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

| UEClSlON.
Chief Justice Horton and Jus
tice Johnston
fxed, While Justice Allen Dissents-
The First on the House Journal;
~ Allen on Recognition.
Chief Justice Horton gave his decision oral
~, from notes. His first point was: The con
stitution of the state gives this court origi
nal jurisdiction in habeas corpus and thi
is proceeding of that character.
Therefore, We have before 10, neces
sary for our determination. the question
! whether the body or the HouSe which
authorized Clevenger AZ sergeant-at
arms to arrest and detain Gum, had
any legal or constitutional authority &
to do. II there was one House only, OF
the proceedings Of ono House only e
consider, our duty in thus matter would
be plain and easy. But il ap'
pears from the journals presented
to u that on January 10, 1893
the day appointed for the orRaniza.
ton OF the House of Representatives Of
the state OF Kansas. there met and at
tempted to organize at the capitol, in
representative hall, two Houses, which
since that time have acted or attempted
to act separately and independently Of
each other.
He then read from Judge McCreary how
a house of representatives, may be legally
organized; also from Cushing Law and prac-
tice of legislative assemblies sustaining and
emphasizing Judge McCreary's position.
H. .ls <,,xo 80 hn
court of Nebraska on january II of the
present year.
1t Is contem plated tnaI eacn house Of the
legislature shall be organized by the per.
sous wno are prima facie members thereof
AZ lequires no argument to prove the dis
astrous conSt Quences OF q different con.
struction OF the constitution.
The chief justice added;
II may add that the scenes which
have occurred in this capitol during the
past two weeks are sufficient foundation
Tor the view OF the supreme court Of tho
state OF Nebraska. But more than this:
Our own statutes clearly provide that
the legislature-that the Senate and the
House OF Representatives whom they
convene-shall in the first IN
stance be constituted only of those
members who have certificates of cleo
ton.
The state board of Kansas has
been in existence for over thirty years.
II is recognized everywhere that
practice and usage are to be con.
sidered upon questions of this
character. It has been the universal
practice and usage Of the legislative
houses OF Kansas to be organized
by the admission, in the first instance
OF persons holding properly issued
certificates of election. This has been
the practice for a generation in Kansas.
Here
let me say, that while there has been
much discussion about what fraudulent
canvassing boards might do, and what
frauds canvassiug boards might commit,
there has not been presented in this
case any evidence showing that the re-
turns OF election on hie in the Office of
the secretary OF state could have been
canvassed in any way other than they
were canvassed by the state canvassing
board. There have been other cases in
this court, growing out of certificates
and In all the cases presented to this
court, there has been no showing of bad
faith, or fraudulent action. or OF i'm
proper conduct on the part Of any one
OF the canvassIng boards. In
one case, it appeared that Joseph Rosen-
thai had been found elected by
the board of csnvassers in Haskell
county. That board stated that
it could not meet again
and canvass tho latter OK the subsequent
return. This court, in accordance with
all the authorities, sustained tho state
board OF canvassers in their action and il
any one had the right 10 complain of
that decision 1t was Joseph Rosenthal.
And yet, Joseph Rosenthsl, after he had
heard the decision of this court delivered.
presented to she chief justice OF this
court . letter, stating that he was
convinced that the decision of this court
was not only the law, bat that it ought
to DO tho law, and that he respected
the court for its decision in
that case. There has been pre-.
scented here what is known as the re-
vised journal Of tho Dunsmore
House. l Judge that the journal
has been carefully prepared, and that it
is attempted to fully state what &C.
Cured according to the views of the par
ties, or Of the House under whose order
it was prepared and which has approved
it, and yet tho journal day after day
seems to recognize that only certified
members have the authority to act. Let
me read. 1.-The call Of the roll Was re-
ceived from the secretary Of state,
and tho following members were
present and answered to their
Names and it gives the names OF 50.
The following members were present
and did not respond to the call Of the
ROLL 81. Then it says, total number of
members present, u.s. being moro than
. constitutional quorum. Therefore, this
journal at that place only counts the
members who appear upon the roll Of
the secretary Of state. II says the num-
Der vas lis. 50 voting, answering the
call, and 81 not answering the CALL
II then states tie following
named contestants Tor seats were
present. but does not include them
in the quorum or in the number Of lis.
II saws thsv number ten.
90 say, nos only ~ enc ausn0risfos,
parliamentary and Legislative, sustain
the theory that the persons having cor
tificate0 are the ones 10 organize, not |
only does the practice, and the usage |
in Kansas since the orRaniza- |
tiOn and admiaal0n A n atafn euaNain