The advocate and Topeka tribune., 1893-03-01

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whoever hsbitually and ehectuslly exer-
Ciaes the duties and authority Of an
Office il o dc factO officer, and his acts are
valid as such. We invoke the principle
OF these cases here.
The Dunsmore house has been in the
efFeCtusl exercise Of every Legislative
power since it's organization. Granted
that the Douglass house is such do jUre,
vet until that ia established the acts OF
the other are valid and binding. The de
jurO character Of the Douglass house
cannot be established by decisions Of the
court for the reasons given. 1t La not
question for the courts. The range OF
investigation and decision permitted in
this collateral enquiry has been pointed
out by my associates, and as my time
has expired must forbear, not only
upoR that, but upon all other topics OF
argument in the case.
OPINION OF ASSOCIATE JUSTICE ALLEN.
The questions involved in this case are perhaps
Of greater importance than those which have
ever been involved in any controversy heretofore
occurring in this state. 1t involves the Consti-
tutionsl distribution of powers, rights and
duties by the fundamental law Of this state.
Among the several heads Of the great depart
ments Of government under our own cOnstitu-
ton, as OF other states we have three great
coordinate branches Of goVernment-the execu-
tive, legislative and judicial. Each in It's sphere
is supreme; each Is accountable to the people
and to the people alone for its action. Neither
can trench on the powers granted to the other;
neither can perform OF itself duties which are
entrusted by the constitution Of the state to the
other.
In what say in this case must premise that
/ speak merely from first impression. In my
Judgment no opportunity has been afforded to
tho members Of this court to fairly consider as a
court of last resort should consider the great
constitutional questions which are here pre-
sented for our consideration.
As stated by the chief justice, the judges ofthis
court spent nearly the entire day yesterday in
consultation; many authorities we're cited by the
very learned counsel on both sides, of which ex-
animation has been of necessity of the most
Cursory character. 1t must be apparent to any
lawyer that careful examination Of each case
By the court Of last resort has been impractical
BILE; and in what now say reserve the right
hereafter when shall file written opinion to
correct any error may make in the opinion
which now express.
ml = u k,, n Df Ahsa nj 20
who Ia restrained of his liberty by one G. G. Clev-
niger, who claims to be the sergeant-at-arms Of
the house Of representatives Of this state. ItwRs
conceded on the hearing of this case that IL he
were the sergeant t-atarms with warrant signed
by the speaker Of the house Of representatives,
that his detention ls legal. The petitioner asks
this court to discharge him from that restraint
because Of the want of power in the speaker or
the gentleman who as speaker issued warrant
to Issue 1t. Upon the inquiry so arising, it be-
comes the duty of this court to pass upon the
power Of Geo. L. Douglass to issue this warrant,
The court In collateral proceeding is now called
upon to decide question Of right between two
Contending bodies, each claiming to be the house
Of representatives Of this state. And right here
might say that a statement OF this question, in
connection with the admission made by counsel
in this case. shows the popularity of the posi-
tion this court takes when It sumes to deter.
mine for itself the question here presented.
It was said on the argument Of this case that
this court would not have power in an action
brought by one of these cOntending bodies
against the other to oust the wrongful body
from the possession Of the house of representa-
tives, and to place the lightful body in posses
sion Of that house. Then the power of this court
at this juncture is as an adviser It has no power
to go into this controversy and decide according
to the right of one matter and enforce its judg-
ment on the unlawful body. Controversies of