Page 40

HISTORY OF DUNN COt NTY
department of the state.
After the decision of the canvassing board the scene in this political contest was
confined to the capital of the state. The action in the story henceforth was swift
and the shifting events connected with it created intense feeling and interest in the
spectators. On Jan. 7, 1856, Barstow was installed as governor and on the same
day Bashford appeared before the Supreme Court and took the official oath as
governor. On the eleventh and twelfth of that month Bashford applied to the
attorney general of the state, as relator, for leave to present to the Supreme Court a
writ to try the right of Barstow to the office into which he had been inducted and
left with him the form of application that he wished him to present to the court.
The attorney general refused to grant leave as requested but prepared an applica-
tion and writ of his own devising, which on the fifteenth he presented to the
court, and on which on the seventeenth a summons was issued requiring Barstow on
February 5 thereafter to answer thereto. The summons having been served and
return made on January 22, Bashford appeared by his attorneys and moved that
the information filed by the attorney general be discontinued and that he, Bashford,
be permitted to file an information in his own behalf. The motion was denied and
the attorney general allowed to prosecute the proceeding. No sooner was this done
than Barstow by his attorneys filed a motion to quash and dismiss the summons
issued at the request of the attorney general on the ground that the court had no
jurisdiction in the premises. The position taken by Barstow was that the executive
department of the government was a co-ordinate department and as such was in-
dependent of the judiciary department even to the extent that it had the right to
determine the matter of the election of its head-the governor. That the governor
was not an officer within the meaning of any constitutional or statutory provision
providing for an interference by the courts. This motion was denied and Barstow
ordered to plead. On February 21 a stipulation was presented to the court in
effect asking the court to pass upon the case on certain features thereof then pre-
sented. The court refused to consider the case as presented. Then on February
25, Barstow filed a plea which by its terms denied the jurisdiction of the court. To
this the attorney general demurred and the court sustained the demurrer, saving,
"We have already decided that we have jurisdiction of the case." Barstow was
required to answer over within four days. Whereupon on the day set for Barstow
to plead his attorneys came into court and announced that now they withdrew from
the case and handed to the court a communication from Governor Barstow which
stated his views and his position and closed with these words: "And I shall deem
it my imperative duty to repel with all of the force vested in this department, any
infringement upon the rights and powers which I exercise under the constitution.'
The attorneys for Bashford then moved the court for judgment on default of
Barstow to plead. The attorney general protested that this motion was made
without consultation with him and that he representing the people desired time in
which to consider the matter. Time was granted to March 18, at which time the
attorney general filed a statement to the effect that the rights of the people were
not being conserved by the prosecution of the case any further and asked to dismiss
the case. This statement was dated March 15 and the records of the court show
that the attorney general had filed with the clerk of the court on the tenth a state-
ment that he would not prosecute the case further and that he then and there
dismissed the same.
Later "the court proceeded to the decision" of both motions, the attorney
general's motion to dismiss and Bashford's motion for judgment. It was ruled by
the court that technically a judgment of ouster should be entered on the record but
considering the gravity of the matter involved wished notwithstanding the default
to have evidence presented as to the right of Bashford to a judgment. Testimony
was taken relative to the returns which had already been placed before the court by
Barstow on his plea which was called a plea to the jurisdiction of the court. Upon
the default and on the evidence required by the court, a judgment of ouster was
entered against Barstw.
Barstow and his partisans, having foreseen what would be the decision of the
40