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

due process OF law? II seems to me that
upon the preoedents OF 100 years and Of 100
cases that question can be answered in the
affirmative"
In the case Of KilbOuru Us. Thompson.
when the House Of Representatives Of Con
gress had committed a citizen 10 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 80. said Mr
Bruce. in many eases the supreme Court
had held under the fourteenth amendment
that the state should uot deprive the ciu-
zen % any Of his rights without due pro-
cess OF Law"
Recurring 10 the proceedings in Ken
tucky. Nr Bruce said that whenever
dart was thrown at them it fell upon that
ever-ready shield Of conclusive presump-
tiou. When 10 was asserted that there
had been no notice it was 'conclusiveiy
shown" that there was. because there
should have been. And the same when il
was shown that no evidence sustained the
claisn OF contestants II that conclusive
presumption. assumed by the Court OF Ap-
peals. were allowed to stand Jhe 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
unjustihed. 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
a judgment for plaintiff upon whom the
burden OF proof rests in a case involving
n question OF right, in the absence Of any
proof.
The refusal 10 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 Il the proposition that by the action
OF the State itself the people OF those
counties had been deprived OF their right
OF suffrage-hy the conflict OF two depart
ments OF the State government, BY the
throwing out the votes Of the 81. 600 voters
in Louisville, said Mr.. Bruce. the result
was changed and the office OF Governor
given 10 another man.
Mr.. MaNwrlI's 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.
be 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-
Der Of. votes cast and had been elected.
That formed the basis Of Mr.. Beckham'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 10 prorogu" ne
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 in 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 I
process Of law. Before h. could be de-
priyed of the due process uf law he must
show that he had title % something 10 .
Be affected thereby.
The Court Of Appeals had decided that
Taylor never had a tide TO the office, con-
determine IL. The court held that the Ger
tifcate Of the Board OF Canvassers was not .
a final title: that the declaration by the
Legislature was the definite determine
tion Of a matter that had hitherto been in
doubt Taylor's reliance upon The board
certificate. said Mr. Maxwell was like
that Of a man depending upon the iudg
ment OF a district court that had been rr-
versed by the supreme Court; like de-
pending upon an interlocutory decree
which had been suspended and superseded
by a final decree. Where the law of a
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 moi be re-
viewed by any power. Mr Maxwell reo1ted
many precedents 10 sustain this and his
contention was thar the decision Of the
Court OF Appeals Of Kentucky raised no
Federal question for review.
The question" d" said Mr. Maxwell has
been raised in every form in Ohio Ii
might naturally be supposed by your hon
ors that it would. for the appreciation Of
office in that state is very high and the
right 10 hold it as inslienable as the right
to the pursuit OF happiness" There was
no applause at this. but a visible almost
audible smile passed over the bench
Mr.. Maxwells quotations went also 10
the support Of the contention that Office
is not property, and that being deprived Of
il does not take away d person property
without due process Of law in the sense Of
the constitutional amendment
Could the Supreme Court asked Mr..
Maxwell whose jurisdiction was confined
10 the discovery Of error. find error in the
potion OF the Court Of Appeals Of Kentucky
10 its decision in this case
One OF .he charges made by Taylor upon
which he defended his right TO the office
Of Governor. imputed scandal 70 the record
Mr. Maxwell read from the brief ia sup
port Of Taylor the statement that the
record OF the Legislature was one OF in
fanny. marked with the trail cf the ~
pent and showing the mailed hand OF roo
berry. Ard because the Court Ct Appeals
said TO them: You can't be heard to prove
those charges by parole testimony. Tay-
lor says he has been denied due process
OF Law. No court would permit what the
defendant claimed the right 10 do On this
10 be done
The decision Of the Court OF Appeals
that Taylor had never had q title Go TIE
Office of Governor. in the opinion oI Nr.
Maxwell. disposed Of the contention that
the case presented a Federal question Al
though Taylor had not been SLOW TO bur
den the record with declaration that If
the Judgment Of the legislature were cu-
forced be would be deprived of property
WITHOUT cue process OF law. when The Sr-
preme Court came 10 examine the iuts-
ment cf the highest court Of The Stsie
y would be found 10 proceed upon The
iheoa that IaylCr never had utc 20
The property which be claimed This he
ing So said Mr. Max Epff mo fhfrL rH4t