534 



KANSAS. 



presses his opinion that certain decisions of some of 

 the State courts, affirming their power to require the 

 production of such messages, are founded upon erro- 

 neous doctrines and unsound reasoning. 



The Telegraph Company is aware that in several 

 instances decisions have been made adverse to the po- 

 sition herein contended for. These cases, or the prin- 

 cipal ones, are the case of E. W. Barnes, before the 

 lower House of Congress in January, 1877 : the case 

 of The State vs. LitcMeld, 58 Maine ? 267 ; the case of 

 Henister vs. Freedman, 2 Parsons' s ''Selected Cases." 

 274 : and the case of National Bank vs. National Bank, 

 1 West Virginia, 544. 



In the case of Barnes, a local telegraph manager at 

 New Orleans, the witness was subpoenaed to produce 

 telegrams before a committee appointed in December, 

 1876, by the lower House of Congress, to investigate 

 the alleged frauds in the Presidential election hi Lou- 

 isiana. Barnes declined to produce the messages. His 

 answer was referred to the Judiciary Committee, and 

 that committee, on the strength of the cases The State 

 vs. Litchfield and Henister vs. Freedman, above cited, 

 decided that the witness must produce the messages. 

 It is believed, however, that the opinion of Judge 

 Cooley, already quoted, and which was written as a 

 direct reply to the arguments presented in the case 

 from Maine, far outweighs the reasoning of the Court. 

 The cases of Henister vs. Freedman and National Bank 

 vs. National Bank are no stronger than the case from 

 Maine, and are therefore fully met and answered by 

 the convincing reasoning of Judge Cooley. 



As against the decision of the Judiciary Committee 

 of the House of Bepresentatives hi the Barnes case, 

 we may cite the opinions of Senators Conkling and 

 Sherman in the case of Turner, a telegraph operator 

 who was subpoenaed before a committee appointed by 

 the United States Senate to investigate certain alleged 

 frauds in Oregon shortly after the Presidential election 

 of 1876. In the discussion before the Senate, as to the 

 power and authority of the Senate to compel the wit- 

 , ness to produce certain telegraph messages, Mr. Conk- 

 ling, although interested politically in supporting the 

 investigation then on foot, believed that an abuse of 

 power was involved, and that a precedent dangerous 

 to private rights would result ; and Mr. Sherman said 

 he thought there ought to be a statute defining the 

 nature of the testimony which may be brought out in 

 such cases, the limits within which it can bo called 

 for, and the circumstances or foundation which should 

 be^laid, before telegrams should be produced. The 

 opinions of these eminent statesmen, and eminent law- 

 yers as well, ought to have great weight in determin- 

 ing a question so momentous as that involved in the 

 question of the power of this House to compel the Tel- 

 egraph Company to open up to the whole world the 

 secret affairs of every citizen, whether personal, busi- 

 ness, or political. 



The case of Babcock, before Judge Dillon (3 Dil. 

 Ct. Ct. K., 566), has also been quoted as adverse to 

 the claim of inviolability for telegraph messages. But 

 this question was not raised hi that case, as will ap- 



pear in the opinion of Judge Dillon, page 569, where 

 he says : " No objection is made on the ground that 

 these messages are privileged, confidential communi- 

 cations ; that is, the Telegraph Company does not in- 

 sist that they stand in any different relation from what 

 private persons would if they had custody of the same 

 papers.'' The only question decided was whether the 

 suo potna duces tecum sufficiently described the mes- 

 sages. The case was decided in 1876, before the Pres- 

 idential _ election of that year. The question of the 

 inviolability of the confidence existing between the 

 sender or receiver of a message and the Telegraph 

 Company had not then been much discussed nor much 

 considered. Since that tune the question, by reason 

 of the momentous interests involved in its decision, 

 has challenged the attention of the readhig public 

 throughout Europe and America, and it is not too 

 much to say that careful, thoughtful, prudent men 

 everywhere are fast reaching the conclusion that the 

 best interests of the government and the people de- 



mand that the seal of confidence reposed in the tele- 

 graph companies by their patrons shall not be violated. 



The operator was released in this instance 

 without the production of the messages. 



The following resolution was adopted in the 

 Senate yeas 22, nays 12 : 



That the Senators of the State of Kansas are hereby 

 instructed, and the Eepresentatives in Congress are 

 requested ; to make all reasonable efforts to secure such 

 a change in the Federal judiciary system as will take 

 from the United States courts all civil jurisdiction, 

 whether by original action or removal from State 

 courts, except by appeal or writ of error from State 

 courts of final resort hi cases as now authorized. 



An act was passed to repeal the annual levy 

 of one mill on the dollar for school purposes. 

 This was an important tax for the welfare of 

 the schools, and the constitutionality of the 

 act was finally sustained hy the State Supreme 

 Court. Section 3 of Article VI. of the Con- 

 stitution, among other things, provides that the 

 interest on the sale of public lands "and such 

 other means as the Legislature may provide by 

 tax or otherwise shall be inviolably appropri- 

 ated to the support of common schools." In 

 pursuance of this provision of the Constitution, 

 the Legislature in 1861 passed a law (section 5, 

 chapter 76) declaring, " There is hereby levied 

 and assessed annually one mill on the dollar 

 for the support of the common schools of the 

 State." This law was regnacted in section 76, 

 chapter 92, general statutes of 1868. The pro- 

 ceeds of this tax were distributed semi-annually, 

 in March and July, by the State Superintendent, 

 to the several school districts in the State, in 

 proportion to the number of school children 

 therein. In the year 1878 the one-mill tax 

 amounted to $138,698, or sixty cents to each 

 child of school age in the State. For the year 

 1879 the amount would have been about the 

 same per capita. For years the constitution- 

 ality of this law has been questioned, it being 

 held that an annual levy, year after year, is in 

 violation of section 24, Article II., of the Con- 

 stitution, which reads, "No money shall be 

 drawn from the Treasury except in pursuance 

 of a specific appropriation made by law, and 

 no appropriation shall be for a longer time than 

 two years " (under the old provision, one year). 

 Because of the uncertainty of the levy under 

 the Constitution, and because it was claimed 

 by many that the eastern portion of the State, 

 with the greater part of the taxable property 

 of the State, was paying for the education of 

 the children of the west, the Legislature at- 

 tempted to repeal the law. This bill for the 

 repeal of the school-tax levy was first intro- 

 duced in the House. After its passage there 

 it was discovered that the law of 1868 had 

 been reenacted in 1876, and that in the opin- 

 ion of many of the members, if the bill should 

 become a law, it would be of no effect. Con- 

 sequently, the bill never reached the Senate ; 

 but the same provisions were inserted in the 

 revenue act and became a law. Its effect is to 

 strike off about one month's salary of teachers 

 in each city or school district in the State. 



