The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-11-14
IMPORTANT FROM KANSAS.
Governor Walkers Answer to the Mandamus
of Judge Cato.
TO THE HON. s. g. CATO, JUDGE or THE SECOND JU
prcIAL DISTRICT OF THE TERRITORY OF KANSAS.

TO THE HON. s. q. CATO, JUDGE or THE SECOND JU
pIcIAL DISTRICT OF THE TERRITORY OF KANSAS.
The undersigned Robert J. Walker Governor and Ere
derrick r. Stanton Secretary of Kansas Territory, respect
fully state
rule dated oct %, 1857 from the Judge aforesaid,
curing them to show cause why writ OF mandamus
should not be issued upon the petition OF Samuel Jones'
William Hall Hiram Bledsoe, j H. banforth, John 7
kcor, L. :. Boiling A. T. Walker, William : Wells, j. G.
Thompson, 1hos. sykes and W. B. Wnsor, claiming TO
have been elected members of the Legislative Assembly
Of Kansas, from the counties of johnson and Douglas in
said Territory wit the 5th and 9th days OF October
1857 and that they ought 10 be commissioned by the
three the Cou1cil and the others the House of
Representatives Of the said Assembly appointed by law
TO meet on the first Monday in nuary, A. d.. 1858
The undersigned consider their duty the FIRST place
10 protest against the jurisdiction of the said Judge in
vosed In this case and TO deur 70 this proceeding for the
FIRST Because by the constitution and laws Of the Unit
cd States and OF hs Territory they not subject in the
discharge ol the duties OF their respective Offices the
control supervision and direction Of the said Judge by
way Of the writ OF mandamus.
Second Because the laws Congress and of this
Territory made their duty and not Of the said Judge
10 cast the given to the candidates for the offices
aforesaid which to be done by the Secretary, the
presence the Governor. Whereupon having ascer.
tanned from the returns found by them be genuine
legal and valid under the provisions OF law, the persons
who have received the highest number votes 1t made
the duty OF the Secretary TO give certificates Of election
accordingly. The official cuy thus imposed upon the
dersigned involving mixed questions of law aud Gact,
qures by them the exercise Of judgment and discretion
and Is not a ministerial IN any whatever.
Third over the exercise OF the judgment OF the under
signed IN the premises involving controversies questions
Of law and sct the said Judge has control by OF
mspdamus Otherwise and there u law authorizing
him to direct them in the discharge Of their said duties
Fourth. Because Il has been well settled by the Su-
prene Court OF the United that Court nor
the District Circuit Court Of the United States Except
iha, OF the District of Columbia has power Issue
inandamus TO judicial officer and A. regards said court
for the District &C Columbia the power confined 10 the
control OF purely ministerial acts involving controversy
10 law Or facts and permitting mo exercise OF udg aicnt
or discretion.
Fifth Because no act Of Congress Of this Territory
officer IN any whatsoever, nor could any Territorial
law confer such power
sixth Because II is well settled by the Supreme Court
Of the United states and by other judicial tribunals that
mandamus can be issued only where there "a
other remedy where there Is authority vested else
where 10 control the Veer sought 10 be directed by
damus TO correct las Whereas in this case II
he stated (which rs dcned), that the parties
named in this rule OF order been elected the cfces
IN said writ assigned 10 them respectively viz, 20 the
Council and u the House 81 Representatives of the Legs
latve Assembly o this Territory, thee. two bodies being
the Judges the last OF the qualifications and cleo
ton Of their members have each respectively tho
power 70 any alleged errors made by the under
egned and To admit said persons To the Offices aforesaid,
which remedy is complete, final and efcctuai.
seventh Because, IN the rule or order Aforesaid. there
i fatal msoinder, both ss 10 Offices and partes-the
Office cf Councilman being distinct and different from that
al member Of said House OF Representatives. and the
respective rights OF each member both SAID bodies,
eeg separate aud independent aud incapable OF joinder
Fgh,h Because 10 preceden, can he found In this or
any other county, where Judge has exercised the
gislsve Assembly and hat the assumption AMI usurpa-
patton Of such authority would he snbversive Of the
rights and liberties of the tespie and would enable the
Judiciary TO absorb and concentrate in Itself all powers
legislative, executive and judicial.
Ninth. Bccause the act Of giving certificates Of eec
ton b. the named Ia the order aforesaid would
directly affect important rights VI other persons, claiming
believe justly 10 have been duly elected 10 the ssd
Offices which said persons not made parties % this
proceeding. and have had notice thereof.
Tenth because prior 10 the date of The rule order
aforesaid Of the d October 1857, the undersigned had
Nf4Nw fts 0fa tsftwf M fhn ri ofn
said, held at the time aforesaid, for the coun.
ties Of Douglas and johnson aforesaid, and find
ing ly the genuine valid and legal returns thereof that
lyman Alien, csrm ". Babcock and Edwin q Nah had
the majority the Council and John Spcer George W.
noazlcr, Oliver Barbour, Hiram ~ppeman, Andrew j.
Sril george W Zinn GIDEON seymour ant John ocshar'
tho majority q votes members Of the House Of Repre-
sentau,es 81 the Legislative Assembly aforesaid certa
election were before the date OF said
der issued due form n law the said persons respec
lively for the Offices Aforesaid which cerhcstes
IN their t-.sessou and beyond the power Of the under
signed n recall y therefore impossible Tor the under
sgned 70 suo certificates to the other parties named IN
| the said rule order
that the honorable Judge will decline TO the ju
rsdicon claimed IN this they feel their duty "
ment IN 'hs case dtrecng them 10 issue certificates q
election as usurpaton OF power, aud therefore nul
ty, which under bor oath o. Office would be their ,sty
\ TO disregard.
/ Yet with view b. prevent dangerous conflict, be
tween tie judicial and executive power and "a enable the
Supreme Court ~ this Territory or final resort thC
OF the Judge this ac judgment should be rendered
against them this rule order they ny spra tbs
supreme Curt ~ the Territory, having been decided Wy
he Supreme Court ~ The United states that Judgment
mandamus presents case ia which an appeal lies from
Inferior 10 the proper appellate tribunal
The undersigned beg leave further state, that IL The
said Judge should command them to issue certificates d
election Aforesaid. and should deem u bis duty u
subject them 10 imprisonment for di-obcyng
hi order they would be compelled 10 do BY
their conviction u IT, usurpstOn and utter nuty, and
because the certificates before the dale Of said rule
prdn nd HntD u her :
their desire 80 maintain the peace Of this Territory that
they will submit individually 20 such mfssonmen' and
u any tumun should be aprrehended hy ssid Judge, ia
consequence 81 the rnonsruus frauds which have been
p.rpetraied upon the elective franchise in the recent
election the Governor viii direct the regular troops of
the Untd states row here and subject his order, 70
act az psse conit1ts IN aid q the sheriff or marshal
who may b. directed BY said Judge 70 execute sad man.
date al nprisfnrnent r. y WALKER
Governor Of Kansas perritory.
TRsp. T.. STANTON, Secretary.
Naval Intelligence.