Hutchinson gazette. [volume] (Hutchinson, Kan.) 1895-1902, 1897-06-10
ALLEN OUT. posrER TO BAT.


kindly received among the pOpulist
voters OF the State. The rank and file
of the voters are justly indignant at
the last legislature for certain appear
ances of shady transactions, and they
wished to see them probed TO the
bottom. OF course, there are few who
ere able to give a clear and sufficient
judgment as to what the law might
be, but so long as Il was such that such
lawyer as Chief Justice DOster
would say was sufficient In a dissent
ing opinion, the people will incline to
believe that it should have been up
held. In this decision Justice Allen
and the republican, Judge Johnson,
voted together. Mr.. Allen has been
an excellent judge. He has attained
a good standing among lawyers, and
this is the first case IN which his Opn-
ion has run counter to what the peO-
pie have thought it should be. But it
is possible that this decision may lose
him the nomination for reelection. 1t
is now very doubtful whether any more
testimony can be secured of any value.
However an effort should be made to
get it If possible.
Judge Doster's dissenting opinion is
4 mastery and powerful one. He ex-
cOriates the courts for their Inscriptions
of power, in way that is beautiful to
behold. Among other things he says
1T is now too late for any effective
purpose to deny the right Of the court
to sit in judgment upon acts Ofthe leg
islsture. Accumulated precedent has
established such right beyond a ques-
tlOn of one or even many judges. If,
however, it were an open inquiry, l
would have no hesitation in denying
the existence Of the jurisdiction as
sumed. No close student of the struc-
ture, philosophy and history Of the gov
eminent but will agree that the exer-
else Of such power was not within the
design of the trainers of either the
State or federal constitution.
Jurisdiction, like appetite, grows by
what it Is fed upon. One assumption
of power by the courts has but given
courage and capacity for another, until
from hesitating, apologize refusal to
effectuate Legislative acts, clearly VIC
lative of constitutional right, we have
grown to arrOgate the prerOgative of
controlling executive acts, settling
questions of legislative membership,
condemning forms of legislative pro-
cedure, enjOining the enforcement of
legislative provisions, marking out the
scope and policy Of legislative inquiries
and generally Of directing the plan and
supervising the machinery of political
government. So far as am concerned
| shall refuse to join in any assumption
of constitutional jurisdiction beyond
those boundaries which are already de-
fined and defended by impregnable
walls of precedent and yielded over as
undisputed ground.
The first and principal act of NUM-
cipal control is the making of laws.
Leaving out Of view for a moment. the
people in their primary capacity as a
fountain of authority and looking only
at the source from which it directly and
prOximately proceeds, it is inevitably
perceived that power resides alone in
the legislative body and furthermore
that in a natural sense it is the only
tribunal to which primary power has
or can be conhded, AS a depository of
delegated authority the legislature is
the only logical and necessary provision
of nature in its bearing upon the gov
ernment of men. AllOther powers are
of secondary delegation from it. Coy
errors and judges are but preachers of
legislative fashioning and executioners
OF legislative will. Ina social economy
determined upon principles of natural
law there is no provision of executive
or judicial office. 1t is only because
the subjects of municipal law do not
always yield that ready obedience nee
essary to an orderly social state that
the legislative will must create an
agency for its vindicatiOn; and this is
all it does create, and these are all the
POWERS that do exist-legislative and
executive. Among the divisions Of
government aUalytically considered
there is no such thing as judicial
power. What we call by that name is
a function of executive power merely
l do not believe 1t was the intention
of the masters of political science who
framed and seS in motion the machin-
cry Of this government to disregard
the fundamental character OF leglsla-
tive and executive power, and of ju-
dicial power sOcalled, and invert the
order OF nature by elevating the agent:
the creature above the creator, and
magnify mere function of one of the
parts Of the system into the life and
dominance Of tho qvatap, itsaIg %