A standard history of Kansas and Kansans, Volume I, Part 53

Author: Connelley, William Elsey, 1855-1930. cn
Publication date: 1918
Publisher: Chicago : Lewis
Number of Pages: 668


USA > Kansas > A standard history of Kansas and Kansans, Volume I > Part 53


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While the Legislature had no intention of remaining at Pawnee, it was necessary for it to go to that point and organize for the transaction of business. The legality of its actions rested on this procedure. Gover- nor Reeder had been requested to have the session of the Legislature at the Shawnee Mission, near Westport, Missouri, but had refused to eon- sider that point for even the temporary capital. It had been arranged with the Reverend Thomas Johnson, that he would have quarters pre- pared for the Legislature when it returned from Pawnee, as it fully intended to do. The Governor, in refusing to consider the Shawnee Mission, in his plans for the government of the Territory, made the point that it was too near the border of Missouri, and the Legislature would be too much in the power and under the influence of the citizens of that State. Considering his experiences, it would seem that the point was well taken.


The members of the Legislature traveled to Pawnee on horseback, by wagons, and in carriages. Upon their arrival they went into eamp, very much as had the Missonrians when they invaded the Territory to vote. They did not patronize the boarding-houses provided by the Pawnee Town Company.


The Legislative Assembly met in the Capitol Building at Pawnee on Monday, the 2nd of July, 1855. The organization of the House of Rep- resentatives was effected by Daniel Woodson, Territorial Secretary, who called the Honse to order and read the official roll. The following members were present and answered to their names: Johnson, Inteh- inson, Ladd, Wattles, Jessee, Baker, Anderson, Williams, Heiskell, Wil- kinson, Younger, Scott, Houston, Marshall, Tebbs, Stringfellow, Kirk, Blair, Watterson, Harris, Weddell, Mathias, Payne, MeMeeken.


Officers pro tom were elected as follows: Joseph T. Anderson, Chairman; T. M. Lyle, Chief Clerk; John Martin, Assistant Clerk : T. J. B. Cramer, Sergeant-at-Arms ; Benjamin P. Campbell, Doorkeeper. The Reverend Mr. Stateler being present, was called upon to officiate as Chaplain and open the session with prayer. The House then proceeded to the election of permanent officers. John II. Stringfellow was elected Speaker. and Joseph C. Anderson Speaker pro tom. For the other places the temporary officers were respectively ehosen. The Speaker immediately appointed a Committee on Credentials, consisting of the following members: Heiskell, Houston, Mathias, Watterson and John-


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son. The Committee was instructed to bring in a report at 8 o'clock on the following day. The House then adjourned.


Secretary Woodson also presided over the organization of the Coun- eil. The following members answered to roll call : Thomas Johnson, Edward Chapman, John A. Wakefield, Jesse D. Wood, A. M. Coffey, David Lykins, William Barbee, John W. Forman, William P. Richard- son, D. A. N. Grover, L. J. Eastin, R. R. Rees.


M. F. Conway, the Free-State member was absent, having resigned his seat.


The officers pro tem were: R. R. Rees, President ; John A. Halder- man, Chief Clerk; Charles II. Grover, Assistant Clerk; Carey B. White- head, Sergeant-at-Arms: William J. Godfroy, Doorkeeper. The Couneil did not wait for a permanent organization before naming a Committee on Credentials, but immediately appointed Coffey, Johnson and Rich- ardson as such committee. The Committee was required to report forth- with, which it did, saying that all members present except those from the second, third and sixth eouneil distriets, were entitled to their seats. These distriets were represented by the Free-State members, and the Committee asked for further time to consider their eredentials, which was granted. The permanent organization was effected by elect- ing Reverend Thomas Johnson, President, and R. R. Rees, President, pro tem, with the other offieers as in the temporary organization.


Both ranehes of the Legislative Assembly, having been legally organized, Governor Reeder was informed that they were ready for the transaction of any business that might legally come before them. The Governor sent in his message on the morning of the 3rd of July. Then it was read in both houses and referred to proper committees. It dealt with those problems confronting the Legislature met to pro- vide machinery for the government of the Territory, such as the forma- tion of counties, the establishment of Courts, sehools, county govern- ments, and a system of taxation. There was a long paragraph on the slavery question, which did not in the least interest the Legislature. Governor Reeder's views were well known, and it was not the intention of the Legislature to regard what he might have to say on that matter. The program eoneerning slavery had been prepared in Missouri imme- diately after the election of the Legislature. This program had been agreed upon at Weston, Missouri, by Judge William C. Price, Senator Atchison, and other rabid Pro-Slavery men.


To the Honorable the Speaker of the House of Representatives of the Territory of Kansas:


The undersigned, a majority of the committee appointed by this House as a special committee on credentials, whose duty it was to inquire into and examine the evidence of membership of gentlemen who claim their seats as members of this House of Representatives of the Territory of Kansas, most respectfully beg leave to make the following report :


llaving heard and examined all the evidence touching the matter of inquiry before them, and taking the organie law of Congress, passed on the 20th day of May, in the year 1854. organizing the territorial govern-


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ments of the Territories of Nebraska and Kansas, as their guiding star, the only bright and shining light to the port of a true and correct con- clusion in the premises, believe and declare, in the first place, that the Governor of the Territory of Kansas had not the exclusive right or power to prescribe the manner and form by which the first election for members of the first Territorial Legislative Assembly of the said Territory of Kansas should be conducted and passed upon; but that a fair construc- tion of the 22nd section of the said organic act leads them-nay, drives a majority of your said committee, to the conclusion that no particular form of the oath which the judges of said election took was necessary, and that no particular form of the return of said election by the said judges was necessary in order to legalize the said election; but that such oaths and such returns as are usual for judges of elections in the several States to take, perform, and return, is all that the organic act requires. And a majority of your committee believe, and are of the opinion, from the original papers filed in the office of the Secretary of the Territory, and other papers and evidence which were before them, that the oaths and returns, and all other acts taken, done, and performed by the judges appointed by his Excellency, A. H. Reeder, Governor of the Territory of Kansas, to hold and conduct the election for members of the first Territorial Legislative Assembly, were in the usual form, at all events as effectual and as legal and binding as if the said oaths and returns had been in the form prescribed by the Governor in his proclamation, verbatim et literatim.


Indeed, any other construction might lead to usurpation of power. never ending eonfusion, and wrong. And besides, it is not to be expected, nor is it required by any rule of law or courts of justice, in the United States or Great Britain, that oaths or affidavits taken and made pro- miseuously throughout the country shall be uniform; but that any oath or affidavit, taken or made by any offieer of any branch of the govern- ment, clearly showing the intention of the party taking or making the same to the point at issne, or matter of fact to be established or pro- eured, is all that the law requires.


In the second place, the undersigned, a majority of our said com- mittee are of the opinion and declare that the said organic act, estab- lishing the territorial governments of the Territories of Nebraska and Kansas, does not give to the Governor of the Territory of Kansas, power generally to set aside elections nor does it confer upon him the right or power to set aside the election held on Friday, the 30th of Mareh last, in any one or all of the election preeincts, unless (in the language of the bill itself), that in case two or more persons voted for shall have an equal number of votes, and in case a vacancy shall other- wise occur in either branch of the Legislative Assembly. In these events, and these events alone, has he power to order a new election.


And this, sir, appears to be a very liberal construction. Mark the words, "That in case two or more persons voted for shall have an equal number of votes," without any qualification. This language might de- prive two or more persons, fairly elceted by their constituents, of their privileges as members of this House: because, for instance, it is not impossible for A, who might be a eandidate for a seat in this House for District No. 1, and B, a candidate also for a seat in this House in District No. 2, to have an equal number of votes; so that without liberality in construing this language, the election of both A and B might be set aside. on a mere pretense, however trivial. But it is conceded that the Gov- ernor of this Territory has the power, under the organic act of Nebraska and Kansas, to set aside the election in any Council or Representative District, where either of those contingencies arise.


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But it is not pretended ou the part of the Governor, or any gentlemen claiming seats in this House, that a tie occurred in any representative distriet, nor that any election in any one or more of the representative distriets was set aside on that ground, yet it appears that the election in a number of the representative distriets of this Territory were set aside, and certificates refused to gentlemen who claimed to be elected by a large majority of their constituents.


Upon what ground then were these elections set aside, and certificates refused ? A majority of your committee, and they apprehend a majority of the members of this House, are at a loss to know.


It is pretended, however, that these elections were set aside and certificates refused, upon the ground of a non-compliance on the part of some of the judges of the election, with the manner and form pre- scribed in the proclamation of the Governor of this Territory. This, as it has already been shown, was not a legitimate reason for thus setting aside these elections ; but nevertheless new elections were ordered to be held on the 22d May last, and a number of gentlemen are now holding their seats in this House by virtue thereof.


Can it be that Congress in its wisdom, having great experience and the history of the past before them, designed to delegate to one man the power to create a vacancy in the popular branch of this Legislature, for his own purposes, on any pretense whatever? Certainly not. But a majority of your committee emphatically deny that any vacancy in this branch had occurred at the time of the issuing of the Governor's proela- mation, ordering a new election in the several districts of this Territory where new elections were held and conducted, under and by virtue of that proclamation, or at the time such elections were held and con- dueted, or at any time subsequent, until the organization of hoth branches of the first Territorial Legislative Assembly of the Territory of Kansas, and certainly none sinee, for every seat has been occupied from that moment until the present, whether rightfully or not is for this House to decide.


Now, sir, if this be a correct view of the subject, by what authority have the elections in the said several representative districts been set aside? By what anthority have certain gentlemen been refused certifi- cates of election ? and by what authority has a new election been ordered and held on the 22d day of May last ? Verily, none; at least none that a majority of your committee can see; and the election held in the several distriets of the territory on the 22d day of May last, is therefore, in the opinion of a majority of your committee wholly and entirely illegal, un- warrantable, and not authorized by the organie aet establishing the terri- torial governments of the Territories of Nebraska and Kansas, and they have therefore disregarded the said election.


Upon the subject of certificates this committee would only remark, that a certificate of election in the hands of a party elaiming a seat in this or any other house of a similar chiaraeter, is only prima facie evi- dence of his right to sit until the House shall have passed upon the faet, and nothing more: and that a certified copy of the return of the judges of an election, or the original return filed in the office of the Secretary of State, is also prima facie evidence of his right to sit until otherwise ordered by the House of which he claims to be a member; and that it is competent and legal, and in accordance with the best parliamentary law and regulation, for this House, or any similar body constituted as this is. to oust, or in other words to turn out, and refuse to any person the privilege to sit as a member, notwithstanding he may have a certificate of election with the broad seal of a State or Territory, as the case may be. The precedents on this branch of our report are so numerous, and


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so well and generally understood, that to say more would be but taxing sounds and words wholly unnecessary now.


In regard to those gentlemen who are now sitting members of this House, and whose seats are not contested in this place, these are passed without further comment.


But with regard to those whose seats are contested, the majority of your committee having already declared that the election held on the 22d of May was void ab initio, cannot entertain either the certificate of the Governor of this Territory, or a certified copy of the return of the judges of the said election, nor even the original return filed in the office of the Secretary of the Territory, and must therefore be governed entirely by the return of the judges who held and conducted the election held on the 30th of March last, in pursuance to and compliance with the just proclamation of the Governor of this Territory, ordering an election for members of the Territorial Legislative Assembly of the Territory of Kansas.


Accordingly it appears that Mr. A. S. Johnson, from the first Repre- sentative District, is entitled to his seat as a member of this House.


That Messrs. Joseph C. Anderson and S. A. Williams, from the sixth Representative District, are entitled to their seats as members of this House.


That Mr. S. D. Houston, from the eighth Representative District, is entitled to his seat as a member of this House.


That Mr. F. J. Marshall, from the ninth Representative District, is entitled to his seat as a member of this House.


That Mr. W. H. Tebbs, from the tenth Representative District, is entitled to his seat as a member of this House.


That Messrs. J. H. Stringfellow and R. L. Kirk, from the eleventh Representative District, are entitled to their seats as members of this House.


That Messrs. Joel P. Blair and Thomas W. Waterson, from the twelfth Representative District, are entitled to their seats as members of this House.


That Messrs. II. B. C. Harris and J. Weddle, from the thirteenth Representative District, are entitled to their seats as members of this House.


That Messrs. W. G. Mathias, H. D. MeMeekin, and A. Payne, from the fourteenth Representative District, are entitled to their seats as members of this House.


The foregoing gentlemen are those whose seats have not been contested.


And it appears that Messrs. John Hutchinson, Philip P. Fowler, and Erastus D. Ladd, from the second Representative District; Messrs. Augustus Wattles and William Jessee, from the third Representative Distriet ; and Mr. Cyrus K. Holliday, from the fourth Representative District-have received certificates of their eleetion from the Governor, declaring them duly elected as members of this House, on the 22nd of May last. But inasmuch as a majority of your committee have declared that this election was void from beginning to end, and that the Governor was not authorized or empowered to order that election, by the organic act establishing this territorial government, they are not entitled to their seats as members of this House.


But that Messrs. James Whitlock, A. B. Wade, and John M. Banks, from the second Representative District, are entitled to their seats as members of this House, having received a majority of the votes polled in their said Representative District, at an election held therein on the 30th day of March, 1855.


Messrs. G. W. Ward, and O. H. Browne, from the third Representa-


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tive District, are entitled to their seats as members of this House, having received a majority of the votes polled at an election held in their Representative District, on the 30th day of March, 1855.


Mr. D. L. Croysdale, of the fourth Representative Distriet, is entitled to his seat as a member of this House, having received a majority of the votes polled in his said Representative District, at an election held therein on the 30th day of March, 1855.


In the fifth Representative Distriet it appears that A. J. Baker received a certificate of election from the Governor of this Territory, deelaring that the said A. J. Baker was duly elected a member of this House, said certificate bearing date the 6th day of April, 1855.


It appears from all the facts in this ease of Mr. A. J. Baker, that in his (the fifth) Representative Distriet there are two preeinets. A. J. Baker received twenty-five votes, and M. W. MeGee, the contestant in this ease, received twelve votes, at one precinet ; and at the other preeinct, A. J. Baker received one vote, and M. W. McGee received two hundred and ten votes. The returns of the judges of election from both these precincts are equally effective and equally legal in our judgment, and we therefore declare that A. J. Baker, from the fifth Representative Dis- triet, is not entitled to his seat in this House, but that M. W. McGee, from the said fifth Representative Distriet, having received a majority of all the votes polled in that Representative Distriet, on the 30th day of March, 1855, is entitled to his seat as a member of this House.


The foregoing, your committee know, is very imperfect; but the shortness of the time allowed to investigate the subject referred to them did not admit of a more thorough and comprehensive report thereon.


All of which is most respectfully submitted.


WILLIAM G. MATTHIAS, Chairman. A. S. JOHNSON. WILLIAM A. HEISKELL. THOMAS W. WATERSON.


S. D. Houston submitted a minority report denying that the Legis- lature had any right to go behind the decision of the Governor. Mr. Hntehinson opposed the adoption of the report of the committee in a long argument, although he was informed that his speech would have no effect, whatever, on the House. The adoption of the report unseated Intehinson, Fowler, Ladd, Wattles, Jessee, Holliday and Baker. A protest was filed by Hutchinson, Jessee, Wattles and Ladd. The com- mittee appointed by the Council submitted a report, the adoption of which unseated Wood and Wakefield, and seated Andrew MeDonald and Hiram J. Striekler. The action of the Legislature left S. D. Hons- ton as the only Free-State member, and he resigned on the 23rd of .July.


IFaving settled the membership to its satisfaction, the Legislature proceeded with the business of transferring the seat of government to the Shawnee Mission. On the 4th of July both Houses passed a bill entitled. "An act to move the seat of government temporarily to the Shawnee Manual Labor School in the Territory of Kansas." Governor Reeder immediately vetoed this bill in a message as follows :


To the House of Representatives of the Territory of Kansas:


I return to your House, in which it originated, the bill entitled "An act to remove the seat of Government temporarily to the Shawnee


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Manual Labor School in the Territory of Kansas," with my objections. I cannot give the bill my official sanction for several reasons. It provides "that until the seat of government is located by law, the Governor and Secretary of State (by which is doubtless meant the Secretary of the Territory ), shall respectively keep their offices at the Shawnee Manual Labor School."


This permission seems to me peculiarly objectionable. The Legis- lative and Executive departments, here as elsewhere, are entirely inde- pendent of each other in the performance of their respective duties within their separate spheres, and must each be left to the discharge of their own proper functions, independent of the control of the other, in any way that would interfere with the exercise of that discretion, which is properly confided to them. Under our organic law there is even yet another consideration bearing upon this well-known doctrine, which forces itself upon our attention.


The Executive department is an emanation of the power of the Federal Government, represents the authority of that Government, and the incumbent is appointed by it. His duties are defined by Congress, who may at any time restrict or enlarge them, and prescribe the mode in which they shall be performed, and to the Federal Government alone, from which his power is derived, and by which his movements are directed, is he responsible for the manner in which his official functions are performed. This controlling power over the Territorial Executive ean neither be taken away from Congress by the Territorial Legislature. nor can it be exercised by the latter, eoncurrently with the former. because this would involve the possibility of an irreconcilable conflict between the two. The control of the Executive is not parted with by Congress, under the 24th section of the organic law, because, as already shown, such control by others would be inconsistent with the spirit of the act. The General Government have legislated in various portions of the act, as to the general duties of the Executive, and in reference to this point particularly, now involved, have gone as far as they then deemed expedient, by providing that the Governor and Secretary shall reside in the Territory. They may at any time go further and provide at what point of the Territory the offices shall remain ; but we must await their action in the matter, as that of the only power which can prescribe it ; so long as they see proper to leave to the incumbent of the Executive Department the privilege of locating his office anywhere within the Terri- tory, that privilege cannot be taken away by the Territorial Legislature.


When the actual seat of government is fixed by competent authority, it would certainly become the duty of the Executive to locate his office there, and this brings us to the inquiry whether the bill which I now return is within the rightful powers of the Legislature, as conferred by Congress.


It professes to locate the seat of government temporarily, as contra- distinguished from a permanent location. This distinction is well founded and well understood, and is recognized as well in the organie law as in the act of Congress of March 3, 1855, and a temporary seat of government is recognized as one upon which none of the public money appropriated by Congress, shall be expended in the erection of publie buildings.


By the organie law, the Governor was vested with the power to fix the place for the meeting of the first Legislative Assembly. By the same law, Congress themselves fixed the temporary seat of Government, and by act of March 3, 1855, they conferred upon the Legislature the right to fix a permanent seat of government. The power of the Legis- lature is thus clearly defined. Congress has chosen to confine one branch


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of this subject to the Governor, to retain another to themselves, and to commit the third to the Legislature.


The temporary seat of government may or may not be used, and this will depend upon whether the Legislature shall leave the place fixed for their meeting by the Governor, before they shall fix upon a permanent seat of government. Congress having already fixed a temporary seat of government for the Territory, the only effeet of the bill which I now return to you would be to repeal the 31st seetion of the Kansas bill, which involves the exercise of a power far beyond the functions of the Legislature.


The Legislature may undoubtedly, by virtue of the aet of Congress, passed Mareh 30, 1855, entirely supersede the temporary seat of govern- ment by a permanent location, upon which the publie appropriation is to be expended for buildings; but in no other mode ean the object be attained. Had Congress abstained from fixing a temporary seat of government, the Legislature might, perhaps by implication, have had the power to do so; but when they exercise it themselves, and, in the same law, prohibit the Legislature from any legislation inconsistent with the provisions of the aet, it would seem that the door is elosed for any such legislation as contemplated by the bill which has been submitted to me.




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