Transcribed from A Standard History of Kansas and Kansans, written and compiled by William E. Connelley, Chicago : Lewis, 1918. 5 v. (lvi, 2731 p., [228] leaves of plates) : ill., maps (some fold.), ports. ; 27 cm.

1918 KANSAS AND KANSANS Chapter 21 Part 2

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

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

To the House of Representatives of the Territory of Kansas:

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

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

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

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

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

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

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

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

It follows then that the Legislative Assembly has no right to prescribe where the office of the Executive shall be held, except by means of the establishment of a seat of government, and that they are confined to the fixing of a permanent and not a temporary one, and it would seem equally clear that as Congress has provided for the place of their first meeting, for the temporary seat of government, and also for the permanent seat of government, that it was their intention that the Legislature should sit only at one place of the three.

Conclusive as this view of the case appears, I may add that I cannot perceive the expediency of the bill. The effect will be at once to adjourn your present session to the place mentioned, and whilst I am prepared to admit that the Legislative Assembly are satisfied of the existence of sufficient reasons for this step, their reasons are not apparent or convincing to me; and on the other hand, it is the loss of the time (more valuable because limited) which our organic law allots to the Legislative session, and because it will involve a pecuniary loss in view of the arrangements which have been made at this place for our accommodation.

A. H. REEDER, Governor.

EXECUTIVE DEPARTMENT, July 6, 1855.

The bill was promptly passed over his veto. The Legislature then adjourned to meet at the Shawnee Mission on the 16th day of July. This was the culmination of the contest between Governor Reeder and the Territorial Legislature.

Governor Reeder was deeply humiliated, and realized that it would be impossible for him to act in conjunction with the Legislature at its forthcoming session. He was completely defeated. The Legislature had shown that it did not intend to be governed by his suggestions, and that his official actions would be entirely ignored. He, however, went to the Shawnee Mission, and was present at the opening of the session on the 16th day of July. The Legislature had in mind one thing while the Governor had in mind an entirely different thing. He designed a Code of laws for the good of the Territory, and under which the Territory might develop and determine for itself in the usual way what its institutions would be. The Legislature had determined that it would establish slavery in Kansas through the legal machinery, under the Organic Act, that machinery being its own body. No one was deceived as to what it would attempt to do. Every thing else was subordinate to this intention. The first bill passed at the adjourned session was for the establishment of a ferry over the Missouri River at the town of Kickapoo. When this bill was laid before the Governor, he immediately wrote a message overthrowing it. In his message he informed the Legislature that it was an illegal body and had no right to enact any legislation whatever. His ground for that conclusion was that the Legislature had taken itself from the legally established seat of government and gone into session at a place not the seat of government. This message was dated at Shawnee Methodist Mission, July 21, 1855. Upon this issue the Legislature requested the decision of the United States Court of the Territory. The question was submitted through the United States District Attorney, and the decision was handed down by Chief Justice Lecompte. This decision settled the legality of the action of the Legislature in favor of that body, and, while it was always contended by the Free-State people that the Legislature was, in fact, no Legislature, and had no right to enact laws for Kansas Territory, there is now no doubt but that it was a legally constituted body, having the recognition of the President, and having the right to enact laws.

Having thus fortified itself, the Legislature determined to secure the removal of Governor Reeder, if it were possible to do so. A Memorial to President Pierce was drawn up preferring various charges against the Governor and asking for his removal from office. The Governor was vulnerable, and many of his actions had been laid before the President for investigation prior to his visit to Washington. Senator Atchison had determined upon the removal of Reeder immediately after the election for Delegate to Congress. In his interview with the President, Governor Reeder had been compelled to admit that he owned lots in the towns of Leavenworth, Lawrence, Tecumseh, Pawnee and divers other projected towns in Kansas Territory. These lots he had secured at a low rate, which, even then, was probably much in excess of their true value. Some of these towns probably gave the Governor lots hoping to secure his influence in their aspiration to become the capital of the Territory. He had purchased land near Topeka and near Lawrence, and his friends had invested in property in the Territory. He had notified the Pawnee Town Association in December, 1854, that he would make that town the capital of Kansas. He had secured, or had taken steps to secure, a considerable body of land near that town. It is very unfortunate that he had entered into this speculation, for it was now seized on by his enemies as an excuse for his removal. There was nothing wrong about his having secured this property, for there is no doubt that he had as good a right to invest his money in Kansas as did any other citizen. When he left the President in this last interview, Mr. Pierce had told him that if he removed him, it would be because of his land speculation, saying, "Well, I shall not remove you on account of your political actions. If I remove you at all it will be on account of your speculation in the lands of the Territory." The President had urged him to resign, promising him another position. This the Governor did not wish to accept. He returned to Kansas and took up the fight with the Legislature, as we have seen. The Memorial from the Legislature to the President, requesting the removal of Governor Reeder, was as follows:

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A Standard History of Kansas and Kansans , written and compiled by William E. Connelley, transcribed by Carolyn Ward, 1998.

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