In re The Petition of L. C. Gunn for A Writ of Habeas Corpus

• Decision Date: 11 March 1893
• Citation: 50 Kan. 155,32 P. 470
• Parties: In the matter of the Petition of L. C. GUNN for a Writ of Habeas Corpus
• Court: Kansas Supreme Court

32 P. 470

50 Kan. 155

In the matter of the Petition of L. C. GUNN for a Writ of Habeas Corpus

Supreme Court of Kansas

March 11, 1893

Decided January, 1893.

Original Proceeding in Habeas Corpus.

ACTION by L. C. Gunn to obtain his discharge from an arrest made by C. C. Clevenger, acting sergeant-at-arms of the house of representatives of the state, on the ground that such house was an illegal body, and such officer had no authority to make the arrest. Writ denied. A copy of the body of the petition is as follows:

"To the Honorable Judges of the Supreme Court of the State of Kansas:

"Your petitioner, L. C. Gunn, complains and respectfully represents that he is unlawfully restrained of his liberty by C. C Clevenger; that the pretended cause of his arrest and restraint from liberty is as follows, to wit: On or about the 13th day of February, 1893, certain members of the Kansas house of representatives assembled together, and pretended then and there to act as the regularly-constituted and organized house of representatives under and by virtue of the laws of the state of Kansas, and passed a resolution declaring your petitioner to be in contempt of said body, for not obeying a certain pretended subpoena to appear before the said body. Your petitioner further alleges, that under and by virtue of said resolution, one George L. Douglass, who then and there pretended to be acting as the speaker of the house of representatives of the state of Kansas, did issue and cause to be issued, over his signature, a warrant directed to the said C. C. Clevenger, who was then and there acting as sergeant-at-arms of the said pretended organized or pretended house of representatives; that the said warrant was then and there duly certified by one Frank L. Brown, who was acting as clerk of the said pretended house of representatives. Your petitioner further says, that on or about the 15th day of February, 1893, the said C. C. Clevenger, under and by virtue of said pretended warrant issued by the said George L Douglass as aforesaid, forcibly, and against the protest of your petitioner, apprehended your petitioner and took him into custody, in the city of Parsons, county of Labette state of Kansas. Your petitioner further alleges, that the said C. C. Clevenger, acting under and by virtue of said pretended warrant, still holds your petitioner in custody and in restraint of his liberty, a copy of which said warrant is hereto attached and marked 'Exhibit A,' and made a part of this petition. Your petitioner states that the said arrest is illegal in this, that the said George L. Douglass had no authority or power in law to issue said warrant; that the said George L. Douglass is not the speaker of the regularly-organized house of representatives of the state of Kansas, and that the said C. C. Clevenger has no right or authority to restrain your petitioner by reason of such pretended warrant issued as aforesaid. Wherefore, your petitioner asks that a writ of habeas corpus may be granted, and that he may be discharged from such unlawful imprisonment."

A copy of the return made by Clevenger, justifying the arrest of Gunn, is as follows:

"C. C. Clevenger, sergeant-at-arms of the house of representatives of the state of Kansas, to whom the within writ is directed, returns the same, and has now here before the court the body of L. C. Gunn, therein named, as thereby commanded. And I certify that the cause of the restraint and detention of the said L. C. Gunn is by virtue of a certain warrant issued by George L. Douglass, as speaker of the house of representatives, a true copy of which is attached to the petition herein in this case as 'Exhibit A,' and issued in the manner and under the circumstances set forth in the petition. But the respondent alleges that said detention is lawful, and in support hereof alleges that said warrant of arrest was issued and placed in the hands of respondent as sergeant-at-arms of the house of representatives of the state of Kansas, because of certain proceedings had by the committee on elections of said house of representatives, which had been regularly appointed by the speaker subsequent to the organization of said house; that said committee on elections was regularly investigating and considering certain contest cases then pending before it, wherein one D. M. Bender was contestant and John L. Humphrey was contestee, and claiming to be a member of said house of representatives; that in furtherance of the investigation of said committee in said case, and for the purpose of securing testimony therein, said house of representatives caused a subpoena to be issued commanding said L. C. Gunn to appear before it as a witness to testify in said contest case, which said subpoena was duly served on said L. C. Gunn on the 21st day of January, 1893, by delivering to him a copy thereof at the place of his residence, in Labette county, Kansas; that said witness refused and failed to obey the command of said subpoena, and did not appear as a witness, but refused so to do; that thereafter, on the 13th day of February, 1893, said committee on elections reported said facts with reference to the serving of the subpoena upon said witness, and his refusal to appear; that thereupon said proceedings were had in said house of representatives with reference thereto; that a resolution was duly adopted by said house on the 13th day of February, 1893, and it is set out in said warrant, and pursuant to said resolution said warrant was issued, and said L. C. Gunn placed under arrest, and is now held; that said respondent has not had time previous to the issuance of the writ in this case, subsequent to the arrest of said L. C. Gunn, to present him at the bar of the house of representatives, as in said warrant commanded. Said respondent further says, that at the time of the issuance of said warrant, and that at the time of the proceedings had previous thereto, concerning the matters out of which the issuance of said warrant grew, said George L. Douglass, who issued said warrant, was the legally-elected and qualified speaker of the house of representatives, and that Frank L. Brown was the legally-elected and qualified chief clerk of the house of representatives of the state of Kansas, it theretofore having been duly organized as the house of representatives, and that at the time of the doing of all of the matters herein referred to there being a majority of all the members of said house of representatives present and participating in the proceedings of said house."

A copy of the traverse filed to a part of the return is as follows:

"And now comes said L. C. Gunn, petitioner herein, and controverts the return made by said C. C. Clevenger to the writ of habeas corpus herein, in these particulars, to wit: Said petitioner denies, first, that said George L. Douglass is or has been speaker of the house of representatives of the state of Kansas; second, that said Frank L. Brown is or has been chief clerk of the house of representatives of the state of Kansas; third, that said C. C. Clevenger is or has been sergeant-at-arms of the house of representatives of the state of Kansas; fourth, that there is or has been at any time pending before the committee on elections of the house of representatives of the state of Kansas any contest proceeding or case between said D. M. Bender and said John L. Humphrey; fifth, that the house of representatives of the state of Kansas ever caused any subpoena to be issued commanding your petitioner to appear before said house or said committee to testify in any case or proceeding whatsoever; that any such subpoena was ever served upon your petitioner by any person or in any manner; or that your petitioner ever failed or refused to obey any subpoena issued by or under the direction of the house of representatives of the state of Kansas; sixth, that the committee on elections of the house of representatives of the state of Kansas, on the 13th day of February, 1893, or at any other time, made any report to said house that your petitioner had been served with a subpoena and had refused to appear, nor any other fact or statement whatever concerning the issuing or service upon the petitioner of any subpoena, nor concerning any refusal of his to obey any subpoena or to appear; seventh, that the house of representatives of the state of Kansas, on the 13th day of February, 1893, or at any other time, ever adopted any resolution adjudging said petitioner to be in contempt of said house for any cause or matter whatsoever, or authorizing or requiring the speaker of said house to issue his warrant to the sergeant-at-arms of said house, or to any other person, commanding the arrest of your petitioner to answer as for a contempt of said house in refusing to comply with any order of the committee on elections of said house, or in any other respect, or commanding his arrest for any cause or for any purpose whatsoever; eighth, said petitioner further denies generally each and every statement in said return save that he is restrained of his liberty by the said C. C. Clevenger; ninth, said petitioner further avers, that he is by said C. C. Clevenger restrained of his liberty in violation of the fourteenth amendment to the constitution of the United States, and is by said C. C. Clevenger deprived of his liberty without due process of law."

All other material facts are stated in the opinion, filed March 11, 1893.

Petitioner remanded.

Eugene Hagan, for petitioner.

Noah Allen, assistant attorney general, G. C. Clemens, Frank Doster, and W. C. Webb, for the governor.

For the petitioner, points were made and authorities cited, as follows:

It is a settled rule that, even where courts have power to inquire into the right of an officer to perform...