The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1894-01-07
JUSTICE TO BE DONE
Continued from Fifth Page.)

Continued from Fifth Page)
missioner believe that the fact that the
county commissioners of S-dgwick county
after the Population had reached thirty
thousand, did not within the time pre-
scribsd by law create new districts, Was
| recognition aud adoption, it were, of
| the Legislative districts of the county as
commissioner districts. But 1t Is said
that III the agreed statement OF facts there
is nothing showing adoption. II is my
judgment Niat il the board of county COM
! missioners did not observe the provision of
! the statute after the population Of Sedg-
wick county had reached thirty thousand,
Tut that elections were thereafter held In
the representative districts or ter
! ritory co-extensive or cO-Fquat with
the Legislative districts, this was in
itself an adoption of the representa-
| tive districts as commissioner districts.
Bat there is more than this. The statute
| provides that after each general election
the board Of county commissioners shali
meet and Canvass the vote. They have al
ways done that. 1t is argued that toey
| met as a board OF canvassers, but the
statute says that the board of ,unty COM
missioDers shall meet aud proceed TO Can
vass the vote. think it is also recogni-
ton by reason or the fact that ali OF the
present members OF tne board of county
commissioners have been elected just as
Webb contends he was elected. All of
these things, and many Others which
might mention, which Can he gathered
from the agreed statement Of facts, shows
hat the board of county commissioners
have adopted this representative district
AS a commissioner district.
Another matter, supposing the position
upon that question is not correct, then l
say that he mere fact that the county COM
No ~ of
county as directed Or required by law, and
in view of the further fact that their failure
| to do so shall not defeat an election, the
fact that tue contestee, Webb. received q
majority or the highest number OF all The
votes Cast FOR county commissioner, would
entitle him to the position.
Another thing: Ia view of the peculiar
wording of the statute in reference to the
Office OF county commissioner, and in view
of the decisions OF the supreme court OF
the state of Kansas, the office of county
commissioners is somewhat different from
that of any other office in the county, in
this, that ordinarily all officers hold until
their successors are elected and qualified.
This is not SO with county commissioners.
Whenever the term of a county commits
siOner expires. from that time he ceases to
be a member of the board of county COM
mssiOners, and provision Is made for the
OF her two commissioners to select Il man
to act. On the Sth of January Mr..
Haden's term will have expired. and he
will cease to be II member of that board
He would cease whether there
The county commissioners having
failed to make division of the county,
the voters of the Sixty seventh representa-
tive district. which. ] think, by adoption
has become a commissioner district. have
cast the highest number of votes for the
contestee, Webb, and he is. in my judg-
ment, elected aud entitled to the office
l desire to say, in cOnciusiOn-and l do
not believe that question Was suggested in
the arguments OF counsel-that the SUI
preme court Of this state, as we'll as the
supreme court of the United States, has
recognized, aId would say emphasized,
the doctrine that courts ought not to de-
clare any law unconstitutional, unless it
is made clearly SO to appear. Putting it
in different way, it is equivalent to say
ing that the courts ought not
to declare law unconstitutional
if they have any doubt about it. |
believe that this is \ good doctrine. and l
go to the extent of recognizing the estab-
lished doctrine, that the courts ought not
to declare the action OF the legislative de-
partment of the state or government I'M
constitutional. unless clearly so.
There is another we'll recognized provis-
ion of the law in reference to elections,
which must refer TO in this connection,
and that ais, that all election laws should
be clearly and literally construed, TO the
end that the voice and intention Of the
people should receive recognition.
l bellows that the'maj oriLy of this court
mony with the expressed will
of the people on this ques-
ton, who voted for the Office
of county commissioner at the last gen.
eral election.
] have nothing further to say, except
that l desire TO say upon my own personal
responsibility, that | believe in the only
two instances IN which contest courts
have been organized in this county, which
was four years ago and the present time,
in each instance the conduct OF these
courts was such that it can be said that
the contest courts of this county have been
actuated by no other motive than the
faithful discharge OF their duties In each
instance it will be observed that the Of
flee has been given to the person whose
political affiliations have been different
from the court which gave him the Office
aud which decided in his favor. Ii is
true there is IA dissenting opinion IN this
case, but / know that the member giving
the dissenting opinion is asiconsclentlous
in the discharge of his duties, and as
honest in his convictions AS we who give
the majority opinion.
Judge Babb followed with a very able
opinion built upon broad basis. Unfor-
tunately Judge Bsbb's opinion could not
lie obtained, but it was in substance that
the people wanted Mr.. Webb as their COM
missioner and that the formation of the
district in which he was elected had been
recognized not only by the Legislature and
the commissioned, but by the people gen.
orally. In other words, Judge Babb
thought that the peoples will and wishes
should be regarded as paramount to every
other question. In thus thinking Judge
Babb went TO the very meat Of the ques-
ton.
Judge Stratton, dissenting. said he was
glat. the contestee was represented On the
bench by one of his own political faith as
it showed to The people the fairness that
had been aimed at liz the organization OF
the conrt aud in reaching decision; that
dissenting opinions were daily handed
down in the supreme courts and from
some OF these had grown some OF the best
points of law: that when he first entered on
this case the first question that faced him
Was the right OF The legislature to divide
the county; the county was here in terri
toriaI days and before the legislature that
undertook to divide it; that the leg stature
had the power 20 formulate general rules
and enact general laws; that all of
the constitution pointed 10 the recog
milton of the counties and provided
for the organization of the unoccupied
territory; that ever since 1863 there had
always been three commissioners, two OF
whom had held one year az least; Article
?, section l., of the constitution prov ides
that ali laws shall be general in their
nature and uniform IN their operation
throughout the state: that the legislature