The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-06-05
IT is CUT SHORT.
The Legislative Doodle InVesti-
cation Ceases.
The Supreme Court Today Says
the Committee
HAS NO POWER TO ACT
Other Than to Question VOlun-
tary Witnesses.
Justice DOster Dissents and
Scores the Court.
HAS NO POWER TO ACT

AAE 4GSlSAallNG INV 6 lls5etLAAA5 NSAAA
mtttee was declared to be powerless
today by the supreme court in the test
case of T. c. Davis. representative from
Wilson county.
The opinion was written by Associate
Justice Allen. Chief Justice Doster
dissented.
Justice Allen states that while the
committee may lawfully sit and take
testimony, no power is conferred by
punish witnesses who refuse to testify.
AS an incident to its legislative func-
tions the power to punish for contempt
ceased with the cessation of the legis-
lative powers of the house and a mere
arm extended for the purpose of gath
ering information certainly can not
hold that power after it has ceased to
exist in the body itself"
Chief Justice DOster. says:
I 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
10y an order of commitment. The priS-
oner's contention in this case cOnsti-
tutes striking instance of the latter
day tendency to minimize the power of
the legislative branch of the govern
ment 1t has become the taShlOn, as
il We're, for persons unwilling to subject
themselves to the wholesome rule of
legislative authority to rush to the
courts with q plea OF persecution ana
in 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 be-
ing a government of delegated legisla-
tive power is becoming ObScured in the
popular mind and its placed usurped
by a fancy. nebuIous and indistinct but
fast outlining and shaping itself, that
the judiciary is the final and supreme
authority. sitting in censorship and
correction over the other branches of
the government. Government by in
junction and government by habeas
corpus ac1s l---gss7ae eFETzaelt by the courts
are really losing those contemptuous
and protesting significations with
which the terms were first used ana
are rapidly passing into accepted theo-
Ties of municipal sovereignty
Like an infection which, through
lack of preventive measures may de-
veIop into a type of permanent cOnsti-
tutiOnal disease, the virus of this her
esy 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 a majority
of the judges Of this court assumed the
right to compose a legislative dispute
as to who were qualified to sit as mem
bers of one of the houses, and this not
uDOn 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 a probate judge of one of the
counties of the state sWelled out the
inconsequence of his office to a point OF
contact with the supreme executive
head of the state and actually had the
temerity to issue an order restraining
the governor as commander in chief
from mastering a militia company out
of the service; and this court instead of
resting it's denial of its right to do so
upon the clear ground of distinction
between coordinate branches of the
don nd ea1raEl
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 eXtraVagant measures !
of authority so frequently ascribed to
it.
Tt is now too late for any effective |
purpose to deny the right of the court !
To sit in judgment upon acts of the leg |
islature. Accumulated precedent has
established such right beyond ques- |
ton of one or even many judges. If, |
however, it We're an open inquiry, L
would have no hesitation in denying
the existence of the jurisdiction as
Sumed. No close student of the StruC- !
ture. history and philosophy of the gov
ernment but Will agree that the eXer-
else of such power was not within the
design of the trainers of either the
state or federal constitution.
jurisdiction. like appetite, grows by
what it is fed upon. One assumption OF
power by the courts has but given
courage and capacity for another, until
from a hesitating, apologize refusal to
effectuate legislative acts, clearly viO-
lative of constitutional right, we have
grown to arrOgate the prerOgative of
controlling executive acts. settling
questions of legislative membership. |
condemning forms of legislative pro
legislative provisions, marking out the
scope and policy of legislative inquiries
and generally of directing the plan and
suDervising the machinery of political
government. So far as am concerned
! shall refuse to join in any assump-
ton of constitutional jurisdiction be
vond those boundaries which are al
nable walls of precedent and yielded
over as undisputed ground.
The first and principal act of muni-
cipal control is the making of laws.
Leaving out Of view for a moment, the
people in their primary capacity as a
a the source from which it directly and
proximately proceeds, it is inevitably
perceived that power resides alone in
the legislative body and Furthermore
that in a natural sense it is the only
tribunal to which primary power has or
can be confided. AS a depositary of
delegated authority the legislature is
the only logical and necessary provision
of nature in it's bearing upon the gov
ernment of men. All other powers are
of secondary delegation from it. Gov
ernOrs and judges are but preachers of
legislative fashiOning and executiOners
Of legislative will. In a social economy