Evening star. [volume] (Washington, D.C.) 1854-1972, 1910-02-28
JUSTICE DECLARES
SENATE IN ERROR

O[VAIC in [hkUk
Continued from First Faee)
Torrance of a duty not depending on dis
cretion, but upon particular acts OF Con-
gress and the general principles of law?
Not Exempt From Suit.
If legislator commits any illegal act
under color of his Office by which an in
dividual sustains an injury. 1t cannot be
pretended that his ONCE alone exempts
him from being sued in the ordinary
mode Of proceeding, and being compelled
to obey the judgment OF the law. How,
then. can his office as legislator exempt
him from this particular mode of decid-
ing on the legality Of his conduct, IL the
case be such a case as would, were any
other individual the party complained OF,
authorize the process? Does not a claim
that his Office exempts him involve
question that is to be answered only by
the Constitution and laws OF
the United States as applicable to his
case? Is not the assertion OF an ex-
emption a claim that it arises under that
otherwise than by their in
If not. the Constitution ex-
tends the judicial power to its determine
ton: the judicial power alone can secure
1t by an examination into the instances
in which 1t is undertaken to be infringed.
That the existence Of senatorial privi-
leges and prerogatives is a question the
nature of which Is justiciable because 1t
depends upon an Interpretation OF the
and laws of the United
States, is a deduction which follows the
case of Burton agt. United States O2
u. s.. 344. wherein against charge OF
violating an act OF CONGRESS
which made certain conduct criminal u
was contended that the act applied only
to the conduct or action of the senator as
guished from the conduct or
action of the citizen. 1t is limitation
and restriction upon the conduct ana ac-
ton Of the senator during his term or Of
fce nowhere in the Constitution expressly
or by necessary implication. conferred
upon Congress to create. The Senate, by
and through the power delegated to 1T by
the Constitution, might properly expel Tor
doing Of the things charged In the indict-
but Congress had no power. by enact
ment, to mako such acts and conduct OF
the senator crime, and delegate the
judiciary the power to take from the
senator the rights and privileges guaran.
teed by tho Constitution. The judgment
of conviction not only imprisons him.
but disqualifies him from holding the Of
flee for which he was chosen by the state
of Kansas for six years.
Acquiesced in by People.
1.-THE court, after examining the law.
took time for the formulation of it's
opinion. and failed to sustain the
privilege for the establishment Of which
the senator had been conscious of an
obligation to contend, and this failure
has been acquiesced in by the people.
TT, hax,@
been examined establish that congress
itself has enjoined upon the court:
list. That it shall exercise jurisdic-
ton to hear and determine the subject
matter of rlandamus.
'.2d. That it shall issue it's process
in such cases for acquiring Jurisdiction
over the persons of those who are sued.
THE jurisdiction of the court to
ing thus established. what fingers in
the particular process issued winch
after reflection sustains the opinion
that by suffering it to issue the Justice
became a violator Of judicial functions!
.'The defense OF the propriety of the
in the rule has been shown
to deyolve upon an act OF Congress
which imposed 1t; for, as before pointed
out, it bore no precept save that en1oined
upon it by a law of Congress, and that
verbatim.
- The propriety of the service of the
writ after Its Issuance the same statute
OF Congress shall undertake the burden
OF sustaining, for 1t provides, a copy
of such rule shall be served upon such
by day to be therein limit
ed
g. The rule establishes upon its face
that it required no respondent to ap-
pear.
-. The statues have established it as
imm aterial whether any respondent did
appear.
rs. 1t has been shown that a proceed
ing in mandamus is no more than an or
binary civil suit by one citizen against
another, and this the justice holding the
court was charged to know at the time"
Assertion of Jurisdiction.
Passing to the consideration of the
action of the House members in ap
pearing and pleading immunity, Justice
Wright announced his decision in the
words:
THE time for the return of the rule
issued having arrived, ap-
peared Hons. Allen F. Cooper. George
c. Sturgiss and David r. Finley, who
show the court that they are members
of the House of Representatives of the
United States. and they invite the court
to consider whether in the Judgment of
the court the law has imposed upon
the court jurisdiction OF the matter of
the petition.
and the conclusion to which
the courts judgment has been led In
the progress of an opinion just deliv-
cred require the court to answer that 1t
is by law vested with jurisdiction to
hear and determine the controversy;
that 1T Is obliged by the law of the land
to entertain that jurisdiction and to
proceed to that hearing and determine
tion. If during the progress of the ex-
ercise Of that Jurisdiction there should
transpire an undertaking to infringe
upon the privileges and prerogatives of
the Congress of the United States or of
its members, the court expects to be
the foremost among those who uncover
1t and who attend to the preservation
and the Vindicatien of their inviolate
and inviolable character"
The decision was rendered by Justice
Wright to a crowded courtroom and in
the presence Of the three House members
Of the Joint committee on printing. No
senator was present to hear the court
explain his reasons for disagreeing with
and disappearing the resolution of the
Senate to ignore the process of the law
and to criticise the courts action in sum-
moning the senators before the bar of
justice.
The reading of the decision occupied two
hours, and at Its conclusion Attorney
George e. Hamilton for the House menu
bers announced his readiness to proceed
with a discussion of the merits of the
case. After q consultation with Attorney
Fred B. Rhodes, 1t was agreed that a
later date would be assigned for the ar
guments on the merit. The day Is to be
agreed on by counsel.
No Invasion of Privilege.