Washington sentinel. [volume] (City of Washington [D.C.]) 1853-1856, 1855-09-08
KANSAS LEGIsLATuRE.
report OF the Committee on Credentials.

dentials Of persons claiming seats in the Council
OF the Legislative Assembly for the Territory
OF Kansas, in addition TO the report heretofore
presented by them, beg leave to submit the fol-
lowing as the result of their Investigations The
act OF Congress providing for the organization of
Kansas Territory, passed on the Goth day of
May, 1854, 22d section provides that the legis-
lative power and authority of said Territory,
shall be vested in Governor and Legislative
Assembly--the Legislative Assembly TO consist
Of Council and House of Representatives; the
Council to consist of thirteen members, having
the qualifications of voters. The members of
both branches shall reside in and be inha btants
OF the district or county or counties for which
they are elected; shall be free white male inha-
btants, above the age Of twenty-one years; shall
be actual residents of said Territory, and citi-
zens of the United States, those who shall
have declared their intention to become such.
The same law, and section, also provides that the
first election shall be held at such time and
places, and be conducted in such manner, both
as to the persons who shall superintend such
elections and the returns thereof as the Governor
shall appoint and direct. The persons having
the highest number of legal votes, shall be de-
clared by the Governor duly elected members:
Prorided, That in case two more persons
voted for shall have equal number Of votes,
and in case vacancy shall otherwise occur in
either branch of the Legislative Assembly, the
Governor shall order new election.
BY proclamation, dated on the Sth day of
March, 1855, A. III. Reeder, Gov. of Kansas Ter
rtory, directed that election be held in the said
Territory on Friday, the 30th day of March, AID.
1855, for thirteen members of the Council, and
twenty-six members Of the House of Representa-
tives, defined the boundary Of the several dis
tricts, specified the places of voting, appointed
Judges, and prescribed the manner of
Quoting said election and the returns thereof. In
conformity with this proclamation, elections
were held throughout the Territory and returns
made to the Governor, who chose to regard the
elections held in the second and third districts for
councilman as illegal and void, and issued
second proclamation ordering elections to be
again held in those districts on the Odd day of
May last, and granted to J. A. Wakefield and
Jesse Wood certificates of election, by virtue and
in consequence Of which they now hold seats as
members of this body.
Andrew Mcdonald by communication adj
dressed to the President of the Council, dated
July I'd, 1855, contests the right of j. A. Wake
field to seat in this body, because, as he says, at
the election held in the second council district,
the Both day Of March, 1885, he received a ma
jority of the legal votes cast for councilman
Hiram J. Stricken contests the right of jesse
Wood to a seat in this body, because, as he says,
he received majority of the legal votes cast for
councilman in the third district, on the 30th day
Of March, 1855.
Your committee, after full examination of all
the facts submitted to them in these cases, and
also of the law of Congress regulating and govern
ing elections in Kansas Territory, and the usages
and principles that have governed analogous
cases, have come to the conclusion that the pres
ent occupants of the seats, namely, J. A. Wake
held, from the second council district, and Jesse
Wood, from the third council district, are not le-
gally entitled thereto, but hold the same in viola
ton OF law, for the following reasons: From the
character Of the general laws granting authority
to and defining the powers of the Executive, it
cannot be presumed that any authority or power
is bestowed or intended to be bestowed upon him,
except such is declared by direct law, and
specially set forth.
In arriving at his authority, we should look to
the statute and it patent on the face of the
enactment, and not be left TO deduce it by impli-
cation inference. From the fact that his duties
are clearly defined and pointed out, it would fol-
low a sequence that his authority should be
just as clear and explicit. This may truly be said
OF all merely administrative executive officers.
The principle quite different in regard to legis-
lative functionares. Coming they do from the
people, and clothed with far more discretionary
power, their authority should be construed with
far more liberalty. In an Issue, therefore, whore
positive law is silent, presumption at least
should at once arise in their favor. But we are
not left to such process of reasoning to arrive at
this conclusion, since by general law the power
OF the one is special and the other general. We
hold IT as true that the Executive can have no
power not granted in terms, and that the LegsIa-
ture can exercise any not prohibited. So if the
of the two had the power TO act in given case,
the legislative department would with all pro-
priety claim il.
The source of the entire authority Of the Gov
ernor of this Territory in the matter under con
sideration, is specially limited TO the odd section
OF the Kansas act, which we have above quoted
by reference to that act, il will be seen that il
devolved upon him to declare the places at which,
and the time when the first election for members
OF the Legislative Assembly should be held, and
that said election should be conducted in such
manner, both as to persons who shall superin-
tend such election and the returns thereof, as the
Governor shall direct. This is nothing more than
an authority TO appoint Judges of the election,
and TO direct the manner in which the returns
shall be made. Ii cannot mean an authority to
direct in what way the judges shall discharge
their respective duties for it should be presumed
that they know the law, aud are duly impressed
with the duties they are TO perform. We hold
that judge of election, Just as any other
judge, has discretionary power in all things
where the law is silent, and that when that dis
erection IS once exercised, the result thereof be-
comes final, unless his action is subject to re-
vision by another and higher tribunal When,
however, the law has pointed out the manner
in which he shall discharge his duties, its
direction must be Observed but when il has
failed to do so, il is left 20 him TO act accord
ing to the dictates of his own judgment, free
from the direction or dictation Of others Nor
can an omission Of the law-making power be
supplied from any source. Tho true guide, then,
for the judges of the election Of March 30th, was
their own good judgment
The various States Of the Union have enacted
laws with much care, pointing out, in n special
manner, the duty Of judges Of elections, and we
feel no hesitation in saying, that il question
should arise in a matter relating TO tho manner
Of an election, and not regulated by the statute,
their action would be final and conclusive. We,
therefore, hold that in the Territory whose or
yanization is under the jurisdiction of Congress,
The Judges have the same authority, when no
law declaring the manner in which Judges shall
discharge their offices, has been provided by that
body. The authority given the Governor to d.
rect the manner in which the returns shall be
made, simply means that he shall appoint the re-
turning officer, name tho day the returns shall be
'ent in, and regulate all things merely relating
o the manner thereof. A grant Of power to do
his does not carry with il the right to do things
@hich, from their very nature, should be spe-
sially given.
II results then, that it is the duty Of the Judges
o make returns Of the votes received by them 10
he Governor. This done, the act provides that
the persons having the highest number Of votes