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

and not voting Co be counted to consti-
tute a quorum. There is no pre-
tense that such rule was
adopted by either Of the Houses.
There is no pretense that the speaker of
the Dunsmore House had aay authority
rom the House to do what was done in
this case, but more than that: The per-
sons who were called and counted as
present and voting, in order to consti-
tute quorum in the Dunsmore House
were neve. members Of the Dunsmore
House, never recognized Mr.. Dunsmore
as speaker Of that House.
aNow, to resume. Then, under the
usual forms Of law, under the universal
practice adopted in this state, in all the
legislative bodies Of all the states OF
this union, the Douglass House was or
ganized by legal and constitutional
majority as evidenced by the certifi-
Gates of election. All that Secretary
of State Osborne had was a certificate
from his office Of the roll When he
stepped out, somebody brought up an
other certificate. Somebody has said
that that was dated the day before; it
was the same roll rs the other
Toll. C6CE6Ld1S OSUOIu I61O Luo EOl
that he had and it was compared
in the presence Of the court with the
roll as it WAS certified the day before.
There was no difference between those
rolls. This provision requiring the sec
rotary of state to lay the list before
the members is only directory. 1t
does not prevent legislative
body from organizing.
The Douglass house did organize by the use
of this certificate roll. The speaker of the
house, known rs the Dunsmore house, re-
ceived no votes from the sixty-four members.
There does not seem to be any reason
able contention about that. How many
Mr.. Dunsmore did receive 1t is i'm
possible to tell because it was
vivG voce vote.
Now, if the
Douglass House was organized on the
10th Of January, and was in session on
the 18th day Of January, before either
House had been recognized, why was
not that House at that time the popu-
list organized House, The consti-
tuition says that the legislature
shall consist Of House of Representa-
tives and a Senate. On the 10th the
governor had not recognized the Duns-
more House; on the 18th the governo
had not recognized the Dunsmorer
House; neither had the Senate recog-
nlzed either Of the Houses; neither ha
the governor recognized either House {.
Now, the point desire to make
Is this, aud it seems to me conclusive
and unanswerable-tnat il the Doug
lass House upon the 10th and 18th
days of January had constitutional
majority of the certified members, then
during those two days it was the
valid House, it was the legal
House, 1t was the constitutional House
and had the right TO do all those
things necessary, outside Of legislative
matters, for the purpose OF protection,
for the purpose of preventing disturb
auce, for the purpose Of purging itself Of
illegal members. It had the right then
to punish parties for contempt, If they
disobeyed it's orders.
The Douglass house had been doing bust
ness as house of representatives, and had
been making a journal, which journal
must be binding and conclusive evidence in
this court, for more than two days before
the senate or the governor recognized the
Dunsmore house.
"At this point it is urged with great
ability and zeal that this court has no
to pass upon the question of
the legality OF these two Houses-as it
appears there were two alleged Houses.
Its right to do so is denied
oy the petitioner and by the
able counsel who represent the
petition and the Governor. AS
was said by Chief Justice Marshall in
Cohens VS.. Virginia, it is most true,
that this court will not take Jurisdiction
il it should not; but it 10 equally true
that it must take jurisdiction If it
should. The judiciary cannot, as the
legislature may, avoid o measure be-
cause it approaches the Confines of the
We cannot pass it by be-
cause it is doubtful; because 1t is IN
pleasant. With whatever doubts or
with whatever difficulties q case may be
attended, we must decide it ss best we
can if it be brought before US. We
have no more right to decline to exer-
else the jurisdiction thus given, than
to usurp that which is not given.
Judge McCreary is again quoted here On
the question of jurisdiction also decisions
from Maine and elsewhere.
In this connection the chief justice quoted
from decision delivered by Judge Valen-
tine in the quo warranto case against Gov
ernor John A. Martin.
It is said that II the governor resists the |
order OF judgment OF the court, It cannot |
De enforced, for, it Is said the governor mas |
entire control of the militia. But are the |
courts to anticipate that the gov rnor will |
aot perform his duties? Should not the |
:ou IS rather presume that when q con- |
;roversy is determined by the courts, the |
only tribunals authorized by the constitu- |
ton or the statutes to construe the laws |
and determine controversies By way OF iu-
iIcial determination, that the governor as |
he chief executive of1cer of the |
tate would see that such determination !
should be carrie into full effect? Such |
would be his duty and no one should sup |
pose that he wCuld fall to perform his duty !
when his duty IL made manifest by 1udici al |
Of the courts, No depart
nent ,hould ever cease to perform It's |
for fear some other department. !!
nay render its acts nugatory, or for fear
that its acts may in some manner affect the |
conduct or the status OF some other depart
nent.
Governor Martin obeyed the order Of
his court promptly.
"In this case, We are not called upon,
rs IN that case, to make any order con-
,erning the governor. In this case, diff
'ering from that case, We are not called
upon to make any order concerning the |
state Senate. We are simply called up
On to exercise our judicial determination |
Ia to which is the legally orpRpiZed and |