State ex rel. McKusick v. Peers

The constitution (section 3, article 4) makes each house judge “of the election, returns and eligibility of its own members.” Under this, not only must each house determine, in ease of a contest, who is elected to be a member, but must determine upon what evidence it will decide the question, and how it will procure such evidence. Over the proceedings the judiciary has no control, and could not have without trenching on the independence of the house. When testimony in case of a contest is taken, as provided by Gen. St. 1878, c. 1, §§ 49, 50, 51, it is for the house to which it is sent, and not for the courts, to decide whether it is properly taken. The powers vested in the two justices of the peace by those sections are not judicial, but rather such as might be vested in commissioners, or in a committee of one of the houses. They decide nothing. If they take improper testimony, the house may reject it; if they refuse to take proper testimony offered, the house may remand the matter to them, with directions to take and return the testimony offered. Over their actions the courts have no supervision any more than over the action of a committee of one of the houses. For this reason, the writ of prohibition will not issue to restrain them, unless they assume functions beyond those with which they are clothed by those sections, and judicial in their character.

*83As to the charge that the two justices, respondents, have issued subpoenas requiring public officers to produce before them public records in their custody, we will say that we do not think the section referred to gives the justices authority to require such records to be brought before them. There is no necessity for it. If certified copies would not suffice, if inspection of the originals should be necessary, the house has power to compel their production before it, or before a committee appointed by it. Nothing can be accomplished by giving the justices, who decide nothing, an inspection. But, though the officers would not be bound to produce the original records before the justices, it is a matter with which the relator has nothing to do. The writ, however, will not lie.

Writ dismissed.