Kansas City journal. [volume] (Kansas City, Mo.) 1897-1928, 1897-06-06
WRITES A REMARKABLE OPINION
AIRING HIS VIEWS.
Powers of Courts, He Says, Are BecOm-
ing Dangerously Magnified-':Ju-
dietary Not, in Reality,
Coordinate Branch of
Government"


mittee's dough. and the investigation will
be brought to a close in the midst OF the
most interesting developments. Some of the
besmirched Populists may insist on going
on the stand voluntarily to refute the boo
die charges made against them by their
brother Populists. but it is the opinion OF
the leading Populist politicians that the
committee will take no more evidence. Inc
committee will meet next Tuesday ana de-
eide what it will DO. Under the decision to-
day, If the committee takes any more testi-
mony tending to besmirch the character OF
any person, the members themselves Will
be liable for damages in case the evidence
adduced cannot be substantiated in a court
of Justice For this reason the committee
is likely to go slow in the matter.
The opinion handed down to-day is tri-
angular affair. Associate Justice Allen
wrote it, He held that the committee had
power to sit, but had no power TO compel
witnesses to testify or to imprison them Tor
contempt. Associate Justice Johnston con-
Cured in only one of the propositions-that
the committee could not imprison for con-
tempt However he held with Judge Allen
on the general propositions and Joined him
in a majority opinion discharging Davis
from custody. Chief Justice Doster dis
sented from the entire opinion and wrote a
redhot dissenting opinion.
Representative Davis, Populist. of Wilson
county, was subpoenaed before the commit
tee several weeks ago to testify. He said
he knew of a great deal of corruption dur
ing the legislature but that he would not
tell it unless the committee had power to
compel other members to tell what they
knew, In order to find out what powers
the committee had, Davis detied 1t and re-
fused to testify. He was committed by
the committee and Immediately applied for
his release from custody on a writ OF ha-
beas corpus in the supreme court. The case
was argued about one month ago, but the
opinion of the three judges differed so wide
ly that no decision was reached uhtlI To-
day.
ion The syllabus follows:
THE committee appointed under senate
concurrent resolution No. %, providing for
a committee composed of two senators ana
three members of the house Of representa-
tiVes to investigate charges OF bribery,
ETC. has power to sit after the ADJOURN
ment of the legislature and carry on an IN
Chapter 1872, of the laws of 1891. does
not confer valid power on investigating
committees appointed by the senate ana
house of Representatives, TO lmprison VII
| nesses who refuse TO appear or test1y De-
| fore such committees.
In discussing the first proposition, as to
whether the committee had a right to sit,
| Judge Allen said that under the general
rule the powers of a committee cease upon
the adjournment or the legislature, unless
| special provision is made in the law Great
| ing the committee. This act contains no
! direction on the subject, and if the question
was to be determined solely upon the reSo-
| luton itself it would follow that the COM
mittee had no power to sit. The appropri-
alton act, however, contemplates session
of the committee after May Is. as the
/ money did not become available until then:
| This evidences the intent on the part OF
| the two houses that the committee should
| sit after adjournment.
| ia second WhGIneF
| the committee has the power to imprison,
| Justice Allen said the committee had no
| such power, for the reason that the leg1s-
| lature could rot by the appointment of a
| committee perpetuate in that committee
| the power to imprison until another session
| of the legislature conVeneS. The power OF
| the committee to imprison ceased with the
| cessation of the legislative powers of the
| house. and a mere arm extended for the
| purpose of gathering information certainly
cannot hold that power after it has ceased
| to exist in the body itself.
Justice Johnson only concurred in the
| second proposition, but Joined in the order
! discharging the petitioner.
| Chief Justice Doster, in his dissenting
| opinion, took occasion to criticise what he
/ terms the increasing usurpation of power
| of the courts. His utterances were very
| remarkable. He said. among other things:
| Il dissent from the order discharging the
| prisoner, and dissent from all that has
| been said by Justice Allen in his opinion
denying the power of the legislative com
! mitteo to vindicate itself by an order of
| commitment.
'',rhe prisoners contention in this case
| constitutes a striking instance of the lat
| ter day tendency TO minimize the power
| of the legislative branch of the govern
| ment and extend and magnify that of the
| judiciary. 1t has become the fashion, as
it were, for persons unwilling TO subject
| themselves to the wholesome scrutiny of
| legislative authority to rush to the courts
| with a plea of persecution and in the
| name of some theory of popular right de-
mand immunity from the restraint i'm
| posed,
$50 frequently have the judges yielded
| to the opportunities of this class that the
| fact of this being a government of dele
| gated, legislative power Is being obscured
| In the popular mind and its place usurped
| by fancy, nebulous and indistinct, but fast
outlining and shaping itself that the ju-
4 dietary is the final and supreme authority,
sitting in censorship and correction over
| the other branches of government.
Government by injunction, and govern
| ment by habeas corpus and government
| with which the terms were first used and
| are rapidly passing into accepted theories
| tion which, through lack of preventive
| measures, may develop into type of per-
manent constitutional disease. the virus of
! this heresy has so inoculated the body
| polite as to endanger the very life of the
| organic political system.
| Even I'm this state, only four years ago,
a majority of the judges of this court as,
| sumed the right to compose a Legislative
| dispute as to who were qualified to sit as
1
| not upon any theory of constitutional in
| terpretation, but by the might of forces
| drawn out of that vast and caVernous res
| eryoir of authority, called judicial power.
| Later. a probate judge of one of the coun-
| ties of the state swelled out the inconse-
| uuense of his office to "A point of contact
| with the supreme executive head of the
| state and actually had the temerity to is
| sue an order restraining the governor as
| commander-in-chief. from mastering a
| militia company out of the service: and
this court, instead of resting its denial of
| his right 10 do so upon the clear ground
| of distinction between the coordinate
| branches of the government and their in
| dependence one of another. as II should
| have done. degraded the question into one
| of mere statutory construction and on1clal
PsInstances Of which the above are char
| acteristic are constantly occurring IN both
| state and federal courts, and in my judg-
| judiciary to disavOw in emphatic terms the
| eXtrayagant measures of authority so fire.
| uuently ascribed to it.
| cit Is now too late for any effective pur-
| pose to deny the right of the court to sit
| In Judgment upon acts of the legislature
! Accumulated precedent has established
! such right beyond question of one or even
| many Judges II. however, IL were an
| omen inquiry. / would have a hesitation in
DENYING the existence of the jurisdiction
| assumed. No close student OF the struct-
| ure history and philosophy OF the gov
| ernment but will agree that the exercise
| of such power was not within the design
! OF the trainers of either the state or fed
eral constitution; The question whether
| such power should be conferred by expires:
| provisions was debated in a constitutional
| convention of 1IS7. Propositions TO confer
| n were repeatedly brought forward and a!
| often nut aside without decision.
| FINALLY. the one introduced by Mr.. Mad
I r,44N 20 v-NHa and