Jasper County Democrat, Volume 1, Number 17, Rensselaer, Jasper County, 6 August 1898 — WHAT WAS INVOLVED [ARTICLE]

WHAT WAS INVOLVED

In That Supreme Court Decision. South Bend*Times: The sober second thought seems to be coming to certain Democratic papers in the state as to the decision of the supreme court in the township trustee case. Some of the more indiscreet ones made a mad rush to condemn Judge McCabe because he did not agree with his two Democratic associates in the reasons given for the decision. They seem to ignore the fact that he reached the same conclusion all the other judges did. The criticisms indulged in against the decision by those papers were mostly the result of misinformation or lack of information. But the wrong done to the court and especially to one member of it, and to the Democratic party, is less serious. The facts are briefly as follows: In 1893 the legislature passed an act postponing the time for electing township trustees and assessors from April to November, 1894, and requiring such elections every four years thereafter. The first election under that law was in November, 1894, when the Republican party carried the state by the largest majority that it ever did, being over 40,000. At that election the present township trustees and assessors were elected. The result gave the Republicans 630 of the township trustees of the state and the Democrats 376, only a little more than one-third of the whole number in the state. The legislature of 1897 passed an act again postponing the election of township trustees and assessors, this time from November, 1898, when the previous act mentioned required it to be held, to November, 1900. By operation of the hold-over clause of the constitution, the present trustees would continue to hold until their successors were elected and qualified. The Democratic state committee, conceiving that the overwhelming majority of Republican trustees in the state gave that party an urirfue advantage in the organization of election boards, as it really did, arrived at the conclusion that the election ought not to have been postponed the last time. This committee caused a suit to be begun in the Whitley circuit court to compel the proper officers to hold an election for township trustees in November, 1898, on the theory that the act of 1897 was 'unconstitutional, in that it extended the terms of the present trustees beyond four years, in violation of another clause of the constitution, and upon the further theory that it the act of 1897 was void it did not supersede and repeal the said act of 1893, and hence an election under it might be compelled to be held this fall.

The circuit judge, Hon. Joseph A. Adair, being a Democrat, held that there was no law in force by which such an election could be held in November, 1898. On appeal to the supreme court all ffve of its judges decided that the circuit judge correctly decided that no law is in force by which such an election can be held this fall and that his judgment must be affirmed. This is the pith and marrow of the supreme court decision in the celebrated township trustee case, about which the papers alluded to above have so unjustly criticised the action of Judge McCabe. They have constantly assuihed that his action in concurring with the two Republican judges and disagreeing with the two Democratic judges had the effect of defeating the object of the Democratic committee, namely: to compel such election this fall. This is absolutely untrue. And every lawyer, and every intelligent man in the state Will so say, if he will take the trouble to read the opinions in the case.

It is true that the minority opinion concurred in by both Judge McCabe’s Democratic associates reaches'the same conclusion that the other judges do on entirely different reasons, namely: that both the act of 1897 and that of 1893 were unconstitutional and void, and hence there could be no election under either, or in other words, because neither of them is a law. And consequently they hold that the only existing law under which such an election can beheld is a previous statute under which, no election can be held till 1902. Every lawyer and every intelligent person in the .state who will read the opinions in the case will agree that there was absolutely nothing Judge McCabe could have done in the case to prevent the defeat of the suit. It he had concurred in all the reasons assigned by his two Democratic associates for reaching the common conclusion every member

of the court reached, it could not hpve rescued the case horn defeat, 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 have been bestowing on Judge McCabe, even if we. should concede that which is assumed in all these criticisms that a judge’s integrity and fitness for the exalted office he holds is to be measured by his subserviency to his party’s interest in his decisions. But there can be no more burning scandal on any political party than for it to demand of the. judges it elects to office that they decide all questions of law coming before them in favor of the party electing them, right or wrong. The Times emphatically denies that the Democratic party makes any such disgraceful demand of the judges it elects to office. The implied assumption in the criticisms mentioned that it does, has, or will make such a demand, we indignantly repudiate as wholly unworthy of any man calling himself a Democrat. And we deny the authority of such papers to speak for the Democratic party. Some of these papers mention as a circumstance against Judge McCabe that his son was one of the attorneys in the case employed on the side that succeeded. These gentlemen seem to be wholly uninformed as to the reason why it became necessary for Judge McCabe to participate in the decision. He has two sons who practice law before the supreme court, and in every other case he has declined to participate where either of them were concerned as counsel. But this case presented a constitutional question. It has been a wisely and long established principle of our jurisprudence and especially by the supreme court of Indiana, and the United States, that constitutional questions will not be passed upon without the presence and participation of all the members of the court. This wholesome rule required Judge McCabe to participate in the decision. And according to the more inconsiderate Democratic papers mentioned the 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 and pitiable. Some facts, however, have come to light since the decision that show that it is very fortunate for the Democratic party that Judge McCabe did not agree with the minority of the court in holding that the act of 1897 was unconstitutional and void. Had he done so, though it could not have changed the result as it now stands -as to the case, yet it would have made a majority holding the act of 1893 void. And if the act were void, the election of the present trustees under it would be equally void, and the appointing power could have filled every trustee’s office in the state.

The statute provides that the county auditor in each county, when the board of commissioners is not in regular session, shall fill such vacancies by appointment. Of the 92 counties in the state only 23 have Democratic auditors, namely: Adams, Allen, Brown, Clay, Crawford, DeKalb, Dubois, Franklin, Hancock, Jackson, Knox, Martin, Monroe, Owen, Perry, Posey, Putnam, Starke, Shelby, Switzerland, Sullivan, Wells and White. All the rest, 69 in number, have Republican auditors. Therefore, had Judge McCabe joined in the minority opinion and made it the prevailing opinion, the only Democratic township trustees we would have had in the state would have been the whole number in the 23 counties named above, which their Democratic auditors would have appointed, and that number is only 246 instead of 376 as it now is. And the Republican auditors would have appointed all the trustees in all the other 69 counties in the state, giving the Republicans 760 trustees instead of 630 as it is now. That holding would have decreased the Democratic trustees in the state 130 and increased the Republican trustees by the same number. The present majority of Republican trustees over the Democratic is 254, but if the minority opinion had prevailed the Republican majority would have been 514. This disastrous condition of affairs to the Democratic party would have been continued for the next four years had the minority opinion prevailed, jfn that event no Democratic County Superintendent could have been appointed in those 69 counties for the next four years. ' - These facts, however, could not change the conviction of the 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 governed by his honest judgement and conviction as to the law. But it is none the less fortunate for the Democratic party that Judge McCabe’s convictions as to the reasons leading to the conclusion they all reached were as they were. Now, in the face of these facts, it” is incumbent on those papers that impliedly assume that a judge’s judicial action must promote the interests of his party or be condemned by it, to withdraw their criticisms and substitute therefor praises for J udge McCabe, otherwise they can have no claim to be classed as being especially solicitous for the welfare of the Democratic party. Their refusal to do so will be an implied admission that their object and aim is to defeat the Democratic state ticket.