MR. JUSTICE HARLAN, dissenting.

put Goebel into office and to oust Taylor. Under the evidence in the case no result favorable to Goebel could have been reached on any ground upon which the Board of Contest or the Legislature had jurisdiction to act. The Constitution of Kentucky, as we have seen, declares that "the person having the highest number of votes shall be Governor." And the statute provides that the person returned having received the highest number of legal votes given "shall be adjudged to be the person elected and entitled to the office." With the constitution and the statutes of the State before him when preparing his notice to Taylor of contest, Goebel it is true did claim in very general terms that he was legally and rightfully elected; but he took care not to say-there is reason to believe that he purposely avoided saying that he had received the highest number of legal votes cast for Governor. The evidence renders it clear that the declaration that he had received the highest number of legal votes cast was in total disregard of the facts-a declaration as extravagant as one adjudging that white was black, or that black was white. But such a declaration made by the body to which the Board of Contest reported should not surprise any one when it is remembered that it came from those who did not have before them any of the proofs taken in the case and were willing to act without proof. Those who composed that body seemed to have shut their eyes against the proof for fear that it would compel them to respect the popular will as expressed at the polls. Indignant, as naturally they were and should have been, at the assassination of their leader, they proceeded in defiance of all the forms of law, and in contempt of the principles upon which free governments rest, to avenge that terrible crime by committing another crime, namely, the destruction by arbitrary methods, of the right of the people to choose their Chief Magistrate. The former crime, if the offender be discovered, can be punished as directed by law. The latter should not be rewarded by a declaration of the inability of the judiciary to protect public and private rights, and thereby the rights of voters, against the wilful, arbitrary action of a legislative tribunal which, we must assume from the record, deliberately acted upon a contested election case involving the rights

MR. JUSTICE HARLAN, dissenting.

of the people and of their chosen representative in the office of Governor without looking into the evidence upon which alone any lawful determination of the case could be made. The assassination of an individual demands the severest punishment which it is competent for human laws in a free land to prescribe. But the overturning of the public will, as expressed at the ballot box, without evidence or against evidence, in order to accomplish partisan ends, is a crime against free government, and deserves the execration of all lovers of liberty. Judge Burnam, speaking for himself and Judge Guffy in the Court of Appeals of Kentucky, although compelled, in his view of the law, to hold the action of the Legislature to be conclusive, said: “It is hard to imagine a more flagrant and partisan disregard of the modes of procedure which should govern a judicial tribunal in the determination of a great and important issue than is made manifest by the facts alleged and relied on by the contestees, and admitted by the demurrer filed in the action to be true, and I am firmly convinced, both from these admitted facts and from knowledge of the current history of these transactions, that the General Assembly, in the heat of anger, engendered by the intense partisan excitement which was at the time prevailing, have done two faithful, conscientious and able public servants an irreparable injury in depriving them of the offices to which they were elected by the people of this Commonwealth, and a still greater wrong has been done a large majority of the electors of this Commonwealth, who voted under difficult circumstances to elect these gentlemen to act as their servants in the discharge of the duties of these great offices." I cannot believe that the judiciary is helpless in the presence of such a crime. The person elected, as well as the people who elected him, have rights that the courts may protect. To say that in such an emergency the judiciary cannot interfere is to subordinate right to mere power, and to recognize the Legisla ture of a State as above the supreme law of the land. The constitution of Kentucky expressly forbids the exercise of absolute and arbitrary power over the lives, liberty or property of freeAnd that principle is at the very foundation of the Government of the Union. Indeed, to sustain that principle our

men.

MR. JUSTICE HARLAN, dissenting.

fathers waged the war for independence and established the Constitution of the United States. Yet by the decision this day rendered, no redress can be had in the courts when a legislative body, or one recognized as such by the courts, without due process of law, by the exercise of absolute, arbitrary power, and without evidence, takes an office having a fixed salary attached thereto from one who has been lawfully elected to such office by the voters of the State at a regular election. The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate coordinate departments, legislative, executive and judicial. And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.

Other grounds are disclosed by the record which support the general proposition that the declaration by the body referred to that Goebel received the highest number of legal votes cast and was entitled to the office of Governor ought not to be regarded as valid, much less conclusive, upon the courts. But as those grounds have not been discussed by this court, and as it declines to determine the case upon the merits as disclosed by the evidence, I will not extend this opinion by commenting on them.

What has been said in this opinion as to the contest for Governor applies to the contest for Lieutenant Governor.

I am of opinion that the writ of error should not have been dismissed, and that the court should have adjudged that the decree below took from Taylor and Marshall rights protected by the Fourteenth Amendment of the Constitution of the United States.

VOL. CLXXVIII-39

Opinion of the Court.

TAYLOR AND MARSHALL v. BECKHAM (No. 2).

ERROR TO THE COURT OF APPEALS OF THE STATE OF KENTUCKY.

No. 604. Argued April 30, May 1, 1900. - Decided May 21, 1900.

It results from the conclusions announced in No. 603, ante, 548, that the writ of error in this case must be dismissed.

THE facts affecting this case are stated in Taylor and Marshall v. Beckham (No 1), ante, 548. It was argued with that case, and by the same counsel.

MR. CHIEF JUSTICE FULLER: These were suits in equity brought by Taylor and Marshall against Beckham, and one Carter, asserting himself to be the president pro tempore of the Senate of Kentucky, with the right to preside over that body though Marshall was present, in which complainants prayed for injunctions restraining defendants from interfering with complainants in their offices. These suits were heard with the case of Beckham v. Taylor and Marshall, just decided. When the Circuit Court of Jefferson County reached the conclusion that Beckham was entitled to the office of Governor and entered judgment of ouster, it dismissed the suits. From the decrees appeals were taken to the Court of Appeals of Kentucky, where they were affirmed, and thereafter a writ of error from this court was allowed.

It results from the conclusions announced in the preceding case that the writ of error must be dismissed, and it is so ordered.

MR. JUSTICE MCKENNA Concurred in the result.

MR. JUSTICE BREWER and MR. JUSTICE BROWN Concurred in a dissent for reasons stated in their dissent to Taylor & Marshall v. Beckham (No. 1), ante, 548.

MR. JUSTICE HARLAN dissented for reasons stated in his dissent to Taylor & Marshall v. Beckham (No. 1), ante, 548.

Decisions announced without Opinions.

DECISIONS ANNOUNCED WITHOUT OPINIONS DURING THE TIME COVERED BY THIS VOLUME.

No. 402. BOYLE v. SINCLAIR. Error to the Supreme Court of the State of Idaho. Submitted December 11, 1899. Decided May 14, 1900. Per Curiam: Dismissed with costs on the authority of Wales v. Whitney, 114 U. S. 564. Mr. Samuel H. Hays for motion to dismiss. Mr. William A. Maury opposing.

Decisions on Petitions for Writs of Certiorari.

PING

No. 609. PIN KWAN 2. UNITED STATES and No. 610. YIK 2. UNITED STATES. Second Circuit. Granted April 30, 1900. Mr. Richard Crowley for petitioners. Mr. Attorney General and Mr. Solicitor General opposing.

No. 594.

CENTRAL TRUST COMPANY OF NEW YORK V. INDIANA AND LAKE MICHIGAN RAILWAY COMPANY. Seventh Circuit. Denied April 30, 1900. Mr. Augustus L. Mason, Mr. Adrian H. Joline and Mr. Henry Crawford for petitioner. Mr. Lawrence Maxwell, Jr., and Mr. S. O. Pickens opposing.

No. 588.

O'BRIEN v. WHEELOCK. Seventh Circuit. Granted May 14, 1900. Mr. Henry M. Duffield for petitioners. Mr. Benjamin Harrison and Mr. Thomas Worthington opposing.

No. 571. NATIONAL BANK OF BALTIMORE . BRUNSWICK TERMINAL COMPANY. Fourth Circuit. Denied May 14, 1900. Mr. Wm. A. Fisher and Mr. Allan McLane for petitioner. Mr. Henry W. Williams opposing.