The advocate and Topeka tribune., 1893-03-08
HORIZONS OPINION.
How the Chief Justice Eased His Con-
sCienOe--Tho Essential Points Of His
Opinion in the Gum HabeaS Corpus Case.

DOTH Ia Lno Ne M Jnolr bDI0 akBumBnbSp
and also for ths research Of the Gu-
thorities upon the questions involved.
Yesterday the members Of the court con-
sumad nearly the entire day in compaE-
ing opinions, and discussing, 30 far a.
time would permit, all the material ques-
tionB in the case. This morning come
here to present my own views, and shall
now do 80 on the matters presented, and
will, at the conclusion, state the opin"
Iona Of tho other members OF the court.
"ThO liberty OF citizen is in contro-
versy. But the statute Of this state pro"
videa that no courtor Judge shall inquire
into the legality OF any judgment or
process whereby party is in custody,
or discharge him, when the term OF com"
mitment has not expired in the follow
ing case:
'Third-For any contempt Of any
court, officer or body having authority TO
commit
Therefore, we have before uB, nSoes.
ssry for our determination, the question
whether the body or the House which
authorized Clevenger as sergeRnt-at.
arms to arrest and detain Gum, had
any legal or constitutional authority 30
TO do. II there was one House only, or
the proceedings OF one House only TO
consider, our duty in this matter would
bO plain and easy. But 1t Rp-
pears from the journals presented
20 uB that on January 10, 1898,
the day appointed for the orgAniza.
tion OF the House of Representatives Of
the state OF Kansas, there met and at
tempted to organize ut the capitol, in
representative hall, two Houses, which
since that time have acted or attempted
to act separately and independently Of
each other.
ave will examine briefly the orgAniza-
ton or attempted organization Of these
two alleged Houses. Before doing 80,
however, it is best to understand how q
House Of Representatives may DO legal
ly organized. Judge McCrary, In his
work upon elections, in section 609,
says:
It 10 to be observed In the outset that
when q number OF persons come together
claiming to be menu bers OF the legislative
body, those persons who hold the usual
credentials OF membership are alone en-.
w III LuAb OEbAnlA8e
tion, for tits, as we have had occasion
several times to repeat, we'll settled rule
that whore there has been an authorized
election for an ONCE, the certificate OF
election which Is sanctioned by law or
usage ig the prima facle written utle 70
that oftlce.
Judge McCrAry, the writer Of these
words, occupied for many years q seat in
the House OK Representatives at Wash
inton. He was chairman for many years
In that body of the committee upon
elections. subsequently he was mem
bsr Of President Hayes cabinet, and
later he was the honored judge Of the
United States circuit court for the great
Eighth circuit, embracing KAnsaG His
book is o standard work both
from his ability and experience,
acknowledged to be the leading author
ity In this couL-ry upon the question OF
organization.
"But again: We have what 10 known
Rs a standard book on parliamentary OK
legislative practice. 1t 10 found in al
most every public library of the States.
It 10 examined and referred to by every
legislative assembly, by every congress
Bional body, and that 10 the large
work entitled, 'Cushipg's Law and Prao-
toe Of Legislative Assemblies SEQ
tion 229 Of that work says:
The right to assume the functions OF q
member In the first instance and to pRrti.
oipate In the preliminary proceedings and
organization, depends wholly and exclu-
Bively upon the returns or certificates Of
election.
"And in section 240, it is said:
The principles of parliamentary law ap.
pllcabl0 to the question are perfectly sim.
pie and plain, founded in the very nature
OF things, established by the uniform prAo-
tice and authority OF parllament, con.
nrmed by reason aud analogy. These prln'
ciples are as follows:
FirBt-That eV cry person duly returned Il
member whether legally elected or moi
until his election Is set aside.
Second-That no person who 10 not duly