dissenting: At the time the decision in this ease was announced, I expressed orally my dissent from the conclusions reached by the majority of the court, and stated some of the reasons which then occurred to me why I could not concur in the conclusions reached by my brethren. I now proceed in a.more deliberate manner to consider the very grave questions involved herein.
There is no difference of opinion among us as to the power of the court to release from restraint any person unlawfully restrained of his liberty, no matter what the pretense of authority may be. The principal divergence of opinion is. as to the lawful scope of our inquiry, and as to the rules by which this court must be governed in inquiries affecting the integrity of the legislative department of the state government. It is conceded that if George L. Douglass was the speaker of the house of representatives at the time the warrant under which the petitioner was arrested was issued, and, in issuing such warrant, acted under the authority of the house of representatives of this state, the petitioner is lawfully in the custody' of Clevenger, and should not be discharged under the proceedings in this case. That the court has authority to inquire into the legality of the arrest, and therefore to declare whether or not George L. Douglass is speaker of the house of representatives, there is no question; but the main controversy centers on the question whether this court is bound to follow the action of the political departments of the state government, or whether it may institCite an inquiry of its own, and may decide for itself whether George L. Douglass or J. M. Dunsmore is speaker of the house of representatives. I do not regard it as accurate to say that this is a question arising between two contending bodies, each claiming to be the house of representatives, because each of these two bodies concedes the right of most of the individual members of the other body to seats in the legislature, and each of them retains on its own roll of members of the house most of the names of those composing the other body. The question presented is *217as to which of these two men is speaker of the house. It is conceded that but one man can hold the office of speaker at a given time. Two men claim to be both de jure and defacto speaker. While this court is lawfully called upon to decide whether George L. Douglass is in fact the speaker, the limits of its inquiry and the rules by which it must be governed in determining that question are the principal subjects of contention. It was conceded on the argument that a direct proceeding could not be maintained, either by one of these two contending bodies against the other to determine its right to exercise the functions of the house of representatives, or by one of these men, who each claims to be the speaker of the house, for the purpose of determining their respective rights to the office of speaker, although this court has undoubted original jurisdiction in actions of quo warranto. Why does this distinction exist? This court, at its present session, has been called on to determine the rights of two persons each of whom claims to be the county commissioner of a remote county, and has heard the evidence and arguments in the case. Why may it not entertain a similar action for the purpose of determining the respective rights of these two men who claim to be the speaker of the house of representatives? Can any other answer be given than that the rights of Douglass and Dunsmore are determined elsewhere, and that the questions involved in the inquiry into their respective rights are questions which the constitution and laws have for good and sufficient reasons withdrawn from the consideration of this court? It is an anomaly in jurisprudence to hold- that, in an action where the right of a party is collaterally drawn in question, the court may enter on a line of inquiry which it would be prohibited from pursuing in a direct proceeding, in which the parties interested were participants, and were afforded ample opportunity to present their claims and protect their rights.
In order to arrive at the reasons which have influenced the framers of our constitution to withdraw inquiries of this kind from the consideration of this court, and to place the deter*218mination of questions similar to these in other hands, it becomes necessary to examine the fundamental law, the general framework of our state government, and also briefly to recur to the leading points in the development of free government in English-speaking countries, and the division of powers among the several coordinate departments which have been found so essential to the preservation of the rights and liberties of the people. Though the constitution of the United States and the constitutions of the several states of the union are the works of the people of this country, they are yet modeled largely after the institutions of England, the common law of which country is still the law of this and most other states of the union, except so far as it has been modified by our constitution, statutes, and the peculiar conditions and wants of the people of the state. Paragraph 7281 of the General Statutes provides: “The common law, as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.” In an autocratic government, the executive, legislative and judicial powers are all vested in the same person. In England, the king originally decided cases in person, and for many centuries the court records were made to recite the presence of the king himself, in person, long after the king had ceased to have anything to do with proceedings in the courts; and to this day the judges are theoretically appointed by the crown, though the recommendations of the ministry are now accepted by the queen. The legislative branch of the government in England has been for many centuries made up of a house of lords, who were hereditary legislators, and the house of commons, who were chosen by the people under a more or less restricted right of suffrage. The judges all derived their'appointments and their powers from, and as representatives of, the crown; but parliament gradually forced upon the king a recognition of its rights, and has gradually extended its powers to such an extent that it is now the ruling power in England. At an early period, the sovereign insisted on the right to determine *219who should be summoned to parliament, but the house resented such interference, and succeeded in asserting and maintaining its right to be the sole and exclusive judge of the election and qualification of its own members. It would neither submit to any interference by the crown, nor by-the judges, who were the creatures of the crown. Though the reasons for this rule may not appear to be as strong in a state where all branches of our government are elective, still the framers of the constitution have seen fit to embody in the fundamental law a provision which it required long years of conflict for the British parliament to establish as its right. Section 1 of article 2 of the constitution provides that “the legislative power of this state shall be vested in a house of representatives and senate.” Section 8 reads: “A majority of each house shall constitute a quorum. Each house shall establish its own rules; and shall be judge of the elections, returns and qualifications of its own members.” The legislatures in the several states of the union have powers corresponding generally to the powers of the British parliament. They are the instruments through which the people express their supreme will in making the laws, subject, however, to the veto power vested in the executive, and the limitations of the constitution. Section one of article one provides: “The executive’ department shall consist of a governor, lieutenant governor, secretary of state, auditor, treasurer, attorney general, and superintendent of public instruction, who shall be chosen by the electors of the state at the time and place of voting for members of the legislature, and shall hold their offices for the term of two years, from the second Monday of January next after election, and until their successors are elected and qualified.” Section 3 provides: “The supreme executive power of the state shall be vested in a governor, who shall see that the laws are faithfully executed.” The executive and legislative constitute what are commonly denominated the political departments of the state government. It is they, and they alone, who as representatives of the people have the power to enact, change and amend the *220laws in any manner they may see fit, provided they do not transcend the limits of their powers, as fixed by the constitution. They may create and abolish courts; they may prescribe rules and regulations by which courts shall- be governed, as well as establish the laws fixing the rights of private individuals, and prescribe punishment for infractions of the code which they establish. What, then, is the proper place of the judiciary, and what are the limits of their functions? They are defined by article 3, from which wé quote:
“Section 1. The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts inferior to the supreme court as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process.
“Sec. 2. The supreme court shall consist of one chief justice and two associate justices, a majority of whom shall constitute a quorum, who shall be elected by.a majority of the electors, and whose term of office after the first shall be six years. At the first election the chief justice shall be chosen for six years, one associate justice for four years, and one for two years.
“Sec. 3. The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus, and such appellate jurisdiction as may be provided by law. It shall hold one term each year at the seat of government, and such other terms at such places as may be provided by law, and its jurisdiction shall be coextensive with the state.”
It will be observed that the constitution gives to the supreme court original jurisdiction in only three classes of cases, and for all other jurisdiction it must look to the lawmaking power. It may have much or little, according as the legislature shall determine. It has jurisdiction in this case by virtue of the section of the constitution last quoted. The district courts are by statute given general jurisdiction of all matters, civil and criminal, with some slight exceptions. By section 8 of article 3 of the constitution, it is provided that “the probate court in each county” shall have jurisdiction in cases of habeas corpus. We thus see that this *221court has precisely the same jurisdiction in an action of habeas corpus arising in this county that the district and probate courts of this county have. This court and the probate court, however, derive jurisdiction from the constitution, while the district court receives its power at the hands of the legislature. No provision of the constitution or the laws made thereunder prescribes any other or different rules for the government of this court in an action of this kind than are prescribed for the government of a probate court. The only difference in the powers of each is that the probate court is limited to one county, while the supreme court has jurisdiction coextensive with the state.
This court has seen fit to take testimony as to what transpired on the 10th day of January, when the legislature convened. It has taken testimony as to what persons were elected representatives. It has received in evidence a list from the office of the secretary of state for the purpose of showing what persons were elected to seats in the house. It has received and considered the oaths of office of various persons claiming the right to be members of the house. It has heard witnesses testify as to what occurred in representative hall at the time George L. Douglass and J. M. Dunsmore claim respectively to' have been elected speaker. It has also received, not from the office of the secretary of state, but from the hands of Frank L. Brown, who claims to be clerk of the house of repsentatives, certain printed documents, which he claims are the journals of the house, though not printed by the state printer, and upon these, as evidence, this court proceeds to determine who is the speaker of the house. If this court may do so, then the district court or probate judge of this county may also sit in judgment in the same manner in a similar case, and may proceed with the same inquiry, and along the same lines. More than this, if the question as to what constitutes the house of representatives, and as to who is the presiding officer thereof, is a subject for judicial inquiry in collateral proceedings, the humblest judicial officer in the state would seem to have the right, whenever any act of the legislature is challenged as in*222valid because such legislature is not composed of persons duly authorized to act as legislators, to proceed with just such an inquiry as has been carried on in this case. To sanction such practices is to overturn our system of government, and to place the lawmaking power, which has the right, and has from time immemorial exercised the right, to prescribe rules and regulations for the government of the judiciary, under the control and dominion of the courts; and in this case this court undertakes to prescribe for one branch of the legislature a rule which shall govern its action, in direct and pointed contravention of that provision of the constitution which says “each house shall establish its own rules.” Whence does this court get the right or the authority to say what rules shall govern the house of representatives in its organization? No such power was ever possessed by the courts of England; no such power has ever been exercised by the courts of any English-speaking country. Even the supreme lawmaking power itself— both branches of the legislature—and the executive combined would be powerless in the face of the provisions of the constitution to prescribe any rule which would be binding on any future house of representatives or senate with reference to its own modes of organization or procedure.
It is not the province of this court to decide every question. Only judicial questions are proper subjects of its cognizance. Every department of the government, and every officer in every department of the government, in the transaction of his duties, must decide questions. Questions of expediency, of public policy, of changes and modifications of the criminal law, of rules governing private rights, of the power and jurisdiction of the courts, of their modes of procedure, are questions to be decided by the lawmakiDg power. Questions of expediency in the execution of the laws and in the performance of the functions of the executive department are to be determined by the governor and the other executive officers charged with those duties. Generally speaking, it is the province of the court to declare what the law is, and to apply it to the determination of questions of private right. *223Generally speaking, the courts have nothing to do with matters of policy, or with the determination of questions as to the expression of the popular will. In order to determine what are judicial questions and what are political questions, it is necessary to review the practices of the departments of the government and the decisions of the courts.
The early case of Penn v. Lord Baltimore, 1 Ves. sr. 444, was an action brought on articles of agreemeni which had been entered into between William Penn and Lord Baltimore, in reference to establishing the boundaries to their respective provinces in America. The bill was for the specific performance and execution of the articles. It was objected that the court had no jurisdiction, because the suit related to the. boundaries of political provinces, and that the jurisdiction was in the king and council, and not in the court. Lord Chancellor Hardwicke, while he entertained jurisdiction and decided the case, did so upon the ground that the action arose on a contract between the parties as individuals, and in the opinion uses this.language:
“It is certain that the original jurisdiction in cases of this kind, relating to boundaries between provinces, and dominion and proprietary government,- is in the king and council.' . . . This court therefore has no original jurisdiction on the direct question of the original right of the boundaries; but this bill does not stand in need of that; it is founded on articles in England under seal for mutual consideration, which gives jurisdiction to the king’s courts, both law and equity, of the subject-matter.”
The case of the Nabob of the Carnatic v. Past India Company, 1 Ves. jr., 370, and 2 Ves. jr., 56, was an action brought for a discovery and accounting by the company for certain revenues derived from provinces over which the nabob had held sway, but from, which, under á treaty with the company, they had collected the revenue. It was objected that the nabob was a sovereign prince of a foreign country, and that under the authority of the act of parliament the company had been given power to make peace or war with the natives of India, not Christians, as should be most for their advan*224tage; that the transactions between them were between sovereign powers, and were of a political nature, which the court had no jurisdiction to determine. After elaborate argument, the court sustained this objection and dismissed the bill, Lord Commissioner Eyre saying:
“It is a case of mutual treaty between persons acting in that instance as states, independent of each other; and the circumstance that the East India Company are mere subjects with relation to this country has nothing to do with that. The case upon which the court proceeds is introduced by the answer, which has had added a great number of particulars to the case, by introducing the other treaty which explains the first, and it was not merchantable in its nature, but political.”
In the case of Foster v. Neilson, 2 Pet. 306, the question as to the boundaries of a tract of land ceded by Spain to France by the treaty of St. Ildefonso was in question. In delivering the opinion of the court, Chief Justice Marshall used the following language:
“In a controversy between two nations concerning national boundaries, it is scarcely possible that the courts of either should refuse to abide by the measures adopted by its own government. There being no common tribunal to decide between them, each determines for itself its own rights, and if they cannot adjust their differences peaceably, the right remains with the strongest. The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided, but its duty commonly is to decide upon individual rights according to those principles which the political departments of the nation have established.”
In Williams v. Insurance Co., 13 Pet. 420, Mr. Justice McLean, delivering the opinion of the court, says:
“And can there be any doubt that, when the executive branch of the government, which is charged with her.foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his con*225stitutional functions he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the nation.”
The leading case in this country on the main point in controversy is that of Luther v. Borden et al., reported in 7 How., p. 1. That case grew out of the Dorr rebellion in Rhode Island. It was a suit brought by Martin Luther, a citizen of Massachusetts, against the defendants, for damages occasioned by trespasses alleged to have been committed by the defendants in Rhode Island. The defendants justified their acts, claiming that they were done under the lawful orders of an officer of the militia in whose company they were enrolled. The state of Rhode Island did not adopt a constitution after the revolutionary war, as most of the colonies did, but con-' tinued on under the old charter government. In 1841, an attempt was made to hold an election and form a new government. A convention was called, constitution framed, and election held for its ratification; state officers were elected, and an attempt was made to install the new government. The old charter government refused to recognize these proceedings, and refused to recognize the new officers. The militia were called out, and a period of great excitement followed. On the trial of this action, the defendants sought to prove the establishment of the new government with Dorr at its head. Testimony tending to prove these facts was rejected by the court, and the principal matter considered by the supreme court of the United States was as to whether the court could take testimony on that question. Two governments, two legislatures and two governors were claiming the right to act at the same time. The president of the United States, however, recognized the old charter government. The opinion in the case, delivered by Chief Justice Taney, is directly in point in this case, as bearing on the right of the court to enter into the consideration of a political question on which the executive department has acted. I quote from his language:
“ Certainly the question which the plaintiff proposed to raise *226by the testimony he offered has not heretofore been recognized as a judicial one in any of the state courts. In forming the constitutions of the different states, after the declaration of independence, and in the various changes and alterations which have since been made, the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the state, and the judicial power has followed its decision. In Rhode Island, the question has been directly decided. Prosecutions were there instituted against some of the persons who have been active in the forcible opposition to the old government. And in more than one of the cases evidence was offered on the part of the defense similar to the testimony offered in the circuit court, and for the same purpose; that is, for the purpose of showing that the proposed constitution had been adopted by •the people of Rhode Island, and hád, therefore, become the established government, and consequently that the parties accused were doing nothing more than their duty in endeavoring to support it. But the courts uniformly held that the inquiry proposed to be made belonged to the political power and not to the judicial; that it rested with the political power to decide whether the charter government had been displaced or not; and when that decision was made, the judicial department would be bound to take notice of it as the paramount law of the state, without the aid of oral evidence or the examination of witnesses; that, according to the laws and institutions of Rhode Island, no such change had been recognized by the political power; and that the charter government was the lawful and established government of the state during the period in contest, and that those who were in arms against it'were insurgents, and liable to punishment. This doctrine is clearly and forcibly stated in the opinion of the supreme court of the state in the trial of Thomas W. Dorr, who was the governor elected under the opposing constitution, and headed the aymed force which endeavored to maintain its authority. Indeed, we do not see how the question could be tried and judicially decided in a state court.
“ The fourth section of the fourth article of the constitution of the United States provides that the United States shall guarantee to every state in the union a republican form of government, and shall protect each of them against invasion, and, on the application of the legislature or of the executive (when the legislature cannot be convened), against domestic *227violence. Under this article of the constitution, it rests with congress to decide what government is the established one in a state. For as the United States guarantees to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not; and when the senators and representatives of a state are admitted into the councils of the union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority; and its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, congress was not called upon to decide the controversy. Yet, the right to decide is placed there, and not in the courts.”
In this case, Mr. Justice Woodbury dissented, but not on the ground of any disagreement with the majority of the court on this particular question. On the contrary, he takes occasion to expressly concur in that particular. He says:
“I concur with the rest of the court in the opinion that the other leading question—the validity of the old charter at that time—is not within our constitutional jurisdiction. These two inquiries seem to cover the whole debatable ground, and I refrain to give an opinion on the last question, which is merely political, under a conviction that, as a judge, I possess no right to do it, and not to avoid or conceal any views entertained by me concerning them, as mine, before sitting on this bench, and as a citizen, were frequently and publicly avowed. It must be very obvious, on a little reflection, that the last is a mere political question. Indeed, large portions of the points subordinate to it, on this record, which have been so ably discussed at the bar, are of a like character, rather than being judicial in their nature and cognizance; for they extend to the power of the people, independent of the legislature; to make constitutions, to the right of suffrage among different classes of them in doing this, to the authority of naked majorities, and other kindred questions, of such high political interest as during a few years to have agitated much of the union, no less than Rhode Island. But, for*228tunately for our freedom from political excitements in judicial duties, this court can never with propriety be called on otfidally to be the umpire in questions merely political. The adjustment •of these things belongs to the people and tluir political representatives, either in the state or general government. These questions relate to matters not to be settled on strict legal principles. They are adjusted rather by inclination, or prejudice, or compromise, often. Some of them succeed or are defeated even by public policy alone, or mere naked power, rather than intrinsic right. There being so different tastes as well as opinions in politics, and especially in forming constitutions, some people prefer foreign models, some domestic, and some neither; while judges, on the contrary, for -their guides, have fixed constitutions and laws, given to them by others, and not provided by themselves. And those are no -more Locke than an Abbe Sieyes, but the people. Judges, for constitutions, must go to the people of their own country, and must merely enforce such as the people themselves, whose judicial servants they are, have been pleased to put into operation.
“Another evil, alarming and little foreseen, involved in regarding these as questions for the final arbitrament of judges would be, that in such an event ,all political privileges and rights would, in a dispute among the people, depend on our decision finally. We would possess the power to decide against as well as for them; and, under a prejudiced or arbitrary judiciary, the public liberties and popular privileges might thus be much perverted, if not entirely prostrated. But, allowing the people to make constitutions and unmake them, allowing their representatives to make láws and unmake them, and without our interference as to their principles or policy in doing it, yet, when constitutions and laws are made and put in force by others, then the courts, as empowered by the state or the union, commence their functions, and may decide on the rights which conflicting parties can legally set up under them, rather than about their formation itself. Our power begins after theirs ends. Constitutions and laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them. We speak what is the law—jus diaere; we speak or construe what is the constitution, after both are made; but we make, or revise or control neither. The disputed rights beneath constitutions already made are to be *229governed by precedents, by sound legal principles,- by positive legislation, clear contracts, moral duties, and fixed rules. They are, per se, questions of law, and are well suited to the education and habits of the bench. But the other disputed points in making constitutions, depending often, as before shown, on policy, inclination, popular resolves, and popular will, and arising not in respect to private rights—not what is meurn, and iuvm—but in relation to politics, they belong to politics, and they are settled by political tribunals, and are too dear to a people bred in the school of Sydney and Russell for them ever to intrust their final decision, when disputed, to a class of men who are so far removed from them as the judiciary; a class, also, who might decide them erroneously as well as right, and if in the former way, the consequences might not be able to be averted except by a revolution, while a wrong decision by a political forum can often be peacefully corrected by new elections or instructions in a single month. And if the people, in the distribution of powers under the constitution, should ever think of making judges supreme arbiters in political controversies, when not selected by, nor frequently amenable to, them, nor at liberty to follow such various considerations in their judgments as belong to mere political questions, they will dethrone themselves and lose one of their own invaluable birthrights; building up in this way — slowly, but surely—a new sovereign power in the republic, in most respects irresponsible, and unchangeable for life, and one more dangerous, in theory at least, than the worst elective oligarchy in the worst of times. . . .
“The subordinate questions which also arise here in connection with the others, such as whether all shall vote in forming or amending those constitutions who are capable and accustomed to transact business in social and civil life, and not others; and whether, in great exigencies of oppression by the legislature itself, and refusal by it to give relief, the people may not take the subject into their own hands, independent of the legislature; and whether a simple plurality in number, on such an occasion, or a majority of all, or a larger proportion, like two-thirds or three-fourths, shall be deemed necessary and proper for a change; and whether, if peacefully completed, violence can afterwards be legally used against them by the old government, if that is still in possession of the public property and public records; whether what are published and acted on as the laws and constitution of a state were made *230by pprsons duly chosen or not, were enrolled and read according to certain parliamentary rules or not, were in truth voted for by a majority or two-thirds—these and several other questions equally debatable and difficult in their solution are in some aspects a shade less political. But they are still political. They are too near all the great fundamental principles in government and are too momentous ever to have been intrusted by our jealous fathers to a body of men like judges, holding office for life, independent in salary, and not elected by the people themselves.”
In the case of The State of Georgia v. Stanton, 6 Wall. 50, the supreme court of the United States, again affirmed the same doctrine as laid down in the Borden case, the syllabus in which case reads as follows:
“1. A bill in equity filed by one of the United States to enjoin the secretary of war and other officers who represent the executive authority of the United States from carrying into execution certain acts of congress, on the ground that such execution would annul and totally abolish the existing state government of the state, and establish another and diferent one in its place—in other words, would overthrow and destroy the corporate existence of the state, by depriving it of all the means and instrumentalities whereby its existence might, and otherwise would, be maintained — calls for a judgment upon a political question, and will therefore not be entertained by this court.
“ 2. This character of the bill is not changed by the fact that in setting forth the political rights sought to be protected, the bill avers that the state has real and personal property, (as, for example, the public buildings, etc.,) of the enjoyment of which, by the destruction of its corporate existence, the state will be deprived; such averment not being the substantive ground of the relief sought.”
In this case Mr. Justice Nelson, in delivering the opinion of the court, said:
“The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. . . . That these matters, both as stated in the body of the bill, and in the prayers for relief, call for the *231judgment of the court upon political questions, and upon rights, not of persons or property, but of a political character, will hardly be denied. Eor the rights for the protection of . which our authority is invoked are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a state, with all its constitutional powers and privileges. No case of private rights or private property infringed, or in danger of actual or threatened infringement, is presented by the bill in a judicial form, for the judgment of the court, . . . Having arrived at the conclusion that this, court, for reasons above stated, possesses no jurisdiction over the subject-matter presented in the bill for relief, it is unimportant to examine the question as it respects jurisdiction over the parties defendant.”
In the case of Jones v. United States, 137 U. S. 212, Mr. Justice Gray, speaking for the supreme court, said:
“Who is the sovereign, dejure or defacto, of a territory, is not a judicial, but a political question, the determination of which, by the legislative and executive departments of any government, conclusively binds the judges, as well as all other officers, citizens and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances. (Gelston v. Hoyt, 3 Wheat. 246, 324; United States v. Palmer, 3 id. 610; The Divina Pastora, 4 id. 52; Foster v. Neilson, 2 Pet. 253, 307, 309; Keane v. McDonough, 8 id. 308; Garcia v. Lee, 12 id. 511, 520; Williams v. Suffolk Insurance Co., 13 id. 415; United States v. Yorba, 1 Wall. 412, 423; United States v. Lynde, 11 id. 632, 638.)
“It is equally well settled in England. (The Pelican, Edw. Adm., appx. ‘D;’ Taylor v. Barclay, 2 Sim. 213; Emperor of Austria v. Day, 3 De Gex, F. & J. 217, 221, 223; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497; Republic of Peru v. Dreyfus, 38 id. 348, 356, 359.)”
So late as October, 1891, the same high court, in In re Cooper, which grew out of the controversy between the United States and Great Britain over their respective rights to the waters of Behring sea, reaffirms the doctrine laid down in the cases cited. The case grew out of the capture of a British sealer in Behring sea, 59 miles from land. The attorney general of Canada, with the knowledge and approval of the imperial *232government of Great Britain, requested the aid of the court for the claimant, a British subject, and sought to submit the controversy to the supreme court of the United States; but it appeared that the vessel had been taken under the orders of the executive department, and the court declined to take jurisdiction, and refused to interfere with the action of the political department. Chief Justice Fuller, after commenting on the treaty under which Alaska was acquired, and the act of Congress of March 2, 1889, says:
“If this be so, the application calls upon the court, while negotiations are pending, to decide whether the government is right or wrong, and to review the actions of the political departments upon the question, contrary to the settled law in that regard.”
The chief justice cites Foster v. Neilson, 2 Pet. 253; Williams v. Suffolk Ins. Co., 3 Sumn. 270; 13 Pet. 415; Luther v. Borden, 7 How. 1; Georgia v. Stanton, 6 Wall. 50; Jones v. United States, 137 U. S. 202; Nabob of Carnatic v. East India Co., 1 Ves. jr. 371; same case, 2 id. 56; Barclay v. Russell, 3 id. 424; Penri v. Lord Baltimore, 1 Ves. sr. 444; and proceeds in this case:
“Her Britannic majesty’s attorney general of Canada has presented, with the knowledge and approval of the imperial government of Great Britain, a suggestion on behalf of the claimant. . . . We are not insensible of the courtesy implied in the willingness thus manifested that this court should proceed to the decision on the main question argued for the petitioner, nor do we permit ourselves to doubt that under such circumstances the decision would receive all the consideration that the utmost good faith would require; but it is very clear that, presented as a political question merely, it would not fall within our province to determine it.”
In Cæsar Griffin’s Case, (Chase’s Decisions, page 412,) Chief Justice Chase said:
“When the functionaries of the state government existing in Virginia at the commencement of the late civil war took part, together with a majority of the citizens of the state, in rebellion against the government of the United States, they *233ceased to constitute a state government for the state of Virginia which could be recognized as such by the national government. Their example of hostility to the union, however, was not followed throughout the state. In many counties the local authorities and majority of the people adhered to the national government; and representatives from these counties soon after assembled in convention at Wheeling, and organized a government for the state. This government was recognized as the lawful government of Virginia by the executive and legislative departments of the national government; and this recognition was conclusive upon the judicial department.”
The case of United States v. Ballin, 144 U. S. 1, which holds the Reed rule, adopted by the national house of representatives, to be valid, is entirely in harmony with the cases cited, so far as it affects this particular question.
Let us now consider the views of the great text writers who have expounded the provisions of the constitution, and the decisions of the courts of last resort of the several states; and in doing so let us steadily keep in mind the fact that a controversy exists as to the organization of one of the political departments of the state, and that the question that we are to determine now is, upon whom rests the responsibility of deciding which is the legal organization? and whether that question is a judicial one, or a political one, to be determined by the other political departments. Judge Story, in his work on the Constitution, in § 374, says:
“In order to clear the question of all minor points, which might embarrass us in the discussion, it is necessary to suggest a few preliminary remarks. The constitution contemplating the grant of limited powers, and distributing them among various functionaries, and the state governments, with their functionaries, being clothed with limited powers, subordinate to those granted to the general government, whenever any question arises as to the exercise of any power by any of these functionaries under the state or federal government, it is of necessity that such functionaries must-in the first instance, decide upon the constitutionality of the exercise of such power. It may arise in the course of the discharge of the functions of any one or of all of the great departments of government, the executive, the legislative, and the judicial. The officers *234of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are, therefore, conscientiously bound to abstain from all acts which are inconsistent with it. Whenever, therefore, they are required to act in a case not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done. If, for instance, the president is required to do any act, he is not only authorized but required to decide for himself whether, consistently with his constitutional duties, he can do the act. So, if a proposition be before congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to congress. And in many cases the decision of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapable of revision. Thus, in measures exclusively of a political, legislative or executive character, it is plain that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be reexamined elsewhere.”
In a note to this section, Mr. Jefferson is quoted as saying;
“My construction is, that each department of the government is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the laws submitted to its action, and especially when it is to act ultimately and without appeal.”
President Lincoln, in his inaugural address, said:
“I do not forget the position assumed by some, that constitutional questions are to be decided by the supreme court; nor do I deny that such decisions must be binding, in any case, upon the parties to a suit, as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government *235upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the supreme court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
President Jackson, in 1832, in his veto message on the act for a recharter of the Bank of the United States, said:
“If the opinion of the supreme court covered the whole ground of this act, it ought not to control the coordinate authorities of this government. The congress, the executive and the court must, each for itself, be guided by its own opinion of the constitution. Each public officer who takes an oath to support the constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the house of representatives, of the senate and of the president' to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over congress than the opinion of congress has over the judges; and, on that point, the president is. indepéndent of both. The authority of the supreme court must not, therefore, be permitted to control the congress or the executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.”
With the rulings of the supreme court of the United States on this question, all of the state courts that have been called on to decide similar questions concur. The supreme court of the state of Pennsylvania, in the case of Kerr v. Trego, 47 Pa. St. 292, which was brought to determine which of two contending bodies of men constituted the common council of the city of Philadelphia, while entertaining jurisdiction of that case, takes occasion to say:
“In all cases of this kind, at least in all bodies that are under law, the law is that where there has been an authorized election for the office in controversy, the certificate of election, which is sanctioned by law or usage, is the prima Jade written title to the office, and cannot be set aside only by a contest' *236in the forms prescribed by law. This is not now disputed. No doubt this gives great power to dishonest election officers, but we know no remedy for this but the choice of honest men. When party fealty is a higher qualification than honesty or competency, we must expect fraud and force to rule; and a man must he an Ajax or a Ulysses to be qualified for office. On the division of a body that ought to be a unit, the test of which represents the legitimate, social succession is, which of them has maintained the regular forms of organization according to the laws and usages of the body, or, in the absence of these, according to the laws, customs and usages of similar bodies in like cases, or in analogy to them. This is the uniform rule in such cases. It is always applied in the case of church divisions, and was so applied by us three times last year in the church cases already alluded to. The courts can never apply it to divisions in the supreme legislature, because that body is subject to no judicial authority, and cannot be.”
Judge Cooley, in his work on Constitutional Limitations, beginning bn page 50, says:
“We have already seen that we are to expect in every constitution an apportionment of the powers, of government. We shall also find certain duties imposed upon the several departments, as well as upon specified officers in each, and we shall likewise discover that the constitution has sought to hedge about their action in various ways, with a view to the protection of individual rights, and the proper separation of duties. And whenever anyone is called upon to perform any constitutional duty, or to do any act in respect to which it can be supposed that the constitution has spoken, it is obvious that a question of construction may at once arise, upon which some one must decide before the duty is performed or the act done. From the very nature of the case, this decision must commonly be made by the person, body or department upon whom the duty is imposed, or from whom the act is required.”
Then again, on page 51:
“In these and the like case3 our constitutions have provided no tribunal for the specific duty of solving in advance the questions which arise. In a few of the states, indeed, the legislative department has been empowered by the constitution to call upon the courts for their opinion of the constitutional validity of a proposed law, in order that, if it be adjudged *237without warrant, the legislature may abstain from enacting it. But those provisions are not often to be met with; and judicial decisions, especially upon delicate and difficult questions of constitutional law, can seldom be entirely satisfactory when made, as they commonly will be, under such calls, without the benefit of argument at the bar and of that light upon the question involved which might be afforded by counsel learned in the law and interested in giving them a thorough investigation. It follows, therefore, that every department of the government, and every official of every department, may at any time, when a duty is to be performed, be required to pass upon a question of constitutional construction. Sometimes the case will be such that the decision when made must, from the nature of things, be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or other officers; but in other cases the same question may be required to be passed upon again before the duty is completely performed. The first of these classes is where, by the constitution, a particular question is plainly addressed to the discretion or judgment of some one department or officer, so that the interference of any other department or officer, with a view to the substitution of its own discretion or judgment in the place of that to which the constitution has confided the decision, would be impertinent and intrusive. Under every constitution, cases of this description are to be met with; and, though it will sometimes be found difficult to classify them, there can be no doubt, when the case is properly determined to be one of this character, that the rule must prevail which makes the decision final.”
Chancellor Kent opens his eleventh lecture, found in Yol. I of his Commentaries, page 221, with these words:
“The power of making laws is the supreme power in a state, and the department' in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision.”
And again, on page 235 of the same volume, he says:
“Each house is made the sole judge of the election, return and qualifications of its members. The same power is vested in the British house of commons, and in the legislatures of *238the several states; and there is no other body known to the constitution, to which such a power might safely be trusted. It is requisite to preserve a pure and genuine representation, and to control the evils of irregular, corrupt and tumultuous elections; and as each house acts in these cases in a judicial character, its decisions, like the decisions of'any other court of justice, ought to be regulated by known principles of law, and strictly adhered to,.for the sake of uniformity and certainty.”
In the case of Gormley v. Taylor, 44 Ga. 76, the supreme court of Georgia uses the following language:
“No evil could be more offensively aggressive on the rights of the people than the assumption by the judiciary of powers not delegated to their rightful jurisdiction. To lodge in the opinions of a few men, no matter how far removed from the passions of the hour, the rights of the people in the creation of government and decision of affairs of state, was not the intention of the people. Constitutions and laws precede the judiciary, and we decide questions arising out of them after they are made, not before. We restrain the legislature within the limitations set to its powers. But we may not set up our opinions as to the decision of the legislature upon questions not purely legal. The constitution prescribes the manner of .passing laws, and the legislature must pursue the mode prescribed. The constitution divides powers, and the coordinate branches must stay within the prescribed limits. If this were not so, the judiciary might declare an act void, and the legislature might impeach the judiciary, as happened in Illinois, for the decision. The intention of the constitution is to divide the powers, and let each move independently in its orbit, all revolving round the constitution in their appropriate sphere, like the planetary systems round the sun and each kept in place by the central power which moves the whole in harmony. ... I find involved in this decision of the court a reversal of the judgment of the legislature as to the status of the state under reconstruction. This embraces a political as well as legal question, and it would be an ostentatious parade of learning to go through the decisions of the courts excluding political questions involving the principles of government from judicial jurisdiction. The very question made by Governor Jenkins before the supreme court at Washington, on the constitutionality of the reconstruction acts, *239admonishes me of the fact that these matters were, while regarded by the profession of Georgia plainly and palpably unconstitutional at the time, nevertheless political in their character, and refused a hearing at the bar of that tribunal.”
In the case of Railroad Co. v. Little, 45 Ga. 372, the same court said:
“ It is not only the right, but the solemn duty, of the courts to pass upon the constitutionality of laws. But the constitutionality of a law and the legality of a legislature which passed it are wholly different things. Over the former, the judiciary has jurisdiction; over the latter, in my judgment, it has not. Yery serious question has been made whether courts, in their inquiries into the constitutionality of laws, are not confined to an examination of the law itself, as it appears on the statute books. It has been contended by learned judges that while courts may inquire if the provisions of a law are contrary to the constitution, and (still keeping to the act as it appears upon its face) whether the body of it conforms to the title, and whether there be more than one' subject-matter, etc., that this exhausts their authority. They cannot go behind the act itself, examine the journals of the two houses, or learn from other sources whether the legislature conformed, in its passage, to the constitutional requirements as to the mode and manner in which bills shall be introduced, read, and voted upon. And this limitation upon the power of the judiciary would seem entirely consistent with section 32 of our bill of rights, which provides ‘that legislative acts, in violation of this constitution, are void, and the judiciary shall so declare them. There is an obvious distinction between a ‘legislative act’ and the mode in which that act has been introduced, read, and voted upon. But though, as I have said, this distinction has been drawn. I am inclined to think the weight of authority is in favor of the right of the courts to go, at least, to the journals, and inquire if they show the proper and constitutional proceedings to have been had on the passage of the law. But the cases are uniform that the journals are conclusive, however untrue in fact, and nothing will be heard in contradiction of them; and this upon principles of public policy, and respect of one branch of the government for the other, as well as upon the further principle that even courts, in the search after truth, recognize finalities behind which they will refuse to look. But, as I have said, the question made in this case is not really *240upon the constitutionality of the law, as to its provisions, or its title, or even as to the mode in which it was introduced, read, and voted upon, but upon the constitutionality of the legislature itself, upon its authority to pass any acts. Being, as it is claimed, in session contrary to the constitution, it was not at the time a legislative body at all, but a mere mob, incapable of making laws of any kind. Is it competent for the courts to decide upon the legality of a session of the legislature? I think not. . . . Necessarily, the courts must decide what is the law, what is the legal will of the lawmaking power. But if they have the right to go behind this, and to inquire whether the lawmaking power is itself legal, they become, in effect, the supreme power in the state. A case may be supposed of a body—a mere public meeting—undertaking to pass laws, and it is asked if the courts, when the acts of such a body are pleaded as law, must no’t inquire into the rightfulness of the claim of the body to be a lawmaking power. In such a case the inquiry by the courts would be, not the rightfulness of the authority, nor its conformity to any written code of constitutional law, but whether it was in fact the legislative department of the government, recognized as such by the people, or by whatever final arbiter has power to enforce its edicts. In other words, courts do not make governments, or decide upon their validity. If they cannot recognize as rightful the lawmaking power, which is, in fact, supreme, they must get out of the way, and not attempt, by their feeble arm, to stay the tide of revolution. (Luther v. Borden, 7 How. 1.)
“But there is another ground which, though it assumes the night of the courts to pass upon the legality of the legislature directly, is fatal to the position taken against this law. It is a settled rule, that even where courts have power to inquire into the right of an officer to perform official acts, they will not do so collaterally. , They will freely investigate the legality of any particular act, but they will never, in so doing, inquire into the right of the officer to act, as such, at all. The rule is uniform, that the acts of an officer, otherwise legal, cannot be attacked on the ground of any illegality in his appointment, or on the ground that, though he is an officer in fact, he is not so according to law. Is not the general assembly, actually in session, entitled from the courts to at least the same measure of consideration as they grant to a constable or a justice of the peace?”
In New Hampshire, the justices of the supreme court of *241judicature were requested by the house of representatives to give their opinion whether the governor had the constitutional authority to issue to anyone a summons to appear as a senator elect. The court answering (see 56 N. H. 577) said:
“If a mistake, or even an intentional wrong, should be committed by the executive, the remedies under our form of government are ample and prompt; the wrong to be suffered temporary. If, on the other hand, a precedent of interference by one department with the discharge of its duties by another should be established by the form of a judicial decision, a dangerous blow would, in our judgment, be struck at one of the most vital principles of our system of government, the consequences of which no one could foretell, and which no intelligent and candid citizen could fail to see must be lasting and pernicious.”
The opinion of the justices contained in 70 Me. 585, and also the case of Prince v. Skillin, 71 Me. 361, are referred to by the chief justice. The constitution of Maine, (art. 6, § 3,) defining the judicial power of the supreme court, reads as follows: “ They shall be obliged to give their opinion upon important questions of law, and upon solemn occasions, when required by the governor, council, senate, or house of representatives.” No similar provision is found in the constitution of this state, and such provisions are not common. Under this provision of the constitution, there would seem to be no question as to the duty of the court to answer questions of this kind, when requested so to do by a political department of the state; and it will be noted that there is a marked difference between answering questions of this character at the solicitation of a political department and answering them at the request of parties to ordinary litigation. In that case, however, there were not only two bodies of men, each claiming to be the house of representatives, but also two bodies respectively claiming to be the state senate. These cases, however, are authorities squarely against the position taken by this court, that parties holding certificates of election, whether elected or not in fact, and whether in fact qualified under the constitution to sit as members of the house, are entitled to organize *242without reference to the very right of the matter. In Maine, the returns of the elections of members of the legislature are made to the governor and council, who thereupon examine them and issue to the members who apppar to be elected, as it is there denominated, a summons to attend the legislature. In this state, a canvassing board, consisting also of the governor and certain state officers, issue what is denominated a “certificate of election.” The' two documents are intended to serve precisely the same purpose, viz., to furnish evidence that the person receiving it is entitled to a seat in the legislature. No one disputes the proposition, so far as I am aware, that the certificate, or summons, as the case may be, furnishes prima facie evidence of right to the seat; but prima facie evidence must always give way to stronger and better evidence when it exists." We quote from the opinions of the justices (70 Me. 585):
“ Holders of summonses which are void for the reason that the governor and council have failed to correctly perform the constitutional obligation resting upon them have no right to take a part in the organization or in any subsequent proceedings of the house to which they are wrongfully certificated. They are not in fact members. But the members rightfully •elected, as shown by the official returns, and the opinion of court upon the propositions heretofore by the governor presented to the court, are entitled to appear and act in the organization of the houses to which they belong, unless the house and senate, in judging of the election and qualification of members, shall determine to' the contrary. A member without a summons, who appears to claim his seat, is prima facie entitled to equal consideration with a member who has a summons issued in violation of law. He is not to be deprived of the position belonging to him on account of the dereliction of those whose duty it was to have given him the usual summons. The absence of that evidence may be supplied by other evidence of membership. The house and senate have the same right to consider and determine whether, in the first instance, such persons appear to have been elected, and finally, whether they were in fact elected, as they have of any and all the persons who appear for the purpose of composing their respective bodies. . . .
*243“ In neither case did the senate or house itself act upon the question of their membership. Both the senate and house-(meaning the bodies assembled to be organized as such) were: debarred from any action thereon by the conduct of the presiding secretary and clerk. The assumption of such officers,, that no questions should be entertained relative to the rights-of persons whose names are not upon the rolls furnished by the secretary of state, but who were claimants of seats, was-unwarrantable. The statute of 1869, embodied in the Revised Statutes, chapter 2, section 25, cannot preclude either the-senate or house from amending and completing the rolls of membership, according to the facts. Each house has the constitutional right to organize itself. The form provided for aid and convenience in effecting the organization does not. confer upon a temporary presiding officer such conclusive-power.
“We have not failed to carefully consider the act of 1869r chapter 67, incorporated in the Revised Statutes, chapter 2r §25; and so far as it declares that ‘no person shall be allowed to vote or take part in the organization of either branch of the legislature as a member, unless his name appears upon the certified roll of that branch of the legislature in which he claims to act,' we think it clearly repugnant to the constitution, which declares that each house shall be the judge of the election and qualification of its own members. It aims to control the action of each within its constitutional power till after a full organization, with a majority determined and fixed by the governor and council. By their action in granting certificates to men not appearing to be elected, or refusing to grant certificates to men clearly elected, they may constitute each house with a majority to suit their own purposes, thus strangling and overthrowing the popular will, as honestly expressed by the ballot. The doctrine of that act gives to the executive department the power to rob the people of the legislature they have chosen, and force upon them one to serve its own purposes. It poisons the very foundation of legislation, and tends to corrupt the legislative department of the government. It strikes a deathblow at the heart of popular government and renders its foundation and great bulwarks— the will of the people, as expressed by the ballot— a farce. Each house has the same power, and is charged with the same duty, to declare the election of its own members and organize in any legitimate way as before the passage of that act. ...
*244“Question 9. To make up the legal quorum required on any vote in either house, can the votes of any persons be counted, who, though summoned, do not appear to be elected by the official returns under the constitution, and the decision of the court? Answer. Not if the attention of the house is called to the fact that such persons are illegally summoned, and objection is seasonably made to the counting of such persons for the purpose of making up a quorum; and the house does not act upon the question of their admissibility.”
In the case of Prince v. Skillin, 71 Me. 369, we find the following language:
“ It is claimed that the decision of the governor and council acted as a final canvassing board, and that their final action constitutes an estoppel upon all other branches of the government, except the houses of the legislature in regard to the membership of those bodies. This is not so. The object of all investigations is to arrive at true results. . . .
“In accordance with these views, it has been uniformly held by this and all other courts where the question has arisen, that the decision of the canvassing board is only prima facie evidence; that the real title’to the office depends upon the votes cast; and that the tribunal before which the question arises will investigate the facts of the election, the votes cast, and the legality of the action of the canvassing board. (People v. Cook, 8 N. Y. 67; People v. Vail, 20 Wend. 12; The State v. Governor, 1 Dutch. 348; People v. Judson, 55 N.Y. 525.) . . .
“The underlying principle is that the election, and not the return, is the foundation of the right to an elective office, and hence it has been held competent to go behind the ballot box, and purge the returns by proof that votes were received and counted which were cast by persons not qualified to vote.” (People v. Pease, 27 N. Y. 45.) “Freedom of inquiry in investigating the title to office,” observes Andrews, J., in People v. Judson, 55 N. Y. 531, “tends to secure fairness in the conduct of elections, faithfulness and integrity on the part of returning officers, and it weakens the motive to fraud or violence by diminishing the chances that they may prove successful in effecting the objects for which they are usually employed.”
In the case of Hughes v. Felton, 11 Colo. 489, the validity of an act establishing the superior court of Denver was at*245tacked. The objection made was not to the mode of its passage, nor to the subject-matter apparent on the face of the act, but because it was claimed that the legislature which enacted it was not a legal or constitutional body. The supreme court of Colorado, following the unbroken current of authorities on this question, uses the following language:
“From what has already been said, it is plain to be seen that a determination of the main proposition contended for involves a decision of questions which this court has no authority to decide, and which it is prohibited from deciding by an express provision of the constitution lodging such power elsewhere. The members of the legislature thus assailed met at the time and place provided therefor by law, and then and there organized the two houses in the manner required by law. In doing this, each house necessarily judged of the election and qualifications of its members. The two houses thus organized recognized each other as a component part of the legislature of the state, and they received full recognition as such by the executive branch of the government. They chose two persons to represent the state of Colorado in the senate of the United States, who were afterwards admitted to seats as members of that distinguished body; and in all other respects the said assembly acted and was recognized as the legislature of the state. It is a general, if not universal, rule, that courts, in determining the validity or invalidity of a legislative act, do not, for the purpose of impeaching such act, permit of or consider evidence outside of the act itself, the enrolled bill, and the journals of the two houses. (Division of Howard Co., 15 Kas. 195, and cases there cited.) For these reasons the proposition advanced is not tenable.”
In the case of Robertson v. The State, ex rel., 109 Ind. 79, this question was most exhaustively considered. The question at issue was the title to the office of lieutenant governor of Indiana. The plaintiff, Smith, claimed that in January, 1887, he was elected president of the senate; that one Manson was elected lieutenant governor in November, 1884, and held the office until July, 1886, when he vacated it by accepting a federal office; that on the 2d of November, 1886, the respondent was voted for and claimed to be elected lieutenant governor; that he thereupon took the oath of office, and *246intruded into the office of lieutenant governor, and it was •alleged in the complaint that the speaker of the house of representatives recognized Robertson as lieutenant governor. .'Suit was brought by injunction in the circuit court of Marion county, in which the state capítol is located, to restrain Robertson from exercising the duties of the office of lieutenant governor, and an appeal taken from the decision of that court to the supreme court. Separate opinions were filed by the various members of the court on the original hearing, and also by the chief justice and Judge Niblack on the petition for a rehearing. Chief Justice Elliott, after having delivered the opinion of the court, in his individual opinion says:
“I fully concur in the opinion of my brother Niblack, that the courts have no jurisdiction of the subject-matter of this action, and as the subject has been by him so fully and so ably discussed little can be added. I began the investigation of this question with the impression that the courts had jurisdiction of the subject-matter, but I leave it with the firm conviction that they have not. This impression arose from a belief that it is better and safer that such controversies as this should be settled by some other tribunal than the legislature; but, while still impressed with that belief, I am compelled to yield to the settled rules of the law and the clear words of the constitution. Whatever may be the views of a court or judge upon a question of constitutional policy, the expressed will of the people, as written in their constitution, must be obeyed and enforced. I am convinced that the framers of the constitution have conferred upon the general assembly exclusive authority over such controversies as this, although, regarded as a question of policy, I am persuaded that it would have been wiser to have entrusted the authority to some other tribunal. The makers of the constitution had power to vest the authority in the legislature, and they have done it. To their judgment all must yield. The grant of power to the legislature cannot be defeated upon the presumption that it will not be justly exercised. On the contrary, it is the duty of the judiciary to assume that legislators will faithfully and impartially perform the duty imposed upon them by the constitution they have solemnly sworn to support. Courts must accord to the legislature the same solemn sense of duty, and the same conscien*247tious resolution to perform it, unmoved by improper motives, that they can claim for themselves. In Brown v. Buzan, 24 Ind. 194, it was said:
‘“The judiciary ought to accord to the legislature as much purity of purpose as it would claim for itself; as honest a desire to obey the constitution, and, also, a high capacity to judge of its meaning. . . . Our own court has recognized the general principle that it is often best to intrust higher power to officers whose terms are short.’
“In Brown v. Buzan, supra, it was said:
“ ‘ Thus, to whatever extent this court might err, in denying the rightful authority of the lawmaking department, we would chain that authority for a long period at our feet. It is better and safer, therefore, that the judiciary, if err it must, should not err in that direction. If either department of the government may slightly overstep the limits of its constitutional powers, it should be that one whose official life shall soonest end. It has the least motive to usurp power not given, and the people can sooner relieve themselves of its mistakes.’
“This reasoning supplies grounds for sustaining the policy of distributing the power of settling contests for office; for, if that power is lodged in the legislature, the people can, at short and often-recurring intervals, rebuke where rebuke is needed, and approve where approval is merited. ... In many instances powers of a judicial nature are conferred upon the legislature, and it has always been held that, where such a power is conferred, it is exclusive and supreme. No other tribunal can share in its exercise, nor can any court control it. (People v. Mahaney, 13 Mich. 481, 492; The State v. Gilmore, 20 Kas. 551; The State v. Tomlinson, 20 id. 692; Dalton v. The State, 43 Ohio St. 652; Smith v. Myers, 9 N. E. Rep. [Ind. Sup. Ct.] 692, and cases cited.) ... A high tribunal has been designated by the people to determine all contests for the office of lieutenant governor. There the people have placed that great power, and there it must rest until the people in their sovereign capacity shall change their constitution.”
And in the same case, on a petition for a rehearing, Judge Niblack, on page 158 id., says;
“ If an act of the present general assembly, whether passed at the regular or some special session, shall come before us, signed by the appellant on behalf of the senate, and otherwise duly certified and approved, it will be our duty to assume that the appellant was, at the time he affixed his signature, the acting and qualified lieutenant governor of the state, and that he has been so recognized by the two houses of the general assembly. On the other hand, when an act of the cur*248rent general assembly shall come before us, signed by the relator, Smith, or some other person, as president pro tempore of the senate, we will be required to assume that the person so signing was elected to preside over the senate at a time and under circumstances which authorized his election. So that the senate settles for us, and not we for it, who, for any occasion, is its proper presiding officer.”
The supreme court of Texas, in the case of Wright v. Fawcett, 52 Tex. 206, says:
“To decide the result of an election is a question of a different character; part of the process of political organization, and ‘ not a question of private right.' (Hulseman v. Rems, 41 Pa. St. 396; and see Arbury v. Beavers, 6 Tex. 469, and Baker v. Chisholm, 3 id. 157; Walker v. Tarrant Co., 20 id. 16.) Where the law has provided a mode of deciding cases of contested elections, designed to be final, the courts have no authority to adjudicate such cases, other than that the law may give to them. (Batman v. McGowan, 1 Metc. 533; Grier v. Shackelford, 3 Brev. 490; Skerrett’s Case, 2 Pars. 509, as reported in Brightly’s Leading Cases on Elections, p. 320; Ewing v. Filley, 43 Pa. St. 389.)”
All are familiar with what took place when the result of the presidential election of 1876 was in dispute. The question as to what tribunal had power to decide the result of that election was widely discussed, and the view was generally entertained by members of all political parties that not only had the supreme court no power to decide the controversy, but that it was beyond the power of Congress to abdicate its sole and exclusive right to count the votes and declare the result. The electoral commission was established with the vain hope that a nonpartisan decision of the grave questions involved might be obtained by having certain judges of the supreme court of the United States pass their opinions on the questions involved. The result of the commission was a sad disappointment to those who believed the judiciary to be free from partisan bias. While the conclusions of the commission were received and abided by in congress, they were merely acquiesced in as the most practical means of solving the great complication ; and the whole proceeding was a clear recognition *249of the main point before us now for our consideration, viz., that political questions are to be decided by the political departments of the government alone, and that the judiciary, in all such cases, must follow, and not lead.
It is not every question, even of a judicial nature, that under our constitution is to be decided by the courts. Section 27, article 2, of the constitution, reads: “The house of representatives shall have the sole power to impeach. All impeachments shall be tried by the senate, and when sitting for that purpose the senators shall take an oath to do justice according to the law and the evidence. No person shall be convicted without the concurrence of two-thirds of the senators elected.” By paragraphs 2735 and 2736 of the General Statutes of 1889, it is provided: “That all contests over the election of state officers, justices of the supreme or district courts, shall be tried by the senate.” Doubtless the reason which actuated the legislature in making the senate the court to try contests of this kind was, that such contests are political in their nature, and though they involve the rights of individuals to the possession and emoluments of public offices, yet the public have such a deep interest in the result of such contests, and they become so generally the subject of political agitation and discussion, that it is better that a political branch of the government should be responsible for the decision, than that a court should run the risk of being charged with partisanship in the decision of such controversies. The framers of our own, and, so far as I am aware, not only the national, but all state constitutions, have clearly foreseen that impeachments will frequently, if not usually, precipitate political agitation, excitement, and strife; and the power to present articles has therefore wisely been lodged in one branch of the lawmaking department and the trial in the other. Can it be that the framers of our constitution, having given to each branch of the legislature the exclusive power to judge of the elections and qualifications of its own members, intended that the judiciary should have power indirectly to judge of the very existence of the house itself? It seems to me clearly *250not. Section 5 of article 1 of the constitution provides that—
“He [the governor] may, on extraordinary occasions, convene the legislature by proclamation, and shall, at the commencement of every session, communicate, in writing, such information as he may possess in reference to the condition of the state, and recommend such measures as he may deem expedient.”
Section 6 provides that —
“In case of disagreement between the two houses in respect to the time of adjournment, he may adjourn the legislature to such time as he may think proper, not beyond its regular meeting.”
In section 14, article 2, of the constitution it is provided that—
“Every bill and joint resolution passed by the house of representatives and senate, shall, within two days thereafter, be signed by the presiding officers, and presented to the governor; if he approve, he shall sign it; but if not, he shall return it to the house of representatives, which shall enter the objections at large upon its journal and proceed to reconsider the same.”
The governor is thus required to communicate with the senate and house, and of necessity must promptly decide what body of men is the house.
The rule of our government is, that the three great coordinate departments are independent of each other, and that each matter which is intrusted to one of those departments shall be determined by that department alone without interference from another; and, as the decision of this court is in its nature final, the judiciary ought to be most careful of all to nicely observe the boundaries of its own authority. It is presumed that those who administer each department of the government will act honestly and from equally pure and lofty motives. It is needless to multiply authorities on this question. The supreme court of Pennsylvania, in the case of Railroad Co. v. Cooper, 33 Pa. St. 284, said:
“Here again, and under another aspect, the sincerity and *251honesty of the legislature, in the performance of their duties, is attempted to be made a question of judicial cognizance; and again we say that we have no jurisdiction of such a question, and can have no right to express any official opinion in relation to it. Official morality in us requires that we shall not assume authority to judge of the official morality of the legislature. For the faithfulness and honesty of their public acts, we repeat, they are responsible to the public alone, and not by means of a trial before the courts.”
The supreme court of Ohio, in the case of Dalton v. The State, ex rel., 43 Ohio St. 680, says: “The jurisdiction of each house to decide upon the election, returns and qualifications of its own members is supreme and exclusive.” (Citing Cooley, Const. Lim. 133; The State v. Jarrett, 17 Md. 309; People v. Mahaney, 13 Mich. 481.) No court of the state has, nor is it possible under our present constitution to clothe any court of the state with, the power to . . . decide' as to the election of any candidate to either house. (See Slack v. Jacobs, 8 W. Va. 612, where the authorities are extensively collated and reviewed. Also, Humboldt Co. v. Co. Commissioners, 6 Nev. 30; The State v. Harmon, 31 Ohio St. 250.)
Recurring now to the exclusive control by each house of the legislature over the election and qualification of its members, we will consider some cases decided by this court. In the case of The State v. Gilmore, 20 Kas. 551, it appears that Gilmore was chosen a member of the lower house of the legislature in 1876. W. L. Martin, as relator, commenced an action in the name of the state against Gilmore in August, 1877, while Gilmore was a member of the state legislature, holding the office of representative of the 54th representative district, alleging that he was guilty of being in a state of intoxication, produced by strong drink, voluntarily taken, and asked that he be removed from his office, under the provisions of chapter 122 of the Laws of 1875. The opinion was delivered by Mr. Justice Brewer, and from it I quote:
“The constitution declares (article 2, § 8) that ‘each house shall be judge of the elections, returns and qualifications of its own members.’ This is a grant of power, and constitutes *252each house the ultimate tribunal as to the qualifications of its own members. The two houses acting conjointly do not decide. Each house acts for itself, and by itself; and from its decision there is no appeal, not even to the two houses. And this power is not exhausted when once it has been exercised, and a member admitted to his seat. It is a continuous power, and runs through the entire term. At any time, and at all times during the term of office, each house is empowered to pass upon the present qualifications of its own members. By § 5 of the same article, acceptance of a federal office vacates a member’s seat. He ceases to be qualified, and of this the house is the judge. If it ousts a member on the claim that he has accepted a federal office, no other court or tribunal can reinstate him. If it refuses to oust a member, his seat is beyond judicial challenge. This grant of power is, in its very nature, (and so as to any other disqualification,) exclusive; and it is necessary to preserve the entire independence of the two houses. Being a power exclusively vested in it, it cannot be granted away or transferred to any other tribunal or officer. It may appoint a committee to examine and report, but the decision must be by the house itself. It, and it alone, can remove. Perhaps, also, it might delegate to a judge or other officer outside its own body, power to examine and report upon the qualifications of one of its members. But neither it, nor the two houses together, can abridge the power vested in each house separately of a final decision as to the qualifications of one of its members, or transfer that power to any other tribunal or officer. And an act which purported to grant to the district court power to remove from office must be construed as not embracing members of the legislature; or, if its language specifically names or necessarily includes them, then as to them the act is unconstitutional.”
In the case of The State, ex rel., v. Tomlinson, 20 Kas. 692, Chief Justice Horton, delivering the opinion of the court, says:
“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 to 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 speci*253fied, 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, article 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. . . .
“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 ease, 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 inquiry 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; McCr. Elect., §515; Hiss v. Bartlett, 3 Gray, 468; People v. Mahaney, 13 Mich. 481.)”
Before proceeding to a consideration of the particular facts *254in this case, let us first.determine the proper limits of judicial inquiry. The testimony of the principal actors in the struggle to obtain control of the organization of the house on the 10th of January was taken before the court, subject to objection, and with the understanding that the question as to its admissibility was reserved, to be passed on at the time of the decision of this case. That this procedure was wholly unwarranted, and that no such testimony should have been received by the court, is entirely clear from the authorities. I shall not attempt a complete review of the cases, which are very numerous upon the point, but shall content myself with referring to a few of them. In the case of The State, ex rel., v. Smith, 44 Ohio St. 348, it was contended that an act of the legislature was invalid because the senate was composed of less than a quorum of duly-elected members. It was claimed that 17 members of the senate, being less than a quorum, had four other persons, who were not elected, sworn in, and that the 21 persons acting together, in the absence of 19 duly-elected senators, passed the act in question. The court says:
“Counsel have exhibited unusual industry in looking up the various cases upon this question; and, out of a multitude of citations, not one is found in which any court has assumed to go beyond the proceedings of the legislature, as recorded in the journals required to be kept in each of its branches, on the question whether a law had been adopted. And, if reasons for this limitation upon judicial inquiry in such matters have not generally been stated, it doubtless arises from the fact that they are apparent. Imperative reasons of public policy require that the authenticity of laws should rest upon public memorials of the most permanent character. They should be public, because all are required to conform to them; they should be permanent, that rights acquired to-day upon the faith of what has been declared to be the law shall not be destroyed to-morrow, or at some remote period of time, by facts resting only in the memory of individuals. One of the earliest cases on the subject was that of The King v. Arundel, Hobart, 109. It involved the question whether a private statute had been enacted. The court there held that the act could only be tried by itself—its enrollment in the chancery, *255the chancery being then, as the office of the secretary of state is with us, the depository of the laws. The court said: ‘ When the act is passed the journal is expired.' Many cases follow this decision, adopting the attested enrollment of the law as conclusive on the question of its passage. Pangborn v. Young, 32 N. J. Law, 29, is an instructive case on the reason and policy of the rule. (See, also, People v. Devlin, 33 N. Y. 269; People v. Commissioners, 54 id. 276; Eld v. Gorham, 20 Conn. 8; Sherman v. Story, 30 Cal. 258; Louisiana State Lottery Co. v. Richoux, 23 La. An. 743; The State v. Swift, 10 Nev. 176; Speer v. Plank Road Co., 22 Pa. St. 376.)
“ There are numerous cases in the decisions of the different states to the effect that the journals of the legislature may be noticed by courts on the question whether the bill became a statute or not. (Opinion of the Justices, 52 N. H. 622; Judicial Opinion, 35 id. 579; People v. Mahaney, 13 Mich. 481; Moody v. The State, 48 Ala. 115; Grob v. Cushman, 45 Ill. 119; Board of Supervisors v. Heenan, 2 Minn. 330; In re Roberts, 5 Colo. 528.) The latter presents an extensive collection of the cases. But, as before stated, none have been found in which the courts have, for any purpose affecting the validity of a statute, gone beyond such permanent memorials of its enactment.
“The case of The State v. Francis, 26 Kas. 724, is cited and relied on by counsel for relators. But it does not sustain them. There the house of representatives of Kansas had, by law, at that time, but 125 members; it had, in fact, 129. Pour of these had, by law, no seats in the house, and could in no event be entitled to participate in its proceedings; they were simply supernumeraries. The journal showed that the concurrence of three, at least, of these supernumerary members was requisite to the passage of the law in question, and that all of them voted for it. The court took notice of these facts appearing upon the journal, and of the further fact, that, as a matter of law, the house then consisted of 125 members only, and held that the bill did not become a statute. In no case, however, is the rule that limits judicial inquiry in questions of this kind to the journals of the legislature, and excludes all parol testimony, more strongly stated. The language used is as follows:
‘“In our opinion, the enrolled statute is very strong presumptive evidence of the passage of the act and of its validity, and that it is conclusive evidence of such regularity and validity, unless the Journals of the legislature show clearly, conclusively, and beyond all doubt, that the *256aot was not passed regularly and legally. ... If there is any room to doubt as to what the journals of the legislature show, if they are merely silent or ambiguous, or if it is possible to explain them upon the hypothesis that the enrolled statute is correct and valid, then it is the duty of the courts to hold that the enrolled statute is valid; but in this state, where each house is required by the constitution to keep and publish a journal of its proceedings, we cannot wholly ignore such journals as evidence.’
“That the invalidating facts must clearly and beyond reasonable doubt appear from the journal, is sustained by Osburn v. Staley, 5 W. Va. 85. . . . As to the averment that the passage of the act was part of a conspiracy, entered into between the president of the senate, and 17. of the members, carried into effect in absence from the state of a majority of the members of the senate, it is sufficient to say that such suggestions have frequently been made for the purpose of inducing judicial inquiry into the conduct of legislative bodies, but the inquiry has as frequently been declined by the courts as not only indecorous, but as subversive of the independence of the legislature as a coordinate branch of the government. There is no authority for it in the constitution and laws of this state, and it is opposed to the practice and policy of our system of government. (Slack v. Jacob, 8 W. Va. 613; McCulloch v. The State, 11 Ind. 431; Wright v. Defrees, 8 id. 298; Evans v. Brown, 30 id. 514; Sunbury & E. Rld. Co. v. Cooper, 33 Pa. St. 278; Harpending v. Haight, 39 Cal. 202.)
“In Miller v. The State, 3 Ohio St. 484, it is said by Thurman, J.: ‘A disposition to disregard it [the constitution] is no more to be imputed to the legislative than to the judicial department of the government, and ought not to be imputed to either.’ ‘And,’ it is said by Cooley, ‘although it has sometimes been urged at, the bar that the courts ought to inquire into the motives of the legislature where fraud and corruption were alleged, and annul their action if the allegations were established, the argument has in no case been acceded to by the judiciary, and they have never allowed the inquiry to be entered upon.’ (Const. Lim. *187.)”
See, also, The State v. Moffitt, 5 Ohio, 363; Koehler v. Hill, 60 Iowa, 545.
In the case of Division of Howard Co., 15 Kas. 194, this question was considered by this court, and I quote from the syllabus:
“1. Legislative Records; Journals and Enrolled Bills. The legislative journals and the enrolled bills are the only records *257required by the constitution and laws to be kept for the purpose of showing any of the legislative proceedings; and hence, they must import absolute verity, and be conclusive proof as to whether any particular bill has passed the legislature, when it passed, how it passed, and whether it is valid or not. The engrossed bills of the two houses are not required to be made records, nor portions of any record. Therefore, where the legislative journals and the enrolled bill of a particular act of the legislature apparently show that the bill was regularly passed by the legislature, signed by the proper officers of each house, signed and approved by the governor, and filed in the office of the secretary of state, as an enrolled law, it will be held that such enrolled bill is valid and conclusive evidence of the law as contained in said bill, notwithstanding it may appear from an engrossed bill of the house, (not contained in the journal of either house,) and other extrinsic evidence, that a mistake was made in enrolling said bill, and that the enrolled bill omitted one important section, which was contained in the bill as it passed the two houses.
“2. Courts; Judicial Notice; Published Laws; Enrolled Bills; Journals. The courts will take judicial notice, without proof, of all the laws of the state; and, in doing so, will take judicial notice of what the books of published laws contain, of what the enrolled bills contain, of what the legislative journals contain, and, indeed, of everything that is allowed to affect the validity or meaning of any law in any respect whatever.”
See, also, City of Topeka v. Gillett, 32 Kas. 437; same case, 4 Pac. Rep. 800.
There is much conflict in the authorities as to whether the courts may go behind the enrolled bill for the purpose of determining the validity of an act of the legislature, but as our constitution (§10, article 2) requires each house to keep and publish a journal of its proceedings, I concur in the opinion heretofore expressed by this court, that this court may examine the journal for the purpose of informing itself as to what the action of each house was in fact. I also fully concur with the opinion expressed in the case of Division of Howard County, that it is unnecessary to introduce the journal in evidence, as the court will take judicial notice of its contents. Prom rea*258son and authority, I then conclude that all testimony offered in this case with reference to the doings of the legislature was incompetent, and improperly received.
The question then arises, Of what journal shall this court take judicial notice? The law requires the journal to be printed by the state printer, and delivered to the secretary of state. In this' case the publication was presented by Frank L. Brown, who, it is claimed, was clerk of the house of representatives, not published by the state printer, nor otherwise authenticated than by oral testimony. How shall the court be enlightened as to whether or not this is the journal of the house? This court takes judicial notice of who is governor of this state; of the fact that the senate is in session. It seems to me clearly that it must take judicial notice of the fact that the governor and the senate are in communication with the house of representatives. It must- take judicial notice as to what organization has been recognized by them. It is clearly shown in this case that J; M. Dunsmore has been recognized as speaker of the house of representatives by the governor, the senate, secretary of state, state printer, official state paper, auditpr, and treasurer; and, if the position taken by the majority of the court is correct, that this is substantially a contention between two bodies of men, each claiming to be the house of representatives, that body presided over by J. M. Dunsmóre has received full recognition from the senate, and each and all of the officials named. There was, then, a complete state government, with no question as to the right of those persons who filled the various offices in the executive branches or in the senate. The only question raised was as to the rights of the officers of the house of representatives, and as to the right of certain persons whose seats were contested to sit as members of the house. .Unless it follows the decision of the governor and senate, the only way this court can possibly determine who is speaker of the house of representatives is by determining first who were members of the house on the 10th day of Jaunary; and, second, what those members did in perfecting the organization of the house. *259Whence does this court derive its power to determine what, it must be apparent to all, is purely a political question? Let it be conceded for the purposes of this case that the house, which, under the constitution, alone has power to decide who are its members, refuses to so decide: does that confer the power on this court? Certainly not. Yet, in no other manner can this court possibly determine, nor has the majority of this court attempted to determine, yffio is speaker of the house in any other manner than by going directly into the question who were elected members of the body.
The chief justice cites from the work of McCrary on Elections and also from Cushing’s Law and Practice of Legislative Assemblies. Were we members speaking on the floor of the house with reference to the rights of other members, I concede the propriety of citing there these authorities, or any other authorities bearing on the question of the rights of persons to sit in that house; but the right of a person to a seat in the house of representatives is not, and never can be, the subject of trial here, and it seems to me that the reasons why such right cannot be tried indirectly are still more forcible than the reasons why it cannot be tried directly. The majority of this court holds that a certificate of election entitles the holder to participate in the organization of the house; yet the very body of men in whose favor this court so holds, before the attempted election of Mr. Douglass as speaker, declared that Joseph Rosenthal, who did not hold a certificate of election, whom the records of'the office of the secretary of átate showed, was not elected a member of that house, was a member of that house, and admitted him to a seat therein. Thus, if this body is the house of representatives, being the tribunal which has authority under the constitution to determine who are entitled to sit as its members, it has established and declared a rule directly the reverse of the rule laid down by this court. Why did this so-called “Douglass house” admit Rosenthal to his seat? It was because he was in fact elected by the people of his district as such member. Does this court hold that that action was wrong? If that action was right, why should *260not the list furnished from the secretary of state’s office be purged of all its errors, as well as this one error in Rosenthal’s case? If Rosenthal, who has no certificate, and no record in the secretary of state’s office to back him, may sit merely because it is the will of the people that he shall sit, why may not Rice, Gleason, White, Helstrom, Goodvin, Brown and Morrison also take part in the election of a speaker, if they were in fact elected by the people of their districts? Who shall determine this question—the house itself, or this court? If Campbell of Doniphan, Sherman, of Shawnee, Elting,of Ness, Bowers, of Grant, and Chrisman, of Chautauqua, were, under the constitution of this state, disqualified from sitting in that body, how can this court say, merely because they have certificates, merely because the figures in the office of the secretary of state show that they received a majority of the votes cast in their respective districts, that they shall participate in the proceedings of the house, in direct violation of the fundamental law of the state? If this court has not power to decide according to the very right of the matter, and has not power to go behind certificates erroneously issued, records falsely made, and infractions of the fundamental law of the land, of what value is it as a tribunal to determine any such question?
The governor and senate, in' determining which of these bodies they should cooperate with, were not bound down by any such narrow, inequitable rule as that declared by this court, but were free to investigate for themselves; and it was their duty, as the political representatives of the people of the state of Kausas, to see that their will — the will of the people— was carried out in this matter; to see that it be not defeated by any jugglery of returns, or by any disregard of the fundamental law of the land, as declared in the constitution and the numerous authorities above cited. The presumptions iu favor of their integrity, of their patriotism, are just as great as are the presumptions in' favor of this court; and, as an added security to the people that their wishes shall be respected, the governor is accountable to them at the next regu*261lar election, and the senate two years later. The members of this court, however, are exempt, after their election, from being subjected to popular censure for a period of six years. It may be noticed that the tenure of office of the judiciary is generally much longer elsewhere than in this state, and the judges of the courts of the United States hold for life. We have seen that the courts, both of England and of this country, by an unbroken line of decisions, from the early case of Penn v. Lord Baltimore, to the very latest utterances in the United States, have steadily maintained the doctrine that the courts have no jurisdiction to decide political questions. Can there be any doubt that the question which this court has undertaken to decide is a political question? We are not here considering even the private rights of Douglass and Duns-more to enjoy the privileges and emoluments of the office of speaker, for neither one of them is before the court; but we are determining the question which of two contending political organizations is entitled to the control of the house of representatives of this state. This is the very pith and marrow of this controversy. Were it not a struggle for political supremacy, but merely a contest over private rights, can it be imagined for a moment that we should have witnessed scenes of violence, and been on the verge of civil war? It is patent to every one that the control of the house of representatives of this state was one of the leading subjects of political agitation in this state, not only prior to and during the election last fall, but has been a constant source of public agitation and discussion ever since the election. The question as it has been presented to us by the oral testimony in the case shows that Mr. Douglass claims to be speaker as the representative of one political organization, and Mr. Dunsmore as representative of the other; that each of these gentlemen was nominated by a caucus of his political adherents in the house, and that each one claims his election as having resulted from the carrying into effect of such caucus nomination. The mind of man cannot conceive a question more clearly political in its nature than this is.
*262The case of Martin, Governor, v. Ingham, 38 Kas. 641, is cited. Instead of that case being an authority in support of the position maintained in this case, it seems to me to be rather the reverse. I quote from the opinion:
“The only acts of public functionaries which the courts ever attempt to control, by either injunction or mandamus, are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed. . . .
“ Now, it is true, with some exceptions, that the legislature cannot exercise judicial or executive power, that the courts cannot exercise legislative or executive power, and that the executive department cannot exercise legislative or judicial power; but it is not true that they are entirely separate from each other, or independent of each other, or that one of them may not in some instances control one of the others. The most of the jurisdiction possessed by the courts depends entirely upon the acts of the legislature, and the entire procedure of the courts, civil and criminal, is prescribed by the legislature. ...
“Now, while many of the duties imposed upon the governor in the organization of new counties, and possibly all of them, except certain ones prescribed by the new provisions above quoted, are still ministerial, yet some of these duties prescribed by these new provisions are certainly not ministerial. Some of them relate to the investigation of supposed frauds, and precisely that kind of frauds which we are now asked to investigate in the injunction case; and clearly such duties are not ministerial. Hence, as some of the duties imposed upon the governor in the organization of new counties are ministerial and some of them are not, and as the courts will not by mandamus or injunction control any of the acts of officers except such as are purely ministerial, and will not control even them when any other plain and adequate remedy exists, it follows that it must be shown clearly and conclusively in the particular case that the acts of the governor sought to be controlled are not only purely ministerial acts, but also, that no other plain and adequate remedy exists. Also, as we have already stated, all presumptions are in favor of *263the good faith and honesty of the governor. It will not only be presumed that he has in the past performed honestly and faithfully all his duties, but it will also be presumed that he will in the future honestly and faithfully perform the same; and these presumptions will continue until it is clearly, conclusively and affirmatively shown otherwise. And in favor of the chief executive officer of the state these presumptions should be considered as of the strongest character; indeed, much stronger than any kindred presumptions in favor of inferior officers.”
It is said, in the opinion filed by the chief justice, that the Georgia and Pennsylvania cases were cited in that case. It is true that Lowe v. Towns, 8 Ga. 372, was cited in that case. The cases we have cited in 44 and 45 Georgia were not referred to by the court. So the case of Hartranft’s Appeal, 85 Pa. St. 433, was cited, but the Pennsylvania case above quoted was not mentioned; but it will be noticed that, in this very case of Martin v. Ingham, this court refused to grant a mandamus against the governor, and reversed the decision of the district court granting an injunction, on the expressed ground that some of the duties which it was sought to control the governor in the discharge of were not purely ministerial, but were discretionary; and, however the reasoning in that case in certain portions of the opinion may appear favorable to the position taken in this, the judgment rendered by this court was against the exercise or attempted exercise of any control over the actions of the governor.
In the case of The State, ex rel., v. Francis, 26 Kas. 724, also cited, this court said:
“In many of the states of this union it is held that the enrolled statutes are conclusive evidence of the due passage and validity of the acts purporting.to be embodied in them. See authorities cited in the case of Division of Howard County, 15 Kas. 211; and The State v. Swift, 10 Nev. 176, cited in the case of Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kas. 78. . . .
“In our opinion, the enrolled statute is very strong presumptive evidence of the regularity of the passage of the act and of its validity, and that it is conclusive evidence of such *264regularity and validity, unless the journals of the legislatwe show dearly, conclusively and beyond all doubt that the act was not passed regularly and legally.”
The distinction between the power of this court to keep the legislative and the executive within the limits fixed by the constitution, to declare void any unconstitutional act, and the power to declare the legislature itself void, seems to have been lost sight of. The right of this court to declare unconstitutional acts void is not questioned; nor is the right of this court to declare any unwarranted assumption of power on the part of the legislature, or either house thereof, void, doubted. The distinction is clearly indicated in the opinion delivered by Mr. Justice Brewer in the case of Prouty v. Stover, 11 Kas. 235, from which I quote:
“Defendants claim that this court cannot look beyond the action of the house to inquire whether persons admitted as members were legally entitled to seats. Article 2, § 8, declares that each house ‘shall be judge of the elections, returns and qualifications of its own members.’ Its determination is not the subject of appeal or review. It is final, and concludes everyone. But what is included in this power? Does the power to judge of the qualifications of its members include the power to increase such membership? Can it enlarge its members without limit? Is it like an academy of science, or a lodge of Odd Fellows, capable of indefinite expansion? If the law fixed the number of senators at 25, could those 25 admit 25 more, on pretense of judging ‘of the elections and qualifications of its own members,’ and thus create a senate of 50 members? If this power exists, how easily could a partisan majority secure to itself a two-thirds vote by simply admitting new members. To create a representative or senatorial district requires a law — the consent of both houses. Neither house by itself can create a district, and then admit some one to represent it. The district must exist before it can be represented. Otherwise one house could usurp the functions of both. ' And if one house can admit members above the limit prescribed by law, why may it not above the constitutional limit ? Bid when the district exists, then the decision of the house as to who shall represent that district is conclusive and final. It determines who was elected; whether the returns are sufficient, and also whether the party *265elected has the proper qualifications. Over all these matters its jurisdiction is ample, its determination final.”
The case of Burnham v. Morrissey, 14 Gray, 226, is cited. This case merely upholds the right of the court to decide on habeas corpus as.to the legality of a commitment by the speaker of the house for a contempt. This power has not been questioned in this case. The case of The State v. Cunningham, 51 N. W. Rep. (Wis.) 725, and 53 id. 35, merely holds that an action to enjoin the secretary of state from publishing notices of election of members of the senate and assembly, under a claim that an act of the legislature under which the notices were about to be published was unconstitutional, was not a political, but a judicial question. The court, on page 53 of 53 N. W. Rep., cites Marbury v. Madison, 1 Cranch, 137, and quotes approvingly the language of Mr. Justice Orton, as follows:
“Mr. Justice Orton, in the same case, speaking for the whole court, said: ‘ But it is sufficient that these questions are judicial and not legislative. The legislature that passed the act is not assailed by this proceeding, nor is the constitutional province of that equal and coordinate department of the government invaded. The law itself is the only object of judicial inquiry, and its constitutionality is the only question to be decided.”’
The various passages cited from McCrary on Elections do not reach the contention in this case. The question as to what shall be decided by the political departments of the government and what by the judicial, is not the subject being treated of by the author. The case cited from the 53 Northwestern Reporter, 944, seems to be a mistake, as it has no application whatever in this case. The Montana case of The State v. Kinney, 23 Pac. Rep. 733, merely holds that a person holding a certificate of election to the legislature, against whom a contest had been filed, but whose rights had not been determined by the legislature, was entitled to his pay after the legislature adjourned. None of the cases cited by the chief justice, none of the cases to which our attention was *266called on the hearing, assert the doctrine that the judiciary may, under any circumstances, unless it be where the constitution expressly requires them to give their opinions when asked, decide political questions. It is said that Douglass was elected speaker because he received the votes. In Rosenthal’s case, decided by this court only in January last, it was held that this court had no power to require the canvassing board, after it had performed its duties and adjourned, to reconvene and correct a manifest error; and Chief Justice Hob-ton, in delivering the opinion in that case, said:
“ If it be said that this leaves Rosenthal without any remedy, and that the law in some way ought to furnish him a remedy for the wrong committed against him, we answer that, if this be true, it is the fault of the legislature, not the fault of the state board of canvassers, nor of the courts. But it is not wholly true. While Rosenthal may not obtain from the state board his certificate, yet he has a remedy before the house of representatives, even if not a complete one. The jurisdiction of each house to decide upon the elections, returns, and qualifications of its own members is clearly given by the constitution and the statutes. That body, with the general consent of its members, can admit him to his seat at once, or, if it so determines, it can delay his admission until full investigation is had of his claims. It may, it is true, act arbitrarily and refuse him his legal rights, but this is hardly probable. This proceeding, if successful, would have only given him the certificate—the prima faoie written title to the office. The proceeding in this court is not a contest between Rosenthal and Stubbs, nor can we try the title to the office. The house of representatives has the exclusive power to decide who have been elected members to its body.”
This court has now proceeded to decide, and has decided, that a quorum of legally-elected members of the house elected George L. Douglass speaker. How does it reach that conclusion? By holding that those persons who hold certificates of election were members of the legislature, entitled to elect a speaker, without reference to the question whether they were duly elected' or not, and without reference to the question whether they were qualified or not. In other words, this *267court has said that if they were returned they were entitled to sit, without reference to the question of election or qualification; but the constitution says that the house itself shall judge of the elections, returns and qualifications of its members. Before the alleged election of Mr. Douglass, the evidence before us shows that there was no determination of the rights of any of the contestants, in any manner, except Rosenthal’s alone. It shows that no opportunity was afforded of presenting objections, even, for the consideration of the house. There was nothing like order or regularity on either side in the proceedings from which it is claimed on the one hand that Mr. Douglass was elected, and on the other that Mr. Dunsmore was chosen. In the Maine case referred to, the judges argue with great force that it is those who were elected who shall sit, rather than those holding certificates. I shall not attempt to express an opinion here as to the rights of contesting members to seats in the house, but shall merely call attention to the questions properly before the house to be determined. It was alleged that four of the 64 who are said to have voted for Mr. Douglass were postmasters, and therefore disqualified to sit; and the journal of the Douglass house shows that two of those men, at least, were postmasters up to the 31st day of December last. Section 5 of article 2 of the constitution reads:
“No member of congress or officer of the United States shall be eligible to a seat in the legislature. If any person, after his election to the legislature, be elected to congress or elected or appointed to any office under the United States, his acceptance thereof shall vacate his seat.”
The case of Privett v. Bickford, 26 Kas. 52, is cited as an authority sustaining the proposition that, if a disability be removed between the date of the election and the commencement of the term, the person chosen is still entitled to his seat. The constitutional provision then before the court is very different in its terms from the one above quoted, and reads as follows:
“And no person who has ever voluntarily borne arms *268against the government of the United States, or in any manner voluntarily aided or abetted in the attempted overthrow of said government, except all persons who have been honorably discharged from the military service of the United States since the 1st day of April, A. D. 1861, provided that they have served one year or more therein, shall be qualified to vote or hold office in this state until such disability shall be removed by a law passed by a vote of two-thirds of all the members of both branches of the legislature.”
It will be apparent at a glance that this provision applies to the status of the individual at the time he is to hold office, and not at the time he is to be elected, while the provision with reference to members of the legislature applies to his capacity to be chosen, and of course must refer to the time the choice is made. This view is fully sustained by authorities. (Searcy v. Grow, 15 Cal. 117; The State v. Clark, 3 Nev. 566; Carson v. McPhetridge, 15 Ind. 327.)
Section 4 of article 2 of the constitution reads:
“No person shall be a member of the legislature who is not at the time of his election a qualified voter of and a resident in the county or district for which he is elected.”
It is claimed that one of the 64 members by whose votes Mr. Douglass claims to be speaker was not a resident of the state, but had taken a claim in Oklahoma, and was both at the time of his election aud at the time of the session of the legislature a resident of that territory. It is also claimed that six others of the persons who voted for Mr. Douglass, although holding certificates of election in due form, were not in fact elected by the electors of their respective districts. It is manifestly improper for me, entertaining the views I do on this question, to express an opinion as to the rights of these individuals to seats in the legislature. I may, however, call attention to the fact that the question as to the eligibility of the candidate for an office is one which the canvassing board can never pass upon, as, under all of the rulings of this court, its sole duty is to compile the returns and declare the result from the statements returned to it. It is manifest that the canvassing board, in the performance of its duty, will issue *269certificates to ineligible or disqualified persons as well as to those who are eligible and qualified to hold office. Now, suppose the people of certain districts, because of their great admiration for the distinguished persons whom I will name, and because of their desire to be represented by men of great ability, should by a majority of the votes in their respective districts elect William E. Gladstone and Prince Bismarck to represent them in the legislature, and certificates should be regularly issued to them: would any person contend that they might participate in the organization of the house because they held certificates? Will anyone claim that a citizen of Missouri who holds a certificate of election, even though he were in fact elected, has a right to participate in any proceeding of the legislature of this state?
Now, if these four members who are claimed to have been postmasters at the time of the election, and this one person who is alleged to have been a citizen of Oklahoma, were, in law, for these reasons, ineligible to be chosen as members of the legislature, whence comes the quorum of 63 or more legal votes by which Mr. Douglass was elected speaker? And if these six persons whose election is denied were not in fact elected, though they held certificates, how many votes which should be counted were cast for Mr. Douglass? It may be said, and it is assumed, that all of these persons had a right to vote, and were legal members of the legislature; but where is the power vested to decide this question ? Before this court can hold that Mr. Douglass is speaker of the house of representatives, it must hold that the five persons objected to as disqualified were qualified, and thereby assume the power conferred by the constitution on the house alone to judge of the qualifications of its own members; if it holds that the six persons, whom it is claimed were not in fact elected, were elected, it must assume the power given by the constitution to the house itself to judge of the election of its members; and when this court assumes to say that a certificate, or a certificate and the record in the secretary of state's office, are the ultimate and final proofs as to the right of an individual to *270participate in the organization of the house, it assumes the power given by the constitution to that house to judge of the returns of its members. It seems to me that the rule as declared is in its nature arbitrary and unjust, and tends to consequences far more mischievous than the rule established by the constitution. Much has been said with reference to the constitutional house of representatives. The constitution makes no provision whatever with reference to certificates of election. The mode of ascertaining and declaring the result of an election is purely a statutory matter. Certificates are issued, not in pursuance of a provision of the constitution, but in pursuance of a statute, and were the statute to establish any rule by which the articles of the constitution above quoted were contravened, that statute would be void. Only 54 members whose rights to seats were not contested at the time voted for Mr. Douglass. It is unnecessary to inquire how many voted for Mr. Dunsmore. It may be that all of the 58 who are said in the opinion to have been duly-qualified members were in fact such or not. A member of the senate or house is, in my judgment, always a political representative of the people, and the question as to his election, return and qualifications is always a political question, to be determined by the political departments of the state government.
Was Mr. Douglass, at the time this writ was issued, in possession of the office of speaker of the house of representatives? In other words, was he an officer de facto? The term de facto is defined by Burrill: “Of fact; from, arising out of, or founded on, fact; in fact; in deed; in point of fact; actually; really.” The proposition is stated with much force that there cannot be two de facto officers holding the same office at the same time. This proposition seems almost axiomatic. A de facto officer is one who is in possession of the office in such manner that he can discharge the duties thereof. The speaker of the house of representatives has various duties to discharge. He is the presiding officer of the house, and as such presiding officer discharges such duties as ordinarily devolve on the presiding officer of any deliberative *271body; but, in order to give any effect to the deliberations of the body over which he presides, as a branch of the lawmaking department of the state, he must be able to communicate in his official capacity with the senate and with the governor. Neither he, nor the body over which he presides, can possibly be in full possession of the powers respectively of speaker and house until their rights are recognized by the governor and the senate. It is shown in this case that neither the senate nor the governor, nor any executive department of the state, would recognize Mr. Douglass as such speaker. On the other hand, it is clearly shown that the senate, the governor, lieutenant governor, secretary of state, auditor, treasurer and state printer have recognized J. M. Dunsmore as the speaker of the house, and have gone on transacting public business with him as though he were in fact and of right the speaker, and have recognized the body over which he presides as the duly- and legally-constituted house of representatives. It is well known, not only to the legal profession but to the general public, that when the legislature is in session, this course of recognition and intercommunication between the governor and the two coordinate departments of the legislature must go on daily; and it has gone on from the 12th day of January to the time of this trial without cessation. And when we consider the fact that these are the coordinate political departments of the government, and that under the authorities hereinbefore cited, it is they, and they alone, who must decide political questions, can there be a doubt that, as a legal proposition, J. M. Dunsmore is de facto speaker of the house?
In the history of American politics, many of the most critical crises have developed in contests over the election of a speaker of the house of representatives of the United States, and over the presiding officers of the houses of the various state legislatures. Wherever political parties are nearly equal in strength, the contest for mastery centers on the organization of the legislative departments, and this it is that makes the election of a speaker of the house of representatives so *272peculiarly a political question, and for this reason, most of all, should controversies of this kind be withdrawn from the consideration of the courts, whose procedure should always be calm and deliberate, in accordance with fixed and settled principles, and entirely freed from those influences which have been found by experience too often, if not usually, bias the judgment of the strongest minds. In the case of The State v. Williams, 5 Wis. 308, it was held that courts take notice of the accession to office of officers under the constitution, and, while they remain in office and exercise the duties thereof, regard them as officers de facto. Generally, as respects third persons, the acts of an officer defacto are to be recognized as valid. Where a governor continued to hold over after the expiration of his term, and after taking the oath of office by his rightful successor on the assumption of his election and under the certificate of the state canvassers, and so continued the acting governor, his approval of an act of the legislature was held valid, as the act of an officer de facto.
The supreme court of Connecticut, in The State v. Carroll, 30 Conn. 449, lays down the rule with reference to de facto officers as follows (19 Am. Dec. 66):
“An officer defacto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid, so far as they involve the interests of the public and third persons, where the duties of the officer are exercised: (1) Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; (4) under color of an election or *273appointment by or pursuant to a public, unconstitutional law, before the same is adjudged to be such.”
And this definition is substantially recognized and adopted by nearly all the adjudications in the American courts of the present day. (Braidy v. Theritt, 17 Kas. 468; Ellis v. N. C. Institution, 68 N. C. 432; Threadgill v. T. C. C. Rld. Co., 73 id. 178; People v. Stanton, 73 id. 546; Burke v. Elliott, 4 Ired. 355; Brown v. Lunt, 37 Me. 423; People v. Lieb, 85 Ill. 484; Pierce v. Weare, 41 Iowa, 378; McLean v. The State, 8 Heisk. 22; Fowler v. Bebee, 9 Mass. 231; Sheehan’s Case, 122 id. 445; Mallett v. U. S. G. & S. M. Co., 1 Nev. 188; Ex parte Norris, 8 S. C. 408, decided in 1876 (where the validity of a pardon issued by Wade Hampton, while acting as defacto governor of South Carolina, was before the supreme court of that state for determination); Carleton v. People, 10 Mich. 250; Clark v. Commonwealth, 29 Pa. St. 129; Commonwealth v. McCombs, 56 id. 436; The State v. Williams, 5 Wis. 308.) But I do not deem it necessary to multiply authorities on the question as to when a person becomes an officer defacto. There can be no doubt under any rule that has been declared by any court that J. M. Dunsmore was, at the time this case was heard, the de facto speaker of the house of representatives, unless the body over which he presided was not composed of a sufficient number of lawfully-chosen representatives to constitute the house; and the only way in which his status, as such officer defacto, has been attacked, is by attacking the right of persons to sit in that house. In other words, we have had on trial, not the rights of one member individually to participate in the organization, but the rights of large numbers of persons acting collectively; and the court has decided the right of 64 persons in a lump to sit and vote in the house on its organization, while refusing to inquire into the right of any one of the 64 individuals to his seat. I conclude then:
1. That-all inquiries in a court of justice as to validity of any act of the legislature, or of either house thereof, is confined to the act itself, the journals of the house, and to such other records and permanent memorials as are provided by *274law; and that in no case can any court of justice, from the highest to the lowest, take the oral testimony of witnesses as to what transpired in the hall of the house of representatives in its organization or in the transaction of its business.
2. That the constitution vests in the house of representatives the sole and exclusive power to judge of the elections, returns and qualifications of its own members, and that the house cannot be divested of that power by anything less than an amendment to the state constitution.
3. That a certificate of election is but prima facie evidence of the election of the holder, and is neither conclusive on that fact, nor on the question as to the eligibility or qualifications of the holder, but that all these questions are to be determined by the house under its own rules, at such time and in such manner as it sees fit. That any declaration of this court as to the rules which must control a legislative body at its organization, or as to the force of such certificates, is an unwarranted expression on a subject over which courts have no jurisdiction.
4. That the question as to what body of men is the house of representatives at any given time is a political question, and can never be a proper subject of judicial inquiry,
5. The speaker of the house of representatives derives his authority solely from the house, and his title to that office cannot be drawn in question nor determined by any court or tribunal other than the house itself.
6. Where two different organizations are effected, each claiming to be the house of representatives, each having a person chosen as its speaker, each including within its numbers many persons whose rights to sit as members of the house are unquestioned, together with other persons whose rights are questioned, a political question is presented as to which of those two contending bodies and officers is in fact and in law the house and the speaker thereof.
7. Political controversies can only be determined by the political departments of the government; and while the constitution of the state does not contemplate such a condition of *275things, nor provide in express terms a tribunal before which their respective claims can be heard and determined, yet, under an unbroken chain of authorities in all countries where the common law prevails, the recognition of one of those bodies by the other political departments of the government, viz., the governor and the senate, is conclusive on the judiciary.
8. The decision of the governor and the senate is just as binding and conclusive where they refrain from enforcing their decisions by force as though they resorted to violence and bloodshed. In a country where laws are supreme, a premium should never be offered to induce violence, but a decision made by the lawfully-constituted authorities should always be acquiesced in by all good citizens.
Eor these reasons, I conclude that this court must take judicial notice that George L. Douglass was neither in fact nor in law speaker of the house of representatives, and had no authority to issue the warrant under which the petitioner is held.