The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1907-01-07

BY DEVIOUS ROADS
How Supreme Court Sustained
Validity of Court.
Part Of Judges Held That Bill
Had Enough Votes.
OTHERS THATIT DIDN'T
They Sustain Validity Because
of Enrolled Bill Record.
Justice Mason's Theory of ga
Two-thirds Majority"
OTHERS THATIT DIDN'T

n
Importance is raised in the opinion OF
the court sustaining -the validity OF the
Thirty-efgh judicial district, created
at the last session of the legislature
Judges Johnston, Burch. Smith, Green
and Graves sustain the law on the
ground that the journal entries concern
ing the question of whether the bill re
ceiyed a constitutional majority are con-
fiicting, and that the presumption OF
validity which goes with an enrolled bill
is sufficien. to sustain it as n law
Justices Mason and Porter sustain the
law on the ground that only tWo-thlros
of the members present and voting are
necessary to legally pass a bill creating
new judicial districts.
place, but they arrive by dhterent
routes.
Crawford county should be separated
from Bourbon and Linn counties and
should constitute a new judicial district
to be known as the Thirty-eighth dis
trict Bourbon and Linn were left as
the Sixth district. Walter Stmons was
Judge of the Sixth. and Arthur Fuller
was appointed judge of the new Thirty
eighth.
After the legislature adjourned. 1t was
discovered that the bill creating the
district had been passed in an omni-
bus" and had received SO votes. The
journal also stated that it had received
a constitutional majority. However,
SO votes is not two-thirds of all the
members elected to the house, and
the constitution says that judicial dis
tricts may be created whenever two
thirds of the members of each mouse
concur"
The question is whether this provision
means tWo-thirdS of the members pres
ent or two-thirds- of the members elect
ed.
Five of the seven justices hold that
1t means two-thirds of the members
elected, and as So is not two-thirds OF
125, they reverted to the theory that
the journal entries showing the So votes,
followed by the statement that the bill
received a constitutional majority, are
conflicting, and that the law must be
sustained on the presumption of validi-
ty which goes with an enrolled bill The
majority opinion is written by Chief
Justice Johnston.
Justice Mason writes the special opin-
ion. He says in part:
It am unable to discover any ambig-
uity or inconsistency in the entry made
in the house journal. AS I view the
matter the recital that the bfii had re-
ceiVed constitutional majority follow
ing the record of the roll call showing
SO affirmative votes can not be con-
strued as a declaration that more than
SO members had voted for t,-but merely |
indicates that the house, rightly or
wrongly, regarded SO votes as making !
a constitutional majority. The entry |
was obviously made upon the SUPPOSE |
ton that SO votes was enough to pass |
the bill, and believe that that SUPPOSE
ton was correct. ffft.-
.eWhere two-thfrd, or other portion. |
of legislative body is prescribed as
necessary for any purpose, two-thirds
of those present constitute quor-
UNI is understood unless special terms |
are employed clearly indicating diff |
xerent intention"
Judge Mason then cites instances to
prove that when two-thirds of the |
members elected is meant, that mean !
ing is clearly indicated by inserting the |
word elected after the word members. |
He then goes on to say:
81 he tint inn G
taken with various changes from sec
ton Is of article of the Ohio constitu-
ton of 1851, the words of which, so far |
as here important were, Whenever two
thirds of the members elected to each |
house shall concur therein. Therein
was stricken out as supernuous on the
recommendation of the committee on |
phraseology but elected was admitted
from the draft prep 4 by the judic-
fary committee. 1t not be supposed
that the omission was inadvertent
Rock Island Beats Judgment.
B. F. Wheelbarger, who recovered
q Judgment in Phillips county for ST.
700 against the Rock Island railway.
was deprived of his judgment on the
decision of the supreme court, on the
ground that he was guilty of con-
tributory negligence.
Wheelbarger was a drayman. He
testified that he lived at the little
town of Agra, and started to cross the
track of the Rock Island at that point,
driving his team hitched to his dray.
He testified that he looked up and
down the track when 80 or 40 feet
from the track. and saw nothing. He
also admitted that he was nearly blind
in one eye. The railroad company
showed that had he really examined
the track when 80 or 40 feet distant
he could have seen the approaching
train for a distance of about 500 feet.
The fact that he did not see the train
was held by the railroad company to
be contributory negligence, and they
demurred to the evidence of the
plaintiff. The lower court refused to
sustain this demurrer. and the SUI
preme court reverses that decision.
Can Collect on Lien.
John L. Randolph sued Mr. and /
Mrs. ]. r. Huckins in Republic county
to foreclose on a mechanics lien i
which he held on their house The
favor of Randolph. and the supreme /
court sustains the decision of the low
er court
THE court found says the opinion
canical work was in several instances
unskillfully done, and that the de-
PENDANT sustained damage but that
there was no evidence offered tendingl
to show the value of such damaees
and therefore the amount could not |
be determined. and since our attention |
has not been called to any evidence
tending TO prove the value of such
damages. the court must have been
correct in its conclusion
Both Litigants Dissatisfied.
A decision of the Geary county
court in the case of W. H. -Spesard
against A. p. SDesard and Laura Spe-
sard, which did not suit either party
to the litigation. was decided by the
supreme court in favor of the defend
ants
A. P. Spesard and Laura Spesard
gave their note for $2.1O0 in 1890 to
j. J. SpesaFd. In 1892 J. J. Spesard