The true Democrat., 1855-02-28
rhe State of Arkansas vs. Hubert E. Fairchild.
 OPINION.

,erV at the seal ol government, ana Tor the ap-
 continent of chancellor to preside therein, is
 constitutional. No other question has been
 discussed or seems to be involved, and to the
 solution of this, as best we may, we shall at
 once proceed
 No one, it is presumed, will doubt but that
 this, like those of all the sister States, is gov
 ernmcnt of delegated and limited powers Some of these limitations pervade the entire govern
 ment throughout each of its departments in de- tail: while others restrcton particular depart
 rent. or one or more of its details only. They
 result for the most part from the powers dele
 cated bv the people of this State to the Federal Govenment. From our bill ofrights, and from
 nrovisions of other portions of our written con- ititution with these limitations upon its author
 tv the Legislature is the great residuum of the sovereign powers entrusted to the government
 and consequently, can pass any law not prohib..
 tied by the legitimate operation of any of these
 limitations. If all the provisions of the consti- tuition relating to chancery and corporation courts were eXpunged from that instrument. and the remainder retained, there would un- dueStionably be strong ground upon which to maintain negation of any power in the Legis- lature to establish any court of either class: be- cause in that case the entire judicial power would seem to have been permanently vested in courts that had been in express terms creat- ed by the constitution, in which also correspond ing provisions for the appointment of all the appropriate officers had been made But when, onthe contrary, there is in connexion with these, the express provision that ''the General Assem- ply may also vest such jurisdiction as may be deemed necessary In corporation courts, and when they may deem 1t expedient may establish courts of chancery." (Ar. l, sec. 1.) "And that until the General Assembly shall deem it expedient to establish courts of chancerv, the circuit court shall have jurisdiction in matters of equity, subject to appeal to the Supreme Court in such manner as may be prescribed by law" (sec. 6,) there would seem to be no ground at all upon which to doubt the power of the Leg iSlature in question: to be exerted whenever they may deem it expedent For these pro- visions express, in very distinct terms, the afr native of the proposition.
 It will doubtless be conceded that no limita- ton to the power thus affirmed can be found to have resulted from any delegation of powers to the federal government from the people of this State, that would not equally apply to every ac- ton ot our people III convention, in reference to the establishment of State government. And like concession will be made as to any that could result from any of the primeval objects of human government, which were too palpable and Set-evldent even to have place in a bill of rights, and are therefore supposed and taken for granted in every move orthe establishment ofa government by free people Hence the only limits to the power in question, in the as- pect m which 1t Is presented to us. is to be found in our bill ot rights and other provisions of the constitution. And as to the bill of rights. it may be safely affirmed that the extent of limitations iS not beyond the measure that was practically Illustrated by the convention in the creation of the courts that were ordained by that body. and cannot be so great in one respect at least, be- cause the right of trial by jury has never been construed under like circumstances to have any reference to proceedings in chancery
 Further limitations then upon this affirmed power, If any exist. are to be sought only in other provisions of our constitution. either in themselves or in their legitimate results. Of the former none have been suggested or are known to us Of the latter, all that have been urged are referable to a single head, to wit: ine- quality of benefits, and inequality of burthens. It being insisted that equality of benefits and of burhens as prevailing element is diffused to every fibre of our government: and doubtless this Is true as to Its aims and objects; but these are human and are sought to be effected by hu- man means And if completeness is to be the measure of this inequality, and the fruits of hu- man government the proof, such aims are uto- plan, but still worthy of the best efforts of the enlightened patriotism of the age, that approxi- nation may still progress. So if approXima- ton to this designed equality of benefit and burthen, is to be the test, unless some measure for 1t be fixed by the constitution in some tangi- ble landmarks that will perform the doube of- flee of a standard for its entertainment, and limitation upon the legislative power on the subject, there can be 10 test by which to deter mine the constitutionality of legislation involv- ing any question of equality or inequality of benefit and burthen.
 It has been urged that sdch a tangible land- mark can be found Tn the political truth that must have been in the view of the convention. that justice can be best administered in a sys. tenn embracing numerous courts so arranged that every citizen should have convenient ac cess to justice, and that the system of common law courts illustrating this truth is conceived by the convention so far as practicable, or at least so far as indicated by the temporary investment of the chancery powers by that body, should be regarded as this tangible landmark to perform this double office. Whether this be so or not, It IS not necessary for Us to determine, because the facts of this case present no departure from that standard, since the act in question in no way dlsturbs the investment of the chancery power as temporarily made by the convention, except only as to the single county of Pulaski; and as to this county the main effect of the en- actment Is but to divest one functionary of chancery powers and to invest another with the same. Nor can the objection made to the mode of appointment of the latter functonarv be sustained since it is in express terms provid- ed in the constitution, that ''the appointment of all officers not otherwise directed by this con- stltution, shall be made in such manner as may be prescribed by law" (Art. 4, sec. 28.) Nor the objection upon the ground of inequality of benefits and of burthens urged against the sala- " provided for him out of the State Treasury: since there is no express inhibition upon the legislative power as to this, and if the provision as to the salary of other judicial officers is to De the test there is still no inhibition; because, unuer these provisions no one could doubt but that It would be entirely within the powers of Ine Legislature to fix unequal salaries for judi cIai ollcers of the same class, and upon the PIlnclple that this objection is urged, ought to