USA > Wisconsin > An illustrated history of the state of Wisconsin : being a complete civil, political, and military history of the state, from its first exploration down to 1875 > Part 22
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thousand persons were present. Entering the senate-chamber, the newly-elected officers arranged themselves in front of the clerks' desks, and a statement and certificate of the State can- vassers was read by Hon. Alexander T. Gray, which certificate was the legal evidence of authority of the State officers elect to assume the obligations ; and the oath of office was administered by Judge A. L. Collins, first to Gov. Barstow, and then to the other officers. During the day, Coles Bashford, with a few of his friends, called at the Supreme Court room, and took the oath of office of governor, from Chief Justice Whiton. On the 10th of January, Mr. Bashford called at the executive office, and made a formal demand for the office of governor, of Gov. Barstow, which the latter declined to yield. Mr. Bashford secured the services of E. G. Ryan, J. H. Knowlton, T. O. Howe, and Alexander W. Randall, Esqs., as counsel in the suits which he instituted to obtain possession of the office.
The ninth session of the State legislature convened on the 9th of January, 1856, and was organized on that day; Lieut .- Gov. A. McArthur president of the senate, Byron Paine chief clerk, and Joseph Baker sergeant-at-arms. In the assembly, Hon. William Hull was chosen speaker, James Armstrong chief clerk, and Egbert Moseley sergeant-at-arms. The session took a recess from March 31, 1856, to Sept. 3, and adjourned Oct. 14. The whole length of the session was a hundred and twenty-five days; the political status of the legislature being as follows: senate, eleven Republicans, twelve Democrats, and two Independent ; and in the assembly, forty-four Republicans, thirty-one Democrats, and seven Independent. In the senate, that body voted to receive a message from Gov. Barstow, and decided to recognize him as the governor de facto until the decision of the Supreme Court; and a joint resolution to meet in convention, to hear the message, was concurred in by the assembly.
On the 11th of January, the message of Gov. Barstow was read in joint convention, from which the following extracts are taken : The whole amount paid into the treasury to Dec. 31, 1855, was 8506,973.90, and the total disbursements, 8486,714.73; leaving a balance in the treasury on the first day of January, 1856, of 842,526.26. The secretary of state's estimate for the
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year was $274,044.50; which amount, deducted from the State tax levied and equalized, under the act of 1855, of $350,000, and adding to which balance the estimated receipts for bank, rail, and plank-road tax, and miscellaneous resources of $62,476.54, left an estimated surplus, on the 1st of January, 1857, of $138,- 432.04. He stated that the five per centum of the net proceeds arising from the sales of government lands, and belonging to the school-fund, was yet unadjusted, and the money withheld by the government. Efforts had been made to procure an ad- justment of this claim, while counter-efforts, it was believed, had been put forth by some parties whose duty it was, and whose object it should have been, to assist the State in obtain- ing her just dues. He stated, that from the report of the bank comptroller the whole number of banks in operation on the first day of January was thirty-two, with an aggregate capital of 81,983,000; of the number of banks, four were closing up their business ; that the stocks and specie on hand, aside from individual bonds to secure the redemption of circulating notes, amounts to $1,243,898.75, with a circulation of $1,153,534. He recommenced appropriations for the State-prison, and for the erection of a State lunatic asylum, taking occasion to criticise the action of the last legislature for the hasty manner in their repeal of the law then in force, under which the work had been commenced, without making provision for discharging the liabilities of the State already incurred. He recommended the appointment of a committee of the legislature to visit the humane and benevolent institutions of the State, and report on appropriations needed for their successful management. He referred to the importance of a railroad to the Pacific, and rec- ommended memorializing Congress on the subject. He recom- mended that no further legislation be had on the subject of a prohibitory liquor law, believing such a law unconstitutional, and that it could not be enforced, and a number of other impor- tant measures for their consideration.
On the 11th of January, 1856, the counsel for Mr. Bashford called upon the attorney-general, and requested him to file an information in the matter of a quo warranto against Mr. Bar- stow, who desired them to present their demand in writing, when he would take it under consideration. On the 15th, that
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officer filed an information in the Supreme Court, in the follow- ing words : On the 15th of January, William A. Barstow, hav- ing been inaugurated into office on the 7th of said month, and Coles Bashford having taken the oath of office the same day, the following information was filed : -
" STATE OF WISCONSIN, DANE CO., 83.
" William R. Smith, attorney-general of the State of Wisconsin, who sues for the people of the State in this behalf, comes into the Supreme Court of the said State, before the justices thereof, at the Capitol, in the village of Madison, in the county of Dane, in the said State, on the fifteenth day of January, A.D. 1856, and for the said people of the State of Wisconsin, at the relation of Coles Bashford of the city of Oshkosh, in said State of Wis- consiu, according to the form or the statute in such case made and provided, gives the said Court here to understand and be informed, that William A. Barstow, for the space of one day and upwards now last past, hath held, used, and exercised, and still doth hold, use, and exercise, the office of gov- ernor of the State of Wisconsin, without any legal election, appointment, warrant, or authority whatsoever therefor. And the said attorney-general further gives the Court here to understand and be informed, that at a gen- eral election for State officers of said State, held at the several election dis- tricts of said State, in the several counties thereof, on the sixth day of November, A.D. 1855, the said Coles Bashford was duly elected and chosen governor of the said State aforesaid ; and that the said Coles Bashford hath ever since been and still is rightfully entitled to hold, use, and exercise said office, which said office of governor of the State of Wisconsin, aforesaid, the said William A. Barstow during all the time aforesaid, and since the time of his election, hath usurped, intruded into, and unlawfully held and exercised, to wit, at Madison, in the county of Dane aforesaid ; and still doth usurp, intrude into, and unlawfully hold and exercise, to wit, at Madison, in the county of Dane, aforesaid, in contempt of the peo- ple of the State of Wisconsin, and to their great damage and prejudice. Whereupon said attorney-general prays the Court now here for due advice in the premises, and for due process of law against the said William A. Barstow, in this behalf to be made, to answer to the said people by which warrant he claims to hold, use, exercise, and enjoy the aforesaid office of governor of Wisconsin.
(Signed) "WM. R. SMITH, Attorney-General."
On the 17th, a summons was issued from the Supreme Court, to W. A. Barstow, to appear before said court on the fifth day of February ensuing, to answer unto the State and to the infor- mation of C. Bashford. On the 22d of the month, J. HI. Knowlton presented a motion on the part of Mr. Bashford :
CROSSCUP & WEST-SC.PHILA
MORGAN L. MARTIN.
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" that the information filed by the attorney-general be discon- tinued, and that the said Bashford be thereupon at liberty to file in this court, in lieu thereof, an information in the nature of a quo warranto on his own relation, whereof a copy was delivered to the said attorney-general by J. H. Knowlton, on behalf of said Bashford, on the twelfth day of January instant; and that upon and from the filing thereof, the said Bashford be at liberty to prosecute and control the same by himself, or his counsel, as he shall deem advisable, and for such other or further order as the court shall deem proper in the premises."
The motion was argued before the court by J. H. Knowlton, Jonathan E. Arnold, H. S. Orton, and E. G. Ryan ; and on the 24th of January, the decision of the court was announced, denying the motion.
On the second day of February, 1855, the respondent, by his attorneys, Arnold, Orton, and Carpenter, moved in the said Supreme Court to quash the summons issued therein, and to dismiss the same, and all proceedings therein, for the reason that the court has no jurisdiction in the premises. The motion was filed, and the argument set down for the 11th of February ; on which day the argument commenced, and was argued at great length by Messrs. Carpenter, Arnold, and Orton for the motion, and by Messrs. Randall, Howe, and Knowlton in oppo- sition. The motion was denied by the court.
On the 21st of February, the time appointed for pleading to the information, the counsel for the respondent presented a stipulation signed by the attorney-general, and all the counsel, for their respective parties. " The counsel for respondent exhib- ited in court a certificate of the board of canvassers, on file in the office of the secretary of state, of the canvass of votes returned to said Board as having been cast for governor at the last election, in and by which it appears that the said board of canvassers determined that William A. Barstow was elected governor for two years from the first Monday of January, A.D. 1856. Also a certificate of election made out by the secre- tary of State, and transmitted to said Barstow, which certifi- cates are in proper form, and the oath of office taken and sub- scribed by said Barstow on the seventh day of January, A.D.
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1856. And the respective counsels submit to the court, whether said court have any jurisdiction to inquire beyond said certifi- cates and the said canvass, as to the actual number of votes given at said election for said Barstow for governor." The counsel for the relater offered to prove that said certificates were made and issued through mistake and fraud, and also that Coles Bashford, at said election for said office of governor, did receive the greatest number of votes; all of which the said counsel offered to prove by competent evidence, and asked the decision of the court upon the question raised thereby ; viz., whether the court had any jurisdiction to go behind the state- ment of returns and certificates thereof, and the certificate of election issued to the respondent by the board of State canvass- ers.
The court declined to enter the stipulation and to pass upon the questions suggested, as they were not presented in legal form, as no issue of law or fact was made: hence the usual and regular forms of pleading would be required until an issue was formed ; and time was given the respondent, until Feb. 25, to file a plea to the information. On that day, the respondent by his counsel made a plea, to the effect that he ought not to be compelled to answer, because, by the laws of the State regulating the conducting general elections, and the canvass of votes thereat, applicable to the election stated in said information, it became the duty of the board of State can- vassers, upon a statement of the whole number of votes polled, and for whom given, for said office of governor, to determine what person was by the greatest number of votes duly elected to the said office, and make and subscribe in such statement a certificate of such determination, and deliver the same to the secretary of state, whose duty it was, under the law, to make out and transmit to the person declared to be elected to said office a certificate of his election ; and, further, that the secre- tary of state, state treasurer and attorney-general, did as such Board, on the 15th of December, 1855, perform the duties assigned them by the laws of the State, and determined that William A. Barstow was duly elected to the office of governor ; and that they did make and subscribe on such statement a cer- tificate of such determination.
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Annexed to the plea was a tabular statement of the votes polled for governor and the other State officers ; viz., for gov- ernor, 72,598 votes were polled ; of which number, William A. Barstow received 36,355, Coles Bashford received 36,198, scat- tering 45.
To this plea a demurrer was interposed, assigning causes ; and the attorney-general states and shows the following causes of demurrer to said plea : 1st, Because the matter, stated to the said plea, as therein pleaded, are not a legal answer in bar to the said information, and do not disclose a want of jurisdiction in this court further to proceed upon the said information ; 2d, Because the defendant having, by his motion to that effect, raised the question of the jurisdiction of this court, and sub- mitted the same to the adjudication of this court, and this court having thereupon by its order passed upon and adjudicated the question of its jurisdiction, the jurisdiction of this court to entertain, hear, and determine this cause, has become res adjudi- cata, and it is not competent for the defendant to plead the above plea to the jurisdiction ; and for the further reason that the said plea is not verified by affidavit, and is in other respects informal and insufficient.
On the 29th of February, the argument of the demurrer came on, and was argued by Messrs. Ryan, Knowlton, Orton, and Howe. Judge Whiton gave his decision, sustaining the demurrer, and the respondent was required to answer over ; in which decision Judge Smith concurred ; and the respondent was then ruled to plead over within four days.
On the day fixed by the rule for the respondent to plead, Mr. Carpenter addressed the court, to the effect, that, with Mr. Arnold and Mr. Orton, he appeared at the bar of the court at the commencement of these proceedings, as the counsel for Gov. Barstow, to object to the jurisdiction of the court; and have presented the objection in all the forms known to the law; and that the court had asserted and re-asserted its determination to proceed with the cause, and hold and exercise full and final jurisdiction over it; and that he and his associates can take no further steps without conceding the jurisdiction of the court, and have so informed the governor ; and in reply he has directed me to withdraw from the cause, and to present to the court a
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communication from him as governor of the State, which he then presented. Whereupon the counsel for the relater moved for judgment upon the default of the respondent.
The attorney-general desiring time to consider what should be done on the part of the people, the further hearing was post- poned until March 18, on which day he appeared, and presented to the court a paper, in which he protested against the action taken by the court in the name of the people of the State of Wisconsin, whom he represented; and, by virtue of his authority as attorney-general, thereby dismissed the information, and in- formed the court that he would no more prosecute the same in the name of the State ; and asked the court that the written dismissal should be filed among the records of this information. The counsel for Mr. Bashford protested against the right or power of the attorney-general to dismiss or discontinue the case to the prejudice of his personal rights; that whatever might be his power or discretion to dismiss the proceeding so far as the people were concerned, he should not be permitted to turn the relater out of court without his consent.
On the 19th of March, the court proceeded to the decision of the motion of the relater's counsel for judgment of ouster against the respondent, and in favor of the relater, as well as upon the motion of the attorney-general to dismiss the suit.
Judge Cole gave his views at length on the question, and the several steps taken of its progress from the commencement of the suit, and, closing his opinion, said, "I believe that the relater is now entitled to a judgment establishing his right; and though this is so, and notwithstanding the practice may be anomalous, I do not think it an undue caution, an unreason- able exercise of the discretion of the court (if we have such discretion ; and I think we have) to require of the relater some proof which will show, that, prima facie, he has a right to the office before we give final judgment."
Judge Smith gave his opinion also at length, and concurred with Judge Cole, that the relater should be required to show by proof at least a prima facie title.
On the 20th of March, Chief Justice Whiton said, "We in- timated that we would indicate the amount of proof necessary to establish the claim of the relater. We assume the statement
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of the board of canvassers to be true and correct until dis- proved."
Mr. Ryan, for the relater, intimated his readiness to produce his proofs ; but Attorney-General Smith addressed the court on the position he held at that juncture, and asked the opinion of the court.
The court then proceeded to hear testimony at length, touch- ing the character of the returns made to the State canvassers, showing, as they said, gross frauds and forgeries in such returns to the State Board, &c .; from all which it appeared, by the find- ing of the court, that Coles Bashford, the relater, had received a majority of the legal votes cast and returned in conformity to law.
Chief Justice Whiton, in conclusion, gave the opinion of the court, that there must be a judgment of ouster against the re- spondent, and also one in favor of the relater ; and judgment was rendered accordingly.
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CROSSCUP & WEST-SC. PHIL
HON. THOMAS B. TYLER.
CHAPTER XXXI.
THE BARSTOW-BASHFORD CONFLICT CONTINUED.
Events of 1856 - Decision of the Supreme Court- Resignation of Gov. Barstow -Pluck of Lieut .- Gov. McArthur-Gov. Bashford gains the Day, and is placed in Charge of the Executive Office - Legislation, &c.
ON the 21st of March, Gov. Barstow sent a message to the legislature, in which he announces his resignation of the execu- tive office, and giving his reasons for the same. He said he could not yield the independence of his department to judicial control without violating his known duty, and submitting to what he solemnly believed was an infraction of the constitution of the State; and that, from the time that the chief justice ad- ministered the oath of office to Mr. Bashford, to their announce- ment of their determination to decide who had received the greatest number of votes by an ex parte investigation, he had seen no indication that led him to hope for a just determination at their hands. With these views, and influenced by these and other considerations, he tenders the legislature his resignation as governor.
On the 23d of March, Lieut .- Gov. A. McArthur sent a mes- sage to the legislature, announcing that the resignation of the governor made it his duty to take the reins of government, and his determination to perform those duties in the best manner in his power.
On the 25th of March, Coles Bashford, accompanied by some friends, visited the executive chamber, then occupied by Gov. McArthur, when Mr. Bashford demanded of the latter posses- sion of the office, which was by him declined, until his rights had been passed upon by the Supreme Court; and inquired whether he would attempt to put him out by force, if he could 820
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not otherwise. He was informed by Bashford, that, while it would afford him pleasure to see him (McArthur) as one of the citizens of the State, he was the only governor; and that the people had invested him with certain rights, which he intended to exercise, without the employment of force if possible, but with force if necessary. To which McArthur replied, that this was virtually ejecting him by force, and so construed it. He should retire, protesting against Bashford's right; whereupon, preceded by his private secretary, he withdrew.
Gov. Bashford, upon taking possession of the office, sent a message to the legislature, in which he referred to the difficul- ties he experienced in obtaining his right to the office, and of the proceedings which had been taken in the courts by him to obtain such right, and transmitting an authenticated copy of the judgment of the Supreme Court, determining the case between himself and the late incumbent.
Lieut .- Gov. McArthur, on retiring from the executive cham- ber, returned to the senate, and resumed his duties as president of that body, which he had vacated on the resignation of Gov. Barstow. He stated to that body, on taking the chair, that in- asmuch as both branches of the legislature, and the subordinate branches of government (the secretary of state, treasurer, &c.), acknowledged Gov. Bashford, he had concluded that it was useless to hold out longer. And on the 27th of March, the as- sembly recognized Gov. Bashford, which that body had before declined to do, and had refused to receive the message which he had sent them on his taking possession.
Such is an account of the famous case of Bashford vs. Bar- stow, as far as it relates to the action of the Supreme Court and the legislature. It has been thought advisable to give at some length the points of the case as adjudicated by the court; and the judicial record has been faithfully examined, and the mate- rial facts noted. This case, as is well known, created much ex- citement throughout the State, and, in fact, throughout the United States. It must be remembered, also, at the date of these occurrences, that party feeling was very high. The Dem- ocratic party, which had the control of the political affairs of the State and Territory mostly from the first organization, was losing its power; and the Republican party, then but recently
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organized, was to take its place. Gov. Barstow came in for ? full share of the abuse and opprobrium of his political opponents ยท and nothing could be said of him or his administration by this class, except that every principle of honesty and integrity had been violated in the transaction of public affairs. The whole burden of the informalities and irregularities in reference to the recent State canvass was placed upon his shoulders, and there can be no question that he bore much more than he was justly entitled to.
It will be necessary now to note the acts of the legislature, a consideration of which has been deferred, owing to the case before the courts.
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The legislature continued in session until the thirty-first day of March, 1856. It passed a hundred and six general laws, and four hundred and fifty-six private and local laws. Of the former, there appears to be but few of general public interest ; and, of the latter, most of the acts were the amendment to charters, and charters to various railroad, plank road, and other incorporations. Of the general laws, the most important was an act providing for a revision of the laws then in force, and to prepare a code of practice and pleading for the government of civil actions in the State, which code was to conform somewhat to the code then in use in the State of New York ; and the governor was authorized to appoint three competent persons as revisers, who should prepare the same for publication, and who should report the same at the adjourned session of this legislature.
In pursuance of this act, Gov. Bashford appointed Timothy O. Howe, James R. Doolittle, and Samuel J. Todd to the work. These gentlemen on the 16th of May sent a communi- cation to the governor, declining the appointments ; the reasons given being that the time prescribed was inadequate to accom- plish such a revision as would meet with the views of the legis- lature, or the wants of the State ; in addition, they were by the act required to execute another task, which would render use- less a large portion of the former labor ; that the adoption of the New York code of procedure to the constitution of this State would render the revision and amendment of at least four very important titles, embracing some thirty-six chapters of the
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previous edition of our laws, quite unnecessary and useless. For these reasons, they declined to act under the appointments, and returned their commissions.
The legislature re-assembled, agreeably to adjournment, on the Sd of September, 1856. In the assembly, three hundred copies of an act entitled " An Act granting Public Lands to the State of Wisconsin to aid in the Construction of Railroads in the State," was ordered printed. Gov. Bashford sent a message to the legislature. He said he did not feel it his duty to call their attention to any new business, except some matters that had arisen since the adjournment. He referred to the death, in the month of May, of Dr. James G. Percival, State geologist, and said that his report of the survey of 1855 was nearly completed at the time of his decease, and was forwarded to the governor by Dr. Jenckes of Hazel Green. This manuscript was placed in the hands of I. A. Lapham, to be prepared for publication. He called attention to the grant of lands by Congress to the State to aid in the construction of a railroad from Madison or Columbus to St. Croix River, and to the west end of Lake Superior. The amount of land donated, he thought, would exceed two millions of acres ; and he recommended suitable legislation in connection therewith.
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