Overriding the Veto

Governor Andrew Reeder vetoed every bill presented to him by the Bogus Legislature on the rather strange ground that the Legislature was meeting at the wrong place. There was no surprise in the move to the Shawnee Mission. The Westport Frontier News had early reported, when the members left for Pawnee, that they would only convene there and then immediately adjourn to the Mission. [Martin, Territorial and Military Combine, 368] All had been arranged with Thomas Johnson so that quarters would be available at a place Reeder considered too close to Missouri. [Connelly, Kansas and Kansans, Ch. 21] Governor Reeder deliberately chose a confrontation with the Bogus Legislature on the proper meeting place, and he got one.

Capitol Building Pawnee, 1855

The Bogus Legislature met in the unfinished building from July 2 until July 6, 1855.

As a part of Congress' grant of "popular sovereignty" to the Territorial Legislature, it gave the power to act on all "rightful subjects of legislation consistent with the Constitution of the United States and the provisions of the (Kansas-Nebraska) Act." The right to override a veto of the appointed Governor was included:

"...Every bill which shall have passed the Council and House of Representatives of the said Territory shall, before it become a law, be presented to the Governor of the Territory; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which, it shall likewise be reconsidered, and, if approved by two thirds of that house, it shall become a law..." [Kansas-Nebraska Act, Sec. 24]

Governor Reeder decided the Legislature should meet at Pawnee near Fort Riley and the Bogus Legislators did convene there long enough to seat pro- slavery members and reject the free-state members elected in the second, May 1855, election. Then, on July 4th, 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 the bill:

"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..."

Reeder's "several reasons" were:

  1. Legislative and Executive branches were independent and the legislative branch cannot order the executive to move;
  2. The Governor and his officers answered to the Federal Government under the Kansas-Nebraska Act and not to the Legislature;
  3. The temporary capitol was fixed by Congress at Ft. Leavenworth, the Governor was given the duty to fix the place of the first meeting of the Legislature, and the Legislature was given the right to choose the permanent capitol--these are three distinct matters, and the Legislature therefore had not acted consistently with the Kansas-Nebraska Act; and
  4. The move wasted time and money which are both in short supply. [House Journal, 29]

Reeder owned shares in the Pawnee town company [KSHS, John A. Halderman Collection, #370] and his conflict of interest was seized upon by his critics. Leverett Spring wrote:

"...when, the phrase of (Senator) Toombs of Georgia, 'they removed from Reeder's town to someone else's town,' then was there committed a monstrous and unpardonable sin. To be in the wrong place destroyed the constitutionality of the legislature. The circumstance that Governor Reeder was financially interested in the success of Pawnee, which the action of the legislature ruined, furnished his enemies with a convenient text for abusive discourse."

Spring thought the more probable explanation for Reeder's break with the Legislature was that:

"...repenting of his blunder in failing to set aside the March election, he took advantage of the adjournment, which was at the expense of some technicalities, as the most plausible excuse at hand for parting company with the legislature." [Spring, Kansas: The Prelude, 55]

The Governor vetoed the first two bills passed at the Shawnee Manual Labor School: a bill to "prevent the sale of liquor and games of chance within one mile of the Shawnee Manual Labor School" and an act establishing a ferry at Atchison on the Missouri River. He "saw nothing in the bills themselves, to prevent (his) sanction of them," but vetoed them for the same reasons expressed in his veto of the move from Pawnee. [House Journal 67ff] Of course, the Bogus Legislature overrode these vetoes too.

In its petition to President Pierce to remove Governor Reeder, the Bogus Legislature gave their reasons for the overrides. They argued against the logic of the Governor's veto message, pointed to his conflict of interest and spoke to the impracticality of meeting at Pawnee:

"... for the reasons that the requisite accommodations could not be had; where there were no facilities for communicating with their families or constituents; where they could not even find the common food to eat, unless at an enormous expense, there being no gardens yet made by the squatters; where the house in which we were expected to assemble, had no roof or floor on the Saturday preceding the Monday of our assembling, and for the completion of which the entire Sabbath, day and night, was desecrated by the continued labor of the mechanics; where at least one-half of the members, employes and almost all others who had assembled there for business or otherwise, had to camp out in wagons and tents during a rainy, hot season, and where cholera broke out as a consequence of the inadequate food and shelter, and where under all these circumstances of annoyance, they finally passed an act adjourning to this point, where ample accommodations are provided, and where the Governor himself had previously made it the seat of government..." [Connelly, Kansas and Kansans, Ch. 21]

The legislators also asserted that the courts were the right place for the powers of the Legislature to be decided, not in the Governor's office. The Kansas Supreme Court had, in fact, already "decided" the matter in a very unusual manner. On July 30, 1855, the court composed of presidential appointees Samuel Dexter Lecompte of Maryland, chief justice, Sanders W. Johnston of Ohio, and Rush Elmore of Alabama, issued a memorandum:

"The court having taken the communication (from the Legislature) under consideration, determined, in view of the importance of the subject, to respond as judges, but not as a court, to so much as presents the question of constitutionality of the acts, generally, of the legislative assembly, but declined to respond to the particular question embraced in the second clause of the resolution (whether competent for assembly to confer on the probate court jurisdiction, civil and criminal, concurrent with the district court)."

Justice Johnston, dissenting, pointed out that the court could not give an opinion to the Legislature about the legality its actions without a real case with real effected parties before it, and that the majority (both southern- born) had acted wrongly by "responding as judges, but not as a court":

"I do not concur in the action of the majority of the court. This application is, in my opinion, clearly extra-judicial. Any attempt by this court, in a matter not properly before it, or by a member of the court in his official character to change, direct of otherwise control the past action or future proceedings of the legislative assembly of the territory, involves the assumption of power of the most alarming character. My official duties and authority are limited by law, and, with my present view, I cannot consent to participate in any effort to overstep or transcend them."

The responses of Justices LeCompte and Elmore to the dissent were not recorded, but they later indirectly acknowledged the validity of laws passed at Shawnee Manual Labor School by enforcing those laws in the courts of Kansas Territory. [McCahon, Kansas Supreme Court Cases, Preface]

Charles Clark