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

of necessity and ,expediency; and they will
regard it as unwise or unimportant. But
in so doing . they indlreGtl " review the g6v-
to pass the law. they, do so on the ground
for action on their part. In such case
it is clear that while the decision of the
governor is final, SO far as to require the
sense that would bind the legislative de-
partment to accept and act upon it. when
duty in the making of laws
Cooley's opinion was that the decision Of
the question by the governor was final and
This H same question was i Before the su-
preme court of Delaware and was passed
upon in Herrington's Reports, page 524.
The supreme court there says:
GOVERNOR IS THE JUDGE
THE entire objection to the validity of
sumption that the general assembly which
Yened. and that Consequently iioii1 only this
put all its acts at that session are abso.s
this state the governor is authorized to
convene the general assembly on extra
exercising OF which the trainers Of the
constitution of this state have seen fit
to entrust to the chief executive Of the
what shall be deemed an extraordinary
settlement of the question to any other
department of the government, the gov
he cannot exercise the power. He may
err, but this court has no jurisdiction to
review his decision or correct his errors.
If he acts corruptly he is liable to i'm
parchment; but the determination that
mistake or even corruption on the part of
the governor in convening the general as
sembly invalidates the acts of that body
chief
the legislature when in session is author
lied to PROFOUND to the supreme court
Upon to decide the questions without their
arising through the courts In 3 Col,
gated by the legislature as to whether
the decision of the governor in converting
elusive or not. The court, in passing up
on the question, says;
such extraordinary character as demands
convention of the general assembly in
section 3. Article of the &c Constitutions. is a
matter resting entirely in the judgment of
PRECEDENT FROM COLORADO.
Again this question was before the SUI
preme court of Colorado, and their opinion,
tafns the following language:
THE governor is thus invested with ex-
mine Inc When When there is an extraordinary oc-
casion for convening the legislature"
York, in deciding this question, on page
245. uses the following language:
THE governor by his proclama ton as
sumed to convene the legislature in extra
article 4 of the constitution. This article
gave the governor power to convene the
from the very nature of this provision he
must be the judge as to what constitutes
the extraordinary occasion"
same provision which is found in Colo
tives to PROFOUND questions to the supreme
court for an opinion. In 1898 the house of
court of Rhode Island certain questions
touching the duties and powers of the
their opinion as found in is r. L, s26.
Among other things the court says:
ACTS UNDER OATH.
1.-THE powers vested in the executive de-
partment are to be exercised by the gov
the express constitutional injunction that
he shall take care that the laws be faith
the theiy people alone Tor the manner in Which
he exercises the duties of his high office.
which he is sworn to protect he may be
impeached and removed from office, and
h osP p Ss Bu f for the
his powers and prerogatives as governor,
pa sii1i of the fas ls has any
power to call him to account nor can
be oUesttoned mai the goVernor is supreme
ment, as the legislature in the legisla tive
of the government. Moreover. this is a
case in which the executive department of
duty to finally pass upon a question Of
constitutional construction.
1.-THE power Of the executive, which we
are considering, is a political power, in
the exercise of which. in the language of
Madison ld - &c Chance. 49,: He is to use his
own discretion and is accou1table
character and to his own conscience: and
whatever opinion may be entertained of
ton may be used, still there exists no
power to control that discretion. The sub
The supreme court of Wisconsin. in 3
Pinney. page 43s. in speaking of this
but if the right is contingent and is
made to depend upon the DISCRETION Of the
ton be exercised no right 6an vest and ard
right is gone. His determination is final
that of a court Of competent jurisdiction"
preme court of the United States uses
the following language:
UNIVERSAL PRINCIPLE.
'It is a universal principle that where
public officer or tribunal over a subject
matter and its exercise Is confined to ms
binding and valid as to the subject mat
teri and inIdividqnl rights F VII not be dis s.,
the exercise of that discretion within the
questions which can arise between an in
dividual claiming a right under the acts
dene ya ahd he PeP power any in tR ee n
fraud in the party. All other questions
act done by the tribunal officer, whether
executive, legislative or judicial"
IN FEBRUARY, 1879, congress passed an
act authorizing the president to call out
the state militia where the United States
was invaded or in imminent danger of in
vasion. Acting under this authority the
president called out the New York militia.
and controversy arose as to whether the
president was authorized to make the call
The question was before the supreme court
of New York in IL JOhnSon'S Reports, page
157. Judge Spencer. in delivering the
opinion of the court, says:
these pleas to state either that the United
States were invaded or in imminent dan
ger of invasion. or that the laws Of the
United States were opposed. or the execu-
ton thereof INSTRUCTED, the matter thus