The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-02-21
Eligible to Election in Congress
While on Bench.
JUDGE REES,
Claimed That Fifth District Man
Was Ineligible.
Cites Cases Where They Have
Been Elected and Served.

A Judge Of the district court or a
justice OF the supreme court may run
for congress in Kansas If he so de-
sires even If he does occupy place
on the bench during part Of his
campaign and If his term does not ex-
pire until after his election to con-
gress This is the opinion of the at
torney general and Is borne out by
long list Of legal decisions dating
from 1903. John s. Dawson, assistant
attorney general dug out the law at
the request Of Senator Fred H
Quincy of Salina. The attorney gen.
eral usually does not write opinions
lor STATE senators Or representatives
as the state officers and county at
torneys keep him pretty busy. But
this question was considered Of such
Importance to the people of the state
that Mr.. Dawson took the time to
make an exhaustive srudy of the ques-
ton and write long opinion.
Ihe question came up when Sena-
tor Quincy submitted the following
questions:
First May a district judge law
fully be candidate for q party nomi-
nation for the Office of congressman
at primary election held under the
law passed at the special session of
1908 and have the banors cast for him
at such primaries counted by the cleo
ton board Of the various voting pre-
cfncts, the result certified to the va
rfous canvassing boards, and IL he re-
ceives a plurality of the votes cast at
placed on such party ticket at the
general election foIlowing7
Second. If such district Judge so
nominated, his name having been
placed on the ballot at the general
election shall receive a plurality of the
yntn o<f OF
would it not be the duty of the state
canvassing board under the law to is
sue to such judge a certificate of
election as congressman ~
Affects Judge Rees.
Judge r. R. Rees IS a candidate for
congress in the Fifth district against
Congressman Calderhead Judge W.
h. Johnston of the supreme court has
been mentioned as candidate for
United States senator and under the
| reading OF the Kansas law 1t was con-
tended that neither Of these could be
candidates for congress under section
18 article of the constitution of the
state which provides that no justice of
the supreme court, or Judge Of the
district court shall hold any other Of
flee of profit or trust under the
authority Of the state. or of the
| United States during the term of Of
flee for which such justice and Judge
session laws of. 1883 forbids the
| counting of ballots or votes cast for
| any Judge of the district court or JUS
| tice Of the supreme court for any Of
| fee, except a judicial Office, and
makes 1t misdemeanor for any judge
or clerk of an election, or for any
canvassing board to count such bal
| lots or votes or permit a record of
the same.-Section 1902, general sta
! tutes of 1901.
Controlled by Congress
The constitution of the United States
| of the national house and senate and
does not make any disqualification re-
garding judges or justices except that
| judges of the United States courts can
not be candidates.
The constitution Of the United States
further says that it is the supreme
| law and that laws enacted by congress
| under 1t are to be taken as final In
spite of state constitution Id state
| laws. Carrying out this provision the
| attorney general holds that Kansas
| cannot make any qualifications relat-
ing to members of congress. These
qualifications are already established
| by the power that created the congress
| and the states tn nSelves and cannot
be changed except by an amendment
| to that national constitution.
The attorney general does hold a
Judge of the district court or a justice
| of the supreme court cannot be candi-
dates for election to other state Offices
| durins their terms of office. In his
| opinion Mr.. Dawson quotes a large
| number of decisions covering this mat
ter for the past 100 years. He says:
There is a recent Ohio case, State VS.
ions, 255, wherein this whole subject is
| thoroughly discussed. In 1896 the state
| of Ohio passed an act entitled, An act
to prevent corrupt practices at elec-
| %I.a -
| vided that any candidate for represen-
| tative in the congress of the United
states who should by himself or by OF
through any agent or agents, commit
tee OF organization, or any person OF
persons whatsoever In the aggregate
| nav out, give or contribute any money
| or other valuable thing in order to Sc
cure his election, in excess of certain
specified sums mentioned In said act
| should be guilty Of a misdemeanor The
act contains similar provisions of the
same general character. and all the
| leading authorities are CLEANED and
compendiously arranged in the opinion
of the court in deciding the case. The
| pist of the syllabus and of the matters
decided are that 1T is not within the
| power of the state legislature to super.
| add anything to the qualifications OF
members of the congress of the United
States, and that the Ohio act insofar
| as it relates to the Office of representa-
tive in the congress of the United
states is unconstitutional in that il
seeks to imnose additional ouaIif1ca.
cations, conditions and obligations mo-
candidates for, or members of cone-ras.
of the United States The decisior
there holds that the act is valid so fa,
| as it applies to officers elected ,,nda,
the laws and constitution of the stat
Of Ohio This is indeed a rnost ~
structive case
An Example in Kansas.
I'm 1861 Hon. Thomas Ewing was
elected Chief Justice of the state q,
Continued On Page Ten.)