dissenting.
The idea of judicially declaring a co-ordinate department of the government, an illegal body, and any acts *424which it may do, null and void, is so novel and startling as to arrest attention and demand careful examination. The suggestion that the judiciary can declare the legislature illegally assembled, and a body without authority, rests upon the assumed right of this department to pass upon the legal existence of a co-ordinant branch of the government, and if true is dangerous to civil liberty. If this can be done, and the judicial power of the state declare the legislative depai’tment illegal and proceed to destroy and annihilate it, the next day upon, some specious pretext the executive department may be made to share the same fate, and thus the judicial power will be made to sap and undermine the constitution, and destroy the liberties of the people.
The three co-ordinate departments of the state government are absolutely independent of each other, and one of them can not enquire into the motives controlling the action of the other. The three departments are not merely equal, they are exclusive in respect to the duties assigned to each.
It is now proposed that the judicial power shall institute an enquiry into the conduct of the legislative department, and form an issue of fact and law to try the legality of the dealings of the legislature with one of its own members. If this can be done, we may enquire, upon application made by a fugitive from justice from a sister state for discharge from arrest on the warrant of the executive, whether the acting executive holds his office by legal right. It is sufficient, however, that he is defacto acting as such executive. In this case it was sufficient that the legislature had met and organized as the legislature, and was acting as such, and that Tennant the relator, was a member of the senate, and was adjudged by the senate as guilty of contempt. That senate could alone deal with him for such contempt. To sustain this writ and discharge the applicant would be a direct attack upon the *425independence of the legislature, and a usurpation of power subversive of the constitution. I say nothing of the right of the state to-institute a legal enquiry to determine whether the legislature was rightfully assuming to exercise legislative functions.
There are certain things of which this court is bound to take judicial notice, of which are the sittings of the legislature and its established and usual course of proceeding, and the privileges of its members. Not the time fixed by law for the sittings of the legislature, but of the sittings of the legislature. "We must then judicially know that the Senate and House of Pepresentatives met in legislature assembled at the Capitol in Lincoln on the fifteenth day of February, A. D. 1872, and are still in session, and that the Constitution declares (section seven, title Legislature) “that each house shall be the judge of the election and qualifications of its own members, and a majority of each house shall constitute a quorum to do business, but a smaller number may adjourn from day to day and compel the attendance of absent members in such manner and under such penalties as each house shall provide.” The senate is the exclusive judge of who constitute its members, and the legislature alone can determine for itself whether it is legally assembled. We must judicially take notice of the fact of the sittings of the legislature and having taken notice of such sittings, it is not legally competent for this court to withdraw the relator from the custody of the senate of this state, where he now is, charged with a violation of its rules, and discharge him while the proceedings against him by that body are still pending and undetermined. The senate sitting de facto as such, now has possession of the relator and has legal power and capacity to hear and determine for itself the question of its own jurisdiction and right to act in the premises. The legal presumption in such cases always is, that the tribunal thus *426assuming to act will determine the question of its own jurisdiction correctly, until it has acted finally upon it. It is a rule of law, founded upon sound principles and comity, which is, and, for the prevention of unpleasant collisions, always should be recognized between the coordinate branches of the state government, that each is legally competent to determine its own jurisdiction, when it has acquired defacto prior jurisdiction over a person or subject matter, and this court ought not to interfere or seek to arrest the action of the senate, while the case is still pending and undetermined. The rule is sustained by all the analogies of law, and finds a recognition in the constitution itself, by the separation and distinct recognition of the legislative, executive, and judicial departments of the government. And this principle is distinctly recognized by judicial tribunals in the following cases. Smith v. M'Iver, 9 Wheat, 532. Hagan v. Lucas, 10 Pet., 400. Taylor v. Carryl, 20 How., 594. Ex parte Robinson, 6 McLean, 363. Keating v. Spink, 3 Ohio State, 105. Hurd on Habeas Corpus, 199. This doctrine is sound in principle and tends to promote harmony between tribunals and the three departments of government. If another department of the state government were thus to interfere with our action and withdraw from our custody a prisoner upon trial before us charged with contempt and set him at large, on the ground that we had no legal existence as a court, we should resist such an attempt to the utmost. Shall we not extend to the coordinate departments of the state, the same comity and the same confidence we claim for ourselves? In support of the principles here contended for, we cite, Ex parte Booth, 3 Wis., 145. Ex parte Bushnell. Ex parte Langston, et al., 8 Ohio State, 600.
The senate, in the first instance, is the sole and exclusive judge of its own legal existence, and having determined that question, its judgment cannot be impeached *427in this collateral way. It would be unjust, absurd and impracticable to have a trial for the same offense going on at the same time in two distinct co-ordinate tribunals under the same government. As in this case, the senate, as a senate defacto, has the relator in custody for contempt, and before trial or hearing before it, we hear and determine the case by deciding that no senate exists. Has not the senate the right to pass upon that question in the first instance? And in a case before this court for contempt, might not the senate with like propriety resolve that this court had no legal existence, and hence there could be no contempt? The relator being in the custody of the senate for an alleged contempt, this court has no jurisdiction to deteiunine such contempt, or to determine the legality of the organization and meeting of that body. This court cannot enquire into the legality of the meeting and organization of the legislature assembled, or of either house thereof, in the manner here sought by habeas corpus. Each house is the sole judge of the qualification and election of its own members, and of its own de facto existence. To declare illegal the assembling of the legislature, upon the hearing of a writ of habeas corptis, is to my mind a usurpation of judicial power, and an unwarrantable assault upon a separate and independent department of the state government, and such usurpation ought to be vigorously resisted. The decision of the majority of this court, cuts loose from the safe moorings of the law and time honored custom, and without compass, chart, mast, or rudder, to guide its course, enters upon a piratical and unwarranted cruise against the legislative department of this state.
"Where did this.court receive its commission and author-' ity to pronounce a criticism upon the conduct of a co-ordinate department of the state government, and because its conduct did not come up to its standard of propriety, denounce and then destroy it?
*428This is sufficient to dispose of the case, but other questions have been presented which have been raised and argued at the bar of the .court.
First. "Was Isaac S. Hascall, President of the Senate, authorized to issue his proclamation convening the legislature?
Second. If he had such authority, could ~W. H. James, Secretary of State, revoke that proclamation when he returned to the state?
Section sixteen of the constitution, title “ Executive,” reads as follows: “In case of impeachment of the governor, his removal from office, death, resignation, or absence from the state, the powers and duties of the office shall devolve upon the secretary of state, until such disability shall cease, or the vacancy be' filled.” Section seventeen reads as follows: “ If during the vacancy of the office of governor, the secretary of state shall be impeached, displaced, resign, die, or be absent from the state, the powers and duties of the office of governor shall devolve upon the'president of the senate; and should a vacancy occur by impeachment, death, resignation, or absence from the state, of the president of the senate, the speaker of the house of representatives shall act as, governor till the vacancy be filled.” The contingency provided for in section sixteen, quoted above, happened to this state on the fourth day of June, A. D. 1870, and the succession in the executive office fell upon the secretary of state, W. H. James. It is admitted and proven that secretary James was absent from the state, when Isaac S. Hascall issued his proclamation convening the legislature. The powers and duties of governor had fallen npon Isaac S. Hascall, President of the Senate, by the express terms of the constitution, and he was not only de facto but de jure in the exercise of the powers and duties of that office, and might rightfully and lawfully exercise the powers *429and perform all the duties which any governor could. In the exercise-of these powers as governor, he issued his proclamation convening the legislature. i We cannot institute an enquiry into the conduct of the executive, in order to determine whether his motives were good or bad. If this could be done, we might.enquire what motives induced the executive to approve a bill or withhold that approval, and in case of withholding it corruptly, issue our mandate and compel him to approve it. To institute such an enquiry, would, however, be a direct attach upon the independence of the executive and subversive of tlie constitution. Chief Justice Marshall said, in Fletcher v. Peck, 6 Cranch., 131, “it would be indecent in the extreme, upon a private contract between two individuals, to enter into an enquiry respecting the corruptions of the sovereign power of the state.” And this point is expressly ruled in Wright v. Defrees, 8 Indiana, 302, 303. The principle settled in Marberry v. Madison, 1 Cranch, 137, is that the official acts of the heads of the executive department, as organs of the president, which are of a political nature, and rest, under the constitution and the laws, in executive discretion, are not within judicial cognizance. Our state constitution recognizes three distinct, independent, and co-ordinate departments of the government in this state, with as much perspicuity as does the federal constitution in the United States. Applying then the principle settled in the case last cited, and this court has no jurisdiction to impeach or question the validity of the proclamation convening the legislature. That proclamation having been constitutionally and lawfully issued by Isaac S. Hascall, President of the Senate, upon whom-the duties and powers of the office of governor had devolved, this court cannot legally make enquiry into the motives which actuated him, or impeach his official conduct in that regard.
*430It now remains to consider the power of the secretary of state, upon Ms return to the state and-assuming gubernatorial functions, to revoke the proclamation issued by the president of the senate, during Ms absence. The exécutive department of this state possesses such powers as the constitution and the laws have conferred upon it and none other. The only implied powers it possesses, are such as are necessary or convenient to carry into practical execution the powers granted by the constitution and the laws. Hamilton v. Saint Louis County Court, 15 Missouri, 13, per Bates arguendo. Matter of Oliver Lee and Co’s Bank, 21 New York, 9.
The Mnth section of the Nebraska constitution, title “ Executive,” reads as follows: “ He (the governor) may on extraordinary occasions convene the legislature by proclamation, and shall state to both houses, when assembled the purpose for which they have been convened.” The power to convene or assemble the legislature by proclamation is expressly given, but the power to revoke the proclamation convening that body will be sought for in vain — it is not in the constitution — it is not in the laws of the state — it finds support nowhere. After the executive proclamation convening the legislature is issued his power in respect to that matter is exhausted, until the legislature is assembled. When they are assembléd it is his duty to state the purpose for which they have been convened. If the extraordinary occasion, which moved the executive to convene the legislature, has passed away or ceased to exist, it is still his duty to state to both houses, when assembled, the purpose for which they have been convened and that in his judgment it has ceased to exist. The legislature may then review the judgment of the executive, and indirectly call it in question by proceeding to pass such laws, and transact such business as relates to the object for which they were so convened, or they may adjourn without transacting any business. In *431support of the doctrine here laid down, Cooley in his work on “ Constitutional Limitations ” page 49, says, that in such a case (that is when the governor has issued his proclamation convening the legislature upon extraordinary occasions) the decision of the governor is final so far as to compel the legislature to meet.
But section nine, above quoted, must be construed with section twelve, title “ Legislative,” which is as follows: “ but the legislature may on extraordinary occasions be convened by proclamation of the governor, and when so convened shall transact no business, except such as relates to the objects for which they .were so convened, to be stated in the proclamation of the governor.” The language of this section is, “ the legislature may on extraordinary occasions be convened by proclamation.” The language of section nine, title “ Executive ” is, “ he may, on extraordinary occasions, convene the legislature by proclamation.” The words “by proclamation” are synonomous with the phrase “ withproclamation.” He may convene the legislature with a proclamation. What is it that convenes them? It is the proclamation, an official document expressly authorized by the constitution, and which the members of the legislature are morally and legally bound to obey. They have no discretion. It is their duty to convene as commanded in the proclamation. The proclamation is vitalized with the potent energies of the law the moment it is issued. It takes effect at once. It is a law unto thé members of the legislature and they must yield obedience to its authority. The executive power of the government of this state cannot revoke laws, whether operating upon all the people, the members of the legislature or judiciary. The executive can, with the same propriety, and with equally sound reason, by proclamation revoke the constitutional provision which vests jurisdiction in this court. The proclamation is made by authority of the constitution, and is a *432canon which may compel the assembling of the legislature. Kendall v. Inhabitants of Kingston, 5 Mass., 324. Cooley's Constitutional Limitations, 40. Martin, v. Mott, 12 Wheaton.
The authority to vitalize and call into life the dormant power, granted in the constitution, to convene the legislature on extraordinary occasions is vested in the executive. The way in which he can do this is specifically pointed out. It is to be done by the executive proclamation. Such a proclamation having been issued, the legislature is as much bound to assemble as they are on the first Monday in January, biennially after July, 1866, which is expressly required by the constitution. The proclamation convening the legislature, calls into life a constitutional requirement which is dormant until the proclamation is issued. After that time, the executive can no more suspend the operation of this constitutional provision, which requires the legislature to meet at the time named in his proclamation, than he can revoke or suspend any other constitutional requirement. He can no more revoke that constitutional provision, than he can take away from this court the jurisdiction conferred on it by the constitution. If the former may be revoked so may the latter. There is the same power to revoke in the one case as in the other. In the latter case the jurisdiction of the court lies dormant until vitalized by legislative action providing for its exercise; in the former, the legislature was scattered over the state, and their powers were dormant until called into life by the executive judgment, that an extraordinary occasion existed, and the issuance of the proclamation convening them, and stating therein the objects for which they are so convened. The objects stated therein are the limits of their jurisdiction, as the constitution expressly so provides. To this extent the legislature are required to exercise their discretion and judgment, and to meet and consider the objects named in *433the proclamation. The executive can not revoke a law or take away a right, and the attempt to do so is an act of usurpation. The legislature are compelled by law to come together in obedience to the proclamation convening them, and having so assembled together in obedience to law are entitled to their pay and mileage. If the executive can revoke his proclamation of convocation, he destroys this legal and vested right to pay and mileage. Are legislators to be compelled to assemble at the capítol from remote parts of the state; to leave their homes and their business and enter upon the public service; to march to the field of their labors, and turning their attention hr the objects stated in the proclamation, prepare bills to meet the extraordinary occasion mentioned therein, and when they have arrived at the capital, be dispersed and' sent home by a proclamation of revocation, empty handed and without pay, insulted by the executive, and informed by the supreme court that they are an illegal body?
This imaginary power of revocation is without foundation in reason. Why say, the executive can revoke before the two houses organize and not after? If one house organize before the other, may he revoke as to the unorganized house, and not as to the other? Where is the law or reason for fixing the limit of this power of revocation, if it exist at all, at the precise instant of time before they organize? But we are not informed whether the dangerous power of revocation ceases when a temporary organization is effected, or not until a permanent organization has taken place. Where is the law for the establishment of an arbitrary limit to this dangerous power of revocation? There is none. It is without law or reason to support it. The truth is, no power of revocation exists. We will illustrate the power contended for with one práctica! example. The law admitting Nebraska into the Union, passed by Congress, was inoperative until the state legislature should adopt what is known as the *434fundamental condition, and the President of the United States should give force and effect to the act by declaring the state to be admitted into the Union by proclamation. He issued his proclamation on the second of March, 1867, declaring Nebraska admitted into the Union. Could the president revoke that proclamation at any time before our senators and representatives assembled at Washington and took their seats? The president was authorized to issue that proclamation by an act of Congress. The executive of this state, as we have seen, is authorized to convene the legislature by proclamation on extraordinary occasions. In each case the proclamation is authorized by law, and the particular thing to be done is designated, and the object to be attained named. In neither case is any power of revocation conferred, and for that simple reason none exists. If the conclusion of the majority of this court is correct, Governor James might issue his proclamation in a case of extreme danger, or a universally conceded “extraordinary occasion,” and then be compelled upon pressing and important business to leave the state. In such a case the succession would fall upon the president of the senate, by the terms of the constitution, and willing to see the state destroyed, its treasury plundered and carried away, and the spoils divided between himself and the invaders, he would revoke the proclamation of the patriotic Governor James, issued to make provision for her defense, and the state would be left trembling, paralyzed, and powerless in the hands of demagogues and traitors.
Many of .the members of the present legislature came from remote parts of this state, on the proclamation issued by Acting Governor Hascall, to the capitol, in discharge of their official duty; many never saw or heard of any proclamation of revocation until they arrived at the capitol on the morning of the day the legislature was to meet. Who ought to bear the loss of this time and expense? *435The constitution, gave the governor power to convene the legislature. He did so. They obeyed his command, convened at the capitol, and are now told that they are an illegal, body, without existence, and are left to pay their own expenses and bear their loss of time. They are denied the common right guaranteed to all animate beings, that of their own existence, and by a majority of this court declared — dead—slain hy Revocation. Can it be possible that the law sanctions such a proceeding? A majority of this court have so ruled. I believe their ruling to be based on an erroneous construction of our constitution, and a failure to recognize the perfect independence of the legislative department of the government, and their sovereign, supreme, and exclusive right to determine their own legal existence and contempts against their own body. It is enough for this court to know that this legislature has a de faeto existence, and that its members are not only defacto, but also dejwre, members of the legislative assembly of the state of Nebraska, and that we are bound to take notice of its sittings, recognize its rights, privileges and prerogatives, and not destroy it because at this instant of time it may seem popular to do so. Courts should yield to no clamor, and shrink from no responsibility. Our constitution is clear upon this question. That constitution is the form of government, delineated by the mighty hand of the people, in which certain principles of fundamental law are established. The constitution is certain and fixed. It is the express and established will of the people, and is the supreme law of the land. It is paramount to the power of the executive, and all other departments of the government, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand. What is the executive? The creature of the constitution. To this he owes his existence. From this and the laws he *436derives his authority. They are his commission, and to them he must conform all his acts or they will be void. The constitution is the work of the people themselves in their original sovereign capacity. Law is the work or will of the legislature in their derivative and subordinate capacity. The one is the work of the creature, the other the creator. The constitution and laws fix the limit to the exercise of executive authority, and prescribes the orbit within which it must move. There can be no doubt that every act of the executive, repugnant to the constitution or laws, or which is not authorized by them, is null and void. "We have shown that the act of revocation was without authority of law, and against the powers granted to the executive by the constitution. He could by proclamation convene or assemble the legislature, 'but he has no power to revoke that proclamation, nor prorogue the assembly. The legislature have met and organized under the proclamation convening them, notwithstanding the revocation. This fact we are judicially bound to know. They are a legislative assembly defacto and dej%vre, and the relator ought to be remanded to the custody of the sergeant-at-arms of the senate, subject to the action of that body.
NOTE. — It may be proper to remark that the foregoing opinions of the majority were delivered immediately upon the conclusion of the argument of counsel. It was, I believe, the purpose of my associate, as I know it was my own, at some future day, to discuss more fully the novel questions involved in this case. The press of business, however, incident to the discharge of the double duty as judge of both the district and the supreme courts permitted no return to the subject during my term of office. Although in the shape presented, they were not designed for publication in the reports, yet as the case is a leading and important one, I have chosen to insert the opinions as they are, rather than omit the case altogether.
The dissenting opinion was written and filed some time after the matter was disposed of. It shows the earnestness of its author, and would seem to discover a little of that feeling which the case was calculated to arouse, but which I am sure did not extend to all the members of the bench. That *■ courts should yield to no clamor and shrink from no responsibility," is good as a principle of judicial ethics. But as the declaration was not called *437for in settling the questions submitted, the insinuation that the volume of noise rather than the weight of argument had something to do in controling the action of any member of the court, is wholly gratuitous. It adds nothing to the strength of the opinion, to the dignity of the court, nor to the character of its decisions. The presumption that courts discharge their duty honestly, is one that always prevails. When a member undertakes to strengthen that presumption by his own certificate of superior integrity, he betrays a suspicion of it, too frequently shared by the public. — Lorenzo CROUNSE.