The Kinsley graphic. [volume] (Kinsley, Kan.) 1890-1940, 1893-03-03
THE P0PULIsT sIDE.
D.ssent.Qg Op.uion OF Judge Allen,
OF the Supreme Court


After Chief Justice Horton delivered
the opinion Of the supreme court at To-
pelsa sustaining the legality Of the
Organization Of the Douglass (repub-
lieaH) house, Justice Allen delivered a !
dissenting Opinios.s He said:
The questions involved in this ease
are perhaps Of greater Importance than
those of any other that has ever come
before this court They involve the con
stitutional powers, rights and duties
that are distributed by the fundamental
law among the several departments OF
the government Each of the three
Preme within its own sphere and is aSs-8
countabie only to the pc Op'e.
The justice Prsfaced his remarks
with the statement that he had not lad
time to give the case tlse attrn Jon
which its magnitude demanded, and he
reserved the right when he prepared
his written opinion to correct any err
rors he might now make
After briefly re-statiHg the salient
facts in the case the justice said that in
the collateral proceeding the court was
called upon to decide the question Of
right betWeen these two cOntendigg
bodies. 1t swas conceded in the argu-
ment that the courtGvoutd not have that
power IN an action brought directly by
one Of these contcnding bodies against
the other. The power OF this court,
then, is only advisory 1t has no au-
thority to go into the case and decide it
Upon its merits. It is necessary that
coptroversies of this kind should be set
eled and that tbs power to settle tLem
should somewhere be lodged. But has
this court that Power?o 1t is conceded
in the remarks Of the chief justice that
the constitution has not rePos7ed that
power in this court. Them 1 ask, can
the court. in a collateral action, do That
/ which it cannot IN q direct prOoeeIing2
ManifestIy not
The judge here read certsin sections
/ from the cons titution, pertinent to the
/ case. The governor, under the cJusti-
| tuition is required TO communicate with
/ the legislature by what is known Il
| message. In doing SO he must neces-
! sarily ascertain what is she house of
| representatives The senate3 likewise,
must determine which IS the house of
| representatives, in order that it may
/ comnunicatssyvit it, and do business
/ with ii. The justice was in the senate
/ at the time the resolution looking to-
| ward the recognition of thS Duusmore
/ house was under discussion, and repub-
| lican senators admitted Shat if that
/ resolution was passed the whole ques-
| ton was concluded, and that that
| recognition was "a final judgment and
/ decisioB of tine power Svhich, by the
/ constitution and the laws, was. author
| lied to finally determine the ques ton.
The judicial power of the senate was
! illustrated by a reference to a former
! status of the senate of New York, and
i of the English house of lords. as the
| highest judicial tribunals in their re-
| spective sovereignties
The justice referred briefly TO the
claim made in favor Of the legality Of
the Douglass house and called alton
ton to the fact that two of the so-called
certifcated members were postmasters
Mt the time of their election and there
fore ineligible to sit All the pre-
sumptions of law are in favor of the
| Dunsmore house, because the law pre-
sumes that meme sworn to perform tllaAr
duties will execute their trusts with
| fidelity.
The scope and effect of Judge Hazen's
| opinion is simply to restrain the treas
! urer 'fr0m paying out any money Hntil
| the questions ate issue in the district
court are finally settled Theotiue al
/ lotted by the constitution for the pres
ent session is almost at an end, and the
! effect of the decision of the court must
necessarily be TO deprive the state of
/ any legislation from this session. . such
thing was never contemplated by the
trainers of the, cons titltion.
Every act essential to give the Duns-
more house legality and force has bsen
performed Even the publisheS of the
state paper, whose political senti nents
are opposed to the admin stration, has
1 published the laws passed by this legis-
lature. 1T seems to me that tho most
miscellaneous consequences must eusue
from the position taken by the ma jority
Of this court
For the reasons stated, and for 9th
ers, with much hesitaney and great re-
luctance, ] am forced TO dissent, and
radically dissent from the views enter,
tanned by the majority of this court"