The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1893-10-20

ing opinion Of Justice Allen
That do not mistake the position of the
two. quote respectively from the opinions OF
Chief Justice Horton and Justice Allen. Tue
prevailing opinion says page 1867:
Therefore we have before u.s. necessary for
our determination. the question whether the
body or house which authorized Clevenger as
sergeant-at-arms to arrest and detaln Gum.
had any legal or constitutional authority so to
do"
And on page PIG. speaking OF the power of the
supreme court in this matter Justice Allen
SAYS:
THAT the court is authorized TO inquire into
the legality OF the arrest and therefore TO de-
clare whether or not George l.. Douglass is
speaker of the house of representatives, there
is no question
So both sides conceded that the supreme
court had the power to declare which was the
legal body called the house of representatives.
To my mind. the statement of these two con-
curing propositions leads to the inevitable
conclusion given By the prevailing opinion OF
the supreme court.
cannot conceive that the Court could have
the power TO inquire into and declare whether
or not George l.. Douglass is speaker Of The
house of repre- sentatives and yet not have the
right 10 inquire by what authority, by what
vote. by what body of men he was thus elect
ed The opinion of Chief Justice Horton places
that side beyond arv further debate.
The dissenting opinion of Justice Allen. TO
the feet that while the court has this power
vet it has il only to the extent of ascertaining
which of the Two bodies the senate and gov
ernor has recoznized as a lawful body. is with
out foundation in either reason. law or prece-
dent In conceding that the supreme court
could inquire which BODY was the lawfully or
gained BODY. Justice Allen insists that this
inquiry is simply limited TO the question:
What has the sanlte and the governor de-
cided on the matter?' Having asserted that
the Judiciary is bound by this decision he
points to no provision of the constitution
which clothes either of these bodies with any
such extraordinary power Tlis is as much rs
to say that the governor and the senate can
make house of representatives. irrespective
of the votes or the action of the people Such
q proposition. il seems to me needs OnlY its
own statement TO prove that it is in utter dis
regard of both reason and of law, as estab-
lished in this state and every other state in
the union.
And right here hinges the whole deblte for
the opinion of Justice Allen revised after
months of consideration undoubtedly states as
cogentlv as possible that side of the case and
it is fortified with every possible argument
known either TO himself or to any of the coun-
sci heretofore mentioned as guiding the action
of the administration
Abundant presidents are cited in the dis
has no power to invade the functions and rights
of the legislative department. but that the
legislature within the scope of its constitu-
tiOnal duties is supreme
Abundant authority is found, not only in the
dissenting oun on but through all the books, that
on general principles each house must be the
judge of the qualifications of its membership.
but nowhere is il found in decision or dictum
of any respectable law writer that BODY of
men, never elected to the office of legislators,
can assemble in hostility and contraveniion to
the rights of those who were elected and create
a house or a legislative body as against the
authority of the majority of those who were
clothed with legislative authority b. the peo-
pie at The polls After a house is lawfully
organized, then it becomes a body supreme
within the scope of its legislative function. but
until it is so lawfully organized it is mere
aggregation Of individuals without any legisla
tive authority whatever.
The majority of the supreme court says that
the question whether one or the other of the
two bodies is the proper house Of representa-
tives is judicial one, under the circumstances
of the Gum case, and that il is the duty of the
court when person is deprived of his liberty
by one of these bodies. TO determine which one
is the legal and constitutional body. Were ii
otherwise, a body OF less than majority of the
elected members of the legislature could de
prive citizen OF his liberty, subject him to in
dignity, and wasting expense without any re-
dress whatever.
The supreme court holds. and beyond all ques-
ton correctly that the governor and the eXecu-
tive department, within their sphere of action,
are supreme; that the legislative department
within its sphere, is supreme and that the lu-
dicial department is likewise within its
sphere, supreme, but that the power to decide
whether tae legislative department has become
such by due organization must reside some
rl,rra av,I hat vNla ba
diciarv: Were the contention of the dissenting
opinion true then, at any time, one branch OF
the legislative department and the executive
department of the state could create a senate
or a house II their will Thus the voice OF the
people would be completely trampled nnder
foot by one man in the executive department
and twenty one in the senate chamber. Does
anyone believe that our institutions are laid on
any such feeble and trembling foundation as
that?
1t being perfectly clear TO my mind that the
Douglass house was a lawfully constituted
body, and the Dunsmore house was not, then
the action OF Col Hughes in refusing TO obey 4
command of the governor to remove the Dou;
lass house from its hail by violence, il neces-
sary, was surely justified II Douglass and
the members of the house that recognized him
were lawfully in the hall of representatives, no
power on earth could Justly deprive them OF
their seats and of their right TO keep their
places.
Military force can only be used in aid Of law,
not to subvert and destroy it The sword can
be turned TO sustain rights, not TO cut them
down. The bullet and the bayonet may be used
against those who are subverting the law, but
not against those who are in the lawful dis
charge of their constitutional duties.
Suppose that Col Hughes had ordered his
men to deeds of bloodShed. is il possible that
he would not have been held crimiaally liable
r
Douglass and the members OF that house were
lawfully there, they had a right 20 maintain
the position by resort to every means within
their power and the force brought TO bear
against them would be in the wrong while they
would be clearly in the right II is happy cir.
cumstance that wiser AMI better counsel pre-
vailed and TO that end the state owes a great
deal 10 the moderate men among the populiSts
and the almost unanimous sentiment among
the democrats of the state II ID men knew,
members Of the democratic party, who. TO use
their own language. Loved Kansas b fore they
did their own party been led away b. the
strange theory that the governor and the sen
ate could make house OF representatives, out
Of any body they pleased, no one can tell what
dire even.s would have resulted in our state.
In common with those who love kansl it must
be subject Of general rejoicing that modera-
tion at last took possession OF the counsels Of
the executive department and the senate and
that the law was not trampled under foot
Oce case, State ex rel. vs.. Smith. II Ohio
State, 3is, was cited both in argument in the
senate, at the bar Of the supreme court and n
the dissenting opinion as fully sustaining not
the acts of the minority of the members elected
in trying 10 organ re house, but in showing
that it was wrong that nobody could redress.
Nowhere does the dissenting opinion even init
mate that Dunsmore was chosen speaker by
majority of the elected members In one
breath the opinion seems To intimate that If
Gladstone and Bismarck hal been 50 elected
they could not participate in the organization
OF the house, that is such action would be lie
gal, yet. in the next breath. such action is de-
clared 10 be political and only 10 be judged of
nE the .pn-ifical denar tmenls OF The stara GOV