The Leavenworth weekly times., 1878-11-07
important Decision of the Supreme
COMHla


| Topeka CommO nwealth, 81
| The opinion Oi the court was delivered b,
| Horton, Z. J.
This is an attempt by proceedings in tn
nature of quo tCdTrGHtO To try the title of de
| iendant To his seat iii the House of Represen
tatlyS OF the Legislature OF Kansas. Tn
| facts, as they appear by petition and answer
are that the Defendant Is "A citizen of Rusl
county, and at the general election in IS1
was voted for aud received majority of al
tue votes cast IN that county ior Represe u Ia
tive from tnat county that at this election
less than % votes were cast, and at this tim
Rush county was not attached 10 any othe
county that upon the convening of the Leg
lslature, after due consideration, the Hous.
Of Representatives, by majority of IL
members thereof then assembled, declared
and dJuiged the defendant 10 be membe
and assigned him the one hundred AN,
twenty seventh Representative District
since which time lie has been and now is
member.
Inc attempt to determine the title of tn,
defendant AS "A member of the Legislature II
this manner, must necessarily fail, for til,
simple reason that We cannot, and ought moi
take jurisdiction Of the case. We are power
less 10 enforce any Judgment of oustel
again-t "A member of the Legislature, and II
would be mere idle ceremony ON our part tc
express any views of the right, power AND
authority of the defendant 10 act as a mem
Der OF the House. While the Constitution
has cot ieTred the general judicial power 81
the State upon the Courts ana officers speci.
fled, there are certain powers OF "A judicial
nature which, by the name Instrument, are
expressly conferred upon other bodies or OF.
ficers, and among them is the power u Judge
OF the elections, returns and qualifications oi
members of The Legislature. This power l.
exclusively vested in each house, anu cannot
by its own consent, or by Legislative action
be vested IN any otner tribunal or officer
This power Continues during the entire term
of Office. Sec. 5, Art. =, COnst. OF State. Stale
vs. Gilmore, ~ kas.
Within certain constitutional restrictions
The Executive, legislative and Judicial
powers OF the state are Independent and su-
preme, ana neither has the right To enter up
ON the exclusive domain of the other. We
should DE passing beyond The limits of our
own power to judge OF the election or Qualiri-
cations OF member OF the Legislature; and
as the constitution has expressly confided
this power To another body, We must leave II
where IT has been deposited by the funda-
mental law. If We are at liberty TO interfere
IN THIS case, or, II W la consent OF the Legis-
lature, We assume jurisdiction, we may re-
view all similar decisions OF that body, and
IN the end bring the legislative power OF the
State in conflict with the judiciary. The OBJ
Jectlons To such n course are ~ strong and OBJ
vious that all must acknowledge them. We
are not cited TO "A single case in the Federal
OF state Courts, where any member of Con-
gress, or any member of "A State II sgIsIature,
from the foundation of the Government to
the present time, has been ousted by quo Igar-
rdnt0. nd this TACT OF itself, after the exten-
slve investigation of this subject by the learn
ed Attorney General, Is almost conclusive
that none can he found, and that the exer-
else Of such power Is not only unwarranI Ied
but unknown. Cooley says: These powers,
II Is obviously proper, should rest with the
body immediately Interested, as essential to
enable II TO enter upon and proceed with its
legislative functions, without liability to- in
terruptlons or confusion. Const. Lin. 133.
Ii Is insisted upon the authority of Prouty
VS. stover, III, Kansas, rs, that this court has
expressed the night TO make inquiry into the
tact whether the district from VIII ch mem.
Der of the l.. gislature Is admitted, exists or
not, and II It's does not exist, the member
may be ousted by the courts. In this case, IL
was only decided that where the Legislature
was setting As an electoral body, In "A contest
concerning the validity OF election by
such body, tiIe courts were not precluded by
the acTiOn of the House in admitting men,
bers from lnquiring into the legality OF GER
tain Representative Districts and the rights
OF the members from THESE Districts TO vote
at such election Even this conclusion was
not satisfactory TO all the judges of the court
hearing that case, and Is not satisfactory TO
the writer OF tnis opinion. This decision,
however, is not in conflict with the view
IA ere stated viz: That we have no jurisdic-
ton in "A proceeding like this to oust u person
nom his seat as Representative, after he
has been declared and adj djusted to he a mem
Der OF the House by the power anc tribunal,
having the exclusive authority TO hear and
that question. OFerrall VS.. Coll
by, Ind, Minn., ls0; McCrary on Elections,
sec. 5l5 4; Hiss vs.. Bartlett, 81 Gray, 49s: Peo-
pie VS.. Mahoney, 18th Mich, 4sI.
This action VIII therefore be dismissed at
the costs Of the plaintiff.
All IN. Justices concurring.