The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1900-05-22
generally speaking, inconsistent with
either property or a contract right
Dissenting Opinions Are Heard.

either a property or a contract right.
Dissenting Opinions Are Heard.
After the chief justice had concluded
Justices McKenna, Brewer and Harlan
read opinions dissenting from the opin-
ion of the court, Justice Harlan en-
tirely and the others on certain points.
Justice Harlan quoted various author
tiles and then said:
Notwithstanding this adjudication,
the decision today is that this court
has no jurisdiction to inquire whether
the citizen has been deprived, without
due process of law, of an Office held
by him under the constitution and laws
of his state. If the contest between
the one holding the Office and the per-
son seeking to hold it is determined by
the legislature in a prescribed mode,
this court, it appears, cannot inquire
whether that mode was pursued and
cannot interfere for the protection of
the incumbent, even if the hnal act of
the legislature was cOnfessedly capri
ciOus and arbitrary, inconsistent with
the recognized principles that belong
to due process of law, and not based in
any degree on the evidence taken in
the contest. If the Kentucky legisla-
ture had wholly disregarded the mode
and without appointing a board of
had. by joint resolution simply de-
clared GOebel to be governor and es-
pecially if such action had been held
by the highest court of the state to be
conclusive. this court, as We are in
formed by the decision just rendered,
would be without jurisdiction to pro-
tect the incumbent, for the reason, as
is now adjudged, that the office in dis
pute is not properly within the mean
ing Of the fourteenth amendment.
Power Over Mules, Not Office
so. while we may inquire whether
the citizens land or his mules have
been taken from him by the legislative,
executive or JUDICIAL authorities, of his
state, without due process of law, we
may not inquire whether the legisla-
ture or judicial authorities of state
haveNwithout due process of law, GUST
ed one lawfully elected and holding the
office of governor. for a fixed term with
a salary which cannot be diminished
during such term, and put into his
place one whom the people have said
should not exercise the authority ap-
pertaining to that high position.
when the fourteenth amendment
forbade any state from depriving any
person Of life, liberty or property with
out due process Of law I had supposed
that the purpose was to guard citizens
against being deprived of any legal
right in violation Of the fundamental
guarantees that inhere in due process
of law"
But it seems that under our system
of government the right of a citizen to
exercise a state office to which he has
been lawfully elected by the people
may, so far as the constitution of the
United States is concerned, be taken
from him by the arbitrary action of a
state legislature in utter disregard Of
the principle that Anglo Saxon freemen
have for centuries deemed to be essen
tial to the requirements of due process
of law I cannot assent to this inter
probation OF the fourteenth amend
ment."
Justice McKenna stated that while he
cOncurred in the result, he was not pre-
pared to say that public office was not
property.
Justice Brewer also expressed views
antagonistic to those of the court on
the point Of office as property. He also
held the view that the United States
courts were not without jurisdiction,
but contended that the decision of the
Kentucky courts should be affirmed in
stead Of dismissing the writ of error.
He agreed with the court of appeals of
Kentucky that upon the award of the
assembly no other judgment can be
entered than that which Sustains it.