The Corvallis gazette. [volume] (Corvallis, Or.) 1862-1899, 1880-05-14

| of our state tribunals, has right to make
any such inquiry, especially in an applica-
for writ of hapeas corpus, would, in, my
judgement, be incompatible with the dignity
Of the state, and feel compelled to refuse
any request of that character, based upon such
w. w. THAYER,
Governor of Oregon.
The Judge then proceeded to deliver his
opinion in the case. It's deliveay occupied
about one hour. The legal phases of the
haustive manner, which clearly showed that
the court had been very thoroughly advised
on the question. The following is very
brief synopsis of the decision and conclusion
of law
The petition for the writ is based upon the las
clause of section Of the XIVth amendment, which
provides mo state shall make or enforce any law
which shall abridge the privileges immunites Of
the citizens Of the United States nor shall any state
deprive any person of life, liberty property without
arly 1853
Judge Deadly then reviewed the application briefly
and IN commenting upon the power of the United
| States in the premises, said:
Congress has power to enforce the prohibitions
upon the action Of the state The amendment is the
supreme law of the land and within its limits the
GlOnaf government superior TO that the state
Congress has exercised this power in the passage OF
paragraph 1853 of the revised statutes which author
ICES the federal court to inquire by habeas corpus in
to the of restraint of liberty in the case of
any in custody by the actste violation of the
constitution or law Of the United States"
then the petititioner is restrained of his liberty
adjudged to lose his life without due prscess OF
law, he is by of the state violation of the
constitution of the United States-that is of para
this court has power and it is duty to relieve
him OF such restraint or adjudication The state acts
through persons ane their acts tdose of the state
was said in the parte Cole lately decided
by the supreme court at the present term
"We have said the prohibitions of the fouteenth
amendm ent are are addressed to the state They
are No State shall make enforce law which shall
abrde the privileges or imunites of citizens of the
United States nor deny to any person with
in its jurisdiction the equal protection of the law.
They have reference to the action of the political body
denomin5ted state, by whatever instruments or in
whatever modes that action may be taken. A state
acts by its legislature. its executive or its judicial
authorities 1t can act in no other way. The act
in other way. The constitutional provision there
FORE must mean that agency of the state the
officers agents by whom it powers are exerted,
shall deny to any person within its jurisnction the
equal protection OF the laws Whoever by virtue of
public opinion under state government, deprives
another OF property life liberty, without due pro-
cess OF law or eenies takes away the equal protec-
tion of the law violates the constitutional inhibition
and as he acts in the name and for the state and is
clothed with the states power his act is that of the
state This must be the constitutional inhibi-
tion means nothing Then the state has clothed one
of its agents with power to annul or eyade it,
Judge Deadly, in reviewing the power of the state,
said The state may deprive persons within its jurs-
due procesr OF law. The power to do this is taken
away from it by the constitution and if it should at
tempt to do SO id particular case, the United States
may prevent or correct the wrong.
Judge Dead then referred again to the amendment
and what constituted due process of law saying that
there were two upon this point by the supreme
court since the adoption of the fourteenth amend
ACKNOWLEDGEMENTS vs Nef, Otto 1888 Kennard
VS. State of Louisiana, Otto, 481
tot fha oIa of
which the Judge of the court in which the petitioner
was convicted was contrary to the constitution of the
state and void and therefore the conviction with
out due process OF law the court cited the
sion laws of 1873 and compared the same with the
of the state, and petitioners claim that
the act was void because there not 200 white
population in the state any evidence to that ef-
feet and also that paragraph 10 was void becavse
there was no authority providing for the appoint
ment of judges.
Upon the question of admitting the act void and
the judges if not judges de iure, the judges de
t ss couIt eieeo tne provisions OF the consttu
od OF oregon creating the courts and defining their
jurisdictiction, and said:
From these it plainly appears that the supreme and
ton They exist by virtue of its provisions AS pro-
vlded in that instrument, the judges of the former
are the judges Of the latter until the legislature in
the exercise OF the power conferred upon it by sec
uon ~ article provides for the election of separate
judges for the latter
The judges appointed under this act although it be
admitted that it is unconstitutional and the appoint
ments hereunder were made without authority of
law are therefore acting judges of lawfully created
and determine the criminal action in which the petit
toner has beeo convicted of murder and sentenced to
death, both originally and upon appeal
Counsel for the petitioner contend
Firs|Ihat person is not a de facto officer who
enters or holds office under void law. or an illegal
appointment, but only an intruder.
Second-That to constitute de facto officer the
person must appear to enter and hold under legal
ELECTION or r. appointment under color of right.
Third-That appointment cannot give color of
right to enter and hold an office which is elective and