Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1893-03-04


body.
"But it is claimed that the Douglas.
| House has been destroyed, or ousted, BY
| the recognition of the Dunsmore House
! from the governor and the Senate. The
governor did not recognize the Duns
| more House until January IL, the third
| day of the session, and gather from the
| journals that the Senate did not form.
ally recognize the Dunsmore House until
the 14th day of January, the fifth day
| of the session.
"Now, the conclusion have reach ed
| is that, taking the journals before US,
| the House that the governor recognized
consisted Of fifty-eight members-not q
constitutional quorum, not q constitu-
tional majority; the House that the Sen
ate recognized consisted Of fifty eight
members; not constitutional quorum;
not a constitutional majority.
"But again: It is claimed that
the Dunsmore House has be-
come de facto House by
the recognition from the Senate,
the governor. the executive officers. and
others. -
But here
Is q valid ana constitution
al House attempting to carry on
business Every day OF it's session, SO
far as It's journals show, the Douglass
House challenged the rightfulness OF the
Dunsmore House; it challenged the
action OF the governor; it challenged the
action of the state Senate, and the very
first act Of the Senate and the Duns-
more House was seized upon by a court
of this state and throttled out it's very
existence. Although that order was
made by the district court OF Shawnee
county, until it is reversed or vacated
by proper proceedings in this
court, it is as valid and bind
ing between the parties as the
order of the supreme court OF the state.
The
Dunsmore House never had but fifty
eight constitutional members. It never
had the legal power to create any more
mem bers, It therefore never had the
legal power to enlarge its existence. So
long as there is a legal and constitu-
tional House Of Representatives carrying
on business in the identical hall
whore it is usual and customary for it's
business to be transacted, it seems to me
Representatives has not arisen TO that
dignity or to that acqulescence. to be
declared by this court as entitled, if not
legal organization, to be de facto
organization.
"From all that We have said our con-
cluslon is, and must imperatively be,
that the House known as the Douglass
House Is the legal and constitutional
House OF Representatives Of the state Of
Kansas. The questions involved in
this case are above partisan
ship. They concern tho public; they
concern the state, and party anu parti-
Ianship should be wholly dlsregarded
by each and by all. The gravity
IT the subject we fully understand.
Certainly no constitutional or
public question can be more solemn
than that arising from the present con-
tention respecting the organ ization o.
the House of Representatives. While /
deplore the occasion which compels US
10 hear and determine this case, feel
by the imperative command
Of the constitution, and by my own con-
scencious discharge OF public duty, to
declare these views irrespective Of policy
and irrespective Of expediency. Enter
tanning the views do, cannot consent
10 rob the highest judicial tribunal Of
this state OF its constitutional rights,
nor can I consent to exa!t the executive
If the state or the Senate above the de-
mands Of justice, Of safety or Of the well
fare of the people.
I'm conclusion, speaking for myself
alone, and not for any others, cannot
abnegate the power intrustsd to me by
the people OF the state, and would re-
turn this day to them my commission
unsullied by any dereliction OF duty,
rather than to abase this court and to
pay obeisance at the shrine OF unwar-
ranted power or unconstitutional author
ity."
The chief justice then stated that Mr..
Justice Johnston fully concurred in
what he said, but that Mr.. Justice
Allen dissented.
JUSTICE ALLEN DIssENTs.
In my judgment no oppor-
tunity has been afforded to this court to
fairly consider, as court Of last resort
should consider, the great constitutional
questions which are presented for our
the examination which we have been |
able to make since the hearing in this |
case Of the authorities cited by the very |
learned and able counsel on both sides |
has been Of the most cursory character.
Inow say, reserve the right hereafter when |
I shall prepare and file an opinion IN
this case, to correct any error that l |
may make in the opinion now expressed. |
The court IN q |
,ollateraI proceeding is now called on to |
decide question Of right between two |
,ontending bodies, each claiming to be |
House Of Representatives OF this state.
1t was conceded on the argument |
IF this case that this court |
not have the power in an action
DrSught directly by one OF these con-
tending bodies against the other to de- !
,de and determine this controversy |
and to GUST the wrongful body from the |
possession of the Office of the |
House of Representatives, and to place
the rightful body in possession Of the |
,ffice. Then the power OF this |
court at this juncturs is but advisory; !
t then has no power to 60 into the full |
merits OF this controversy and to decide |
t according to tie very right OF the
natter.
Section three of article one of the constiT,, |