The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1898-12-14
HIGH COURTS POLITICS
Ex-ATTORNEY GENERALS BRIEF IN
APPELLATE CASE REHEARING.
Recalls the Famous United States SUI
Dreme Court Decision over
1876 Election.

Ex-Attorney General Ketcham yesterday
filed petition in the Supreme Court for a
rehearing of the case of the Appellate
judges The petition IS a significant one, for
the reason that the court, when it decided
against the State Board of Elections COM
mission, was composed Of three Demo-
cratic and two Republican judges and the
decision Of the Democratic judges was in
favor of the Democratic appellants while
the Republican judges stood for the posi-
ton of the State Board of Elections Com
missioners. The petition filed yesterday was
as follows:
The appellee petitions the court to with
draw the original and the dissenting opin-
IONS flied herein on the 18th day of october,
I69S, ana TO grant to 1T reheaT1ng Tor the
reason that the court erred in holding that
the REALTORS had the right to maintain
joint action to compel the names OF all the
candidates for Appellate judge to be placed
upon the ticket TO be voted for; in holding
that the act of Jan. y, 1897, was uncon-
sttutional, in so far as it was calculated to,
or did, obviate the necessity for an election
OF judges of the Appellate Court at the
general election to be held in 1898.
In his brief, accompanying the petition,
Mr.. l<etcham said, in part: 1T would be a
matter of ceaseless regret to me, if, in the
closing days of my official career, by any
tnadyertence, carelessness OF preparation,
or insutiiciency or lack Of clearness in ar
gument the General Assembly of the State,
by the decision of this court. should be
shorn Of it's proper constitutional powers
and duties. The case, as it stands now, IS
in quite unusual. attitude. 1t is wholly
immaterial to the appellant REALTORS, in the
capacity of candidates, to be voted for at
the recent election. what the law or the
constitutional construction shall be. it IS
equally jmmaterial to the election commits
sioners what the law of the case. or the
constitutional construction as appied 10
the questions presented by the record, may
be. So far as the appellants, the appelleeS,
the Appellate Court judges, the people or
any person or officer entitled to intervene
or be heard in this case, Is concerned the
question is now simply a moot court ques-
ton, a blank, barren ideality. The only
entity interested in any other or different
decision than that reached by this court IS
the General Assembly. in the protection of
its constitutional rights, in trust for the
people, and the officers, or those who nave
been officers, acting for the people and the
General Assembly, to see that on the one
hand the rights Of the General Assembly
shall not be invaded. nor, on the other hand,
that the rights of the people shall not be
restricted. When the questions presented by
this record were argued, there were ad-
verse parties; the REALTORS having a per-
sona1 official and pecuniary interest in its
being decided the one way. the appellee
having an official and possibly. political
interest in having il decided the other way.
Either the Constitution was wounded in the
General Assembly when the act of Jan. IS.
1897, was passed or the Constitution has
been infracted by the decision of this court
and just and proper power belonging TO
the General Assembly has been denied to
it by the adjudication of this court
POLITICS OF THE JUDGES.
'I think I can. therefore. safely say that
there is every reason why the prevailing
opinion in this case, holding the act Of 1897
unconstitutional, should be withdrawn from,
inasmuch as there is now, at least, no ne
cessty for adhering to the doctrine enun-
ciated in the prevailing opinion and the
whole case can, without any possible injury
to any interest, private or public, be dis
posed of without denying to the General
Assembly the power that it claimed and at
tempted to exercise. / cannot but feel that
1t was ana IS a matter of profound regret,
that in arriving at a conclusion, it should
be apparent that judges who are known
TO be Of one political faith reached one
conclusion. while Judges known to be of the
other political faieh reached the other con-
clusion, and this wholly without reference
to the conclusion that was arrived at. When
ever, from the opinions announced, 1t be-
comes apparent from those opinions, that
judges of one political faith sOlidly believe
an act unconstitutional, while Judges of an
other political faith solemnly believe 1t to
be constitutional it goes without saying
that the unlearned In law are coerced to
the conclusion that a question of law is,
after all a question of political faith and
not q question Of purely mental processes.
I'm the dim past ii used TO be supposed
that when Judges dOnncd the judicial err
mine they laid aside their precOnceived no.
tons and approached the consideration of
political, other questions, with profound
reverence and utterly free from preCon-
ceiVed ideas The lesson that this country
learned in 1877, where learned judges. for
whom there was no higher step possible III
official life, ranged themselves, each on the
side of the political party to when he be-
longed, came as a shock to the conscience
and intellect of the country. But since then
it has been well understood that the water
was always tinged by the soil through
which it percolated. and that intellect IS al
fected by social political and other sur
roundings-with entire honesty, 1t is true
and vet, it is unfortunate that such should
be the case, as it is inevitable that decisions
so announced do not receive the nearly
moral support that ought to always follow
decision when announced by the highest
court to which the question can be sub
mitted | think it equally unfortunate or
perhaps more so. that the learned chief JUS
tice of the court, at the time mad, IN pup
lshed interview, shortly following the pas
sage of the act announced his opinion as
time that he did so for the reason Ihat
he would never be called upon TO SIT IN
Judgment upon the question; and yet he did
Not less unfortunate was 1T that the learned
Judge who handed down the prevailing opin-
ion-in whose absolute integrity, impafuaI-
ity and conscientious freedom from personal
or partisan bias the writer Of this DrleI
had the most absolute and Implicit conIlo
dence-had with respect to the act Oh 1875
upon its passage formed the opinion that
it was unconstitutional, and thus necessarily
came to the consideration of this case with
the preconceived opinion not as q partisan.
hut as a Judge. that the Legislature OF 1871