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

said special session had been legislated
out of office; that the appropriation act
under which plaintiff claims he is en-
titled to compensation did not receive
a constitutional majority of the MEM
bers of the house of representatives.
And for these reasons defendant con-
tends that he should not be required to
issue the warrant demanded.
While the amount involved in this
case is small the questions at issue are
of vital Importance; for, if the conten-
ton of defendant be sustained by the
courts, the effect will be to destroy the
entire proceedings of the special ses-
sion.
1t is contended on behalf of defendant
that no extraordinary occasion existed
at the time of the issuance of the gov
errors proclamation and that such
proclamation does not show the ex-
istence of any extraordinary occasion
for converting the legislature, and,
therefore, that the legislature was con-
vened in special session in violation of
the constitution, which provides that
the governor may ION extraordinary oc-
casions convene the legislature by proc
1amation.' The defendant contends that
unless an extraordinary occasion act
ually existed at the time of the issuance
of such proclamation the legislature
could not be cOnstitutionally convened
1t is claimed by the plaintiff that the
governor is the exclusive Judge of the
fact whether an extraordinary occas sion
exists or not, and that when he decides
lNdI question ana cOnVeneS the leg1S-
lature the courts can not review his
decision.
CONSTITUTIONAL POWER.
The trainers of the constitution have
conferred upon the governor the power
to convene the legislature in special
session, and the authority to pass upon
the necessity for the exercising of this
power. No provision is made in the
constitution or elsewhere for any other
officer or tribunal to convene the Iegis-
in pinI hi iS,
vested in the governor and in him alone.
The constitution provides that he may,
on extraordinary occasions, convene the
legislature by proclamation. He must
decide whether an extraordinary occa-
sion exists before he issues his procla-
nation, and the issuance of his procla-
nation converting the legislature in
special session is an affirrnat tive determ-
inatiOn that the constitutional eXigency
exists. There is no constitutional or
statutory requirement as to what his
proclamation shall contain. and there
seems to be no very well defined prece-
decided that such extraordinary occa-
sion exists to justify him in converting
the legislature and issues his proclama-
tioE for that purpose, can the courts re-
view his decision and redetermine the
question?
The constitution confides the decision
of this question to the governor. He is
made the sole judge. No review of his
decision is provided for. His decision
upon this question is as binding as the
final decision of a court. When decided
by him the question becomes, in effect,
res adjudicata. If the trainers of the
constitution had intended otherwise
they would have provided some means
of review. 1t cannot be successfully
contended that the courts can treat this
question as one of fact and decide it as
other questions of fact are decided for
such would be the exercising of auth
GRITTY which the constitution has con-
IL rx-sac-
never intended that the courts should
try and decide the existence or nom
existence of facts for the purpose of
determining whether the legislature
should be convened, or, after it had
been convened, whether the facts war
ranted its converting or not
SPECIAL SESSIONS.
Special sessions of the legislature are
usually called to meet some present ne
cessity, and if resort may be had to the
courts to review the question of the ne
cessity, the object of converting the leg
islature would, in many instances, be
defeated If the governor has the right
to decide this question, he has a right
to decide it one way or the other ac-
cording to his own conviction, and no
state of facts could exist that would
warrant the courts in compelling by
mandamus the issuance of a proclama-
ton for a special session when he had
determined no extraordinary occasion
existed. Neither would injunction lie
TO prevent from issuing MS prOCId-
nation when he had determined that an
extraordinary occasion did exist, al
though the facts upon which he reached
such determination may not be sufi-
cient to warrant the conclusion. Acts
of this nature on the part of the gov
ernor cannot be controlled by the
courts, because his acts are the discre-
tionary acts of an executive officer. The
rule seems to be well settled that the
discretionary acts of an executive Off
Ger cannot be controlled by the courts
But his acts which are purely minister
ial may be so controlled. 1t is praCti-
caIIy conceded in this case that the act
of a governor in determining the neceS-
sity for calling a special session of the
legislature is a discretionary, executive
act But it is claimed by defendant
that there was an abuse by the gov
ernOr of his discretionary power; that
when the. executive has abused his dis
cretionary power the courts may not
control his action but they may destroy
the fruits of his act; that in issuing the
call for special session in the case
under consideration the governor abused
his discretionary power; that no extra
ordinary occasion existed; that there
fore his call was in violation of the con-
stitution; and that the legislature which
convened in pursuance to that call was
unconstitutionally convened, and there
fore its acts null and void.
A QUESTION OF FACT.
Doubtless there are many cases both
executive and legislative where this
principle may be applied, but the acts
of the governor in passing upon the
necessity of converting the legislature in
special session does not fall within this
class. If the courts are to retry and
decide the question of fact, what assur-
ance have we that the facts upon which
the governor decided the question will
be presented to the court? In passing
upon the question, the governor may
have knowledge of facts sufficient to
justify the call and yet be of such a
character as not to be presentable to