The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-02-24
VOID
Continued from Third Page)


production of papers affecting the election
OF its members is Indispensable to the
efficient exercise Of power conferred.
at is clearly evident that the constitu-
ton of Ohio clothes the legislature with
certain judicial powers, one OF which Is
the right to try and determine the cleo
ton and qualification Of its own members.
In exercising this constitutional power,
ii has all the powers and funcuons OF a
court necessary 20 d proper discharge OF
its duties. and n adjudging witness IN
contempt and fixing his punishment II
does such act by virtue of its judicial
power and not by reason Of any legislative
authority.
Another case cited by counsel for the
respondent is People ex rel. Mcdonald
VS.. Keller, sheriff, go y. Y. 463- Mcdonald
was held by the sheriff by virtue or
| commitment issued by the president and
clerk of the senate A committee of the
senate was investigating charge Of cor
ruption against the commissioner OF pub
lie works for the city of New York, and
Mcdonald had been called as a witness
and refused TO give the information in
quired about by the committee. The SEN
ate declared him guilty of contempt. The
court in deciding the case SAID there was
no declaration in the constitution of the
state comforting all the judicial power on
the courts; that the constitution express
" gave to the assembly certain judicial
powers among others the power OF i'm
parchment, the right TO judge of the quail
ification and election of its members the
power Of removal of certain officers for
cause; all of which involved inquiries OF
a judicial nature. The court held That
while the punishment for contempts re-
quired the exercise of judicial functions,
the senate was vested with limited judi
ciaI powers, and that the assembly had
the right TO make Investigations TO elicit
information which might be necessary to
enable them to enact prepor legislation.
and that as an incident to this power was
the power to subpoena witnesses, compel
their attendance, and punish them for
failure to testify. There is nothing in
this opinion that controverts the PROPOSE
tion that the power to punish for con-
te1npts is a judicial power.
1.-THE case of Lowe VS.. Summers 60 Mo.
Appeals, e37, lays down the broad propo-
sition, whic is repudiated by the supreme
court Of the United States in Kilbourn VS..
Thompson, that the power to punish for
contempts comes fro mthe common law,
and is a pwer inherent in the houses or
bodies comprising the legislative branch,
and that for the exercise thereof no X
press constitutional provision is required.
and the writer of the opinion cites in sup
port of this doctrine SO n. Y, 463, Wis,
$50, IA Gray, 22S. and Wheaton. 2O4, none
of which cases support the doctrine eX-
cept the case of Anderson VS.. Dunn, 6
Wheaton, 2O4, which has been expressly
repudiated by the court which rendered it.
The writer of that opinion fails to discrim-
mate between powers conferred by the
constitution and powers which inhere in
the legislative body.
I'm the case of Burnham VS.. Morissey,
"A Gray, 226, cited by the Missouri court
in support of the doctrine that legislative
bodies have inherent power to punish for
contempts, Mr.. Justice Hoar, who wrote
! the opinion of the court, said:
-" The house of representatives has the
power, under the constitution, to imprison
| for contempt, but this power Is limited
to cases expressly provided for by the
constitution or to cases where the power
| is necessarily implied from those contitu-
tional functions and duties to the proper
| performance of which it is essential. The
! power is expressly conferred by the con-
stitution and the cases there enumerated
are the only ones in which a sentence of
| imprisonment for a term extending be
| yond the session of the house can be i'm
posed as a punishment We therefore
think it clear that it has the cOnstitu-
/ tional right to take evidence. to summon
witnesses and to compel them TO attend
and testify
mo language could be clearer than this
/ that the power in Massachusetts is a con-
/ stitutional and not an inherent one. Judge
Cooley says on page 159 OF his 'Constitu-
tional Limitations:
American legislative bodies have not
! been clothed with the judicial function.
and they do not, therefore, possess the
/ general power TO punish for contempt,
/ but as incidental to their legislative au-
/ thority they have the power to punish
! contempt those acts of members or others
which tend to obstruc: the performance
! OF legislative duty, or to defeat, impede,
/ or embarrass the exercise Of legislative
( power
The power here referred TO by Judge
| Cooley is the power belonging to state leg
islatures where they derive their powers
| from the people through the constitutions
/ or fundamental laws.
/ Mr.. Black, on page 254 Of his 'Constitu-
1 tional Law says: How far. or in what
/ circumstances. the legislature may pun
ISL persons for contempts against it. is
/ one Of the unsettled questions Of paria-
/ mentary law
| The concluion that I am led to is that
a territorial legislature has no inherent
/ powers. That the common law furnishes
/ no warrant for the legislature exercising
/ judicial powers. and that no mOdy or
/ tribunal, whatever its name OF functions
( can punish for contempts unless it Is
I clothed with some judicial power.
/ HAS our legislature any judicial power
or can the legislature confer upon itself
or either body thereof such functions?
IN order to determine this question We
must look 10 our grant Of power, tie CT
ganic act This act divides our terri
I torIal government into three depar -ments.
( ard defines the power OF each Section 5
/ provides That the legislative power q
the territory shall extend 20 all rlEht<ll
subjects q legislation. not Inconsistent
wiki tle cons tut.on and laws Of the Uni
ted States"
Section 9 provides: That the judicial
power of the territory shall be vested n
a supreme court, district court. PROBATE
court, and justices ofthe peace
1t vi. De observed that al the judicial
power q the territory : here granted 70
the courts, and fully disposed Of No ball
ancs. 10 remainder. 10 reSidiuu, . l=C-
for either congress OF the legislature 20