Barbour County index. [volume] (Medicine Lodge, Kan.) 1880-current, 1897-06-09
COMMITTEE WITHOUT POWER.

questions, LDOuPn IL Is 4 leSdi luYeSLl-
eating organization. The opinion was
written by Associate Justice Allen.
Justice Johnson concurring and Chief
Justice Doster dissenting. Below we
publish the opinion of the majority OF
the court, followed by Chief Justice
Doster'S dissenting opinion. We ad
mire the latter as much as we deplore
the former. Judge Alien has hereto
fore rendered some rocky" decisions,
but this one caps them all:
LAS an incident TO It's legislative
functions the power to punish TO. con-
| tempt ceased with the cessation of the
! Legislative powers Of the house and
mere arm extended for the purpose Of
| gathering information certainly cannot
hold that power after it has ceased to
exist i'll the body itself"
Chief Justice Doster:
Il dissent from the order discharg-
| ing the prisoner, and dissent from all
that has been said by Justice Allen in
his opinion denying the power of the
legislative committee TO vindicate itself
by an order of commitment. The pris-
oner's contention in this case consIi-
tuteS striking instance of OF the latter
day tendency 10 minimize the power of
the legislative branch of the govern
ment. 1t has become the fashion, as 1t
were, for persons unwilling to subject
| themselves 10 the wholesome rule of
legislative authority to rush to the
courts with plea Of persecution and
III the name OF some theory of popular
right demand immunity from the re
straint imposed. So frequently have
the Judges yielded to the opportunities
of this class that the fact of this being
a government of delegated legislative
power is becoming ObScured i'll the pop
ular mind and its place usurped by a
fancy, nebulous and indIStiuct but fast
outlining and shaping itself, that the
judiciary is the final and supreme au-
thority, sitting in censorship and cor
rectiOn over the other branches of the
government. Government by injunc-
ton and government by habeas cor
pus' and government 10y the courts
are really losing those contemptuOus
and protesting signihcatiors with
which the terms were first used and
are rapidly passing into accepted theo-
ries of municipal sovereignty.
Like an infection which, through
lack of preventive measures may de
velop into type of permanent cOnsti-
tutiOnal disease, the virus of this here
sy has so inoculated the body polite
as to endanger the very life OF the Or
ganic political system. Even in this
state only four years ago majority of
the judges of this court assumed the
right to compose legislative dispute
as to who were qualified to sit as mem
bers of one of the houses, and this not
upon any theory of constitutional in
depreciation but by the might of forces
drawn out of that vast and cavernous
reservoir of authority called judicial
power
Later probate judge OF one of the
counties of the state sWelled out the
inconsequence of his Office to q point of
contact with the supreme executive
head of the state and actually had the
temerlty to Issue an order restraining
the governor as commander III chief
from mastering Il militia company out
Of the service; and this court instead of
resting its denial of its right to do so
upon the clear ground OF distinction
between coordinate branches of the
government and their Independence one
Of another, as it should have done, de-
graded the question into one of mere
statutory construction and official prac-
tice'
Instances of which the above are
characteristic are constantly occurring
in both state and federal courts and in
my judgment an imperative duty rests
upon the judiciary to dIsavow in en-
phatic terms the extravaganza measures
of authority so frequently ascrlbed to
1t.
1T is now too late for any effective
purpose to deny the right of the court
10 sit in judgment upon acts of the leg
islature. Accumulated precedent has
established such tight beyond ID ques-
ton of one or even many judges. If,
however, 1t were an open inquiry, |
would have no hesitation in denying
the existence of the jurisdiction assum-
ed. No close student of the structure.
history and philosophy of the govern
ment but will agree that the exercise OF
such power was not within the design
of the trainers Of either the state OF
federal constitution.
: jurisdiction, like appetite, grows by
what 1t is fed upon. One assumption OF
power by the courts has but given cour.
, age and capacity for another, until
from hesitating, apologize refusal t.
effectuate legislative acts, clearly VIC.
latlYe of constitutional right, we have
grown to arrogate The prerogative OF
controlling executive acts, settling
questions of legislative membership
condemning forms of legislative proceed
, ure, enjoining the enforcement of legis
lative provisions, marking out the
scope and policy of legislative inquiries
: and generally of directing the plan and
supervising the machinery of politica
government. So far as am concerned
: | shall refuse to join in any assumption
"a.