Omaha daily bee., 1890-01-12

People were ready 10 believe ANYTHING,
and they had plenty OF chances OF exer-
cising their powers in this particular
line. Schemes for advancing the glory
and renown OF the state were promui-
gated by everyone, and we're thicker
than tho celebrated railroad lobby of
1887.
Finally Senator Tenant was arrested
by one of the sergeants-at-arms, named
Parker, who brought him before the
bar of the senateHa Senator Tenant
sued out a writ OF habeas corpus from
the supreme court, and the case came
on for hearing. The court was then
composed Of the Hon. o. p. Mason.
chief justice; Hon. George B. Lake and
Hon. Lorenzo Crounse, associate
justices. This course was taken mainly
to test the legality OF the body %stylinc
itself the legislature Of the state Of
Nebraska. The town was full OF people
from all parts of the state, and all
breathlessly watched every step of the
proceedings and hung tenaciously to
every utterauce of the court or the at
torneys engaged in the case.
AT the hearing of the case IN the
| supreme court, Senator Tenant was
represented by M. II. Sessions and
Judge Wakely, who contended that
Hascall had never entered upon the
duties OF the Office of governor and had
only attempted to do one executive act
and that was TO issue this proclamation.
| Judge Wakely said, "Hascall glided
into the executive Office with the stealth
of an Indian, clandestinely affixed the
seal to his prepared document, and van
ished like an apparition." 1t was con-
tended further that even il the
ing proclamation had been legally
issued that it could and had been legally
revoked.
Brown, Seth Robinson and Isaac Has
call, who represented the defendant,
have not been preserved.
The majority of the court sustained
the writ and released Tenant from
custody which, OF curse, acted as q dis
solution of the Legislative body, and
there was a general all around scramble
to make the one train in order to get
home. Those who saw this wildyretreat
can never forget it, and to those who
did not see it words fail to give any idea
of its confusion.
Many prominent citizens were in =
dicted and bad feeling was engendered
that tooh months to eradicate. Finally,
however, the passions cooled off and all
indictments were withdrawn.
In delivering the opinion of the court
Justice Cronuse said: "Whether the first
proclamation was legally issued, and of any
validity, the court viii not mt this time stop
10 inquire. The governor Is constituted the
sole judge of the necessity for calling the
Legislature, and he must also be tine sole
Judge as TO when such necessity has passed
away. The several proclamations arc but
the expressions or announcements of the
different conditions of affairs at those differ
ent times and are binding on the legislature.
They may be treated as issued by one and
the same person. The court is dealing with
the office of governor. which is continuous
rather than the Individual
Justice Lake also delivered an opinion.
agreeing with the conclusions arrived at by
Justice Crounse, and Saying: 81 am clearly
of the opinion that the legislature is not now
in legal session and has no authority to COM
pei the attendance of absent members: that
all and every act donesat this time as a leg
lslatlve body is without the shadow of au-
thority and absolutely void, and that, there
fore, the relator should be released from
CUSTODY
Chief Justice Mason at that time was
in the helghth and power of "a vigorous
manhood. He had a magnificent mead
of raven black hair which persistently
refused to lie down, but stood out bushy
like that of an Albino. When he was
visibly affected, and had something to
say that came from his heart, he rested
his chin on his breast, shook his
shaggy name, and reared out his edicts
like the lion that he was. There is no
denying that on this occasion the chief
justice was deeply affected by events
that were passing into history, or hat
he spoke from his heart when he vigor-
ously dissented from the opinion of the
majority of the court. He began by
saying:
1.-THE idea of iudicially declaring a CO.
ordinate department Of the government, an
illegal body, and any acts which it may do,
null and void, is so novel and startling as to
arrest attention and demand a careful
examination. The suggestion that the
judiciary can declare the legislature Illegally
assembled, and n body without authority,
rests upon the assumed right of this depart
ment to pass upon the legal existence of q CO.
ordinate branch of the government, and if
true IS dangerous to civil liberty. If this
can be done, and the judicial power of the
state declare tho legislative department lille
gal and proceed to destroy and annihilate it,
the next day upon some pretext the executive
department may be made to share the same
fate, and thus the judicial power will be made
to sap and undermine the constitution, and
destroy the liberties of the people. The three
departments of state are not merely equal,
they are exclusive in respect to to the duties
assigned to each. y In the case at
bar, II is sufficient that the legislature had
met In response to'a call Of n de facto gov
ernor and had organized as the legislature.
ana was acting as such, and that Tenant,
the relator, was Il member of the senate, and
was adiudged by the senate as guilty of con-
tempt. That senate could alone deal with
him for such contempt. To sustain this writ
and discharge the applicant would be a direct
attack upon the independence of the legisla-
tGre, and a usurpation of power subversive
of the constitution. a " y The decision
of the majority of the court cuts
loose from the safe moorings of the law and
time-honored custom, and without compass,
chart, mast or rudder to guide its course,
enters upon a plratlcal and unwarranted
cruise against the Legislative department Of
this %state.n
In speaking of the proclamation ISSUED by
Hascall, Chief Justice Mason said
"What Id IL that convenes the legislaturel
1t is the proclamation which is vitalized by
the potent energies of the law the moment it
is issued. 1t takes effect at once. 1t is a
law unto the members and they must yield
obedience to its authority. The executive
power cannot revoke laws. whether operat-
ing upon all the people. the members of the
legislature or the judiciary
Again tine chief justice continued:
"Who ought 10 bear the loss of time and
expense incurred by tho, members who at
tended this extra sessianl The constitution
gave the governor the power to convene the
legislature. He did so. They obeyed his