The Globe-republican., 1893-03-03

A mob cannot pass upon Ia
qualifications OF members Of any isga
body.
But it is claimed that the Douglas
! House has been destroyed, or ousted, b.
tho recognition Of the Dunsmore Hous,
from the governor and tho Senate. Tn,
governor did not recognize the Duns
more House until January Il, the thire
day OF the session, and gather from tn,
| journals that the Senate did not form
| ally recognize tho Dunsmore House unit
the l4th day Of January, the fifth day
| Of the session.
"Now, the conclusion I have reach cd
Is that, taking the journals before us
the House that the governor recognized
| consisted OF fifty eight members-not q
constitutional quorum, not . constitu'
tionsl majority; the House that the Sen.
ate recognized consisted Of fifty eight
membsrs; not constitutional quorum;
not . constitutional majority.
"But again: It il claimed that
the Dunsmore House has be-
cone do facto House BY
the recognition from the Senate,
the governor: the executive officers. and
But here
Is . va.ld ana constitution
al House attempting to carry on
business. Every day Of it's session, so
far a its journals show, the Douglass
House challenged the rightfuIness Of the
Dunsmors House; 1t challenged the
action Of the governor; it challenged the
action Of the state Senate, and the very
first act Of the Senate and the Duns-
more House was seized upon by q court
of this state and throttled out its very
existence. Although that order was
made by the district court Of Shawnee
county. until it is reversed or vacated
BY proper proceedings in this
court, it is as valid and bind
ing between the parties as the
order OF the supreme court Of tho state.
The
Dunsmore House never had but fifty
eight constitutional members. 1t never
bad the legal power to create any more
mem bers. 1t therefore never had the
legal power to enlarge its existence. So
long az there il legal and oonstitu-
tional House OF Representatives carrying
on business in the identical hall
whore il il usual and customary for it,
business to be transacted, it seems to me
that this question of de facto House of
Representatives has not arisen TO that
dignity or to that acqulescsnce. to be
declared by this court a. entitled, il not
legal organization, TO be Q de facto
organization.
"From all that We have said our oon-
clusion is. and must imperatively be,
that the House known az the Douglass
House is the legal and constitutional
House OF Representatives OF the state Of
Kansas. The questions involved in
this case are above PARTISAN
ship. They concern the public; they
soncern the state, and party anu parti-
'anship should be wholly dlsregarded
BY each and by oil. The gravity
If the subject we fully understand.
Certainly no constitutional or
public question can be more solemn
than that arising from the present con-
.ention respecting the gunization OF
the House Of Representatives.. While
deplore the occasion which compels Us
10 hear and determine this case, feel
by the imperative command
of the constitution, and by my own con-
sciencious discharge of public duty, to
declare these views irrespective of policy
and irrespective of expediency. Enter
tanning the views do, l cannot consent
10 rob the highest judicial tribunal of
his state OF it's constitutional rights,
nor can I consent to exalt the executive
II the state or the Senate above tho de-
nands Of justice, of safety or of the vel
'are Of the people.
In conclusion, speaking for myself
alone, and not for any others, I cannot
Rbnegate the power intrustsd to me by
The people OF the state, and would re-
turn this day to them my commission
ansullied by any dereliction OF duty,
rather than to abase this court and to
pay obeisance at tho shrine Of unwar-
'anted power or unconstitutional author
ty."
The chief justice then stated that Mr..
Justice Johnston fully concurred in
What he said, but that Mr.. Justice
Allen dissented.
JUSTICE ALLEN pIssENTs.
In my judgment no oppor. |
unity has been afforded to this court to |
airly consider, as q court OF last resort |
questions which are presented for our |
The examination which We have been ,
lole to make since the hearing in this |
:ase Of the authorities cited by the very
earned and able counsel on both sides
las been Of the most cursory character.
1now say, reserve the right hereafter when
shall prepare and file an opinion IN
his case, to correct any error that /
nay make in the opinion now expressed.
The court In q
ollateral proceeding is now called on to
decide question of right between two
bodies, each claiming to be
House OF Reoreeen tatives OF this state,
1t was conceded on the argument
4 this case that this court |
would not have the power in an action
brought directly by one OF these con-
ending bodies against the other to de.
ide and determine this controversy
nd to GUST the wrongful body from the
Of the Office of the
House Of Representatives and to place
be rightful body in possession of the
fics. Then the power Of this
curt ut this juncture is but advisory;
then has no power to 60 into the full
aerits OF this controversy and to decide