The times. [volume] (Washington [D.C.]) 1897-1901, 1900-05-01

due process OF law? II seems to me that
upon the precedents of 100 years and of 100
cases that question can be answered in the
affirmative
In the case of Kilbourn VS. Thompson.
when the House of Representatives of Con-
gress had committed a citizen TO imprisOn-
ment fer alleged contempt. the Supreme
Court said the lower house of Congress was
not the final judge when the liberty of the
subject was involved. And So" said Mr..
Bruce. in many cases the Supreme Court
had held under the fourteenth amendment
that the State should not deprive the citi-
zen of any Of his rights without due pro-
cess of law
Recurring to the proceedings in Ken
lucky Mr.. Bruce said that whenever a
dart was thrown at them it fell upon that
ever-ready shield of conclusive presump-
tion. When it was asserted that there
had been no notice il was "conclusiveiy
shown that there was. because there
should have been. And the same when 1t
was shown that no evidence sustained the
claim of contestants. If that conclusive
presumption, assumed by the Court of APP
peals. were allowed to stand. the appeal
might as well be abandoned now The
adoption of the recommendation that Goe
bel be elected by the committee on contest
by the Legislature. Mr.. Bruce said. was
unjustified. They could have voted for
Goebel because they liked him. but there
was nothing in the record which justified
the adoption OF a resolution declaring that
Goebel had received the highest number of
votes 1t was an impossibility, he con-
tended. that no man could deny, to enter
judgment for plaintiff upon whom the
burden of proof rests in case involving
question Of right, in the absence of any
proof.
The refusal TO count the votes of the
forty nine counties in which a certain
kind of ballot was used was reviewed in
terms of sarcasm by Mr.. Bruce. who drew
from 1t the proposition that by the action
of the State itself the people Of those
counties had been deprived of their right
Of suffrage-by the conflict of two depart
ments of the State government. BY the
throwing out the votes of the $4,000 voters
in Louisville, SAID Mr. Bruce. the result
was changed and the office of Governor
given to another man.
Mr.. Maxwrlrs Argument.
After the recess for luncheon. Mr.. Law
renee Maxwell, of Cincinnati, former So
licitor General, opened the argument for
Governor Beckham- For one hundred years.
he said. the constitution of Kentucky had
provided that the election of Governor
should be finally adjudged and determined
by the Legislature. He read from the
election laws of the State to set before
the court the mode of procedure in con-
tested election cases. This was followed
in the present case. he said. and resulted
in the declaration by the Legislature that
Mr.. Goebel had received the highest num-
be- Of votes cast. and had been elected.
That formed the basis of Mr.. Beckhsm's
claim in the case. as successor TO Goebel
To this claim Taylor replied. first. that
the Legislature at the time OF making its
declaration was not in legal session. haV-
ing been prorogued 10 meet elsewhere.
The Court of Appeals in this case decided
that no power existed to prorogua the
Legislature. No Federal question was pre-
scented by that decision: second. that the
Legislature acted fraudulently. But the
Court of Appeals of the State had held
that the action of the Legislature could
not be attacked III that way. There was
no Federal question there. Taylor set up,
to get the case here. that in its action sUs-
tanning the action of the Legislature the
Court of Appeals had denied MIN the due
process of law. Before he could be de-
priyed of the due process of law he must
show that he had a title to something 10
be affected thereby.
The Court of Appeals had decided that
Taylor never had title to the office. con-
firmed by the duly constituted authority to
determine il. The court held that the Ger /
tificate of the Board of CanvasseTs was not I
final title; that the declaration by the I
Legislature was the definite determine
ton of matter that had hitherto been in
doubt. Taylor's reliance upon the board
certificate said MIR. Maxwell. was like 4
that of a man depending upon the iudg-
ment of a district court that had been re- 4
versed by the Supreme Court; like de-
pending upon an -interlocutory decree /
which had been suspended and superseded /
by final decree. Where the law of
State made the Legislature the final au-
thority in the settlement of election con-
tests all the decisions were to the effect
that its determination could not be re-
viewed by any power. Mr.. Maxwell recited
many precedents 10 sustain this. and his
contention was that the decision of the /
Court of Appeals of Kentucky raised no
Federal question for review.
The question" said Mr.. Maxwell. has /
been raised in every form in Ohio 1t /
might naturally be supposed by your hon
ors that it would for the appreciation of 4
Office in that state is very high and the /
right TO hold it as nalienable as the right /
to the pursuit of happiness" There was
no applause at this. but visible almost |
audible smile passed over the bench.
Mr.. Maxwell's quotations went also TO
the support of the contention that Office (
is not property, and that being deprived of .
it does not take away a persons property
without due process Of law in the sense of
the constitutional amendment.
Could the Supreme Court, asked Mr..
Maxweil. whose jurisdiction was confined
10 the discovery of error, find error in the
potion of the Court of Appeals of Kentucky
in its decision in this case?
One OF the charges made by Taylor upon
which he defended his right to the Office
OF Governor, imputed scandal to the record
Mr.. Maxwell read from the brief in sup
port OF Taylor the statement that the
record OF the Legislature was one of in
fanny marked with the trail Of the So
pent and showing the mailed hand OF ROB 4
berry. And because the Court CT Appeals
said TO them: You can't be heard 10 prove
those charges by parole testimony Tay-
lor SAYS he has been denied due procsss .
of law. No court would permit what the
defendant claimed the right TO do in this
connection TO be done.
The decision of the Court of AppeaIs .
that Taylor had never had a title TO tie ,
Office of Governor, in the opinion of Mr. .
Maxwell disposed of the contention that
the case presented Federal question Al 4
though Taylor had not been slow TO bur- I
den the record with declarations that if
the judgment of the Legislature were en-
forced he would be deprived of property
without due process of law. when the Su /
preme Court came TO examine the judg-
ment CT the highest court of the Stale
il would be found proceed upon the
theory that TAyicr never had title 10 7
the property which he claimed This te-
ing so. said Mr.. Maxwell. ''we think that
ti!s writ of error should be dismissed"