Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1893-03-04
DECISION.
Chief Justice Horton and Jus.
.tfce Johnston
Rule the Douglass House Legally Organ
1zod, While Justice Allen Dissents-
The First on the House Journal;
--- Allen on Recognition.

4
| The First on the House Journals
- Allen on Recognition.
| Chief Justice Horton gave his decision oral
| ly, from notes. His first point was: The con.
stitution of the state gives thls court origi
| nal jurisdiction in habeas corpus and THU
is proceeding of that character.
Therefore, we have before Us, neces-
sary for our determination, the question
whether the body or the House which
| authorized Clevenger as sergeant-at-
arms to arrest and detain Gum, had
any legal or constitutional authority so
| 70 do. II there was one House only, or
the proceedings OF one HouRe only to
consider, our duty in this matter would
be plain and easy. But it ap-
pears from the journals presented
to US that on January 10, 1893,
the day appointed for the orgariza-
ton Of the House of Representatives OF
the state of Kansas, there met and at
tenn pied 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
organized also from Cushing law and prac-
tice of legislative assemblies sustaining and
emphasizing Judge McCreary's position.
He also cited the language of the supreme
court of Nebraska on january IL or the
present year.
1t is contemplated that eacn house Of the
legislature shall bs organized by the per
sous WAC are prima facie members thereof.
1t requires no argument to prove the dis
astrous consequences OF a different con-
struction OF the constitution.
The chief justice added:
~ may add that the scenes which
have occurred in this capitol during the
past two weeks are sufficient foundation
for the view Of the supreme court Of the
state OF Nebraska. But more than this:
Our own statutes clearly provide that
the legislature-that the Senate and the
House OF Representatives when 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.
It is recognized everywhere that
practice and usage are TO be con-
sidered upon questions OF this
character. 1t 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 generation in Kansas.
Here
let me say, that while there mas been
oh haf I,,1o
canvassing boards might do, and what
frauds canvassing boards might commit,
there hes not been presented in this
case any evidence showing that the re-
turns Of election on file 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 oanvassInG boards. In
one case, it appeared that Joseph Rosen-
thai had been found elected by
the board Of cauVussers in Haskell
county. That board stated that
it could not meet again
and canvass the latter or the subsequent
return. This court, in accordance with
all the authorities, sustained the state
board OF canvassers in their action and if
any one had the right to complain Of
that decision it was Joseph Rosenthal.
And yet, Joseph Rosenthal, after he had
heard the decision of this court delivered,
presented to the chief justice OF this
court letter, stating that he was
convinced that the decision of this court
was not only the law, but that it ought
to be the law, and that he respected
the court for it's decision in
that case. There has been pre-.
sented here what is known as the re-
vised journal of the Dunsmore
House. / Judge that the journal
has been carefully prepared, and that it
is attempted to fully state what oc-
Cured according to the views of the par
ties, or OF the House under whose order
it was prepared and which has approved
1t, and yet the 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 the 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 more than
q constitutional quorum. Therefore, this
journal at that place only counts the
members who appear upon the roll of
the secretary Of state. It says the num-
Der was lis, 5S voting, answering the
call, and 81 not answering the CALL
Il then states the following
named contestants for seats were
present. but does not include them
in the quorum or in the number of lis.
It savG they number ten.
90 say, not ouIy uU Su0 aupuoritfev,
parliamentary and legislative, sustain
the theory that the persons having csr-
tificates are the ones to organize, not
only does the practice, and the usage
prevailing in Kansas since. the organiza-
ton and admission as q state sustain
that rule, but the newly prepared
journal OF the Dunsmore House recog-
nizes this and states, not that
the contestants were voting, not that
the contestants appeared for the pur-
pose Of being counted, but it excludes
them all the way through, until after