People's voice. [volume] (Wellington, Sumner County, Kansas) 1890-1917, 1893-03-03


or body which il assumes 70 BE-. Bst l con.
tend that the Dlnsmore house" was and Is a
de iure house Its membership consisted Of
more ,han sixiy-ihree persons whose election
as members Of the house q re resentatives
from districts created by law has never been
questioned by anybody. II had that member
ship on the first day Of the session, and II had
that membership on every subsequent day Of
the session; and more than sixty. three mem
6ers OF that body voted for the appropriation
bill which Judge Hazen decides TO be invalid.
But the most remarkable passage in the fore
going extract from Judge Hazen's opinion is
this:
1T is claimed by defendants, and argued By
their counsel, that body Of men may congre.
gate, assume TO act as a house OF representa-.
tives, elect its officers pass bills, and II these
bills so passed receive the recognition Of the
senate and the signature Of the governor they
become the laws Of Kansas, although the per.
sons who composed the supposed house Of rep
resentalives had never been elected by the peo-
pie, and had never been candidates for that
position"
was one OF the counsel for defendants Bid.
die and Van Prather, the treasurer and auditor
OF state. l never took any such position l
never made any such argument never heard
anybody else take such position or make such
an argument There is not an element in the en-
tire quotation last made which was ever con-
tended for BY me, or by anybody in my hearing,
al any time or place. There can be no house OF
representatives, unless it contains sixty.three
or more persons who were elected thereto. Let
II be distinctly understood that used the word
elected"
deny that the ballot box may be stuffed,
that the will OF the people may be silenced by
fraud and that then through the instrumen.
tality of the ballo, box suffers and their con.
federates, certificates Of election" may be
given TO persons who did not receive the ma.
lority or plurality Of votes so as to confer any
right upon such certified persons" In other
words, ii is fundamental in government Of the
people, that the right TO Office depends on cleo
ton, not upon canvass upon votes Of legal elect
ors, not upon certificates Of election"
Some persons who are unnecessarily smart
are saying that populists claim that '5S are
more than g." never heard anyone make
such claim or preeniion. What l
claim, is this, that the Dunsmore house, when it
met and organized, had within the hall OF the
house Of representatives at least rs members
whose election had never been questioned, and
that more than 60 OF those persons took part in
organizing the house, and that at every regular
session OF the house thereafter there we're
more than 63 members whose election was
never questioned present in the house at every
roll-call and that their failure to respond after
the first day, or at any time, did not change
tho fact fhaf Ia. oil
bers. The journal of the Dunsmore house
shows the presence of more than 50 members
at every session; and / take it, that it is just
as good practice in Kansas, and Just as
good for Kansas republicans, as it
was in Washington. and for the low
er house OF congress under the control
of Mr. Speaker Reed, that members who are
actually present in the house shall be recorded
and counted as present although they fail TO
answer to their names. Sixty-three members
constitute quorum according 10 the constitu.
ton, majority OF such quorum can transact
any business except TO pass bills. There being
more than sixty-three legally elected members
present at every session Of the Dunsmore
house, and shown b. the journal Of that house
to be present, majority Of that quorum was
competent to investigate and determine the
rights Of Contestants to seats, and when it did
determine that persons who we're certified
members we're not legally eligible 10 member.
ship, or that they had not received a major.
i,y or plurality Of the legal votes cast il had
the right TO declare the seats Of the 'certifi.
Gated members" vacant, and to declare that
the persons who did receive a majority OF the
legal votes, and who were eligible TO be elected,
were entitled TO seats as members, and admit
them accordingly. The journal Of the Duns.
more house shows that this was done and con-
| tinued to be done every day, with legal
quorum Of "certifcated members" present all
the time
In the case Of Prouty vs. Slower, II Kansas
236 our own supreme court in 1873 decided that
each house is he sole and final Judge OF the
elections and qualifications Of its own members.
In that case the question arose. whether the
house could increase its membership, and the
court decided that il had no such power Its
decision was, that legislative districts must be
created by law, TO a number not 10 exceed the
constitutional limitation; but what persons
should represent such districts was the ex-
elusive province or the right OF each house
TO determine for itself That case therefore
is important only as recognizing the fact that
each house, having constitutional quorum
present can determine for itself who are its
legally elected members In the Gilmore case,
% Kansas ISL, 55i, the supreme court again de.
| cided that each house was the exclusive Judge
OF the elections, returns and qualification OF
its own members; that this grant OF power con.
stitutes each house the ultimate tribunal that
the houses acting together cannot decide con.
jointly: and that from such decision there Is no
appeal, not even to the two houses. nor TO any
court or other tribunal or officer In the case
Of the division of Howard county, Is Kansas
1911, our supreme court in 1875 considered the
gu stion OF the validitl Of an enrolled bill Z"
The opinion OF the court, at pages III and 2l3
can be read with advantage. The court decided
that there is no constitutional provision in
Kansas requiring any record of any
bill TO be kept or preserved except as
1t is kept and preserved in what is
called the enrolled bill" The court said:
We do not think that we can resort TO evi.
dence outside OF the enrolled bill and outside
OF The journals Of the legislature, for the pur.
pose Of impeaching an enrolled bill as valid
law. or course, we take judicial notice without
proof CT all the laws OF our own state All
courts Of the state are required 10 do this; and
In doing this We take judicial notice Of what
our books and Published laws contain, Of what
the enrolled bills contain, OF what the journals
OF the legislature contain, and indeed OF every.
thing that Is allowed TO affect the validity Of
an law, or that is allowed 10 affect or modify
It's meaning in any respect whatever"
Now this would seem to be plain emo ugh and
ought TO settle the question TO the satisfaction
OF Judge Hazen and other gentlemen who seem
10 think that our supreme court did not tran
seend its jurisdiction and power But the su.
preme court in the same case, and at page 2l3.
volume Is, Of Kansas reports, says further:
I'VE cannot take judicial notice Of fact which
Is not allowed to affect the validity OF the law
In any respect whatever. and such fact cannot
be proved 10 US for any such purpose"
Irepeat, therefore, that Judge Hlzen could
not legally hear any oral proof, or any proof by
affidavit upon the motion pending before him
for an Injunction against tho ata fraa s.,ror