The Globe-republican., 1893-03-03
The Arguments.

mad erred in going back of the journal o
the house and taking oral testimony; tina
the courts of the country have ever decides
that to attempt to 60 behind the journal Il
Determine acts OF members was illegal Il
support of this he called q case from Ohio
which has been generally published in thi
connection.
7. F. Carver followed for the state. a,
met the contention that the Douglass house
had no authority to issue a warrant, and til.
clam that the courts had no jurisdiction il
the case, by saying that a house of repre-
sentatlves must be org rnized in such a wa,
q IL can be recognized under the constitu
ZION as legal organization. He quoted Jus
tice Brewer as to what constituted legal
oody: There must, first, DO present q ma,
1orlty OF body to make it legal. Az e
other authorities quoted, they applied to dis
putes arising after organization: in this caoe
was the fact of organization in dispute
after that is determined there is no further
contention in this case.
MI. Carver here cited precedents to main.
tain the jurisdiction of the court and emphs-
sized the fact that the judicial department
OF the government was supreme and final.
He could find no case where a court had
not assumed jurisdiction to inquire into the
organization of any legislative body. Even
the governor is not the judge of his own
election. He here quoted Q case from
Maine. which he claimed was identical with
into which was the legal body. The court
held that only men holding certificates could
be recognized as members. In a case from
Montana the supreme court OK the United
States had held that certificate holding
members were the only legal members.
The constitution had provided tribunal,
the state board of canvassers, to declare who
were entitled to certificates of election. At
ter such members as had been SO declared
members had met and organized their or
ganization became the sole Judge of the
qualifications of its memberS
The recognition by the senate and by the
governor cut 10 figure. The governor had
nothing to do with the case. The senate
could only decide upon its own membership
Such recognition, by itself, could have NJ
force or effect.
G. c. Clemens followed for the defendant
he disputed the authenticity of the author.
ties cited by Nj. Carver. He then cited an
thorltles claimed to bear upon the question
of jurisdiction.
The burden of his argument was that the
Dunsmore house had been recognized By tn,
governor, senate, the official state paper, ths
secretary of state, the treasurer and auditor.
it must, therefore, be the legal body. Il
would recognize it.
Suppose, he said. ''that this court should
decide the Douglass house the loyal house,
what then? Tho court could not compel the
governor and senate to recognize tho Doug
lass house." The result would be that the
state institutions would suffer.
DAVID Overmyer followed Clemens. Thu
three branches of the state government are
each supreme in its sphere; the executive
Legislative and judicial are independent.
each of the others. But counsel contend
that the action of the executive and senate
must govern the decision of the court.
this Is correct the legislature may recognize
come other man as the governor; and ths
governor and house might recognize a town
meeting as a senate. The sphere of the Judi
ciary is to pass upon the Legality of such
questions. In this connection he cited the
judicial decision recently made in Nebrasks
as to who was governor, and to the judicis]
tribunal established to pass upon the title oil
the president of the United States in 1876.
In this state the court can determine who is
governor and issue writ of custer.
The other side talks of injurious conse
quences which might ensue if the court re-
coRnized the Douglass house: what is that
compared with disobedience to the DEGREES
of the court.
He would enquire for what purpose is the
law creating the state board of canvassers,
and what is the use of having such a board
1t certificates were unnecessary to members
Who ever heard of a de facto legislature:
The rule of law is that there can be no de
facto officers in opposition to de jure body.
Chester /. Long followed for the Douglass
side. He said that none of the opposing at
torneys had challenged the lawfulness of the
Douglass house. A majority of members
had organized that body and no one chal-
members who participated in that organiza-
ton to vote. All the basis for the organiza-
ton of the Dunsmore house was the recog.
milton OF the senate and governor. He hers
cited many cases to show the right of the
court to inquire whether a house was organ
Ah<v,
Justice Horton. When the popullsts ap
pealed to the supreme court in the Bslllngei
and Shelarbarger cases, before the organ
ization of the legislature they recognized
that certificates were necessary, and when
they were beaten in court they seated both
that certificates were not necessary. Ne
fraud was shown or charged in either case.
Mr.. Long read the journal entry of the
DunsmOro house before the revision. where
the ten members without certificates were
put down as voting and helping to form quo
rum. Then he read from the revised journal
where these ten men were placed to one side
and republicans counted in under the Reed
rule to make a quorum, and then he referred
to the resolution of the Dunsmore house
making the rules of the last session of the
legislature the rules of the body. Picking
up copy of the printed rules of last session.
Mr.. Long inquired: where will you find
the Reed rule in this copy of rules adopted
BY the house?"
The speaker then cited number of cases
where officials were recognized by both
branches of legislature and still were inyes:i-
gated by the courts.
Judge Dos;er spoke next. He is diff
cult man to report. HIS tslk is ornate and
classical but it is difficult TO sift his practi-
cal points from his oratory. However, his
idea seemed to be that the taking of oral
testimony in this case, when the journal 10
cords of the house were In evidence. was
never before done while investigating a
case of this character. Yet, If the oral test-
mony had shown anything it had shown the
illegal composition of both the Duusmore
and Douglass houses.
He claimed that all decisions of record,
since courts existed. are against the right Of
courts to inquire into the functions of leeis-
lative bodies. Such bodies are supreme and
above all Law.
Mr.. RossinGton closed the case. He as
serted that the evidence introduced 10 that
6fty-eight men with certificates went into
caucus by themselves when there we're sixty
i've men with certificates not with them. and
formed q conspiracy to take IN ten men from
the outsi1e to prevent the slxty-6ve from or
ganizing the house. Instead of Mr.. Semple
being clothed with any authority to preside
at the organization of the legislature, he was
simply carrying out the first overt act of the
Or0Hnized conspiracv