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

body il the legislature. But that duty
does devolve upon the executive. We
have also another body, the state
Senate. also deriving its powers
from the limitations o. the consti-
tuition, also deriving its powers
and authority from the people who have
selected the members. Upon that Sen.
ate the duty rests just aa carefully as
any duty that can rest upon this court
In the discharge Of the duties devolyine
| upon them, the senators are just as su.
preme, their rights rise just as high and
no higher than the rights Of the mem
bers Of this court. That Senate in the
discharge OF its duties must communi.
cate with the executive department OF
this government; it must COM
munlcate with its concurrent
branch Of the law-making department
Of this government and where there are
two contending bodies, each claiming TO
be the House Of Representatives Of this
state. In the very nature Of things the
Senate must hear and dstsrmlne the
question an to which Of these badies il
the House Of Representatives.
it seems TO me that when we adopt
The rule that the returning board, the
state board of canvassers, by the record
that it makes in the Office OF the votes
,ast, by the certificates that it issues,
may determine absolutely the Question
IS to who shall constitute the House
II Representatives OF this state,
that we adopt q far more dangerous
rule than the rule that is commended for
oy the other side, that the House Of
Representatives which shall be recog-
1ized by the executive, which shall be
recognized by the Senate shall be the
House, rather than that which has been
created by the state returning board. if
may use the expression.
Nov, We are called on in collateral
proceeding to overturn the action of the
executive; to overturn the action Of the
Senate, to overturn q legislative body of
this state which has continued from the
10th day Of January down to this time,
and merely on q view entertained
by the members OF this
court as to the force and effect
OF certain certificates as evidence of the
right Of members of that body to purtic-
lpate In its proceedings. We are asked
to overturn the result of all the deliber-
atoms Of the Senate of this state; all the
deliberations Of the executive of this
state with reference to the legis-
lation which has been passed.
Ought this court rightly TO do
so? Ought this court to do so
on q brief and hasty consideration
Of case OF this sort, IN q collateral
proceeding whero neither OF these con-
tending bodies has right to be heard?
Something was said by the Chief JUS
tice with reference to the effect of the
HoCjoion ado hu pozan - bo
district court Of this county in determin-
ing this question. The scope and effect Of
that decision is simply to restrain the
treasurer OF this state from paying out
any money under the appropriation un-
til such time as that case can be fully
tried and determined on its merits.
That is the whole scope and effect OF
the decision and while that order is
binding until it is set aside,
while there is no question as to
its binding effect upon the treasurer of
this state, as decision OF the question
as to which Of these bodies is the legal
House OK Representatives., most re-
specially say that do not regard 1t as
a final decision at all upon that ques-
ton, or having the force and effect Of a
judicial determination Of that question.
IL musG De eVlQe0G 20 anyone
who considers the question for a
moment that it will be impractical for
these two bodies, the Douglass House
and the Senate, to come together
in such relations with each other as
ia perform the functions of the
legislature during this ssssion-during
the brief periop that now remains. It
seems to me that the force and effect OF
this decision must necessarily be that
this state is without legislation this win |
ter and that such conclusion Is reacnso
by collateral decision in this |
case. Did the constitution, did |
the trainers of the constitution,
did the people of this state who adopted
it contemplate that after the legislature
had been in session nearly its entire |
limit, after the governor Of the state,
aud oil Of tho executive departments OF
the state, after even the official
state paper, not allied in political
sentiment with either the executive or
the majority of the Senate or Of the
House, publishing as laws the enact
nents OF those bodies, that after all
these thingslhave occurred, did the franz
srs OF this constitution intend that this
court might then step in and brush it
III away as a mere phantasm, as mere
,ullity in collateral proceeding?
1t seems to me clearly not. The ques-
lion here presented is not SO much a
question whether the Dunsmore House
vas in fact the House of Representa-
lives, as it is a question whether the
Douglass House was in fact the House
II Representatives.
"How osn it be said that a body of
men whom the governor OF this state re-
uses to recognize az the House OF Rep
whom the Senate refuses
70 recognize. whom all the executive de-
oartments Of the state refuse to recog-
1ize, can be de fssto House Of Repre-
!entatives? How can it be said that any
officer who undertakes to discharge the
duties Of an Office, who is not re-
Zarded as such officer by any de-
partment OF the government with
which it seeks to do business
who cannot efTectually carry out any
duties devolying upon him as such Of
icer, who cannot effectively perform
.ny act as such officer, how can it be
said that be is de facto officer? De
.acto means In fact; 1t means in the act
1al exercise and discharge of the duties
IF the Office. We do not have fully Or
4