Grand Rapids herald. [volume] (Grand Rapids, Mich.) 1892-1959, 1893-04-15
TOM IS LAID OUT
Tho Supreme Court O.sm,ssss
ms PETITION
IN sARkW0RTH VS.. TAIeUM
rhs Cours' Holds That the Proper
Parsies Are Noe Bssbse the Court-
4 Psusty Neaa les-i,owa-

court handed DOWN an opinion In The
mandamus cases VI Barkwosth Va Ia
tsuni and Turnbuli vs. The Lieutenant
Governor The opinion v - follows BY
McGrath. J-fhes- cAuses may DC
considered together. The relasor IN the
rrst case Is = me0ber of the senate
respondent. Giddings. Is li-utearnt gov
ernor and ex ofsicio president Of the sen
ate. and respondent. Award. ~ the sec
rotary OF the senate.
The relator in the other case Is
member Of the house q representatives.
respondent Ta;eum 10 also a member of
the house and speaker thereof. ami
respondent Miller IL clerk Of that body.
senator Turnbuil. On the 18th day 81
February. lc.ei. asked leave 10 present
protest against certain proceedings
IL tho s-naie. and 10 have the
same spread on the journal, but
the president IL the senate. respondent
Giddings. ruled that the protest offered
vas out 81 order. as rejecting on the
honor II tho senate. The decision Of
the president was appealed from. on the
ground that the ruling was CONTRARY 10
tho constitutional guarantee Upon
sot. taken the ruling OF the president
vas sustained.
Ga February 2. ls9i. during . session
10 the house II representatives. the re
lstor in the second case. Representative
Barkxorth. presented his protest against
the passage 81 certain resolution. but
the speaker. Relatr Tateum. declared
the protest 20 he out II order. as reflect
ing on the house. and refused 10 receive
Or print the same in the Journal. Mr..
Barsworth appealed from the de
clsion - the speaker, on the
ground that the ruling was "con
trary 10 the constitutional guaran
tee. Upon vote had by
yeas and nays the decision Of
the speaker was sustained. On the
third day OF March following Mr.. Bark
worth re offered his protest, but the
speaker repeated his railing and the
same Was not received and thereupon
Mr.. Barkworth requested Respondent
Miller 10 receive said protest and print
the same as a part II the journal, but
said Miller, relying upon the decision II
the said speaker 81 the house. refused
and neglected Ia offer the protest"
Orders to show cause were issued. and
respondents appear without answer and
move 10 dismiss the proceedings
The motion 10 dismiss must be granted.
DrCtlou w III dliltie pt TIC tDEstltu-
ton provides that each house shall
keep a journal OF lis proceedings. and
publish the same. except such parts a.
may require secrecy. The yeas
and nays II the members Of
either house. on any question.
shall BE- entered on the journal a.
the request % one fifth Of the members
I elected Any member II either house
may dissent from and protest against
! any act. proceeding or resolution which
he NAV deem injurious to any person or
the pabhc. aud have the reason OK his
dissent entered on the Journal"
I IL will TO observed that the constitu-
ton imposes the duty 81 keeping the
journal upon the house and not upon
/ president or speaker, secretary or clerk.
I In both cases an appeal Ia the house
vas taken. and each house adopted the
ruling Il their representative officers.
refusing 10 receive the protest or 70
I print IL in the journal. IL Is true that
the rules make 1t the duty Of the secre-
tary and the clerk 20 keep the
journal. but this ~ not a delega-
tion Il the control cf the journal to
either officer. The rules also provide
for the reading IL each days Journal
4
! rections are made at the instance and
direction II the body 10 which the jour
nal il read The duty imposed b. the
rules ~ the mere clerical duty II placing
upon the journal such matter as each
house may determine shall be placed
thereupon. The secretary and clerk are
therefore the mere creatures Of the re
sIective bodies.
-, 80. h. -
reach something which il IA the posses
sion 81 the agent who defends his pos.
session by setting up title in his prin.
cipal. nor ~ il proceeding tn restrain
an agent from doing al unlawful act
under an order frorn his principal. AMI
Nho sets up The immunity Il has supe-
rior. IL - not The existence in another
~ mere interest that IL here pleaded
In Is Affirmative action that L. snugh,
% be enforced and IT Is want cr power ~
comply With Or give effect 20 an order 70
made. that il passed II il sought "a
compel persons whose duties are purely
clerical Ia perform duties which are im
POSED npon their Supporters. We are
asked 20 compel tho secretary - the
senate and clerk - IN. house 20 insert
In the journals matter which the senate
and house have not only refused 70 al
low Ia To- printed therein but have r.
fuse,l o. consider and receive.
The writ - mandamus neither creates
nor confers authority upon tho officer q
who ~ ~ directed. 1t merely directs
the exercise - existing powers. II
should 10 directed IN those who are :.
execute II cr ShOee duty Il "a 10 DO .he
thing required II must also clearly 40.
pear that the person 20 whom directed
hss the absolute power - execute H.
otherwise IL will not be issued
Moses on Mand. ipp. IGzh on ~
Legal Rem. =. y. Merrill On Nand. sec
lions -. -, tsl. and CARS 81 "a.
The duty -,ught ,o - enforced is i'm
po-ed by the constitution upon the
senate and hoosc. ani those ts,eli~s hav
ing refused to receive ST enter the pro
tesla neither the prf~siden' 20 the senate
nor the speaker II tho house has the
power. without che Concurrence - fhs
( ho'fy over which hs grssiies IN exs, 10.
the order n male
II "a necessary o. disssiss the Other
lu~s;ions raised.
lnssmuch a. The pruprr parties arr
I rot t~fore 'he c1urt. the yro,eesiirgs
mus, 10 d,sm .s@s-'i and tie vfits tented
hut sithout co~ts
Tie other Justices cuhcprFri
Correct. Cs,sLEs & HorSKr~s
Cork
G~vrsn SHIPS sn ssza,