In the case 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 of all the decisions is that the judiciary have no 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 article of the Constitution it is required that | v. Old Settlers, 148 U. S. 466, 37 L. ed. 523, 'each house shall keep a Journal of its pro- 13 Sup. Ct. Rep. 650; United States v. Des ceedings and publish them.' This journal, Moines Nav. & R. Co. 142 U. S. 544, 35 L. when taken in connection with the laws and ed. 1109, 12 Sup. Ct. Rep. 308. resolutions, would seem to be the appropri- last cited the court said that "the knowlate evidence of legislative action. It is not edge and good faith of a legislature are not the action of a single member of the legisla- open to question. It is conclusively preture of which I speak, but of the whole body sumed that a legislature acts with full of the 'general assembly.' The former knowledge, and in good faith." might, with propriety, be proved 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 per system of formance of its legal functions,-this court few pubis asked to inquire into or dispute the ve-government was formed, not a racity of that certificate. To do this would foretold that sooner or later one of the three licists pronounced it impracticable, and be to violate both the letter and the spirit of the Constitution; to invade a eo-ordinate equal departments of the government would and independent department of the govern- overshadow and supervise the others. So ment, and to interfere with the separate and far these prophecies have proved groundlegitimate power and functions of the legis- less, but, if the contention of appellants lature." In a similar case the supreme court were sustained, this court would, in subof Pennsylvania also said, where fraud and stance, assume supervisory power over the corruption were charged on the legislature, action of the legislature; and, as our jurisand the court was asked to hold its action diction is only appellate, the same power void for this reason: "We cannot hesitate might be exercised by every subordinate a moment on this question. We have no court in the state in cases within its jurissuch authority, and ought not to have. How-diction. The Constitution of this state creever far the legislature may depart from the ates the offices of governor and lieutenant right line of constitutional morality, we governor. It provides how they shall be have no authority to supervise and correct filled by election. It also provides how the their acts on the mere ground of fraudulent result of that election shall be determined. or dishonest motives. We know of no such In each of the four Constitutions of this check upon legislation, and would not desire state the general assembly has been made to see such an one instituted. The remedy the exclusive tribunal for determining this for such an evil is in the hands of the peo-matter. This shows a clear and settled purple alone, to be worked out by an increased pose to keep this political question out of care to elect representatives that are honest the courts. We have no more right to suand capable. If the judiciary have such au- pervise the decision of the general assembly thority, then every justice of the peace is in determining the result of this election competent to sit in judgment upon every act than we have to supervise the action of the of legislation which disorderly moralists or governor in calling a special session of the knavish or ignorant anarchists may choose legislature, or in pardoning a criminal, or to charge as fraudulent. Nay, more, if the the action of the legislature in contracting question may be raised in a judicial proceed- debts, or determining upon the election of ing, the judges and justices of the peace its members, or doing any other act authorwill be bound to investigate and decide it, ized by the Constitution. There is no conand the principal judicial business might flict between the action of the state canvassthen become that of testing, not cases by the ing board and that of the legislature in these standard of the law, but the standard itself cases. The state canvassing board by the infinitely various and uncertain judi- without power to go behind the returns. cial notions of morality." [Sunbury & E. R. They were not authorized to hear evidence, Co. v. Cooper, 33 Pa. 283.] Any number of and determine who was in truth elected, but similar quotations may be made from other were required to give a certificate of election state courts. The decisions are all uniform. to those who, on the face of the returns, had The same rule has been applied by the United received the highest number of votes. For States Supreme Court. Fletcher v. Peck, 6 the state board to have received evidence to Cranch, 87, 3 L. ed. 162; Ex parte McCar-impeach the returns before them would have dle, 7 Wall. 506, 19 L. ed. 264; United States been for them, in effect, to act as a board for were trying a contested election; and, if they had tive discretion has been properly exercised. done this, they would have usurped the If evidence was required, it must be suppower vested in the general assembly by the posed that it was before the legislature Constitution, for by its express terms only when the act was passed, and, if any special the general assembly can determine a con- finding was required to warrant the passage tested election for governor and lieutenant of the particular act, it would seem that the governor. But the certificate of the state passage of the act itself might be held equivboard of canvassers is no evidence as to who alent to such finding." Cooley, Const. Lim. was in truth elected. Their certificate enti- p. 220. In McCulloch v. State, 11 Ind. 433, tles the recipient to exercise the office until the court well said: "Presumptions are the regular constitutional authority shall often indulged, in support of the proceedings determine who is the de jure officer. The of courts, and it would be difficult to perrights of the de jure officer attached when ceive why their proceedings should be enhe was elected, although the result was un-titled to more favor than those of the legisknown until it was declared by the proper lature. It has been repeatedly decided that, 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 de termination, 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 given the legislature exclusive jurisdiction, and are therefore of the opinion that the courts are without jurisdiction to go behind the record made by the legislature under 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 legisla where the record of a court possessing gen- It is also insisted that the notice of contest was insuflicient, 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 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 be done by the legislature. To this the supreme court of Indiana, in Evans v. Browne, 30 Ind. 514, 95 Am. Dec. 710, 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 cannot be avoided absolutely; but it applies also 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 say that its high places have not been disgraced. The framers of our government have not constituted it with faculties a correction, it must be presumed that it had sufficient reasons for its action. Besides, the board was only a preliminary agency to take evidence, and report the facts to the general assembly. The assembly itself finally determined the contest. to supervise co-ordinate departments, and correct or prevent abuses of their authority. It cannot 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 It is also urged that under the specificagovernment, and to claim that the judiciary tions of the notice of contest, if all were only will be faithful to its obligation." true, the election was void, and the general Speaking of contested elections for public assembly should have so determined. But office, this court, in Batman v. Megowan, 1 we have no means of knowing that the genMet. (Ky.) 538, said: "The law has desig-eral assembly reached such a conclusion. nated the manner in which such questions The presumption is in favor of their judg shall be ascertained and determined. Ament, and when they have found as a fact board is to be constituted as prescribed by that the contestants received the highest the statute to examine the poll books and is number of legal votes cast at the election in sue certificates of election. Another board controversy we are not at liberty to go beis to be organized in the case of a contested hind their finding. In Com. v. Jones, 10 election for determining the contest between Bush, 725, the board found that Jones had the claimants. Upon this last-mentioned accepted a challenge to fight a duel, and was board the law devolves the duty and confers therefore disqualified to hold office. But as, the power of deciding who is entitled to the under the Constitution, a conviction of the office. The courts have no right to adjudi- offense was necessary to disqualify Jones cate upon these questions, or to decide such from holding office, this court disregarded contests." In the later case of Stine v. Ber- the finding of the board, for the reason that ry, 96.K 63, 27 S. W. 809, this court again it related only to an immaterial matter. In said: "We understand, and so adjudge, this case, however, the legislature finds the that the statute in regard to contested elec- fact that determines the rights of the parties. tions for state and county officers is exclu- There is nothing in their finding to show the sive. . Such statutes are enacted election was void, and, as we cannot go bewith remedies providing for the speedy de-hind it (10 Bush, 747, 748), the cases of termination of such questions, and to take Leeman v. Hinton, 1 Duv. 38, and Hocker v. from the courts all original supervisory Pendleton, 100 Ky. 726, 39 S. W. 250, have power over such contests.' See also Ander- also no application. son v. Likens, 20 Ky. L. Rep. 1001, 47 S. W. It is also insisted that the legislative pro867; Booe v. Kenner, 20 Ky. L. Rep. 1343, ceedings are in violation of the 14th Amend49 S. W. 330. This whole subject was fully ment to the Constitution of the United examined in the case of Baxter v. Brooks, States. which provides: "No state shall 29 Ark. 173, which was, like this, a contest make or enforce any law which shall abridge for the office of governor. The court said: the privileges or immunities of citizens of "The office of governor does not exist by vir- the United States, nor shall any state detue of the common law. It is a creation of prive any person of life, liberty, or property, the Constitution. And it is well settled without due process of law." The office of that where a new right, or the means of ac- governor being created by the Constitution quiring it, is conferred by a constitution or of this state, the instrument creating it a statute, and an adequate remedy for its might properly provide how the officer was infringement is given by the same authority to be elected, and how the result of this which created the right, the parties injured election should be determined. The proviare confined to the redress thus given." In sions of the Constitution on this subject do a review of this contest, quoted in this opin- not abridge the privileges or immunities of ion, Judge Cooley said (page 186, 29 Ark.): citizens of the United States. Such an of"To our mind, there can be no plausible sug-fice is not property, and in determining meregestion that the decision of the general as-ly the result of the election according to its sembly on such a contest is open to judicial own laws the state deprives no one of life, review afterwards; but it may not be inap-liberty, or property. In creating this office propriate to refer to Grier v. Shackleford, the state had a right to provide such agen2 Treadway, Const. 642; Batman v. Megow-cies to determine the result of the election, an, 1 Met. (Ky.) 533; State ex rel. Grisell and it had a right to provide such a mode of v. Marlow, 15 Ohio St. 134; Powell ex rel. procedure as it saw fit. It is wholly a matRoyce v. Goodwin, 22 Mich. 496,-as inter of state policy. The people of the state point." night, by an amendment to their ConstituIt is also argued that the contest board was tion, abolish the office altogether. The denot fairly drawn by lot; that certain of the termination of the result of an election is board were liable to objection on the score of purely a political question, and, if such suits partiality, and that, therefore, this board as this may be maintained, the greatest diswas not properly constituted. If any of order will result in the public business. It these objections were well founded, the gen- has always been the policy of our law to eral assembly had full power to take such provide a summary process for the settle. action as was proper in the premises. It ment of such contests, to the end that pubdoes not appear that any of the objections lic business shall not be interrupted; but, if urged were presented to the general assem- such a suit as this may be maintained, bly, but, if they were, and it refused to make' where will such a contest end? To illus For these reasons we are of the opinion that the courts of this state are without authority to enter into the inquiry sought in this case, and that the journals of the general assembly are conclusive of the controversy. The judgment of the lower court, being in accordance with these views, is therefore affirmed. trate, § 38 of the state Constitution provides: | its decision, it is not our province to deter"Each house of the general assembly shall mine. But a much more important question judge of the qualifications, elections, and re- is involved in the case, which is the integ turns of its members, but a contested elec-rity of our form of government as founded tion shall be determined in such manner as by our forefathers. If the action of the shall be directed by law." Whatever in- legislature may be disregarded by the herent power either house might have had courts, then it is no longer an equal and into determine the election of its members if dependent branch of the government within the Constitution had been silent, its power its constitutional jurisdiction, but the under this section is limited to the grant. courts become the final depository of the suIt will be observed that the phraseology is preme power of the state. Judicial tyranny substantially the same as § 90, relating to is no less tyranny because couched in the contested elections of governor and lieuten- forms of law. There was great wisdom in ant governor. Suppose these suits had been dividing the powers of a republic between brought by two members of the general as- three equal and independent sets of officers. sembly, alleging, in effect, the same facts as One operates as a check upon the other, and are alleged in this case, would anybody sup- no greater blow to the perpetuity of our inpose that the judiciary of the state would stitutions could be given than to destroy this have the power to go behind the legislative check. 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 The general demurrer to the answer and assembly violated any protection afforded amended answer of contestees, which was him by the Constitution of the United sustained by the chancellor in this proceedStates, or that for this cause the action of ing, admits that on the 9th day of Decemthe state authorities under the state Consti- ber, 1899, W. S. Pryor, as chairman, and W. tution, by virtue of which he claimed to have T. Ellis, as member, of the state board of been elected, might be overruled? This election commissioners, certified that Wilquestion was presented to the United States liam S. Taylor and John Marshall had reSupreme Court in Wilson v. North Carolina, ceived the highest number of votes given for 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. the offices of governor and lieutenant gover435, where an officer arbitrarily removed nor, respectively, and were duly and regufrom office applied to that court for redress.larly elected to fill these offices for the term 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 prover 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 to judge of the qualifications, elections, and returns of its members. In not a few cases it has Burnam, J., concurring: prescribed by the Constitution; that at the election, under the operation of the statute known as the "Goebel Election Law," the entire election machinery of the state was in the hands of the friends and partisans of contestants; that all of the election officers, from the highest to the lowest, were selected by the state board of election commissioners, or by their appointees; that the members of the state board of election commissioners were themselves fellow partisans of contestbeen supposed to have acted arbitrarily in ants; that by the action of the election offisuch matters, but it was never maintained cers on the day of the election contestees that one who was ousted of his seat in Con- were illegally, and in many cases fraudulentgress on a contest could take the matter in-ly, deprived of a large number of votes in the to the courts to 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 of the people. Whether the assembly was right or not in Various voting precincts of the state; that, subsequent to the election, contestants had entered into a conspiracy with divers members of the legislature to nullify this election of the people by the institution of a fraudulent contest before them; that, pursuant to this conspiracy so entered into, the contest boards were selected by a fraudulent device, not by lot, as required by law; that as a result of this trick ten out of the eleven members selected for the trial of the governor's contest were partisans of the contestant, and nine out of the eleven members selected as a contest board for the trial of the lieutenant governor's contest were partisans of the contestant; that a number of the members of the general assembly selected on both of | limitations, and, "no person or collection of these contest boards were disqualified from persons being of one of these departments sitting on the ground that they had advised can exercise any power properly belonging that such contests should be made, and had to either of the others, except in the instances promised to render them effective; that at expressly directed or permitted." See §§ 27 least one member of the board selected to and 28 of the Constitution. By § 90 of the try the contest for the office of governor had Constitution the determination of contested wagered money on the result of the election; elections for the offices of governor and lieuthat the contest boards, in the trial of the tenant governor is imposed upon the general contests, had acted throughout in an illegal, assembly, to be exercised in accordance with tyrannical, and arbitrary manner in the ad-such regulations as may be established by mission and rejection of testimony, and in law. Pursuant to this provision of the Conthe whole conduct of the trial; that they did stitution, the legislature has, in § 1531 and not report to the general assembly any of subsections thereunder of the Kentucky the testimony which had been taken upon the Statutes, prescribed the regulations for trial; and that the general assembly, at the their guidance in the determination of such time they approved the decisions of the con- contested elections; and it appears from the test boards, did not have a particle of testi- exhibits filed with the petition that the genmony before them, were not familiar with eral assembly have, pursuant to these reguthe facts, refused to hear argument, held lations, decided the contests for the offices their alleged meeting at which the contests of governor and lieutenant governor in fawere determined at a secret place without the vor of the contestants, and if no appeal or knowledge of either contestees, or more than power to review their finding is given to the one third of the entire membership of the courts by the Constitution, which is the bageneral assembly, who were thereby excluded sis of all power both in the legislature and from any participation in the action so tak-in the courts, their finding would seem to be en at the time of the alleged determination conclusive of the question. Similar quesof the contests in favor of contestants. tions to that at bar have been before this It is also admitted that at the time the al-court in quite a number of cases, beginning leged action was taken by the general assem- with the celebrated case of Batman v. Mebly on the 2d day of February, 1900, the leg- yowan, 1 Met. (Ky.) 533, in which the opinislature had been previously adjourned by ion was written by one of the ablest and the governor to meet in London, Kentucky. most celebrated lawyers which ever adorned It is hard to imagine a more flagrant and this bench; and after a careful consideration partisan disregard of the modes of proced- of all of these cases, and numerous authoriure which should govern a judicial tribunal ties which have been cited from elementary in the determination of a great and import- writers and courts of last resort in other ant issue than is made manifest by the facts states, I have been led with some reluctance alleged and relied on by contestees, and ad- to the conclusion, and not without some mismitted by the demurrer filed in this action givings as to its correctness, that there is to be true; and I am firmly convinced, both no power in the courts of the state to review from these admitted facts and from knowl- the finding of the general assembly in a conedge of the current history of these transac-tested election for the offices of governor and tions, that the general assembly, in the heat of anger, engendered by the intense partisan excitement which was at that time prevailing, have done two faithful, conscientious, and able public servants an irreparable injury in depriving them of the offices to which they were elected by the people of this commonwealth; and a still greater wrong has been done a large majority of the electors of this commonwealth who voted under difficult circumstances to elect these gentlemen to act as their servants in the discharge of the duties of these great offices. But we are met at the threshold of this case with the contention that the courts of the state, under the limitations imposed by the Constitution, have no power to go behind the legislative journals, and review the judgment of the general assembly in a proceeding over which they are given, by the Constitution, exclusive jurisdiction, and from whose determination of the question no appeal is provided. The Constitution defines the duties and limits the powers of each of the three co-ordinate departments of government, and in the discharge of these duties and exercise of these powers each department must, of necessity, be independent of the other so long as they remain within the constitutional lieutenant governor as shown by its dulyauthenticated records. Many questions have been raised and discussed with great ability by learned and eloquent counsel for appellants, but it will be unnecessary for me to consider them in view of the conclusion which I have reached on this fundamental question. Guffy, J.: I concur in and adopt the foregoing as my view of the question involved. Du Relle, J., dissenting: Since Kentucky has had a government, vided into three distinct departments, and the powers of the government have been dieach of them is confined to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another. These departments are co-ordinate and coequal. The magistracy of each department is confined to its own powers and duties. As a matter of course, and in the nature of things, these co-ordinate departments are in some respects interdependent. From the very nature of things it results that, while the legislative branch is supreme |