The Kansas herald of freedom. [volume] (Wakarusa, Kan. Territory) 1854-1860, 1857-11-14
RepIr 70 tie Mandauus.

Reply 10 the Manda-uas.
We published three weeks ago the Nan
danaus of Judge CARO-, commanding the
Governor and Secretary to issue certificates
to the Rufians claiming to be elected by
the Oxford frauds, or to show cause why
not. The reply is a valuable, straight for
ward state paper. and honorable to those
who Issued il:
70 Ire Hon. S. o. Cqto, Jadgeof the 2d Judi
ciGi District Of the Territory IF kaHsqs::
The undersigned. ROBERT J WALKER
and FREDERICK P. STANTON. Secretary of
Kansas Territory, respectfully state
Thas they have been served with notice
of an order or rule, dated October %,
1857. from the Judge aforesaid, requiring
them 10 show cause why writ of man.
damUs should not be issued. upon the Pc
tition of Samuel J. Jones, William Hall,
Hiram Bledsoe, J. Fl. Danforth. John T.
Ector. l. S Boiling. A P Walker, VIM.
S Wells, J. G. Thompson. Thomas B.
Sykes and ". B. Winsor, claiming to
have been elected members Of the Legis-
lative Assembly Of Kansas, from the
counties of johnson and Douglas in said
Territory. to-wit: on the 5th and 9Th DAYS
of October, 1857, and that they ought to
be commissioned by Us, the first three to
the Council, and the others 70 the House
Of Representatives of the said Assembly,
, appointed by law 10 meet en- the LIST Mon
dsg ii January, j. d., 1888.
The undersigned consider it their duty
in the first place 20 protest against the
jurisdiction of the said Judge invoked in
his case, and to demur to this proceeding
for the following reasons:
FiT.ss, Because ny the Constitution and
laws of the United States and Of this Ter
ritOry, they are rot subject, in the dis
charge of the duties of their respective
Offices, to the control. supervision and di-
rcction Of the said Judge by way of a
/ writ of mandamuS
/ Seeoni, Because, under the laws of Con-
gress and of this Territory, it is made their
F.. dutv, and not of the said Judge. TO cast
up the votes given to the candidates for
the offices aforesaid, which IS to be done
/ by the Secretary in the presence of the
| Governor WheFeupon, having aScer-
tanned. from the returns, found by them
to be genuine, legal and valid under the
provisions Of law, the persons who have
received the highest number of votes, it is
made the duty at the Secretary to give
cert; fics.tes of election accordingly. The
official duty thus imposed upon the m
designed, involving mixed questions of
law and fact, requires By them the exer-
= =
not ministerial act in any sense what
ever
ThixL, over the exercise of the judg
ment of the undersigned III the premises.
. involving contreverte,. questions of law
and fact, the said Judge has no control by
way of mandamus or otherwise. and there
is DO law authorizing him 10 direct them
in the discharge of their said duties
FORTH, Because it has been well settled
by the Supreme Court of the United
States that no State Court, nor the Dis
trict OF Circuit Court of the United States,
Except that of the District of Columbia
. has power to issue {, MandamuS 10 Ju-
diciai officer; and as regards said court for
the District of Columbia, the power :
confined to the control Of purely minis
teTial acts, involving no controversy as TO
law or facts, and permitting no exercise of
Judgment Or discretion.
Fifth, Because no act of Congress, or of
this Territory, authorizes said Judge to
issue a mandamus to any Federal officer
in any case whatever, nor could any Terri
tOriai law confer such power.
Si1tb. Because it is well settled by the
Supreme Court OF the United States, and
by other judicial tribunals, that writ of
maHCiamus can be issued only where there
/ IS no other remedy, OF where there Is DO
authority vested elsewhere to control the
officer sought to be directed BIZ mandamns.
or TO correct his error Whereas, in this
case, If It be true as stated (which is de-
+ niei) that the parties named in this rule
or er,ieT. have been elected 20 the Offices
/ in said writ assigned to them respectively,
viz: tn the Council and to the House of
Representatives of the Legislative Assem-
/ hly of this Territory. these two bodies
being the judges In the last resort OF the
qualifications and election of their own
members, have each respectively the power
to correct any alleged errors made BY the
undersigned, and TO admit said persons to
he officers aforesaid. which remedy IS
complete, fbal and eifectual.
Sresth, Because, IN the rule or order
aforesaid. there is fatal misjoinder, both
las 70 officers and parties-the office Of
| Councilman being distinct and different
rom that of member Of said House of
Representatives, and the respective rights
Of each member of both said bodies. being
Separate and independent and Incapable
Of iointier in the same proceeding.
EgtA, Because no precedent can he
found IN this or any other country, where
q Judge has exercised the power Of de-
ciding upon the election OF members Of a
Legislative Assembly: and that the as
sumption and asuTpstion OF such authority,
would be subyersive of the rights and
liberties of the people. and would enable
the Judiciary to absorb and concentrate in
itself all powers, Legislative, executive,
and judicial.