Kansas agitator. [volume] (Garnett, Kan.) 1890-1905, 1897-06-11
DOSTER'S DISSENT.
THE CHIEF JUSTICES OPIN-
ION IN THE DAVIS CASE.
Legislative Authority Minimized, While
That of tho Judiciary is Magnified-
The Judicial Tribunal Not Superior to
the Law Making Body.

Ter s uiSSeuIluS opinion III thc DaNiS
bribery contempt case, which was de-
cided by the supreme court against the
state:
81 dissent from the order dlscharg-
ing the prisoner, and dissent from all
that has been said by Justice Allen in
his opinion denying the power of the
Legislative committee to vindicate it.
self by an order of commitment. The
prisoners contention in this case con-
stitutcs striking instance of the lat
ter day tendency to minimize the
power of the legislative branch of the
government and extend and magnify
that of the judiciary. 1t has become
the fashion, as it were, for persons I'M
willing to subject themselves to the
wholesome provisions of legislative au-
thority to rush to the courts with
plea of persecution, and in the name
of some theory of popular right de-
mand immunity from the restraint
imposed SO frequently have the
judges yielded to the importu-
mites of this class that the fact
VI this being government OF
delegated Legislative power is becom-
ing obscured in the popular mind, and
its place usarped by fancy, nebulous
and indistinct but fast outlining and
shaping it. elf that the Judiciary is the
final and supreme authority, sitting in
censorship and correction over the
other branches of government. Gov
ernment by injunction and govern
ment by habeas corpus, and govern
ment by the courts, are really losing
those contemptuous and protesting
sieniGcations with which the terms
were first used, and are rapidly pass
ing into accepted theories of municipal
sovereignty
Like an infection, which, through
lack of preventive measures may de-
velop into type of permanent con-
stitutional disease, the virus of this
hercsy has so innoculated the body
polite as to endanger the very life of
the organic political system. Even in
this state, only four years ago, a ma
jority of the judges of this court as
sumcd the right to compose legisla-
tive dispute as to who were qualified to
sit as members of one of the Houses, and
this not upon any theory of constitu-
tional Interpretation but by the might
OF forces drawn out of that vast and
cavernous reservoir of authority called
judicial power Later probate
Judge of one of the counties of the
state swelled out in the inconsequence
of his Office to point of contact with
the supreme executive head of the
state, and actually had the temer-
ity to issue an order restraining
the governor, as commandment chief,
from mastering military company
out of the service; and this court, in
stead of resting it's denial of its right
to do so upon the clear ground of dis
tinction between the coordinate
independence one of another, as it
should have done, degraded the ques-
ton into one of mere statutory con-
struction and official practice. In
stances of which the above are char
acteristic are constantly occurring in
both state and federal courts, and in
my Judgment an imperative duty
rests upon the judiciary to disavow in
emphatic terms the extravagant meas
ures of authority SO frequently as
cribed to it.
sit is now too late for any effective
purpose to deny the right of the court
to sit in judgment upon acts of the
Legislature. Accumulated precedent
has esta blished such right beyond a
question of one or even many judges.
If, however, it were an open inquiry, |
would have no hesitation in denying
the existence of the jurisdiction as
sumed. No close student of the struc-
ture, history and philosophy of the
government, but will agree that the
exercise of such power was not within
the design of the trainers of either the
State or Federal constitution. The
question whether such power should
be conferred by express provisions was
debated in constitutional convention
of l7s-. Propositions to confer it were
repeatedly brought forward, and as
often put aside without decision.
FINALLY the one introduced by Mr..
Madison was put to a vote and re-
ceived the approval of Delaware,
Maryland and Virginia only. Mr.
Dickinson, during the course of the
debate, epitomized the objection to the
scheme in the pithy observation that
the judiciary of Aragon became by
degrees the law-giver,'
1.-THE first and principal act of mu-
nicipal control is the making of laws.
Leaving out of view for the moment
the people in their primary capacity
as fountain of authority, and look
ing only at the source from which it
directly and approximately proceeds,
it is inevitably perceived that power
resides alone in the legislative body,
and furthermore, that in a national
sense it is the only tribunal
to which primary power has or
can be confded. AS a depository
Of delegated authority, the Legisla-
ture is the only logical and necessary
provision of nature in it's bearing up
on the government of men. All other
powers are of secondary delegation
from it. Governors and judges are