State ex rel. Attorney - General v. Tomlinson

20 Kan. 692 | Kan. | 1878

The opinion of the court was delivered by

Horton, C. J.:

This is an attempt by proceedings in the nature of quo warranto, to try the title of defendant to his seat in the house of representatives of the legislature of Kansas. The facts, as they appear by petition and answer, are, that the defendant is a citizen of Rush county, and at the general election in 1876 was voted for and received a majority of all votes cast in that county for representative from that county; that at this election less than 250 votes were cast; that at this time, Rush county was not attached to any other county; that upon the convening of the legislature, at the session of 1877, after due consideration, the house of representatives, by a majority of the members thereof then assembled, declared and adjudged the defendant to be the “legally-elected representative from Rush county,” and “entitled to a seat” as such member, since which time he has been and now is recognized as such member. (House Jour. 1877, p. 212.)

The attempt to determine the title of the defendant as a member of the legislature in this manner, must necessarily fail, for the simple reason that we cannot and ought not take jurisdiction of the case. We are powerless to enforce any judgment of ouster against a member of the legislature. While the constitution has conferred the general judicial power of the state upon the courts and certain officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers, and among them is the power to judge of the elections, returns, and qualifications of members of the legislature. This power is exclusively vested in each house, and cannot by its own consent, or by legislative action, be vested in any other tribunal or officer. This power continues during the entire term of office. Sec. 8, art. 2, State Const.; The State v. Gilmore, ante, p. 551.

Within certain constitutional restrictions, the executive, legislative, and judicial powers of the state, are independent and supreme; and neither has the right to enter upon the exclusive domain of the other. We should be passing beyond the limits of our own power to judge of the election or qualifications of a member of the legislature; and as the constitution has expressly confided this power to another body, we must leave it where it has been deposited by the fundamental law. If we are at liberty to interfere in this case, or, if with consent of the legislature we assume jurisdiction, we may review all similar decisions of that body, and in the end bring the legislative power of the state in conflict with the judiciary. The objections to such a course are so strong and obvious, that all must acknowledge them. We are not cited to a single case in the federal or state courts, where any member of congress, or any member of a state legislature, from the foundation of the government to the present time, has been ousted by quo warranto. And the admission of this fact of itself, after the extensive investigation of this subject by the learned attorney-general, is almost conclusive that none can be found, and that the exercise of such power is not only unwarranted, but unknown. Judge Cooley says: “ These powers, it is obviously proper, should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions, without liability to interruptions or confusion.” Const. Lim. 133.

It is insisted, upon the authority of Prouty v. Stover, 11 Kas. 235, that this court has expressed the right to make inquiry into the fact whether the district from which a member of the legislature is admitted, exists or not, and if it does not exist, the member may be ousted by the courts. In that case, it was only decided that where the legislature was sitting as an electoral body, in a contest concerning the validity of an election by such body, the courts were 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 admitted to seats from these districts to vote at such election. That decision is not in conflict with the view here stated, viz., that we have no jurisdiction, in a proceeding like this, to oust a person from his seat as a representative, after he has been declared and adjudged to be a member of the house by the power and tribunal having the exclusive authority to hear and determine that question. O’Ferrall v. Colby, 2 Minn. 180; McCrary on Elections, § 515; Hiss v. Bartlett, 3 Gray, 468; People v. Mahaney, 13 Mich. 481.

That our decision in this case may not be misunderstood, or misconstrued, we desire to say, that we do not decide that the house of representatives can consist of more than one hundred and twenty-five members, that being the maximum number allowed by the constitution; nor do we decide that the house, in the exercise of its power to judge of the election and qualification of its members, can legally admit to seats, as members, any number of persons in excess of one hundred and twenty-five; but our decision is, that, whether the house does or does not admit a greater number of persons as members than one hundred and twenty-five, this court has no jurisdiction to inquire by quo warranto, or otherwise, as to the right of any person to a seat as a member with a view of ousting him from his seat. Rightly or wrongly there, we are alike powerless in the premises. Whether or not an act passed by the votes of persons admitted as members in excess of the constitutional limit, (and not legally passed without such votes,) would, in a given case, be held constitutional and valid, can only be determined when presented in a proper action and in proper form.

The petition and proceedings in this action will be dis-r missed, at the costs of the plaintiff.

All the Justices concurring.

* Tiiere was no election held on the day of the general election (November 4th 1873,) in Comanche county, but an election was held for Representative, and county officers, on the 3d of December 1873. (See House Jour. 1874, pp.383, 384.)