Democratic Sentinel, Volume 22, Number 28, Rensselaer, Jasper County, 30 July 1898 — WHAT WAS REALLY INVOLVED IN THAT SUPREME COURT DECISION. [ARTICLE]

WHAT WAS REALLY INVOLVED IN THAT SUPREME COURT DECISION.

South Bend (lnd-) Times. The sober pedoud thought seems to he coming to certain Democratic papers in the State as to the decision of the supreme court in the township trustee case. Some of Ihe more indiscreet ones made a mad rush to condemn Judge McCabe because he did not agre faith kis two Democratic associates in the reasons given for the decision. They seem to Ignore the fact that be teaehed the same corn lusion all the other judges did. The criticisms indulged in against the decision by those papers were mostly the result of misinformation, or lack ol information. But the wring done to the ourt and •specially to one member of if, and to the Democratic party, is none the less serious. The facts are briefly as follows: In 1898 the legislature,passed an act postponing the’ time for electing township trustees and assessors from April to November, 1894, and requiring such elec-

tions every four years thereafter. The first election under that law was in November, 189 4, when th ; Republican party carried the state by Ihe largest ma ! jority that it ever did, being over 40,000. j At that election the present township j trustees and assessors were elected. The result gave the Republicans 630 of the township trustees ot the state and the j Democrats 376. only a lilt e more than one-third of the whole number in the The legislature of*>B97 passed -.n act again postponing the election of township trustees and assessors, this time from November, IB9h, when the previous act mentioned required it to he held, to Novena' er. 1900By operation oi the hold over clause of he constilntion. the present trustees wnM conttnu to hold until their successors weie elected and qualified. The Democratic slate coiom.ttee. corn ceiving that the overwhelming majority of Republican trustees in the state gave that party an undue advantage in the organization of election boards, as it really did, arrived at the conclusion that the election ought no’t to have been postponed the last time. This committoe caused a suit to be begun in the Whitley circuit cour to compel the proper officers to hold an election for township trustees in November, 1898, on the theory that the act of 1897 wa unconstitutional, in that it oxtended the terms of*,the present trustees beyond four years, in violation ot another clause of the constitution, and upon the further theory that if the act of 1897 was void if did not supersede and repeal the said act of 1893, and hence an e’ectiou under it might be compelled to be held this fall. The circuit judge, Hon. .Jos. A Adair, being a Democrat, held that there was HO law in force by which such an election could be held in November, 1898. On appeal to tire supreme court all five of its judges decided that the circuit judge correctly decided that no, law is in force by which suen an election can be held this fall an i that his judgment must be affirmed. This is v ie pith and marrow of the supreme coijrt decision in the celabratad township frustee case, about which the papers all&ded to above have so unjustly criticis d she action ot Judge McCabe. They haVe constantly assumed that his action in with the two Re publican judges and disagreeing jwith the two DeVuocratic judges had the effect of defeating the object ot the Democrat ic committed namely: to compel such an election Jail. This is j absolutely untrue- every lawyer and every intelligent /man in the sts.te will so say, it he will /fake the trouble to read the opin ions iga the casein is true that the minority opinion <ycfncurred in by both Judge Mc(7abe’s - 'Democratic associates reaches the'same conclusion that the other judges co on entirely different reasons, namely—that both the aet of 1897 and that 0t 1893 were US constitutional and void, and hence there could he no election under either, or in other words, gbecause neither of them is law. And consequently they hold that the only existing law under which such an election can be held is a previous stt lute under which no eleetion can be held till 1902. Every lawyer and every intellig nt person in the state who will read the opinions in the case will agree that there wa3 absolutely nothing Judge McCabe could have done in the case to prevent the defeat of the suit. If he had concurred in all tbe reasons assigned by his two Democratic associ ates lor reaching the eommou conclusion eveey member of the court reached, it could not have rescued the case from de feat, and failure of the democratic state committee to attain its object. These facts The Times asserts without .fear of'successful contradiction. These facts being incontrovertible there is not the slightest justification for the censure Which the papers mentioned h ye been bestowing on J udge Met abe, even if we should concede lhat which is assumed in *ll these criticisms that a judge’s integri ty and fitness to. the exalted office he holds is to be measured by his subservi ency to his party’s Interest in his decis ions- But there can be no mere burning seandal on any political party than for it to demand ol the judges it elects to office that they decide all questions of law com ing before them in favor of the party .electing them, right or wrougThe Times emphatically denies that the Democratic party makes any suen disgraceful demand of the judges it elects to office. The implied assumption in the enti cisms mentioned that it does, has, or will make such a demaud,we indignantly re pudiate as wholly unworthy of any man calling himself a Democrat- And we deny the authority of such papers to speak for the De ocratie partySome of these papers mention as a cir cumstanee iagainst Judge McCabe that his son was one of the attorneys in the ease employed on the side that succeed ed.

These gei tinmen seem to be wholly uninformed as to the reason why it be came necessary for Judge McCabe to participate in the decision. He haj two sons who practice law 7 before the su Ereme court, and in every other case he as declined to participate where either of them were cor cerned as counsel. Bat this case presented a constitution at questton- It has been a wisely and long established principle of our juris prudence, and especially by thesupreme court of ludiann, and tne United States, that constitutional questions will not be passed upon without the presence a.»d participation of all the members of the courtThis wholesome rule required Judge McCabe to participate in the decision - And according to the more inconsiderate Democratic papers mentioned thr only way he could escape criticism was to prostitute his judgment and violate his conscience by giving a different reason for the conclusion reached by all of them- This is puerile a&d pitiableSome facts, however, have come to light since the decision that show that if is veiy fortunate lor the Democraticpar ty that Judge MCCabe did not agree with the minority of the court in holding that get of 1897 was unconstitutional and

void Had he done so, though it c- uld not have changed the re-Olt as it now stands as to the case, Y*t it would have made a majority holding the act of 1898 void And if the act were void the elec tion of the present trustees under it wo a be equally void, and the appo’nting pow er could have fitted every trustee’s offi- e statute provides that the county audi-or in each county, when the board of commissioneas is not in regular ses sioD, shall fill >uch vacaudies by ap j pointment ! Of the 92 "counties in the state on . y -u | i have Democratic auditors, namely; Ad I ams, Alien Brown, Olay, J rawford, De Kalb, Dubois, Franklin, Hancock, Jack son, Knox Martin, Monr.c, Owan, ler ! ry Posey,'Starke, Sbelby, Switzerland* Sullivan, Wells and White All the rest*

69 in number, have Republican audit ors Tbeiefore, had Judge McCabe join ed in the minority opinion and made it the prevailing opinion, the only Demo era tic township trustees we would have had in the state would have been ihe whole number in tbe 23 counties uamed above, which their Democratic audit ors would have appointed, and th t number is only 246 instead oi 876 as it now is. And tne Republican auditor} woM h vo appointed all the trustees in all ihe other <i9 counth& i’t the slate, giving ihe Re publicans 760 trustee insiead of 630 as it is now That holding would have de creased the Detiocratic trustees in the stale 160 uud increased the Republican trustees by tire same number The present majority of Republican trustees over ihe Demociatic is 254, t ut if the min- lily opinion had i>n vailed the Republican majority would jkuve be n 1514.

This disastrous condition of affairs to the Democratic party would h ive been continued for the next four years had the minority opinion pievailed In that event no Democratic County Superiu eudent could have been appointed in those 69 counties for tbe next four years These facts, however, could uot change the coDVictiou of ihe several members of the court, even had they been known to them before the decision was made We have every reason to believe that each one of the judges was goyerned by his lion-1 judgment and conviction as to toe iaw Hut it is none the hes fortunate for the Democratic paity lhat Jndge McCabe’s convictions as to the leasons leading Jo the conclusion they all icached were as they were Now, in the iaee of these facts it is in cumbent on those papers lhat implied or assume that a judges judicial rclion must promole the inti rests of ins pat tv or be condemned by it, to withdraw their cri: icisms anil substitute thr re for praises for Judge McCabe, otherwise they can have no claim to be classed as being (specially solicitous for the welfare of tlie Demo "raiie pait.v Tjii ir refusal to do so will be an im plied admission that their object and aim i. to defeat Ihe Democratic slate ticket