared to be beyond their control; and if, through the misconduct of such officer, a person is injured, as stated in the last paragraph quoted, he is, from the very necessity of the case, without remedy until the assembly meets. That is the court provided by the Constitution to try such case, and be must wait until it convenes, and therein have his rights determined. Yet it is assumed here that wo will control the returning officer and cause him to make a return different from what, in his judgment, he should make, and thereby change the rights of contestants, while the authority referred to is, that these officers are uncontrollable by the courts. This is a special matter, by the Constitution made triable by the legislative department, and intended and provided for the maintenance of the rights, dignity and independence of that department. And, in our opinion, the writ prayed for should be denied and the petition dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6539714. Public record. Not legal advice.