The Globe-republican., 1893-03-03

under the auth ority G. the House itself
the Speaker may order persons presen
and not voting to be counted 20 consti
tute Q quorum. There is nc pre-
tense that such rule wa
adopted by either Of the Houses.
There is no pretenss that the speaker OF
the Dunsmors House had any authority
rom the House to do what was done in
this case, but more than thai: The per-
IONS who were called and counted a
present and voting, in order TO consti.
,ute a quorum in the Dunsmore House
were neve. members OF the Duusmors
House. never recognized Mr.. Dunsmore
- speaker of that House.
"Now, to resume. Then, under tn,
usual forms of law, under the universal
praotice adopted In this state, in all thu
legislative bodies Of all the states o
this union, the Douglass House was OF
ganized BY . legal and constitutional
majority a. evidenced by the certiA
Gates of election. All that Secretar,
of State Osborne had was . certificate
from his office of the roll. When hs
stepped out, somebody brought up An
that that was dated the day before; il
was the same roll Is the otnsr
roll. Secretary Osborn read tho rol
that he had and it was compared
in the presence Of the court with the
roll a. it was certified tho 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. It
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 il i'm
possible to tell because it was
vlrG roce vote.
Now, If the
Douglass House wss 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 q Senate. On the 10th the
governor had not recognized the Duns-
more House; on tho 18th the governo
had not recognized the Dunsnorel
House; neither had the Senate recog-
nized either Of the Houses; neither hs d
the governor recognized either House =.
=. Now, the point I desire to make
10 this, and it seems to me conclusive
and unsnswerable-tnst il the Doug
lass Houss upon the 10th and 18th
days of January had q constitutional
majority Of tho certified members, then
during those two days it was the
valid House, it was tho legal
House, 1t was the constitutional House
and had tho right to do all those
things necessary, outside Of legislative
matters, for the purpose Of protection,
for the purpose OF preventing disturb
ance, for the purpose Of purging itself of
illegal members. II had the right then
to punish parties for contempt, il they
disobeyed its orders.
The Douglass house had been doing bust
ness as a 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
Dunsmore house.
"At this point it is urged with great
ability and zeal that this court has no
jurisdiction to pass upon the question of
he legality of these two Housea-as it
appears there we're two alleged Houses.
It's right to do 60 is denied
~ 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, 1t is most true,
hat this court will not take jurisdiction
( 1t should not; but it 10 equally true
that it must take Jurisdiction il il
'hould. The judiciary cannot, as the
legislature may, avoid q measure be-
'ause it approaches the Confines Of tho
We cannot pass it by be-
:auss it 10 oubttul; because It 10 un-
pleasant. With whatever doubts or
nth whatever difficulties a case may be
We must decide it as best We
ian il it be brought before US. We
nave no more right 10 decline to exer-
Use the jurisdiction thus given, than
% usurp that which is not given.
Judge McCreary is again quoted here on
he question of jurisdiction also decisions
rom Maine and elsewhere.
In this connection the chief justice quoted |
rom decision delivered by Judge Valen- |
inc in the quo warranto case against Gov |
.rnor John A. Martin.
It Is said that II the governor res;sts the |
rider OF judgment OF the court, 1t cannot |
% enforced, for, 1t Is said the governor has |
ntire control OF the militia. But are the |
ourtS to anticipate that the gov rnor Will |
lot perform his duties: Should not the |
ouJtS rathor presume that when q con- |
royersy Is determined by the courts, the
My tribunals authorized by the constitu-
lon or the statutes to consfrue the laws |
nd determine controversies by way OF ju. |
icial determination, that the governor as
he chief executive officer OF the
tate would sec that such determination (,
hould be carrie into full effect? such |
vould be his duty and NO one should sup
'ose that he would fail to perform his duty
vhsn his duty is made manifest BY Judici al
mont should ever cease to perform its
unctions for fear some other department
nay render its acts nugetory, or for fear I
hat its acts may In some manner affect the
onduct or the status Of some other Depart
nent.
Governor Martin obeyed the order Of
his court promptly.
I'm this case, We are not called upon,
. IN that case, to make any order con-
erniug the governor. In this case, diff
sring from that case, We are not called
pom to make any order concerning the