The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1899-02-07

and delicate nature. A free people are
tary power; and the power to call the mil
1tia into actual service is certainly felt TO
is not power which can be executed with
out corresponding responsibility 1t is in
cases of actual invasion or of imminent
poWer, the arises, by Whom IS the
exigency to be judge or decided? Is the
whether the exigency has arisen, or is it
to be considered as an open question upon
of the president are addressed may de-
eide for himself, and equally open to be
refuse to obey the orders OF the president?
We are all of the opinion that the au-
arisen belongs exclusively to the Presi-
dent, and that his decision is conclusive
upon all other persons. We think that
this construction necessarily results from
the manifest object Contemplated by the
Our conclusion upon this question is,
therefore, that the authority to pass up
on the question of whether there is an
extraordinary occasion for converting the
solely with the governor, and that his de-
term1na ton of that question is conclusive.
NOT A LEGAL MAJORITY.
Tt is next claimed on behalf of defend
ant that the appropriation act in question
the legal members OF the house; that for
fendant IS not tn authorized ito to pay out money
under it This contention is based upon
apportioned the state for representative
purposes. in an act which took effect June
law: that the members of the legislature
of 1897 so far as the new apportionment
office, and that they had no right to seats
in the special session. In this connection
PENDANT that the term of office of a mem
Der of the house is two years and that
such term commences upon his election:
that If the governor was authorized to call
a special session he should have convened
the members elected at the November cleo
ton of 1898, instead of those elected in No
The plaintiff contends that while the APP
portionment act of 1897 took effect on June
the old members, and did not iegisiate
them out of office until their term of office
second Tuesday of January 1899.
A NOVEL QUESTION.
This presents a novel question
as to provide for biennial session of the
was passed redstricting the state Tor rep -
resentative purposes, which took effect
repeating section. In 1881 a reapportion-
ment act was passed redistricting the state
ing all conflicting acts. In 1886 reappor-
tionment act was passed redistricting the
1891 a reappOrtionment act passed
districting the state which took effect May
In 1897 a reapportionment act was passed
redistricting the state for representative
purposes, taking effect June 1, 1895, and
repeating all conflicting acts. 1t will be
seen from an examination Oh THESE. various
the legislature provided that the act
Of the ter of efce Of the Ine
and If the defendants contention be
bers legislated themselves out of office be-
fore the expiration of their term. Go say
the least this would be unusual condi-
ton of affairs for offceholders in Kan
sas)
Does an .apportionment act legislate a
representative out of office from the time
the lay goes into effect. where the time
his term?
resentative out of office before the term
sututlonal officer, and the decision of our
supreme court in the case of Aikman VS..
thority upon that question. There the
supreme court held that the legislature
fee by attaching the territory of his dis
trict to other adjoining districts, although
Legislature had withdrawn all territorial
jurisdiction. which necessarily destroyed
way abolished the office. But what would
hay have been the decision on the question if
number nun of the judicial district and left its
then have held that by changing the num-
Der of the district it in effect legislated
the judge of that territory out of office?
uOnment act of 1897 the legislature chang
ed the territorial limits of some of the
ed, and the result of that required the
Districts but the territorial boundaries in
large proportion Of the districts created
the same-the only change being in the
Yened there was a majority of the mem
bers of that body representing the same
they formerly represented under the eiet
ton of 1896. but the number of many dis
tricts had been changed.
DISTRICT CHANGES
Our opinion is that the mere changing
of the number of the district did not
have the effect of legislating the repre-
sentative out of office, and that so long
as there remained any portion of the
territory originally represented by any
individual member. he would be entitled
to hold his office.
But aside from this, our view is that
although the apportionment act of 1897
took effect June 1, 1893. yet it did not
become operative as to new members,
and the new districts. until the expira-
ton of the term of office of the repre-
sentatives elected in 1896.
If the contention of defendant be sus-
tanned, then following each of the APP
portionment acts above referred to,
there was. and of necessity must be
following every apportionment act a
period when the state has no members
Of the house. Suppose. then, during
such a period an extraordinary occa-
sion should arise for the converting of
the legislature in special session, what
would be the result? This same reason
ing applies with still greater force to
members of the state senate because
they are elected for a period of four
years instead of two.
1t has been usual in passing appor-
tiOnment acts to redistrict the state for
both senatorial and representative pur-
poses, but the legislature of 1897 reap
pOrtioned the state only as to repre-
sentatives. Suppose that legislature
had reappOrtiOned the state for sena-
torial purposes, which they had a right
to do, and the act had taken effect at
the time named, if defendants conten-
ton be correct, then the senators at the
present session would have no right to
act such, with the exception of the