The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-01-30


Not long ago the State Journal raised
the question by what authority the
courts of this country now and then
overrule the viii of the people as ex-
pressed in the laws passed by the Iegis-
latures, by declaring the laws uncon-
stitutional. It is possible that this Gus
tom Of courts may sometimes prove a
good thing, but as a general principle
ought not the will of the people to rule2
AprOpos Of the State Journals in
quiry a well known Kansas attorney
sends the following communication,
THE State Journal recently inquired
by what constitutional statutory or
other authority supreme courts declare
unconstitutional and void acts of the
legislature and congress. 1t was soon
thereafter announced that ex-Chief
Justice Frank DOster would read a pa
per on that subject at the meeting of
the State Bar association but the pro-
gram has been changed and Judge Dos
ter has taken another subject 1t is
sincerely to be hoped that the poker
was not hot, even if it was SO quickly
dropped.
"The Kansas City Journal at the
time answered the State Journals
question by saying in effect that if the
legislature should pass law prohibit
ing the circulation in Kansas of any
newspaper lDdl ndQ less Alid4A AVDiJoV
subscribers, the State Journal would
be very glad to have the supreme court
declare the law unconstitutional that
the supreme court was necessary safe
guard against foolish legislation.
This is not as much Of an answer
as it might be. Suppose the supreme
court should make a decision that no
newspaper should circulate in Kansas
unless it had more than 100000 subscribe
ers. Would not the Kansas City jour
nal be glad to have the legislature inn
peach the supreme cOurt2 One Sugges-
ton is just as probable as the other and
the suggestion of the Kansas City jour
nal is simply Puerile. Experience has
demonstrated that a judge is just as la
bic to do something foolish as a legis-
lature or any other man.
THE Journal is hereby invited to tell
us what would happen in England II
the English parliament should pass
such a law as it indicated? Is the any
court there that could set il asideE In
fact what would happen in any civilized
country? How many of them are there
in which courts set aside legislation as
unconstitutional? The subject is an in
teresting one and it would be valuable
to the general public if some of the
great barristers would answer this little
question the State Journal propounded:
BY what constitutional, statutory or
other right do supreme courts declare
LEGISLATION unconstitutional and voidg
Where is the law for it2' Surely this
must be easy to answer. Why don [
somebody answer it2
As to the extremely hypothetical
case submitted by the Kansas City
publication, the State Journal would
say that if it were the viii of the peo-
ple to stop the circulation of all papers
having less than one hundred thou
sand. subscribers, the will Of the people
ought to govern. and the State Journal
would get along fully as well as its
Missouri contemporary which draws
its support mostly from Kansas.
on this page Sunday were some Oh
servations by William Allen white on
the anarchy of railroads Incidentally
Mr.. White touches on this question of
courts and constitutions. and it viii be
noticed that he takes the same view as
the state Journal This paper. how
ever. must dissent from Mr. White
somewhat radical conclusions. They
SAVIOR too much Of certain political ut
terances that were heard ten years ago
in Kansas school houses Mr.. White
has evidently been associating too
much recently with Populistic New
York. whence such radical utterances
as his are now sometimes heard.
But returning to the question Of
courts and legislatures. Courts are
certainly extremely necessary. TO inter-
Dret the acts Of lesislatures-to decide