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

tne courts or Bn6 country nave eFeS uecluS0
that to attempt to go behind the journal to
determine acts of members was illegal In
support of this he called case from Ohio,
which has been generally published in this
connection.
TT. Carver followed for the state. He
met the contention that the Douglass house
had no authority to issue warrant, and the
claim that the courts had no jurisdiction in
the case, by saying that house of repre-
sentatives must be organized in such way
as il can be recognized under the constitu-
ton as legal organization. he quoted JUS
tice Brewer as to what constituted legal
body: There must, first, be present a ma
Sority of q body to make it legal. As to
other authorities quoted, they applied to dis
putes arising after organization; IN this case
IL was the fact of organization in dispute;
after that is determined there is no further
contention in this case.
Mr.. Carver here CITED precedents to main
tain the jurisdiction of the court and empha-
sized the fact that tho judicial department
of the government was supreme and final.
He could find no case where a court had
not assumed jurisdiction to inquire into the
organization of any legislative body. Even
the governor is not the judge OF his own
election. He here quoted a case from
Maine, which he claimed was Identical with
this case, wherein the court had inquired
into which was the legal body. The court
held that only men holding certificates could
be recognized as memo ers. In case from
Montana the supreme court ot the United
States had held that certificate holding
members were the only legal memb ers.
The constitution had provided tribunal,
the state board of canvassers, to declare who
were entitled to certificates of election. At
ter such members as had been SO declared
members had met and organized their or
ganization became the sole Judge of the
qualifications of its members.
The recognition by the senate and by the
governor cut no figure. The governor had
nothing to do with the case The senate
could only decide upon its own mbership.
Such recognition, by itself, could have no
force or effect.
g. c. Clemens followed for the defendant.
He disputed the authenticity of the authori-
ties cited by Mr.. Carver. He then cited au-
thorities claimed to bear upon the question
of jurisdiction.
The burden of his argument was that the
Dunsmore house had been recognized by the
governor, senate, the official state paper, the
secretary of state, the treasurer and auditor,
it must therefore, be the legal body. II
could not be legal, he said, because no one
would recognize it.
Suppose, a" he said, chat this court should
decide the Douglass house the legal house,
what then? The court could not compel the
governor and senate to recognize tbs Doug
lass house." The result would be that the
state institutions would suffer.
DAVID Overmyer followed Clemens. The
three branches of the state government are
each supreme in its sphere; the executive,
Legislative and judicial are independent,
each of the others. But counsel contend
that the action of the executive and senate
must govern the decision of the court. Il
this is correct the legislature may recognize
sCme other man as the governor; and the
governor and house might recognize a town
meeting as a senate. The sphere of the judi.
ciary is to pass upon the legality of such
questions. In this connection he cited the
judicial decision recently made in Nebraska
as to who was governor, and to the Judicial
tribunal established to pass upon the title OF
the president of the United States in 1876.
In this state the court can determine who is
governor and issue a writ of custer.
The other side talks of injurious conse.
Quences which might ensue if the court re-
cognized the Douglass house; what is that
compared with disobedience to the DEGREES
of the court
He would enquire for what purpose is the
law creating the state board of canvassers.
and what is the use of having such a board
1T certificates were unnecessary to mem ers.
Who ever heard of de facto legislature?
The rule of law is that there can DO no de
facto officers in opposition to de jure body.
Chester L Long followed for the Douglass
side. He said that mono of the opposing at
Douglass house. A majority of members
had organized that body and no one chal-
len0ed the right of any one of the sixty four
members who participated in that organiZa-
ton to vote. All the basis for the organiza-
ton of the Dunsmore house was the recog-
milton of the senate and governor. He here
cited many cases to show the right of the
court to inquire whether q house was organ
lied or not; among them decision by Chief
Justice Horton. When the popullsts ap-
pealed to the supreme court in the BallInger
and Shellarbarger esses, before the organ
ization of the legislature they recognized
that certificates were necessary, and when
they were beaten in court they seated both
contestants in these cases, under the claim
that certificates were not necessary. Nc
fraud was shown or charged in either case.
Mr.. Long read the journal entry of the
DunsTnore house before the revision. where
the ten members without certificates were
put down rs voting and helping to form quo
rum. Then ne read from the revised journal
where these ten men were placed to one side
and republicans counted in under the Reed
rule to make quorum, and then he referred
TO the resolution of the Dunsmore house
making the rules of the last session of the
legislature the rules of the body. Picking
mp a copy of the printed rules of last session.
Mr.. Long inquired: 'Where will you find
the Reed rule in this copy of rules adopted
by the house?"
The speaker then cited a number of cases
where officials were recognized by bott
branches of legislature and still were inyesti.
gated by the courts.
Judge Doster spoke next. He is a dicf-
cult man to report. HIS talk is ornate and
classical, but it is difficult to sift his practi-
cal points from his oratory. However, his
idea seemed to be that the taking of oral
testimony in this case, when the journal 70
cords of the house were IN evidence, was
never before done while Investigating a
case of this character. Yet, If the oral testi-
mony had shown snything it had shown the
illegal composition of both the Dunsmore
and Douglass houses
He claimed that all decisions of record,
since courts existed, are against the right of
courts to inquire into the functions of legiS-
ietive bodies. Such bodies are supreme and
above all law.
Mr.. Rossin0ton closed the case. He as
serted that the evidence introduced is that
ffty-el2ht men with certificates went into q
caucus by themselves when there were sixty
Eve men with certificates not with them, and
formed a conspiracy to take IN ten men from
the outside to prevent the s:xty-five from or
ganiZing the house. Instead of Mr.. Semple
being clothed with any authority to preside
At the organization of the legislature, he ives
simply carrying out the first oysyt act of the
organized conspiracy.
The validity of the Douglass house has not |
been questioned either in taking testimony |
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