The advocate and Topeka tribune., 1893-03-01

the subject Of review before the courts
is not only to make all legislation unCer
tain and inOonclusive, but 10 exaIt th,
courts to supreme power in the state.
And elsewhere il said:
BY assuming jurisdiction over thil
question, this court assumes q power d
control over the Legislative department
or the government that most certainly Il
cannot exercise DIRECTLY. Very clearly
no writ Of quo DGTrGntO or injunction
would lie before any court either to test
the legality Of the legislature or the
right Of the governor to perform the OK.
ecutive functions. We're there two per
sons claiming to be governor, perhaps
the court might decide, not which was
the rghttul officer, BUT WHICH WAS REC
oeNIzED AS SUCH BY THE GENERAL AS.
sEMBLY, and IL there were two bodies
each claiming to be the legislature, the
courts, whilst, DURING THE CONTEST, THEY
MUST AND WOULD BE PowERLEss, might
after the contest was over, recognize that
as the one WHICH WAS PRACTICALLY sue
oEssFUL WITH THE PEOPLE. But by nc
direct action can the courts try the
legality OF the Legislature. If they can.
not do this directly by proceeding for
the purpose, CAN THEY DO so INDIRECTLY
by deciding upon the validity Of the acta
it may pass on the ground that the body
PASSING THEM WAS NOT A LEGAL BoDYI
To set up the judiciary as an arbiter Of
the legality Of the legislature, a Co.ordi-
nate department of the government--tc
make 1t the oracle tO which Contending
revolUtionists shall come for judgment
as to which is rights to enthrone it As
the supreme power in the state, and To
confer upon it a jurisdiction dangerous
to it's own existence and never contem-
plated by the fundamental law. To de-
eide when @ law conforms TO the
constitution is one thing, 10 decide who
are the lawmakers is another. To do
the one the people have expressly granted
to the courts; to the other there 10 not
only no grant, BUT THE CLAIM OF sUCH
A RIGHT is FOREIGN TO THE JUDICIAL
OFFICE, dangerous to the Independence
Of the legislative and executive depart
ments, AND CONTRARY TO THE FIRST PRIN.
CIPLEs OF A GOVERNMENT OF THEPEoPLE
Necessarily the courts must decide what
is the law-whRt is the legal will OF the
LAW MAKING power. But If they have
the right to 60 behind this, and to en-
quire whether the lRw-mRking power ID
itself legal, THEY BECOME, IN EFFECT, THF
SUPREME power in the state.
But why multiply suthoritiesS They
are numerous and all to one end. There
are none, it is true, upon precisely the
same state Of facts as are involved before
us, but many which involve the some
principle-the principle of the division OF
power between coordinate branches
and every one Of them declares in positive
terms that questions relative to the or
gsnizstion and composition OF Legislative
bodies, and the legality Of their sessions,
belonging to such bodies and TO them
alone.
From these cases an induction 10 built
up; that is, that such questions are
political and not judicial. The argument
may be summarized as follows:
The house, though for some purposes q
distinct body, is but one Of the integral
parts Of an entire body-THE LEGTsLA-
TURE. This larger body consists Of the
house, the senate, and the governor.
These three parts act together a. one,
precisely as the members Of either house
act collectively as one. Each Of these
component bodies is bound to find the
other two and cooperate with them be-
fore it can itself exercise it's own powers
as a legislative body. The senate and
Al A..