The times. [volume] (Washington [D.C.]) 1897-1901, 1900-05-22
of similar deprivation. Writ of error dis-

| the point that office is not property. Ii ha
been so decided. and properly, by the Su
preme Court number OF times. he said
If the court could. take Jurisdiction OF tn
contest between ThAyer and Boyd. decide
by the Supreme Court OF Nebraska, Justic
Brewer said he saw no reason why til
} court could not review the judgment Of tn
Court Of Appeals of Kentucky. Therefore
! while not concurring in the order OF dis
missal. he believed the judgment of tt
Kentucky court should be affirmed. Jus
tice Brown concurred with Justice Brewer
Justice Harlan Dissents.
Justice Harlan. for many years resi-
dent of Kentucky. dissen.ed utterly from
the judgment of the court. holding tina
the judgment of the Court OF Appeals o
Kentucky should be reversed.
The facts were. he said, that Taylor hat
been legally and regularly elected Govern
OR of Kentucky at the election, and Goete
and Beckt instituted contests. which the
Legislature approved. and which the Cour
of Appeals refused to disturb. his court
| he said, has refused to consider the at o.
of the Kentucky court, because office wss
not property. The question turned upon
| the construction of the fourteenth amend
ment, Justice Harlan said, and b. this con-
|
| referred to by Justice Brewer, four in the
past twenty-five years. in all OF which the
! court took jurisdiction on the ground that
/, office was property within the meaning Of
| the fourteenth amendment
| In conclusion, Justice Harlan said:
Notwithstanding these adjudications.
| the decision today is that this court has
no jurisdiction to enquire whether the cit
izen has been deprived withou. due process
1 liz h.
| constitution and the laws of the State.
The contest between the one holding the
office and the person seeking to hold 1t is
| deterninable by the Legislature In pre-
scribed mode, this court. it appears. can
! not enquire whether that mode was pur-
| sued, and cannot interfere for the protec-
| ton of the incumbent. even II the linal &C
| tion of the Legislature was confessedly
| capricious and arbitrary. inconsistent With
the recognized principles that belong to due
| process of law and not based. in any de-
gree, on the evidence taken in the con-
test.
IF the Kentucky Legislature had wholly
disregarded the mode prescribed by the
statutes of that State, and without ap
pointing board Of contest composed OF its
own members. had by joint resolution
simply. declared Goebel to he Governor
and especially IL such action had been held
by the highest court Of the State to be
conclusive, this Court, as we are informed
by the decision Just rendered. would be
without jurisdiction to protect the in
oumbent for the reason. as is now ad-
judged that the Office in dispute is not
property within the me4ning of the Four
teenth AmendmenE
$50 that while We may enquire whether
the citizens land Dr. his mules have been
taken from him by the legislative, execu-
tive or judicial authorities of his State,
without due process ofslaw. we may not
enquire whether the Legislative or judicial
authorities of a State have. without due
process of law, ousted Que lawfully elected
and holding the office of Governor for
fixed term, with afsalary which cannot be
diminished during such term, and put into
his place one whom the people have said
should not exercise the authority apper-
tanning to that high position.
The Fourteenth Amendment.
when the fourteenth amendment for
babe any State from depriving any person
of life. liberty. Of property without due
process of law. L had supposed that the
purpose was to guard citizens against be-
ing deprived of any legal right in viola
ton of the fundamental guarantees tha,
inhere in due process Of law"
But it seems that under our system
Of government the right OF the citizen to
exercise a State Office to which he has
been lawfully elected by the people ma
SO far as the Constitution of the United
States is concerned, be taken from him
by the arbitrary action of a State Legis
lature in utter disregard of the principle
that Anglo Saxon freemen have for CEN
turtles deemed to be essential in the re-
quirement of due process Of law. cannot |
assent to this Interpretation of the four
teenth amendment. What did we mean |
when recently in Wilson versus North |
Carolina (which was a contest about a !
local office) We said: The jurisdiction OF |
this court would only exist in case there |
had been, by reason of the statute and |
under IL. such plain and |
substantial departure from the fundamen-
tai principles upon which our Government
is based that it could with truth and pro-
priety be said that II the judgment were
suffered to remain the party aggrieved
would be deprived of his life. liberty, or
property in violation of provisions of the
Federal Constitution
1T Is to be regretted that a case like
this should be the occasion of a departure
from principles heretofore announced and
acted upon by this court. Looking into
the record of this case / find such ac-
ton to have been taken as was discredta-
Bile to the body claiming to be the Leg
stature of Kentucky and which assumed
TO be acting in accordance with law.
An Arbitrary Declaration.
at openly and defiantly trampled upon
he will of the people expressed at the
ballot box. 1t struck at the very founda-
ion of liberty regulated by law. | find
ilso that the declaration OF the body of |
gentlemen claiming to be the Kentucky
legislature was purely arbitrary because
made without looking at all into the evil
ence.
Il say this because tas stated by coun- :
ell. and not disputed at the argument the
violence was all in typewrting and consti-
uted nearly 2,GG0 pages. They could not |
ave examined that evidence. On the very
ay the board of contest decided that Goe-
ell was elected. and so reported and sent
p with their report the evidence taken be-
,re them. the Legislature approved the
ction of the board. and declared Goebel l
ected Governor. II is not a pleasant
ling to say but | feel constrained from ! 9
,nsc of duty to say. that the action of /
rat body was such that it ought not to q
9 respected in any court as a judgment
pom the question Involving important ,
gifts submitted to 1t for decision. but as Il
.tlon taken wholly outside Of all law. c
nd in contempt of the constitutional v
ghts of freemen to select their rulers.
he record justifies the belief that that /
,dy was wholly Indifferent as to the ma N
ire of the evidence. and that there was /.
fixed purpose on, its part to put Goetei /
to Office and GUST Taylor. regardless OF
e proof in the case. II any regard what
Ter had been paid to the evidence no con-