In re Gunn

50 Kan. 155

• Court: Supreme Court of Kansas
• Decided: January 15, 1893
• Status: Published

Opinions

The opinion of the court was delivered by

Horton, C. J.:

1. Supreme court-jurisdiction. On the 15th of February of the present year, L. C. Gunn was arrested by C. C. Clevenger, and soon thereafter he presented his petition to one of the justices of this court, asking to be discharged from restraint, upon the ground that Clevenger had no authority to arrest or detain him. He alleged that Clevenger was acting as the sergeant-at-arms of an alleged house of representatives which had no authority to act. The warrant issued to Clevenger as sergeant-at-arms for the arrest of Gunn was signed by George L. Douglass, as speaker, and attested by Frank L. Brown, as chief clerk, and was attached to the application. Subsequently a return was filed by Clevenger, as sergeant-at-arms, justifying the arrest of Gunn, and alleging that his detention was lawful, upon the ground that he (Clevenger) was the sergeant-at-arms of the constitutional house of representatives of the state of Kansas, duly organized by the election of Douglass as speaker, Brown as chief clerk, with other proper officers, and that Gunn refused' to obey a subpoena personally served upon him to appear before the committee on elections, and testify as a witness in a proper investigation then pending before such committee. Tp a part of the return, a traverse has been filed by the petitioner, who has associated with his attorney, counsel representing the governor of the'state. Upon the allegations of the pleadings thus framed, this court has a proper matter before it to hear and deter- • , n , . , . mine, ihe constitution of the state gives this & court original jurisdiction in habeas corpus, and this is a proceeding of that character.

2. Contempt-commitment-inquiry. 3. Habeas corpus-inquiry. The liberty of a citizen is in controversy. But a statute of this state provides that no court or judge shall inquire into the legality of any judgment or process whereby a party is in custody, or discharge him, when the term of commitment has not expired, in the following case, among others: “Third. For any contempt of any court, officer or body having authority to commit.” Therefore we have before us, necessary for our determiuation, question whether the body or the house authorized Clevenger as sergeant-at-arms to arrest and detain Gunn had any legal or constitutional authority so to do. If there were one house only, or the proceedings of one house only, to consider, our duty in this matter would be plain and easy; but it appears from the journals presented to us that on January 10, 1893, (the day appointed for the organization of the house of representatives of the state of Kansas,) there met and attempted to organize at the capítol, in representative hall, two houses, which since that time have acted separately and independently of each other.

We may remark in this connection that oral evidence was offered upon the trial concerning various matters, which was objected to by the petitioner. In deciding this case and declaring the law thereon, we have sustained the objections to the evidence as to all matters occurring after the organization of the two houses referred to, except the evidence of Hon. J. M. Dunsmore in regard to the hall or room where the two bodies held their sessions and transacted business, the evidence that the two bodies or houses acted separately and independently of each other, the journals of the state senate, of the Douglass house and of the Duusmore house, and the official records of the office of the secretary of state concerning the returns of the election and the issuance of certificates to members of the house for 1893.

Before referring to the organization, or attempted organization, of the two alleged houses, it is best to understand how a house of representatives may be legally organized. Judge McCrary, in his work upon Elections, in § 509,' says:

“It is to be observed in the outset, that when a number of persons come together, claiming to be members of a legislative body, those persons who hold the usual credentials of membership are alone entitled to participate in that organization; for it is, as we have had occasion several times to repeat, a well-settled rule, that where there has been an authorized election for an office, the certificate of election, which is sanctioned by law or usage, is the prima fade written title to that office.”

Judge McCrary, the writer of these, words, occupied for several terms a seat in the house of representatives at Washington. He was chairman for many years in that body of the committee upon elections. Subsequently, he was a member of President Hayes’s cabinet, and later he was the honored judge of the United States circuit court for the eighth circuit, embracing Kansas. His book, both from his ability and experience, is acknowledged to be the leading authority in this country upon the questions therein discussed.

But, again, we have what is known as a “standard, work” on parlimentary or legislative practice. It is found in almost every public library, is examined and referred to by every legislative assembly and every congressional body. Its title is “Cushing’s Law and Practice of Legislative Assemblies.” Section 229 reads:

“ The right to assume the functions of a member in the first-instance, and to participate in the preliminary proceedings and organization, depends wholly and exclusively upon the returns or certificates of election.”

And in section 240 it is said:

“The principles of parlimentary law applicable to the question are perfectly simple and plain, founded in the very nature of things, established by the uniform practice and authority of parliament, confirmed by reason and analogy. These principles are as follows: First, that every person duly returned is a member, whether legally elected or not, until his election is set aside; second, that no person who is not duly returned is a member, although legally elected, until his election is established ; third, that conflicting claimants, both in form legally returned, [that would be where two persons had equal certificates,] are neither of them entitled to be considered as members until the question between them has been settled; fourth, that those members who are duly returned, and they alone—the members whose rights are to be determined being excluded—constitute the judicial tribunal for the decision of all questions of this nature.”

Upon this question of certificates, we also cite the contest in the United States senate from Montana, which is the latest utterance of the highest legislative body in this land. In the report of the committee it is said:

“The majority of the committee are of the opinion that, if this body of persons had lawful and constitutional certificates of their election, that title is a good title against all the world, governing their associates in that body, governing the senate, governing everybody who has a lawful duty to determine who are lawfully elected representatives, until there can be an adjudication by the house itself to the contrary; and that nobody can be heard to say, and that no authority can be permitted to inquire into or determine, the actual facts of. the election as against that title.” (51st Cong. 1st Sess., 21 Cong. Record, pt. 3, pp. 2906-2910.)

The majority of the committee were all republican members of the United States senate; but Senator Gray, from Delaware, one of the most distinguished lawyers and democrats of that body, made a minority report, and in such report admitted the rule proclaimed by the majority of the committee concerning certificates of election issued to members of a legislature. In his report he stated:

“I may say, for the minority of the committee, that we accept as a postulate the proposition laid down by the senator from Massachusetts, and do not differ at all, in considering this case, from him in the position, that we should seek here, in the first place, to discover the lawful body clothed with legislative power who has chosen a senator, and that, to determine whether it be such lawful body, we shall be bound, in the first instance, by the fact that such body is composed of members who hold credentials from an officer or board clothed with authority in the premises to make such credentials.”

The American and English Encyclopedia of Law summarizes the law of the worth of a certificate of election as follows:

“It is settled that when it is made the duty of certain officers to canvass the votes, and issue a certificate of election in favor of the successful candidate, a certificate of such officers, regular upon its face, is sufficient to entitle the person holding it to the possession of the office during an action to contest the right.” (Vol. 6, p. 373, c. 17; Clough v. Curtis, 134 U. S. 367; 10 Sup. Ct. Rep. 573; The State, ex rel., v. Buckland, 23 Kas. 259.)

This subject has also received the recent attention of the supreme court of Nebraska, in a case in which the opinion was handed down as late as the 17th of January of the present year, upon a matter involving the certificate of the election of a member of the legislature. The court say:

“ It is contemplated that each house of the legislature shall be organized by the persons who are prima faoie members thereof. It requires no argument to prove the disastrous consequences of a different construction of the constitution.” (The State v. Van Camp, 54 N. W. Rep. 114.)

We may add that the scenes which have occurred in this capitol during the past four weeks are sufficient justification for the view of the supreme court of Nebraska. But, more than this, our own statutes clearly provide that the legislature—that the senate and the house of representatives, when they convene — shall, in the first instance, be constituted only of those members who have certificates of election. They provide that, after an election is held, in November, speedy steps shall be taken for the returns of the county canvassing boards. Then the clerks of these boards shall, make returns to the state board of canvassers; and then, after a certain length of time, the state board of canvassers shall make an examination of these returns, and order certificates to the persons appearing to be elected. Further, the state of Kansas has been in existence over 30 years. It is recognized everywhere that practice and usage are to be considered upon’ questions of this character. It has been the universal practice and usage of the legislative houses of Kansas to be organized by the admission, in the first instance, of persons holding certificates of election. This has been the practice. Now, against this, what can be said, and what authorities are brought?

A case is cited from Maine (70 Me. 609), and, in our view, with the exception of a few words in the opinion, we concur in all that is said by the supreme court of that state. In that state the returns were made to the state canvassing board. Under the authority of the constitution, the state officials submitted certain questions to the supreme court as to their duty concerning the canvass of those returns. The supreme court of Maine gave advice, which in substance was, that the state board should canvass those returns as they appeared upon their face; that they were ministerial officers only, and had no authority whatever to go back of the returns, or to hear and act upon other evidence. In violation of the constitution of that state, in violation of the statutes of the state, and contrary to the express advice of the supreme court of the state, the board of canvassers refused to accept the returns duly filed with them. Under such a condition of affairs, the supreme court of Maine ruled that those returns were better evidence than the fraudulent certificates issued by the state board of canvassers, in violation of the constitution, in violation of the statutes, and contrary to the advice of the supreme court. The language of that court is to be applied to the facts of that case—to fraudulent certificates. All else is really obiter.

In this case no such condition of affairs appears. There has been offered in evidence, the certified list of members who appear to have been elected. Accompanying that certificate is a statement of the returns on file in the office of the secretary.of state, with the number of votes each member received. We may here say that, while there has been much discussion about what fraudulent canvassing boards might do, and what frauds canvassing boards might commit, there has not been presented in this case any evidence showing that the returns of election on file in the office of the secretary of state could have been canvassed in any manner other than they were canvassed and declared.

But, more than this, there has been presented what is known as the “Revised Journal of the Dunsmore House.” We suppose that this journal has been carefully prepared, and that it is attempted therein to state fully what occurred, according to the views of the parties or of the body under whose order it, was prepared and approved; yet the journal, day after day, seems to recognize that only certified members have authority to act. We read: “ On the call of the roll received from the secretary of state, the following members were present, and answered to their names.” And it gives the names of 58. “ The following members were present, and did not respond to the call of the roll,” 57. Then it says: “Total number of members present, 115;” being more than a constitutional quorum. Therefore this journal counts only the members who appear upon the roll of the secretary of state. It says the number was 115 — “58 voting, answering the call, and 57 not answering the call.” It then states: “ The following-named contestants for seats were present;” but it does not include them in the quorum or in the number of 115. It says they numbered 10.

Again, on the second day of the meeting of what is known as the “Dunsmore House,” we read: “The house met pursuant to adjournment; Speaker Dunsmore in the chair. The roll was called, and the following-named members answered to their names; ” and the number is 57. That is all that answered. Then it says: “The following members were present, but did not answer to the roll call; ” and they were 16. And then it says: “The whole number of members present was 73”—16 and 57, being 10 more than a constitutional quorum; and every day of this journal the same-record is kept up, until after the report of the committee on elections, when certain other persons were admitted. So, not only do the authorities hold that the persons having the certificates of election are the ones to participate in the organization of the house of representatives, but the revised journal of the Dunsmore house shows that its members recognized that rule, if this revision is correct. We know that Mr. Rich has made some different statements. We know that a certain journal presented here, of the samé body, reads differently. In that journal, contestants are reported as voting before any examination of their claims to seats. This is probably the truth in the early organization of the Duns-more house, for the protests of senators, coincident with such orgánization, refer to 10 persons having no credentials as participating in that body; but reference to this has been omitted in the “doctored” or revised journal prepared in the place of the one originally kept by Mr. Rich, the chief clerk of the Dunsmore house.

We accept the revised journal as the true statement of the condition of affairs in the Dunsmore house. Of course, the petitioner cannot object to that journal, as he introduced it in evidence. So we say, not only do the authorities, parliamentary and legislative, sustain the theory that the persons having certificates are the ones to organize; not only do the practice and the usage prevailing in Kansas since its admission as a state sustain that rule, but the newly-prepared journal of the Dunsmore house recognizes this, and states, not that the contestants voted, not that the contestants appeared for the purpose of being counted, but excludes them all the time, until after they were admitted upon a report of the election committee, and it counts only those who answered the roll call, and then counts several who did not answer. It seems that while 10 contestants are marked in the Dunsmore journal as present but not voting, 10 names on the certified roll are wholly omitted. Any rightful reason for such omission does not appear. We cannot perceive any valid reason for such omission, even if 10 certified members had their seats contested. Every person duly returned to a house of representatives, and having a certificate, is a member thereof, whether elected or not, whether eligible or not, until his election is set aside. And this must be set aside by the house, not by the individual members before organization, not by any one member, not by any contestant, not by a mob. Before organization, a few members properly elected, meeting in caucus or otherwise, cannot pass upon the “elections, returns and qualifications” of the members of the house to be thereafter organized. If one member, before organization, can object to any other member duly returned and having a certificate, then all members can be objected to, and there could be no one left to organize a house. In Mc-Crary on Elections (2d ed., § 204), the practice is thus stated:

“Where two or more persons claim the same office, and where a judicial investigation is required to settle the contest upon the merits, is is often necessary to determine which of the claimants shall be permitted to qualify and exercise the functions of the office pending such investigation. If the office were to remain vacant pending the contest, it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of a public officer. Besides, if the mere institution of a contest were deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil-disposed person to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term; and this might be done by a contest having little or no merit on his side, for it would be impossible to discover in advance of an investigation the absence of merit. And, again, if the party holding the ordinary credentials to an office could be kept out of the office by the mere institution of a contest, the organization of a legislative body— such,' for example, as the house of representatives of. the United States—might be altogether prevented by instituting contests against a majority of the members; or, what is more to be apprehended, the relative strength of political parties in such a body might be changed by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt and to adhere to the rule that the person holding the ordinary credentials shall be qualified, and allowed to act pending a contest and until a decision can be had on the merits.”

Now, why should not this principle be followed ? Why should not this rule, which is universal throughout the states of this union, and which is accepted and adopted by congress, be followed in the state of Kansas? It has history to sustain it. It has the wisdom of long years of legislative experience to sustain it. It has reason to sustain it. And let us here remark that in every state of this union where, through political excitement or personal contests, a different rule has been adopted, disturbance, violence and almost bloodshed have always occurred. In Alabama, it was attempted to hold two independent houses, and disastrous consequences followed, until public opinion compelled those two bodies to meet together and act in harmony. In Montana, where an attempt was made to disregard this well-settled rule, disturbance and conflict occurred. In Maine, where the state board of canvassers refused to canvass the returns on file in the office of the secretary of state as required by the statute, bloodshed seemed at times imminent; but public opinion in that state compelled those two separate bodies to nnite and act together for the benefit of the state, and not for the benefit of any party. If we consider the disturbed condition at the capital of this state for the past three or four weeks, will anyone declare that the variation of this well-settled rule or recognized practice of all legislative assemblies has conduced to the peace, the quiet and the good order of the citizens of Kansas, or to the peace and good order of the legislative assembly? Then, why, if this court has the power—and we will come to that hereafter—why, if this court has the power, shall it not recognize that house which has a quorum and which has followed the usual and ordinary practice of all legislative assemblies in organizing? The reasons are stronger in this state for permitting only those persons -having certificates of election to participate in-the organization of either house of the legislature because» under the rule declared by this court, a board of canvassers cannot act arbitrarily or fraudulently, if prompt proceedings are taken in the courts to compel them to discharge their duty properly.

“Where a canvassing board wrongfully neglects or refuses to canvass returns which are regular in form, the courts may, by mandamus, compel the board to canvass and declare the result from the face of the returns; and if a canvass has been wrongfully or improperly made, and the board has adjourned sine die, the courts may compel it to reassemble and make a correct canvass of all the returns before it at the time of the first canvass.” (Lewis v. Comm’rs of Marshall Co., 16 Kas. 102; Rosenthal v. State Board of Canvassers, ante, p. 129; 32 Pac. Rep. 129.)

In some of the states a contrary doctrine prevails; but the rule in this state affords protection against any canvassing board acting corruptly, fraudulently, or wrongfully. It may seem plausible, without full consideration, to say that only those members of the legislature who are actually elected, whether having certificates or not, are the persons that should organize either house. But some method of organization is necessary; some written evidence of title must be created or exhibited before any person can be regarded as having a prima facie right to a seat in the legislature. Those persons having certificates, and only those, must be permitted to organize, and no authority can change or overthrow that right or prima facie written evidence of title of a member except the house itself; and the members of the house cannot be regarded as a legal or constitutio nal house until there is some temporary or permanent organization by a majority thereof; that is, by 63 members having certificates of election. The certificates of election give a title to the members holding the same, which must govern their associates until there can be an adjudication by the house itself to the contrary; that is, by a constitutional house having a quorum.

The journal of the Dunsmore house states the number of •persons who were present and answered the roll call, and then states how many persons were present who did not answer, and the quorum is made up by a very peculiar method. First, by counting the persons who answered to the roll call — that is right—sometimes 55, sometimes 57, and sometimes 58; and then by counting, in addition, as the journal says, persons upon the roll who were present but did not answer. Can this be lawfully done?

We know that very much has been asserted about the prevailing practice in Washington in the house of representatives, under what is known as the “Reed rule,” and many persons who have not taken time to examine this question have said that, under the Reed rule, in any assembly, or in any legislature, or in any convention, if persons are present and do not vote or answer to their names, the speaker or the clerk may count them in order to make a quorum. It would seem that what is known as the “Dunsmore house,” or the persons who prepared this revised journal, acted upon this theory, because in no other way could they count a quorum. But an examination of what is known as the “Reed rule” permits no such thing to be done. The Reed rule was a subject of investigation before the supreme court of the United States upon the “tariff bill.” It is reported in United States v. Ballin, 144 U. S. 1; 12 Sup. Ct. Rep. 507. It appears from the decision that before the speaker or the clerk counted anyone present, not voting, the house of representatives had expressly adopted a rule upon that question, and the rule is as follows:

“On the demand of any member, or at the suggestion of the speaker, names of members sufficient to make a quorum in the hall of the house, who do not vote, shall be noted by the clerk, and recorded in the journal, and reported to the speaker, with the names of the members voting, and be counted and announced in determining the presence of a quorum to do business.”

The supreme court says that after the house adopts such a rule, under the authority of the house itself, the speaker may order persons present and not voting to be counted to constitute a quorum; but that court did not hold, in the absence of an express rule, that the speaker or the clerk, or any other person, could assume that those persons, present in a house,, who do not answer to their names on the roll call, or who do-not vote, shall, for the purpose of a quorum, be counted as-present. There is no pretense that such a rule as the Reed rule was adopted by either of the houses. There is no claim-that the speaker of the Dunsmore house had any authority from the house to do what was done in this ease. But, more than that, the persons who were called and counted as present and voting, in order to constitute a quorum in the Dunsmore house, were never members of the Dunsmore house—never recognized Mr. Dunsmore as speaker. According to the evidence of Mr. Dunsmore, each one of the bodies or houses, after organizing, acted separately, and had nothing whatever to do with the other. Speaker Reed never called, in order to constitute a quorum, the name of any person in the house of representatives who was not a member of his house, or any one who refused to recognize him as speaker. Even under such a rule as was adopted by congress, he would not have called the name of any person who had not- recognized that body as the constitutional body—the legal house. Therefore, the counting of such votes in the journal of the Duns-more house has no foundation to rest upon.

8. House-organization-certified members. Something was said upon the'argument of the admission in the Douglass house of persons not eligible to seats in the legislature. That matter is wholly immaterial in-this case. The house, after it is organized, “is the judge of the elections, returns and qualifications of its own members;” but, before organizing, the persons having certificates, whether eligible or not, are the members to organize. Before organizing, there is no one—no house—to reject or oust a member holding a sufficient certificate. There is no one—no house —to pass upon his eligibility or election. Until the house is organized, the certificate is the evidence of the lawful title that controls.

But in the case of Privett v. Bickford, 23 Kas. 52, this court said:

“Upon this question [eligibility] the weight of authority -seems to be, and, in our opinion, is the better doctrine, that where the disability concerns the holding of the office, and is not merely a disqualification to be elected to an office, a person who is ineligible at the election will be entitled to enter upon and hold the office, if his disability be removed or cured before the issuance of the certificate, and before entering upon the discharge of the duties of the office for which he is elected. .. . . If a person may hold the office, he may be elected while he is under disqualification; and if he becomes qualified after the election, and before the holding, it is ¡=hfficient. In the one case the disqualification strikes at the beginning of the mattter—that is, it prohibits the election of an ineligible candidate; in the other case the disqualification relates only to the holding of the office. The constitution expressly provides that the disability may be removed by a vote of two-thirds of all the members of both branches of the legislature. AVhen the electors of Harper county voted for the plaintiff, they had the right to look at, and to build their expectations upon, this provision, because, although at the election the plaintiff was ineligible to hold office, yet they knew that the legislature had the right to remove the disability, and, if removed, he was entitled to the possession of the office to which he was preferred by the majority of the electors. If our constitution provided that the plaintiff was ineligible to be elected, instead of being ineligible to hold office, the contention of the defendant would be good; but as the ineligibility is not as to the election, but only the holding of the office, sncli ineligibility is cured by the subsequent removal of the disqualification.” (Smith v. Moore, 90 Ind. 299, 1883; Vogel v. The State, 122 id. 113, 1889; Brown v. Cohen, 122 id. 113, 1889; People v. Hamilton, 25 Ill. App. 609, 1886.)

The conclusion reached by us also fits the intimation in Wood v. Bartling, 16 Kas. 109, that where a majority of the electors vote for an ineligible candidate, the minority candidate, even if eligible, is not elected. In England, it has been held, that where electors have personal and direct knowledge of the ineligibility of the majority candidate, the votes cast for such candidate are void, and the minority candidate is elected. In this country, the great current of authorities sustains the doctrine that the ineligibility of the majority candidate does not elect the minority candidate; and this without reference to the question as to whether the voters knew of the ineligibility of the person for whom they voted. It is considered that in such a case the votes, for the ineligible candidate do not elect him, because of his ineligibility; but the other or minority candidate cannot be considered as elected. There is a failure to elect. (In re Corliss, 11 R. I. 638; McCr. Elect., § 292.)

Let us examine the organization of the two alleged houses. First, the Douglass house. There can be no reasonable question but that George L. Douglass, the speaker who signed the warrant of arrest, Frank L. Brown, who attested the warrant as chief clerk, and C. C. Clevenger, the sergeant-at-arms who made the arrest we are now investigating, were elected to their several positions by 64 members of the house of representatives holding certificates of election, and that a majority of the 125 members voting for them held certificates in accordance with the returns on file in the office of the secretary of state. Mr. Justice Brewer, in delivering the opinion in United States v. Ballin, supra, said:

“The constitution provides that ‘a majority of each [house] shall constitute a quorum to do business.’ In other words, when a majority are present, the house is in a position to do business. Its capacity to transact business is then established — created by the mere presence of a majority — and does not depend upon the disposition or assent or action of any single member or fraction of the majority present. All that the constitution requires is the presence of a majority; and, when that majority are present, the power of the house arises.”

7. Quorum-sixty-three. The constitution of our state ordains that a majority of each house shall constitute a quorum. The house of representatives consists of 125 members; 63 is a majority and a quorum. When a majority or quorum are present, the house can do business; not otherwise. A quorum possesses all the powers of the whole body, a majority of which quorum must, of course govern. If less than 63 members are present in the house, there is no quorum. The body may adjourn from day to day, but cannot elect officers, transact business, or admit new members. Less than a quorum cannot “judge of the elections, returns and qualifications” of the members of the house. A major part of the whole of a house is necessary to constitute a quorum, and a majority of the quorum, of course, as we have said, may act; but if the major part withdraw so as to leave no quorum, the power of the minority to act ceases. (Brown v. District of Columbia, 127 U. S. 579; 8 Sup. Ct. Rep. 1314.) Then, under the usual forms of law, under the universal practice adopted in this state, and in all the legislative bodies of all the states of the union, the Douglass house was organized by a legal and constitutional majority, as evidenced by the certificates of election.

There has been some contention that there were irregularities in the organization of the Douglass house. Now, what was the irregularity, if any? The statute of this state provides that, when the house of representatives convenes, the secretary of state shall lay before it a roll. Of what? A roll of the certified members of the house according to the returns in his office. Upon the day that the house of representatives met, Secretary of State Osborn went into the hall about an hour and 20 minutes after the members had assembled, with a roll. The statute says he might have brought that in and left it. It does not declare that he shall preside or who shall preside. There seems to have been a contention whether he should preside, and the secretary of state, probably desiring no trouble with these conflicting interests, stepped out. All that Secretary Osborn had was a certified list of members from his office. When he stepped out, a member presented another. Somebody has said that that was dated the day before. It was a duplicate of the other roll. Secretary Osborn read his roll in this court, and it was compared, in the presence of the court, with the roll certified to the day before. There was no difference between these rolls. The provision requiring the secretary of state to lay the list before the members is only directory. It does not prevent a legislative body from organizing. Of course, there' might have been a little more formality about this matter. There might have been a little' more order. There might have been less excitement. But, when Secretary Osborn withdrew, another roll was produced— a roll which all admit was a duplicate of his roll. The house organized upon that roll.

We have said that Speaker Douglass and the other officers received more than a majority of the duly-certified members of the house. The speaker of the house known as the “Duns-more house” received no votes from the 64 members. There does not seem to be any contention about that. How many Mr. Dunsmore did receive it is impossible to tell, because his was a viva voce vote. The two houses organized about the same hour, nearly simultaneously, but the elections of the temporary and permanent speakers of the Douglass house were prior in time to the election of officers of the Dunsmore house. The complete organization of the former was prior to that of the latter. After the Dunsmore house had elected a temporary speaker by a vivaVoce vote, Secretary Osborn returned to the hall of the house of representatives, and passed to such person the certified roll from his office of members of the house holding certificates of election; but, at the instance of some one in the Dunsmore house, all the names on this roll were not called. Ten members were omitted—not counted. After there was a temporary organization of the Douglass house, Joseph Rosenthal, of Haskell county, by general consent, was voted in as a member in the place of A. W. Stubbs, but he did not appear and answer as a member until after its permanent organization. He, therefore, was not admitted until after the permanent organization. On January 12, Joseph Rosenthal, Stephen Meagher, and T. G. Chambers, (all Democrats,) appeared in the Douglass house, filed their oaths of office, and recognized the Douglass house as the legal house of representatives of the state. At this time, both Meagher and Chambers held certificates of election. The returns in the office of the secretary of state showed that they were elected. Therefore, since January 12, the Douglass house has been composed of 66 members with certificates of election, and also Joseph Rosenthal, who was admitted after the organization, making 67 members— more than a majority of the house, and more than a “quorum/ as defined by the constitution of the state. All concede that Rosenthal was duly elected. The Douglass house, having more than a quorum of members with lawful certificates, could properly admit Rosenthal, or any other contestant, but the Dunsmore house, having less than a quorum, could not lawfully admit a contestant, or add, lawfully, anyone to its number. Under these circumstances, why was not the Douglass house a legally-organized house of representatives on the 10th and 11th days of January, 1893?

In this connection it is significant that the governor did not recognize the Dunsmore house until January 12, the third day of the session, and the senate did not formally recognize the Dunsmore house until January 14, the fifth day of the session. If the Douglass house was organized on the 10th of January, and was in session on the 11th day of January, before either house had' been recognized, why was not that house at that time the properly-organized house? The constitution says that the legislature shall consist of a house of representatives and a senate. On the 10th the governor had not recognized the Dunsmore house; on the 11th the governor had not recognized the Dunsmore house; neither had the senate recognized either house; neither had the governor recognized either house. It is conceded that a house of representatives has other duties than mere legislative ones. Before it sends its communication to the governor, before it sends its communication to the senate, if it legally meets and organizes, is it not a house? Has it not the right to protect itself? Has it not the right to issue subpoenas? Has it not the right to examine those things which pertain solely and exclusively to the house itself? Supposing in this case there was no recognition of the Dunsmore house by the governor or the senate, and the Douglass house had issued its warrant upon proper resolutions: could it be said the Douglass house was not the constitutional house because it had not received recognition from the governor, or because it had not yet received recognition from the senate? Up to this time, everybody admits that there might be some little delay about such things. It often occurs in legislative experience that one body is organized some days before the other. There may be conflicting interests about organization, sometimes in the senate, but more often, of course, in the lower house. Now, the point we desire to make is this, and it seems to us unanswerable: If the Douglass house had a constitutional majority of the certified members upon the 10th and 11th days of January, then during those two days it was the house, it was the legal house, it was the constitutional house, and had the right to do all those things necessary, outside of legislative matters, for its protection, for preventing disturbance, for purging itself of illegal members. It had the right, then, to punish parties for contempt, if they disobeyed its orders. Let us take an illustration: 125 members of the legislature meet together, and there is no conflict. They organize the house, and the senate is delayed in its organization, and the governor delays in answering its communications. Has not that house during the time of this delay all the rights of the legal and constitutional house of representatives? Has it not the right, the moment it is legally organized, to require order within its body? Has it not the right, the very minute it is organized, to say to any person within its hall who attempts to insult.its speaker or disturb a member, “We will lay hands on you, because inhering in this body is the power of its own protection?” It was decided in The State, ex rel., v. Hillyer, 2 Kas. 17, that—

“ There is no constitutional inhibition of the session of one branch of the legislature when the other is not in session"; and, semble, the separate action of one body .may be valid in the absence or non-organization of the other.”

It was said by Kingman, J., in that case :

“ If it be admitted, as claimed, that, when acting in their legislative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though distributed, and the parts can only act in unison, and neither the reason nor principle would apply to this case; but the principle contended for cannot be admitted. If, at the commencement of the regular session of the legislature, the senate for any cause should fail for weeks to organize, there can be no doubt that it would be perfectly competent for the house to perfect its organization, appoint its committees, and initiate legislation.”

Then, if the Douglass house was legally organized, and had a constitutional majority, it had the right to keep a journal before the governor recognized it ; it had the right to keep a journal before the senate recognized it. The journal of a legislative body commences at its very organization. The journal of a legislative house does not commence with the recognition from the governor; it does not commence with the recognition from the senate. If the Douglass house was legally and constitutionally organized, and was legally and constitutionally in session, is not the journal of the Douglass house, made on the 10th and 11th days of January, binding and conclusive upon this court? This court has ruled that a journal properly made by the legislature is such evidence. (Division of Howard Co., 15 Kas. 194.) We are now referring to the journal of the Douglass house made on the 10th and 11th days of January, before any recognition of either body; before the recognition from the senate or governor of any house. Either we must say that the house of representatives depends for its existence upon recognition from the governor, or depends for its existence upon recognition from the senate, or depends for its existence upon the recognition from both of these, or else we must hold that the journal kept by the house that is organized is the conclusive journal to this court up to the time of the recognition of the other house. Then it seems to us that thus far in the case there ought to be no disagreement.

9. House jourverity-witness imprisonment. The Douglass house having been legally organized, and having made a journal for a day or two before any recognition of either house, it seems that this journal, for those days, must be received as evidence for all it recites. As the Douglass house has continued in existence ever since it was legally and constitutionally organized, its journal must import absolute verity, not only for the two days before the recognition of the Dunsmore house, but during all of the time of its existence, unless it has in some way been ousted, destroyed, or dissolved. Clearly, if its legislative journal is good for January 10th and 11th, it is good for all time, if the Douglass house was legally organized, and continued during the days of its journal to be a legal and constitutional house. At this time, without going extensively into the transactions of the two bodies, it is sufficient to say that the Douglass house has always met in the hall of representatives in the capítol, where it has been usual and customary, since the erection of that hall, for the house of representatives to meet and transact business. It is true that another body, called the “Dunsmore house,” with 58 members having certificates, met in a portion of the same hall; and hence there were two alleged houses in the same hall, doing or attempting to transact business. The two alleged houses are the real cause of the contention now before us. If there were not, there would be no trouble in this case, and there probably would not be this case for the'court to hear and decide. It is also clear that, so far as it could do business, the Douglass house has kept in session and carried on business.

At this point, it is urged with great ability and zeal that this court has no jurisdiction to pass upon the question of the legality of either of these two houses, as it appears that there were two alleged houses. Its right to do so is denied by the petitioner, and by the able counsel who represent the governor. As was said by Chief Justice Marshall, in Cohens v. Virginia, 6 Wheat. 264, 404: “It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should.” The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful—because it is unpleasant. With what.ever doubts or with whatever difficulties a case may be attended, we must decide it as best we can, if it be brought before us. We have no more right to decline to exercise the jurisdiction, thus given than to usurp that which is not given.

Let us see what the authorities are upon this point. We refer again to the able work of Judge McCrary. He says:

“The cases in which the official acts or votes of members of a legislative body who are such defacto only, and not de jure, have been held valid are all cases in which there has been no question as to the legality of the body in which they sat. They are cases in which the body admitting such persons was, in doing so, acting within its admitted jurisdiction, and in such cases, the courts will not inquire into the title of such members to their seats. The courts in such cases will go no further than to inquire as to the legal status and the authority of the body as a whole; but where there are two bodies, each claiming to be the legislature, then the court, whose duty it is to respect and execute the acts of such legislature, must of necessity decide which is the legislature.” (Section 517.)

Then, again, under the constitution of Maine, the legislature could propound questions to the supreme court of that state, and in a certain case they did propound questions, and this is what the supreme court of Maine said :

“ When different bodies of men, each claiming to be and to exercise the functions of the legislative department of the state, appear, each asserting their title to be regarded as the lawgivers for the people, it is the obvious duty of the judicial department, which must inevitably, at no distant day, take up the question, and pass upon the validity of the laws that may be enacted by the respective claimants to legislative authority, to inquire and ascertain for themselves, with or without questions presented by the claimants, which of them lawfully represent the people, from whom they derive their power. There can be but one lawful legislature, and the court must know for itself whose enactments it will recognize as laws of binding force when brought judicially before it. In á thousand ways it becomes essential that the court should forthwith ascertain and take judicial cognizance of the question which is the true legislature.” (70 Me. 609.)

In a Maine case concerning an office, not upon questions submitted, but upon a case concerning an office, which was brought before the court in the regular way, the court repeats the identical language used in the advice given upon the former occasion. (Prince v. Skillin, 71 Me. 361.) If it is the obvious duty of the judicial department to pass upon the claims of two legislative bodies or assemblies, then it is much more the duty of the judicial department to pass upon the legality of two different houses, both claiming to be the house of representatives. A house is not the legislature. In 1859, George P. Burnham was imprisoned and restrained of his liberty by John Morrissey, at Boston, who justified such restraint upon the ground that he was the sergeant-at-arms, and that he had arrested and detained Burnham by virtue of a warrant from the speaker of the house of representatives, to answer for a contempt in refusing to comply with an order of a special committee of the house. Proceeedings in habeas corpus were commenced by Burnham before the supreme court of Massachusetts for his discharge, and, after a hearing of the case, that court held that Burnham was lawfully in the custody of the sergeant-at-arms, by virtue of the warrant of the house of representatives. Hoar, J., speaking for the court, said, among other things:

13. Supreme court may review the action of the house representatives. “The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. That house is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all other bodies, officers and tribunals within the commonwealth. Especially is it competent and proper for this court to consider whether its proceedings are in conformity with the constitution and laws, because, living under a written constitution, no branch or department of the government is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government, and even those of the legislature in the enactment of laws, have been exercised in conformity with the constitution, and, if they have not been, to treat their acts as null and void.” (Burnham v. Morrissey, 14 Gray, 226; The State v. Kenney, 23 Pac. Rep. [Mont.] 733; The State v. Meadows, 1 Kas. 91; The State v. Barker, 4 id. 436; Graham v. Horton, 6 id. 343.)

It has been said that there are some views the other way, and cases from Pennsylvania and Georgia are cited. (Kerr v. Trego, 47 Pa. St. 292; Gormly v. Taylor, 44 Ga. 76; Railroad Co. v. Little, 45 id. 370-407.) In the Pennsylvania case, the exact question as to the division of the legislature was not before the court. If the court intended to say in that case an injunction would not be granted against the supreme legislature, this court would readily concur with it. If it intended to go further than that, this court then calls attention to the fact that upon “political questions,” as they are denominated in Pennsylvania and Georgia and some other states, this court has heretofore differed from the courts of those states.

In the case which involved the late Governor Martin, (38 Kas. 641), the question was raised whether he could be compelled by writ of this court to organize a county in this state. Governor Martin had been advised that, under the decisions of Georgia and Pennsylvania and other states, this court had no authority by writ of mandamus or other proceedings to give him advice or direct him in a ministerial matter. He- came before this court saying the court had no authority to inquire into any matter against him as governor. This court examined the matter patiently and carefully. There were no politics in that case. The governor believed his duty to be one way, and this court, after examining the matter, said that the rule laid down in Pennsylvania and Georgia andin other states was not the correct rule, and was not the one which should be recognized. We referred directly to some Pennsylvania and Georgia decisions upon this question. (Appeal of Hartranft, 85 Pa. St. 433; Low v. Towns, 8 Ga. 372.) The latter were to the effect that the court cannot compel the governor to perform a ministerial act; that it cannot touch' anywhere his domain of duties of any kind or character. It is true dissenting opinions were filed in one or two of those cases; but it is the majority of the court that always rules. A majority of the court in Pennsylvania, and Georgia held that neither the supreme court nor any other court had any right to inquire about the duty of the governor concerning any matter, whether ministerial or discretionary. In the case of Martin v. Ingham, found in 38 Kas. 641, the decisions are cited. They are all gone over, and in a most learned and able opinion by Mr. Justice Valentine this- whole question is examined, and the particular question disdussed therein was then settled. This court differed from the supreme courts of the states of Pennsylvania and Georgia; and although the governor of this state said, “You have no right to give me advice,” and although it was said the governor was beyond the power of this court, and we should hesitate before we attempted to enforce his duties, this court unanimously went upon the discharge of its work in the best way it could, and, in response to the suggestion that the governor would not obey, replied:

“It is said that, if the governor opposes the order or judgment of the court, it cannot be enforced, for he has entire control of the militia. But are the courts to anticipate that the governor will not perform his duties? Should not the courts rather presume, that when a controversy is determined by the courts—the only tribunals authorized by the constitution or the statutes to construe the laws and determine controversies by way of judicial determination—that the governor, as the chief executive officer of the state, would see that such determination should be carried into full effect? Such would be his duty, and no one should suppose that he would fail to perform his duty when his duty is made manifest by judicial determination of the courts. No department should ever cease to perform its functions for fear some other department may render its acts nugatory, or for fear that its acts may in some manner affect the conduct or the status of some other department.”

In the Martin case the first point of the syllabus reads:

“Where purely ministerial duties are by statute imposed upon the governor, and such duties are only such as might be devolved upon any other officer or agent, the performance of such duties may be controlled by mandamus or injunction.” (Martin v. Ingham, 38 Kas. 641.)

In the Pennsylvania case, parts one and two of the syllabus read:

“1. The governor is the absolute judge of what official communications, to himself or his department, may'or may not be revealed, and is the sole judge not only of what his official duties are, but also of the time when they should be .performed.

“2. The governor is exempt from the process of the courts whenever engaged in any duty pertaining to his office, and his immunity extends to his subordinates and agents, when acting in their official capacity.” (85 Pa. St. 433.)

In the Georgia case, the third part of the syllabus reads:

“However clear it may be, as a general legal proposition, that when a mere- ministerial act is required to be performed, by law, on the part of an executive officer, and individual rights depend on the performance of that act, that the proper tribunals of the county have no jurisdiction to compel its performance; yet, for political reasons alone, the chief magistrate of the state cannot be compelled, by mandamus, to perform such ministerial act.” (Low v. Towns, 8 Ga. 360.)

Warner, J., in delivering the opinion, among other things, said:

“ If, as has already been remarked, it was competent for the legislature to impose this ministerial duty of issuing a commission to a clerk on the executive office of the government, wholly independent of and in addition to the other functions devolved upon that officer by the constitution,-why may he not, when the performance of this ministerial act, so required by law, is essential to the completion and enjoyment of individual rights, be considered, quoad hoo, not as an executive, but as a merely ministerial officer, and, therefore, liable tobe directed and compelled to perform the act by mandamus f

“ Viewed as strictly a legal question, we cannot offer any satisfactory reason why he should not, according to the general principles of the law; and it was in this point of view alone this question was considered by this court in Bonner v. Pitts. Indeed, no other view of it was presented for our consideration on the argument of that case; but while we are unable to give a satisfactory legal reason why the remedy sought should be denied to the citizen, yet we are satisfied that, for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive officer of the state. The ultimate effect of this remedy, in case of refusal by the governor to obey the laws of the land, would be to deprive the people of the state of the head of one of the departments of the government. This ministerial act, required by the law, is to be performed by the same officer who is by the constitution placed at the head of one of the departments of the government, and is required by the constitution to perform certain other duties of which the people may not be deprived.”

In the case of Martin v. Ingham, supra, a part of the opinion was quoted to show how the question should be viewed strictly as a legal question, and how the question was viewed by the supreme court of Georgia as a legal question. But the supreme court of Georgia, after admitting that it-“was unable to give a satisfactory legal reason why the remedy [mandamus] sought [in that case against the governor] should be denied to the citizen,” said “that, for political reasons alone, the remedy by mandamus ought not to be enforced against the chief executive of the state.” The supreme court of Georgia, therefore, upon the ground that the question was a political one, decided that the remedy by mandamus does not exist in that state to compel the performance of piorely ministerial duties imposed by statute upon the governor. In Kansas, the supreme court, differing from the Georgia supreme court, held, that where purely ministerial duties are imposed by statute upon the governor, the performance of such duties may be controlled by mandamus or injunction. (38 Kas. 641.)

In the Martin case, although this court held that it had the power to control the governor as to purely ministerial acts, it gave no direction, because the facts disclosed warranted no interference. But this court asserted its, power, if a case justifying its action were ever presented. The cases now cited were not then examined, and we only incidentally refer to that opinion^ and the decisions from Pennsylvania and Georgia therein stated, as showing the difference between this court and those courts in regard to the official acts of a governor. But if full force be given to all the language employed in Kerr v. Trego, supra, whether obiter or not, that decision is no authority in.this case, because “the supreme legislature” is not involved. No supreme legislature is under review. In the Georgia cases, the supreme legislature was also under consideration; not one house, or only a part of the legislature, as in this case. As observed by the Massachusetts court, “The house is not the legislature, but only a part of it. It is not the final judge of its own powers.” The constitution is controlling, and a member of a house cannot overstep its mandatory provisions; nor can 58 members do so.

In this case we are not called upon to make any order concerning the governor. In this case we are not called upon to make any order concerning' the state senate. We are simply called upon to exercise our judicial judgment as to which is the legally-organized and constitutional house of representatives. There can be no conflict; there should be no conflict. The court is answerable to‘ the people of this state. The governor is answerable to the people of this state. The house is answerable to the people of.this state.

But again: In 1879 the house of representatives of this state associated with itself some persons above the number of 125. An act was passed by the legislature. It was passed by what was called the “house.” It was passed by the senate, and approved by the governor. It was published in the state paper. And yet, when that act of the legislature came before this court for examination, it decided “that the house of representatives had no lawful authority to pass the act,” by means of the votes of certain illegal members; and it wiped it out of existence. There was no conflict between the governor and the senate or the house in doing this. Supposing the legislature of 1879 had passed every act by votes of that character, and they had been proclaimed and published, this court would have declared all the acts void.

It is insisted that we cannot find a line in the constitution giving this court authority to pass upon this question of organization. It is.the' acknowledged power of this court to finally pass upon every act of the legislature. It is the acknowledged power of this court to declare acts of the legislature void. In the case in 26 Kas. 724 (the Francis case), there was nothing upon the face of the act to show but that it was a legal enactment. It was properly signed. It was properly enrolled. It was properly published. But this court went into the house of representatives, and examined its journal, and ascertained that the house included four illegal members, not authorized to hold seats or vote, and it stamped out the so-called “act.” It had the power to do it, and that decision has been followed ever since. Mr. Justice Valentine, speak-' ing for the court in that case, said:

“Now, generally, under affirmative and mandatory constitutional provisions, the legislature may do more than is required; but it cannot do less, if it does its duty. Under negative and prohibitory constitutional provisions, however, the legislature may often refrain from doing things which are not prohibited; but it can never do what is prohibited. Under this negative and prohibitory clause of the section, the legislature may fix the number of representatives at less than 125, but it can never fix it at more; and there is no power in the state which can fix it at more. Therefore, whenever the house of representatives consists of more than 125 members, some of such members must be there illegally. Such was the case in 1879. The house of representatives at that time consisted of 129 members. Four of these members, to wit, the four from Rooks, Rush, Harper and Kingman counties, who were not provided for by law, and being the last members admitted, were not entitled to their seats. And the act in controversy was passed only by the assistance of their votes. Except for their votes, or at least three of their votes, the act would not have received a constitutional majority of the votes of the members of the house; and, not counting their votes, the act did not receive a constitutional majority. Now, we do not think that their votes should be counted, and therefore we think the act in controversy must be held as not having passed the house of representatives, and as void.”

It is asserted that the court cannot inquire by quo warranto into the right of membership of these respective bodies. This court so ruled in the Tomlinson case, in 20 Kas. 692; but when this court has the ultimate right and duty to pass upon acts of the legislature, it has also the right to pass upon the organization of the legislature, or either or both houses, although it has no right whatever, after the legislature is organized, to deal with any question concerning “ the elections, returns and qualifications of its own members.” Clearly, it has, in any event, the right to pass upon the powers of a house—only a part of a legislature. This proceeding is not a collateral attack, but a direct attack on the Douglass house. (Vase v. Morton, 4 Cush. 31.) Necessarily involved is the status of the Dunsmore house.

Whether Gunn is rightfully restrained of his liberty by a legal house of representatives is not a political, but a judicial, question, and this court, therefore, must have authority to inquire and determine whether the house has been properly organized, and is such a house as is authorized by the constitution of the state to establish its own rules, to keep and publish a journal, etc. (Burnham v. Morrissey, 14 Gray, 226; The State v. Cunningham, 53 N. W. Rep. [Wis.] 35; id. 51 N. W. Rep. 735; Giddings v. Blacker, 52 N. W. Rep. [Mich.] 914; The State v. Kenney, 23 Pac. Rep. [Mont.] 733; Rice v. The State, 7 Ind. 334; Campbell v. Dwiggins, 83 Ind. 473; Cooley, Const. Lim., 45.)

In Prouty v. Stover, 11 Kas. 235, Mr. Justice Brewer, speaking for the court, said:

“Three questions are presented, two of which,.at least, must be decided in favor of the plaintiff before he will be entitled to the relief sought: First, could a majority of members present 'in the joint session, and voting, elect, or did it require a majority of all the members elected to the two houses? Second, did the house of representatives consist of more than 90 members?- Third, can this court look back of the final declaration of the result by the joint convention, to see whether, upon either of the votes, anyone other than the one declared elected was in fact elected? These questions, as can readily be seen, are, so far as this court is concerned, of a delicate nature, for they concern the regularity of the proceedings of the legislative branch of the government; and they are also questions of great moment, for they involve the rightfuluess of the organization of at least one body of the legislature.”

In that case this court decided:

“Where the legislature is made an electoral body, and a proceeding is had to contest the validity of an election by such body, the courts are not precluded by the action of the house in admitting members from inquiring into the legality of certain representative districts, and the rights of the members from those districts to vote at such election.”

But it is claimed that the Douglass house has been destroyed, ousted or dissolved by the recognition of the Dunsmore house from the governor and the senate. The governor did not recognize the Dunsmore house until January 12, the third day of the session; and the senate did not formally recognize the Dunsmore house until the 14th day of January, the fifth day of the session. It is true that it appears the secretary of the senate went to the Dunsmore house and presented communications before that date, but that it was not by order of the senate. Taking the journals before us, the house that the governor recognized consisted of 58 members—not a constitutional quorum, not a constitutional majority; the house that the senate recognized consisted of 58 members—not a constitutional quorum, not a constitutional majority. It has been said that as the governor must act in this matter, and as the senate must act in this matter, should not their actions be final and conclusive? That seems to be one theory. If that were the correct view, the court’s connection with the case would be very brief. All we would have to do would be to ask, “What did the governor do? What did the senate do?” We admit that for certain purposes recognition from the governor should be considered. We admit that for certain purposes recognition from the senate should be considered. All departments of the government should pay all proper respect to the acts of all other departments. The governor, overwhelmed with business, perplexed with the duties surrounding him, not having time to investigate, recognized a body which is not a constitutional body. The senate passed a resolution to investigate; but, examining the journal, we cannot find any report upon that resolution. It recognized a body not a constitutional body. Is such a recognition final? Is it conclusive? Does it bind this court? Is the end of the duty of this court to simply inquire what are the records in the office of the governor and the state senate? Where two alleged houses are in contention, may we not go to the office of the secretary of state and ascertain from the official returns and certificates the names of the members who hold credentials to organize a house? May we not ascertain from the journals of these houses which house a constitutional majority organized? We think so. The constitution is paramount to the action of any governor. The constitution is paramount to the action of any senate. The governor and the senate are to yield obedience to the statute, when valid. They are not above the law. We admit if, after such recognition, the Douglass house had voluntarily departed from its room, and its members had gone their several ways to their homes, and the 58 members of the Dunsmore house had increased its membership in any way it pleased—by lawyers, by doctors, by anybody — and they had gone on and continued business without interference and without challenge, such recognition would have weight. But that is not the case presented here.

On January 13, Senator Baker presented to the state senate, of which he is a member, the following protest of himself and 13 other members, and asked to have it spread upon the journal:

“Whereas, At the general election held in the state of Kansas on the 8th day of November, 1892, there were chosen, by the electors participating therein, 125 members of the house of representatives of the state, each of whom received a plurality of the votes cast in their respective districts; that certificates thereof from the county clerks of the districts, certifying that, upon a canvass duly and legally made in their respective districts, said certain 125 representatives received certain votes, were filed with the secretary of state, as provided by law; that the state board of canvassers of Kansas, as provided by law, duly met on November 28, 1892, canvassed the returns, and determined that said 125 certain persons had been duly elected to the office of representative in their respective districts, and .a record was made of such determination by said board, and is now in the custody of the secretary of state of Kansas; that after making said full and complete canvass of said returns, and having fully and completely discharged its duties according to law, said state board of canvassers, on December 1, 1892, adjourned sine die; that, after said adjournment, the secretary of state, who was ex officio a member of said board, issued certificates of election to those ascertained by said canvass to have been elected members of said house of representatives; and

“Whereas, On Wednesday, January 4,1893, the supreme court of Kansas, the same being the highest judicial tribunal in the state, in an action then and therein pending, wherein one Joseph Rosenthal was relator and. the state board of canvassers was respondent, after carefully considering said case, decided, that after the state board of canvassers had once convened and duly canvassed the returns of all the votes before them and on file in the office of the secretary of state aforesaid, and had fully and completely discharged its duties, and had adjourned sine die, that the state board of canvassers could not on its own order reconvene for the purpose of making any different or further canvass of said returns, and that the court had no power or authority, under the statutes, to order the state board of canvassers to meet and further canvass the returns, so that other and different certificates of election might be issued, or for any other purpose; and

“Whereas, On Tuesday, January 10, 1893, at the time appointed by law for the assembling and organization of the state senate and the house of representatives of the state of Kansas, that said certain 125 persons, excepting Mr. A. W. Stubbs, the republican opponent of said Rosenthal, who declined to meet and act, met in representative hall, in the statehouse, at Topeka, Kas.; that upon a call of the roll prepared by the secretary of state of the state of Kansas, containing a list of all those holding certificates of election, according to the determination of the state board of canvassers, it was ascertained that said 125 persons, excepting said Stubbs, were present at said time and place, and thereupon each of said persons, to the number of 64, whose names are hereinafter set forth, took the oath of office required by the constitution and laws of the state of Kansas, and duly qualified as representatives of said state; that thereafter'said 64 proceeded to organize by the election of a temporary speaker, and, after a temporary organization had been effected, not .only said 64, but at least three others, recognized the organization; and said 64 participated in the election of a speaker for said house of representatives; and that 64, being a legal majority of all those holding certificates as aforesaid, voted for and elected the Hon. Geo. L. Douglass as speaker of said house of representatives, the names, numbers of district and politics of those participating in the election of Speaker Douglass being as follows, to wit: [Here the districts and names, etc., were copied]; and

“Whereas, Notwithstanding the above and foregoing facts, other persons of the said 124, and independent of said 64, together with some persons not holding certificates of election of said state board of Kansas, participated in selecting one J. M. Dunsmore as a pretended speaker, in violation of both statute and parliamentary law :

“Noto, Therefore, We, the undersigned, being members of this senate, in the name of law, order, decency, and constitutional government, the good name and credit of the state of Kansas, most emphatically protest and object to recognizing the alleged house of representatives presided over by said Dunsmore as a lawful body.

Milton Brown.

S. T. Danner.

James D. Williamson. E. T. Metcalf.

Jno. C. Carpenter.

K. E. Willcockson.

Lucien Baker.

D. McTaggart.

W. A. Morgan.

H. F. Robbins.

S. O Thacher.

W. E. Sterne.

J. W. Parker.

Chas. F. Scott.’;

Senator Taylor presented the following protest, and asked that it be spread upon the journal of the senate:

“To the President of the Senate: I hereby formally protest against the the recognition of the alleged secretary of the house, now claiming recognition on this floor, because it virtually decides the most important question that ever came before this senate without investigation and without debate.

Edwin Taylor.”

Senator O’Bryan presented the following protest, and asked that it be spread upon the journal of the senate:

“I, Ed. O’Bryan, senator from the 29th senatorial district, do hereby enter my protest against the action of the president of this body in recognizing Ben. C. Rich as chief clerk of a house of representatives of the state of Kansas, as I believe the said house of representatives to be illegally organized, and is not the legal body, and should not be recognized.

Ed. O’Bryan.”

Subsequently Senator Brown filed a further protest in the state senate, which concluded as follows:

“To recognize the Dunsmore house will be to defeat needed legislation, as that house is illegal and unconstitutional.”

On January 14, Senator Parker filed a protest in the state senate against recognizing Mr. Rich as chief clerk and Hon. J. M. Dunsmore as speaker. On the same day, Senator Baker, with 13 of his associates, also filed a further protest in the state senate, which, among other things, stated:

“It will not, nor can it be, denied that on the 10th day of this month, at 12 o’clock noon, being the usual hour for organization of the legislature of Kansas, there assembled in the hall of the house of representatives 64 persons, constituting a constitutional majority of such house, each holding from the state board of canvassers a duly-authenticated certificate of election issued by such board; nor can it be denied that then and there, in a lawful and regular manner, these 64 members organized the house of representatives, by the election of George L. Douglass as speaker, and the choice of the other usual and necessary officers. It is also a fact that, prior to that time, the supreme court of the state of Kansas had, in a proper case before it, decided that no person not holding a certificate of election was entitled to participate in the organization of the house of representatives. At the same time there assembled in the hall 58 persons, each holding a certificate of election, who withdrew and separated themselves from the majority of the house above mentioned, and refused to and did not participate in the proceedings of the organization. Thereupon these 58 persons, being a minority of the house of representatives, unlawfully introduced among their own number 10 persons who held no certificates of election, and who were defeated at the polls in opposition to 10 of those constituting the majority. The minority of the legislature then assumed to produce and have qualified these 10 persons as members, and, in connection with them, assumed and pretended to organize the house of representatives. The names of these persons unlawfully introduced as members, and the majorities by which they were respectively defeated, is hereto appended: J. W. Howard, beaten by 1,050 votes; D. M. Howard (Shawnee), beaten by 444 votes; Ed. Shellabarger, beaten by 193 votes; V. Gleason, beaten by 26 votes; W. H. White, beaten by 8 votes; H. Hellstrom, beaten by 8 votes; I. N. Goodvin, beaten by 5 votes; F. B. Brown, beaten by 42 votes; John Morrison, beaten by 15 votes; O. M. Rice, against whom a tie was decided in accordance with the law; that thereupon these 58 persons, acting together with the 10-persons who then and there respectively usurped the offices of representatives, without any form of trial or right thereto, or without submitting their claims of right to any tribunal, then and there unlawfully pretended to organize themselves as the house of representatives of the state of Kansas, and from that time up to the present the revolutionary body so organized has riotously and tumultuously seized and held the hall of the house of representatives, and has obstructed the lawfully-organized house of representatives in the transaction of any business.”

Senator Taylor followed with a protest of his own, which stated, among other things, that —

“ Previous to such organization it appears clear to me that no person or persons, however connected, have the right or the power to say that certain persons holding certificates are not elected, and certain other persons not holding certificates are elected. No matter how great a wrong may have been done to any individual by means of the mistaken or fraudu-' lent issuance of a certificate of election, a greater wrong would inure to society itself if the contestee or his friends, acting not as a legally-constituted tribunal, were themselves in advance of organization to pass upon the issues joined, and set such certificates aside without due process of law. To whatever extent such irregular proceedings are countenanced or encouraged, to that extent the orderly course of society is jeopardized. The forms of law are a part of the law, and it appears clear to me, that if the forms of law had been adhered to in the organization of the house of representatives, there would be no question as to who constituted its membership. It may be that strict justice would have seated contestants, but the injustice of irregular ways of getting at justice would be intolerable.”

Thereupon the following protest was presented to the state senate:

“I, W. P. Dillard, senator from the 8th district,'do hereby protest against the action of the senate this 14th day of January, 1893, in passing the resolution called ‘ House Concurrent Resolution No. 1,’ and for the reason that I am satisfied that said resolution was not passed and transmitted to the senate by a legally-constituted or constitutionally-organized house of representatives. W. P. Dillard, Senator.”

All of these protests appear in the journal of the state senate, presented in evidence on the part of the petitioner. Senators Taylor, O’Bryan, and Dillard, who filed the foregoing protests, are not republicans, and were not elected as republicans. They are not members of the minority party of the senate, or of the majority party of the house presided over by Hon. Geo. L. Douglass. The journal of the Douglass house also shows that on January 10, before any recognition of the Duns-more house, a committee, appointed to prepare a written address from the members of the Douglass house to the governor, called upon and presented the same to him. This was signed by 64 members of the house of representatives having certificates of election, setting forth the organization and officers of the Douglass house, and asking recognition. The members of that committee were Hon. W. M. Glenn, Hon. C. E. Lob-dell, and Hon. J. K. Cubbison. Subsequently, and before any recognition of any house, the Douglass house appointed a special committee to prepare an address to the governor, which was presented in writing to him. That committee consisted of Hon. E. W. Hoch, Hon. J. B. Remington, Hon. J.- K. Cubbison; Hon. James A. Troutman, and Hon. C. E. Lobdell. The address was signed by 64 members of the house of representatives having certificates of election, and concluded as follows:

“We, therefore, in behalf of the people of the state of Kansas, and on behalf of the good name and credit of our state, and in the name of law, order, decency, and good government, call upon you, as the governor of the state of Kansas, to recognize the Hon. George L. Douglass as the legal and qualified speaker of the house of representatives of the state of Kansas, and ask that the protection of the law be thrown around him in exercising the duties of his office. We present to your excellency this memorial, because we believe it to be our duty that the governor and the good people of the state should be informed of the true condition of affairs now existing in the hall of the house of representatives, and be informed of the illegal and revolutionary actions of a portion of our fellow-citizens.”

The state senate has 40 members. At the time of these protests, one John M. Price, a republican, was absent. The house of representative has 125 members. Therefore it appears from the journals of the senate and house of representatives that 17 senators having certificates of election, and 64 members having certificates of election, making a total of 81 members, objected to recognizing the Dunsmore house as the house of representatives, and subsequently, on January 12, 1893, with the 64 members of the Douglass having certificates of election, two others, Hon. Stephen Meagher and Hon. T. G. Chambers, also having certificates of election, and Hon. Joseph Rosenthal, admitted by motion in the Douglass house, united, making in all, with the senate protesting members, 84 members, being more than a majority of the entire membership of the legislature, as opposed to the recognition of the Dunsmore house as the house of representatives.

10. Constitutionalhouse, not ousted, when. 6. Representatives—quorum —rules. We refer to these matters in the journals as showing the vigorous opposition of the members of the legislature to the recognition of the Dunsmore house, and the official and public challenges to which that house was incessantly and continuously subjected. The constitution ordains, as before stated, that it takes a majority of each house to constitute a quorum. If 58 members—a minority of the house—with lawful certificates, acting with 10 men who have not any credentials, but who claim that they were really elected, may, before or after an organization, go behind the written credentials or prima facie title of the members duly declared elected to make up a quorum or house, then a dozen members, or any number less than a quorum, can do the same thing, and it would be impossible to organize or conduct a legislative government according to constitutional or orderly methods. Any person can set up the claim that he has been elected to the' house, regardless of the truth of the matter; and if a certificate of election does not clothe the person who receives it with the lawful and rightful authority to act as a member, subject only to the judgment of the house after there is an organization of the members having certificates into an actual and acting house, the organization and control of the house must be in the hands of those who, by physical force, have the superior power to seat themselves as members, whether elected or not. The ballots, the votes, the returns, the certificates in such a ease, would count for naught. The governor cannot lawfully recognize as a house a body which has no quorum, which is not a constitutional house. The governor cannot create a house out of an unorganized or unconstitutional body, at his own will. He cannot abolish or destroy by his order any legal or constitutional house of representatives. The senate cannot create .or abolish a house of representatives. It cannot recognize an unorganized or an unconstitutional body as a legal or constitutional house. Neither can the governor and the senate together create, at their own will, a legal or constitutional house. Neither can they both abolish or destroy a legal or constitutional house. The house of representatives is a body authorized by the constitution of the state, and for certain purposes is independent aud separate from the senate or the governor. Each house keeps and publishes its own journal; each house establishes its own rules; and each house is the judge or the ' CJ elections, returns and qualifications of its own members. The legislative power of this state is vested in a house of representatives and senate, not in the governor and senate alone.

12house-itelonal usurped or aestroyed, when. 11. Office or body ouster, when. But again: It is claimed that the Dunsmore house has become a defacto house by the recognition from the senaté, the governor, the executive officers, and others. As has been said, if the house known as the “Dunsmore house” had full and unlimited possession of the hall of representatives, and the rival party had ceased its existence, the question of a de fado legislature would have strong force in this case. There often comes a time in the conduct of all bodies and officers when, on account of public interests, irregularities and even wrongs are cured. There comes a time when usurpation is successful. There comes a time when revolution is accomplished, and must be recognized; but a de fado house, a de fado government, usurpation of power and unlawful methods are not accepted if a constitutional house, a constitutional government, rightful auth'ority and legal methods are existing, transacting business, as against defective, irregular, unwarranted acts, and unconstitutional exercise of power. But here is a valid and constitutional house attempting to carry on business. Every day of its session, so far as its journals show, the Douglass house challenged the rightfulness of the Duns-more house. It challenged the action of the governor. It challenged the action of the state senate, and the very first act of the senate and the Dunsmore house was seized by a court of this state and throttled. Although the temporary order of injunction was made by the district court of Shawnee county, until it is reversed or vacated by proper proceedings in this court it is as valid and binding between the parties as the order of the supreme court of the state. This court must take knowledge of all the usual and ordinary incidents which are transacted around it, and it is unnecessary to say that the challenges have been so successful that various bodies divided upon this question, and there has been no acquiescence and no general agreement among the people that the Dunsmore house is the house of representatives. “An officer de fado must be in the actual possession of the office, and have the same under his control. If the officer de jure is in possession of the office—if the officer de jure is also the officer de faeto—then no other person can be an officer de fado for that office. Two persons.cannot be officers de fado for the same office at the same time.” (McCahon v. Comm’rs of Leavenworth Co., 8 Kas. 438.) This court subsequently reaffirmed this rule in the case of Braidy v. Theritt, 17 Kas. 468, using the following language: “We have already held that two persons cannot be officers defacto for the same office at the same time.” (McCahon v. Comm’rs Leavenworth Co., supra.) Practically it was again stated in the case of The State v. Durkee, 12 Kas. 309. The supreme court of Nevada, in the case of The State v. Blossom, reported in 10 Pac. Rep. 430, states the rule in this way: “ If an office is filled, and the duties pertaining thereto are performed by the officer de jure, another person, although claiming the office under color of title, cannot become an officer de facto.” Leonard, J., in delivering the opinion of the court in the above case, used the following language:

“The principal ground urged by relator in support of his petition is, that Harris and others were the de facto board, and that their acts as such were good and binding in law as to the public and third parties. The general principle stated by counsel for relator, that, as to the public and third parties, the acts of de facto officers are binding, is well-settled and admitted. . . . There were two boards, each claiming that the other was unlawful, each urging and maintaining the validity of its own.acts, each proceeding as though the other did not exist in the matter of employing teachers, etc. . . . It is undoubtedly true, as claimed by counsel for relator, that the new trustees would have become a de facto board, if the old ones had not acted as such; but, since they did, as above stated, were they not the de faeto board ? Two physical bodies cannot occupy the same place at the same time, and two persons cannot be officers de facto for the same office at the same time. If the office is filled, and the duties appertaining thereto are. performed by an officer de jure, another person, although claiming the office under color of title, cannot become an officer defacto.” (McCahon v. Comm’rs of Leavenworth Co., 8 Kas. 441; Boardman v. Halliday, 10 Paige, 232; Morgan v. Quackenbush, 22 Barb. 80; Cohn v. Beal, 61 Miss. 399.)

In the case of The State v. Comm’rs of Ford Co., 12 Kas. 441, it was ruled, that “ where the legislature has seemingly recognized the existence of a county organization of a certain county by passing an act providing for the holding of terms of the district court therein, but where such county, up to the time of such seeming recognition, never had any organization, de fado or otherwise, such recognition does not have the effect to create an organization.” In Murphy v. Moies, 25 Atl. Rep. (R. I.) 977, which cites the leading cases upon the recognition of de fado officers, the law is thus stated: “ Eeputation and acquiescence are controlling elements in determining the validity of official acts as those of an officer de fado.”

The Douglass house is the body or house de jure; is in possession of the office; is in possession of the hall — at least, it is holding its sessions and transacting its business in representative hall. Then the other body, the Dunsmore house— the minority, the so-called “de fado house”—has not the exclusive possession of the hall; has not the exclusive possession of the office; and has not ousted, destroyed or dissolved the Douglass house.

The reference to the two Georgia cases—Gormly v. Taylor, 44 Ga. 76, and Railroad Co. v. Little, 45 id. 370—is not pertinent to the issues of this case. In both of those cases the principal question for decision was the validity of acts of the general assembly of Georgia under a section of the constitution of that state, which provides that “ no session of the general assembly, after the second under this constitution shall continue longer than 40 days, unless prolonged by a vote of two-thirds of each branch thereof.” Both decisions were rendered by a divided court, but in neither case were there two rival legislatures or houses in dispute. In neither case, was the house only the subject of the contention, but in both cases reference was had to the “general assembly”—to the supreme legislature. If we had a case like Railroad Co. v. Little, supra, before us, the question of a defacto law would be very strong. After going over all the matters connected with it, the court, among other things, says: “In this case there was a hot dispute over the matter. Men honestly differed as to the truth of the case, and the decision was made. It has been acted upon for two years by the people, by the executive, and by this court, until it has become an accomplished fact.” (45 Ga. 370.) Whenever an act of the legislature is brought into this court, not in violation of the constitution, which has been acted upon by the people of the state for two years, and which has been acted upon by this court as a completed and binding enactment, a defacto law may come into existence. When such a case comes, we will decide. But there is no such case presented by the journals. There is no such case presented by the argument. There is no such case for us to pass upon. The Dunsmore house never had but 58 constitutional members. It never had the legal power to create any more members. It therefore never had the legal power to enlarge its numbers. So long as there is a legal and constitutional house of representatives carrying on business in the identical hall where it is usual and customary for its business to be transacted, it seems to us that this question of a de facto house of representatives has not arisen to that reputation or acquiescence worthy of serious consideration. Is it possible that a body consisting of less than a quorum—less than a majority—can be a constitutional house of representatives under any circumstances, whether by recognition or otherwise? We say not. A majority of members elected to each house, voting in the affirmative, is necessary to pass any bill or joint resolution. No act not having received a constitutional majority of the votes of the members of the house can ever become a law. It is immaterial what the senate may do, what the governor may do. A constitutional majority of the votes of the house of representatives is necessary for legislative action in any case.

The case of The State v. Smith, 44 Ohio St. 348, (7 N. E. Rep. 447, and 12 id. 829,) has been cited to establish the doctrine that certain persons may be de facto members of the house to which they belong, although not de jure members. That case, and similar cases from Michigan and other states, have no application. There were not two houses or two legislatures in session in Ohio. In that case the senate was legally organized, and for a time, it is conceded, a quorum was present, and its journal properly made. Subsequently, about 20 members, being a majority, left the'senate chamber; and it is asserted that 17 members, less than a quorum, proceeded to transact business—admitting other members, and continuing its journal as showing that a majority of the senate was present and acting. The supreme court held, under the circumstances, that the journal or record of the senate imported absolute verity, and could not be impeached by parol testimony tending to show less than a quorum was present. Whether that decision would be good law in this state, in view of the decision in The State, ex rel., v. Francis, 26 Kas. 724, we need not now inquire; but it is a case different from the one we are investigating, because the Dunsmore house never legally organized, never had a legal majority, never had a constitutional quorum, and therefore never had a legal journal to conclusively import anything. But even in the Ohio case the chief justice vigorously dissented, and, among other things, said:

“By the averments of this reply, there was no senate — simply a number of its members wholly without power to act. There was no senate journal, but a false and fraudulent pretense of one; and, for' aught that appears in this case, this pretended journal might, if offered in evidence, or brought before us, be relied upon to establish, in part, the facts averred. . . . The attempt to sustain the act in question by the rule relating to officers cle facto is a palpable misapplication of a familiar doctrine; . . . but, in the case before us, there was not the slightest color of authority to constitute the persons members of the senate who are relied upon to give vitality to the act. Their title to their seats has never risen higher than a deliberate plot to circumvent a plain command of the constitution. But it must be remembered that the averment of the reply is that less than a quorum (17 members) were present when this act was passed. There is another principle which is fatal to the view here contended for and adopted by the majority. There is no form of direct attack upon the authority of these pretended senators to act recognized by the law. The present is the only available form of attack upon their proceedings. Quo warranto would not lie to call in question their authority to exercise the functions of senators. The present is to be treated as a direct attack, for the reason that no other form of attack can be made. The principle is well established, that where a direct attack upon a proceeding cannot for any reason be made, it may be collaterally questioned. (Vose v. Morton, 4 Cush. 31, and cases there cited.)”

The Georgia, Ohio, Michigan and other similar cases are of the class referred to by McCrary on Elections (2d ed.), § 517: “The cases in which the official acts or votes of members of a legislative body who are such defacto only, and not de jure, have been held valid are all cases in which there was no question as to the legality of the body in which they sat.” At least, those cases are of that class when there is only one body, or house—not two.

4. House of representatives may compel witness to attend. 5. Contumacions witness-arrest and improsonment. From all that we have said, our conclusion is, and must imperatively be, that the house known as the “Douglass house” is the legal and constitutional house of representatives of the state of Kansas, and, being such house it has the power to compel witnesses to appear.and testify before it or one of its committees in election contests arising in that body. It has full power to punish for contempt any witness who refuses to appear when personally subpoenaed in an elecfcion contest, or other proper proceedings pending. It has also the power to protect itself from disorder, disturbance, or violence. It has never been destroyed, ousted or dissolved since its organization. It is a body or house “having authority to commit.” [Anderson v. Dunn, 6 Wheat. 204; Burnham v. Morrissey, 14 Gray, 226; In re Falvey, 7 Wis. 630; People v. Keeler, 99 N. Y. 463; 2 N. E. Rep. 615; Rap. Cont., § 2.)

It has been suggested that we should hesitate to give an opinion in this ease upon the legality of either of the contending bodies claiming to be the house of representatives, because unpleasant complications might arise therefrom; and it has been even suggested that the governor and the senate will not find, their way clear, after what has passed, to communicate and act with the legal house, known as the “Douglass house,” and therefore, as a result, that appropriations may fail; that the governor’s office, and all the other departments of the government, including the judiciary, will have no funds with which to transact public business. More unfortunate still, it has been suggested that the educational, charitable and penal institutions of the state will be closed and the inmates discharged for want of money with which to operate them. We ’trust that such will not be the result. We assume that the governor of the state is honest and patriotic. We assume that >the members of both houses and the senate are honest, and actuated by worthy motives; and we trust that in the end there may be some way, as in Alabama, as in Maine, by which the legal bodies and the governor can act harmoniously and unitedly. The questions involved in this case are above partisanship. They concern the public; they concern the state; and party and partisanship should be wholly disregarded by each and by all. Let the mistakes pf the past be corrected, and the unfortunate differences pass without further comment into oblivion. Let mutual concessions prevail, and then, perhaps, amicable relations between the'belligerent and discordant elements may be restored. “He serves his party best who serves his country most.” The gravity of the subject we fully understand. Cértainly no constitutional or public question can be more solemn than that arising from the present contention respecting the organization of the house of representatives. While we deplore the occasion which compels us to hear and determine this case, we feel constrained by the imperative command of the constitution, and by our own conscientious discharge of public duty, to declare these views, irrespective of policy or expediency. Entertaining the views we do, we cannot consent to rob the highest judicial tribunal of this state of its constitutional rights; nor can we consent to exalt the executive or the senate of the state above the demands of justice, of safety, or the welfare of the people.

But if all the unfortunate circumstances should arise which have been predicted, disastrous and fearful as they may be, we believe the consequences will be more unfortunate to the people of this state, and put all the people in greater peril, if this court shall, by a majority of its members, declare and proclaim that the refusal of the governor or the senate, or of both, to recognize the constitutional house of representatives wipes the house out of existence, when it is attempting to carry on its duties in a legal and lawful way; wipes out the house, and takes from the people their most popular branch of the legislature, that body which is closest and dearest to their hearts. In all history, at all times, in a representative government, the lower house, or the “popular branch,” as it is called, has been generally regarded as more in touch with the people—with the voters — and therefore more closely the representative of the people, than the senatorial or the longer-term body of the legislature. If the senate, consisting of 40 members, may, with the governor, decide by recognition what persons, whether elected or not, are members of the house of representatives, and what body, whether elected or not, is the house of representatives, then a majority of the senate, with the governor, being only 22 officials, may overthrow the constitutional house of representatives, and abolish 125 officials, such officials being the members of the larger body or branch of the legislative assembly. If the action of the governor and the senate can do that now, then two years ago Governor Humphrey and the senate, which was almost unanimously of his own political party, might have recognized a minority of the other house, and with such recognition could have reelected Senator John J. Ingalls to the United States senate, and defeated Senator Peffer, and could have carried on all business, under the rule of recognition. If the present governor and senate may do this now, another governor and another senate may follow the example; and hereafter, for all time, with the sanction of this court, the legislature will be composed of the governor and one house, recognizing and communicating with some other body, whether lawfully elected or not. The election of the second body will then be useless, unnecessary, abortive. Under such a practice, we would have two houses in name, but one only in fact; the one subservient to those that recognized it, but not independent, and not representing fully all the people. Either we would have such an anomalous condition of affairs, or else, at every organization of the legislature or of either house, we would have at the capital of the state the clash of resounding arms, and the contention of armed forces. In such a case, force, and force only, would rule, and not law. At such a condition we stand appalled; and, if a doctrine contrary to that here announced be maintained, such a condition of affairs will follow. In this country, in this state, the law, not physical force, governs. Loyalty to law is the first—the paramount — duty of every citizen.

It is argued on behalf of the doctrine giving the governor and senate the arbitrary determination, beyond judicial control, as to what body is the house or de faoto house of representatives, that power must be lodged somewhere; and as officials, and especially superior officials, are presumed to do their duty, it is unjust to apprehend serious consequences from unusual, fraudulent or illegal methods which such officers might pursue. .Yet this rule, so declared, is not willingly applied in the same argument to boards of canvassers, (who have been designated in contemptuous language as “returning boards merely,”) although such boards of canvassers, within the decisions of this court, are subject to judicial supervision and control. If we may presume that officials will fully perform their duty, then such presumption favors boards of canvassers, as much as other officials, and therefore the certificates issued by such boards, especially by a state board of canvassers, composed of state officers, ought to be looked upon in the first instance as having been issued rightfully and lawfully. It is inconsistent and illogical, especially without proof, to suppose that a state board of canvassers, in issuing certificates to the members elected to the legislature, have not acted honestly, impartially, and legally. We commend to all suggesting that force or men shall rule, rather than law, the acts and words of the historic Agesilaus. When that Spartan general, renowned for all time, was, after years of desperate effort, upon the very threshold of success over his ancient enemies, the Persians, he was suddenly recalled to Sparta, to the defense of that nation against threatened assault of new enemies, but recently friends. Upon the instant, he answered, obedient to the call of his country, and, leaving a field of operations pregnant with victory, he returned, to meet the call of duty. He sent this message:

.“Agesilaus to the Ephori, greeting: We have reduced part of Asia, put the barbarians to flight, and made great preparations for the w;ar in Ionia; but, as you order me to return, I am not far behind this letter, and would anticipate it, if possible. I received the command, not for myself, but for my country and its allies. I know that a general does not deserve or really fulfill the duties of that name but when he suffers himself to be guided by the laws and the ephori, and obeys the magistrates.”

And by this obedience, the historian declares, he demonstrated the truth of what was said: “ That at Sparta the laws ruled men, and not men the laws.”

In conclusion, speaking for myself alone, and not for my brethren on the bench, I adopt substantially the language of Chief Justice Agnew, of the supreme court of Pennsylvania, when, with a courage and firmness worthy of John Hampden, in upholding the dignity and independence of his court, he said:

“On no ground of the constitution, law, public justice, state policy, or sound reason, can I discover any exemption of any officer in the state, high or low, from the common duty all citizens owe to the due administration of justice. I cannot abnegate a power intrusted to me by the people, and will return to them my commission, unsullied by any dereliction of duty, rather than abase this court, and pay obeisance at the shrine of unwarranted power or unconstitutional authority.”

The petitioner will be remanded.

Johnston, J., concurring.