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

conclusive, but Is not recognized as Of any force
whatever, am forced to enter my dissent from
any such expression OF opinion. In my humble
judgment much Of the evidence which was intro
duced on the trial of this case was wholly irrel-
eVant and such as this court could not have
received. AS to the exact boundaries and def
mite rules which should have been laid down for
the determination of these questions, / do not
desire to express any opinion. but shall reserve
the whole subject for determination when shall
file formal opinion in this case.
It appears from the journals Of both of these
houses that valid controversy existed as to the
rights Of certain parties to sit in that body. 1t
is said that these controversies can only be de-
cided by the house after it is organized. The
journal of the house called the Douglass house
shows that the case Of Joseph Rosenthal was de-
termined before any organization of the house,
before any election Of the speaker; and it seems
to me that when we adopt the rule that state
board Of canvassers, that the record it makes in
its office of votes cast, by the certificates It
ISSUES, may determine absolutely the question
as to who shall constitute the house of repre-
sentatives of this state, that we adopted far
more dangerous rule than the rule which is con-
tended for on the other side, viz. that the house
Of representatives which shall be recognized by
the executive, which shall be recognized by the
senate Of the state, shall be the house rather
than that which has been created by the return
ing board, if may use the expression. In fact,
it appears from the journal Of this sO-called
Douglass house that at least two of the sixtyfour
members were ineligible to sit in that house as
much SO as though they had been officers of the
regular army Of the United States.
Before the constitution as the supreme law
every department OF government must bow and
yield itself In unquestioned and unquestioning
obedience. The constitution says that no person
holding any Office under the government of the
United States shall be eligible to seat in the
Legislature. This prohibits the making of
member Of the legislature out Of an ineligible
person, and bars the people of selecting and
making representative of person who holds
any Office under the United States government.
It is also contended on the other side-and
possibly I speak outside Of the record, although
think it appears in the Dunsmore journal q
have not had an opportunity to critically exam
one gentleman who appears In the Douglass
house is not resident OF the state of Kansas. IL
So clearly he had no right to take any part in the
legislature We know in the early days Of this
state what occurred when those who resided out
side Of this state undertook to take part in
conductlngits affairs. Now, while we are consid-
ering dangers, while we are considering these
great questions which involve constitutional
government, we need not shut our eyes to one
side or the other but we must look all these mat
ters fairly in the face.
1t Is to be assumed chat all men who are en-
trusted with authority will act honestly and that
all Of the members Of every legislative body
ought to acquiesCe and act with due regard to
their oaths of Office, with due regard to every
duty imposed on them as such officers; and when
we assume in the consideration Of any case that
any officer or any body of men in the perform
ance of any duty which devolves on them by the
constitution and laws goes wrong and acts fraud
ulently; when we entertain any such presump-
tion we are entertaining presumption that is
opposed to system of our government and sub
yersive Of it.
The presumption is declared by this court in
very many instances as that every officer, every
body Of men will act honestly and will discharge
the duty that devolVes on them under the consti-
tuition and laws, and the presumption in this
case Is that the executive of this state and that
the senate of this state have discharged their
duties fairly and honestly. Now we are called ON
in collateral proceeding to overturn the action
of the executive and oyerturn the action of the
senate. To overturn the Legislature Of this state
which has continued from the 10th day of Janu-
ary down to this time, and merely because Of a
view entertained by the members of this court
as to what the duties Of the several members Of
the Legislature were In organizing; that because