Page:State v. Johnson.pdf/7

26 Ark.]  1870.]   In Maine, (6 Shepley, 548,) the question was presented to the Supreme Court, whether the Legislature could make an apportionment, at a time other than that named in the Constitution, and the court laid down the law to be, that "where the Constitution designates in express and explicit terms, the precise time when a fundamental act shall be done, and is utterly silent as to the performance at any other time, it cannot be done at any other time." In the case now before us the schedule declares that the qualification shall take place within fifteen days after notice. The Tennessee courts say, that the schedule, for the purposes, is as binding as any other portion of the Constitution. The schedule is silent as to qualification, at any other time after the fifteen days, and in such case, the Supreme Court of Maine say, that where the Constitution is silent as to the performance, at any other time, it cannot be done at any other time. Believinz this to be the better nile of construction, as applicable to a case of this kind, we are clearly of opinion that the demurrer should be overruled.

On the 17th of February, 1871, the respondent filed certain affidavits in support of the response to the rule to show cause. The attorney general then informed the court, that he desired to, and could successfully, controvert the facts set forth in the affidavits, and in order that he might have that opportunity, it was ordered that the writ of quo warranto issue, as the only question about which there is any controversy is, whether the Lieutenant-Governor qualified within fifteen days after having been duly notified of his election.

To the writ of quo warranto, a response was filed, setting up really two pleas:

First, That the Congress of the United States, by an act, passed March 2, 1867, entitled "An act to provide for the more efficient government of the rebel States," had declared that, "no legal State government existed in the State of Arkansas;" and that under the provisions of said act, and acts supplemental thereto, it was the object and intent of said acts to enable the people of Arkansas to form a State government,