Page:The Green Bag (1889–1914), Volume 15.pdf/559

dence of the State was, practically, in a cial control, and whether, and to what ex wholly undeveloped condition. Scarcely a tent, his official action may be controlled or dozen reports had been issued as a result of directed by judicial power, is discussed in the the deliberations of the court of last resort following cogent language: when Mr. Howe became a Senator. It is not "Upon the question, as to what causes, to surprising, therefore, to learn that Judge which the Governor may be a party, the Howe was not identified with much impor court may have jurisdiction of, I will say no tant litigation during the years preceding his more than to indicate the rule by which I occupancy of a seat in the Congress. Never conceive jurisdiction is to be determined in theless, one of his associates of the local any given case, and it is this: If the law, bar at Green Bay, which he always made his gives to an individual a right which is prop Wisconsin home, has said of him during this erly the subject of an action, and gives it period: "He prepared his cases well, and was absolutely, whether against him as Governor, skilful in eliciting the facts of his case, and or as an individual, jurisdiction then attaches in extracting the truth from a reluctant or in the judicial power to determine and en refractory witness; he was effective, and force that right. But if the right is contin often impressive, in his speeches, both before gent, and is made to depend upon the dis the court and the jury. I realize how color cretion of the executive, in such a case, until less and imperfect this statement must ap that discretion be exercised, no right can pear to be. The incommunicable impression vest; and if, in the exercise of that discre of the man behind the lawyer, can alone ren tion, the Governor deny the right, then all claim of right is gone. His determination is der it characteristic." final upon the question of right, as much as The Supreme Court of Wisconsin was not is that of a court of competent jurisdiction." separately organized until 1853. From the Judge Howe was one of the attorneys for date of his election, therefore, as a judge of the relator in the case of the Attorney-Gen one of the Circuit Courts, from January, eral ex rcl. Bash ford v. Barstow, reported in 1851, Judge Howe, by reason of such judi the 4 Wisconsin Reports, 567. This was an cial relation, became an ex-ofUcio justice of information in the nature of a quo warranto, the Supreme Court of the State. He occu filed originally in the Supreme Court by the pied a place on the bench until it became Attorney-General. The relator claimed to separately organized. Cases in which Judge have been elected Governor of Wisconsin. Howe participated as one of the judges of The respondent had received the certificate this court are reported in 3 Pinney's Wiscon of election and had been inaugurated into sin Reports. the office. The purpose of the action was Judge Howe delivered the majority opin to oust the respondent and declare the rela ion of the Supreme Court in the case of the tor elected to the office. The legal questions State ex rcl. Resley r. Farwell, Governor, 3 presented were new and interesting in the . Pinney's Wis., 393. It was an application for then new State of Wisconsin, and able coun writs of peremptory mandamus against the Governor. The power vested in the Su-, sel were employed on both sides. A very full report of Mr. Howe's brief appenrs in preme Court by the Constitution, particu the report of the case. A few extracts are larly, with reference to the right to issumade from it: writs of habeas corpus, mandamus, injunction, "The real CPSC which is presetted to this quo tvarranto and certiorari, is there very court is. who is entitled to discharge the fully considered. The question, whether the duties of Governor of this State? . . . Governor, in his person, is exempt from judi