The Evansville daily journal. [volume] (Evansville, Ia. [i.e. Ind.]) 1848-1862, 1855-11-15

EtrumentS. This duty OF the judicial depart
ment in this..courtry wa> demonstrated by Chief
Justice Marshall in Marbery V. Madison,
Cranch 1877 and has since been recognized as
uuoted, therefore as applied legislative pow
ser, is here without meaning.
Nor does it prove the power of the State legis-
lature to enact the law in question, to show
that the Supreme Court of the United States
has decided that it cannot declare such State
law imperative, for that Court can only de-
clare void such State laws as conflict with the
restrictions imposed upon State power by the
Constitution ofthe United States and, if in that
Constitution, the State are not restrained from
passing laws in violation Of the natural rights
of the citizen, the Supreme Court OF the United
States cannot act upon such laws when passed,
because they do not fall within its jurisdiction.
Hence, that Court has decided that State
may deprive its citizens of property without
making compensation, and Of the right of trial
by iury; Brown v. the Mayor, &C., Peters,
243; may pass laws depriving them of vested
rights in property, and ofthe benefit ofjudge-
) ments they may have obtained in courts, and
the like; Salterlee v. Matthewson, Peters,
$780, and the licence cases in 5th Howard, 504;
and no redress be obtainable in the United
States Courts, because there are no provisions
in the United States Constitution prohibiting
the passage of such State laws. But the Su-
preme Court of this State has decided that I'M
der our State Constitution, the legislature can
! not enact law for the taxing of private prop
perty without making compensation; cannot
deprive the citizen Of the right of trial by
jury, and cannot set aside the judgment of
a court, &C., Young V. The State Bank, 4th
Ind. Rep. 301. Mccormick V. Lafayette, LIST
Ind. 48.-The State v. Mead, 4 Blackf 800.
1t does not, therefore, follow that because
the constitution of the Uninted States does not
prohibit State legislation infringing the ma
tural rights of the citizen, such legislation is
valid. The constitution of the United States
may not, but that of the State may inhibit it.
And so indeed, according to many eminent
judges, may principles of natural justice, in
dependently of all constitutional restraint.
This doctrine has been asserted here. In
Andrews V. Russell, Black, 474, Judge
Dewey says, Owe h;vs said that the only
provisions in the Federal or State Constitutions
restrictive the power of the Legislature"
&c. are, "There are certain absolute rights,
and the rights of property is among them,
which in all free governments must ofnecessity
be protected from legislative interference, IT.
respective of the constitutional checks and
guards"
Should we find, however, in the course of
this investigation that the constitution of our
free State does, in fact, sufficiently protect
natural right from legislative interference, as it
surely does, or it is grieyously defective, it
. will not become necessary for us to inquire
whether in any event, it might be proper to
fall back upon the doctrine above SO unhesi-
tatingly asserted.
Does our constitution, then prohibit the
passage of such an act as that now being con-
sidered? A dictum is quoted by counsel from
the opinion in Beply v. The State Ind. Rep
264, that ut is competent for the legislature
to declare any practice deemed injurious to
the public q nuisance, and to punish it accord
ingly;n and hence, it is reasoned, any property
but but dicta, as counsel well know, are not
necessarily law; are in fact, generally uncon-
sidered first impressions which, all legal ex-
perience proves, are thrown out by all judges
in giving opinions as habitually and thought
lessly as violations of the constitution are per-
petrated by the legislature in enacting laws,
infinitely more excusably. Scarcely an elabor-
ate opinion is written not containing them
This the profession well understand, and
hence are not misled by them if erroneous.
And it must be manifest to every one OH a
moments consideration, that the doctrine Just
quoted cannot be taken for law, and could not
have been so intended, in an unlimited sense,
by the learned judge who uttered it. The
legislature cannot declare any practice it may
deem injurious to the public nuisance and
punish it accordingly. 1t cannot so declare
the practice of reading the Bible, though, per-
haps, the government of Spain once did. 1t
cannot so declare the practice of worshipping
God according to the dictates of ones own con-
science, though perhaps Massachusetts,, in the
days of Roger Williams, did do it. 1t cannot
SO declare the practice of teaching schools
though perhaps Virginia might have done so
in 1874 when Governor Berkeley wrote from
that colony: II thank God there are no free
schools nor printing, and hope we shall not
have these hundred years; for learning has
brought dlsobedience and heresy and sects
into the world, and printing has divulged them
and libels against the best government. God
keep us from both" 1t cannot so declare the
holding of political meetings and speeches, the
bearing of arms, publishing of newspapers, &c.
&C., however injurious TO the public the legis-
lature might deem such practices to be- and
why? Because the constitution forbids such
declaration and punishment, and permits the
people to use these practices. So with prop
= erty; the legislature cannot interfere with il
& further, at all events, than the constitution
permits In short, the Legislature cannot for
bid and punish the doing of that which the
constitution permits; and cannot take from the
citizen that which the constitution says hs
shall have and enjoy. If can, then we think
all will admit that the constitution itself is
worthless, the liberties of the people dream
and our government as despotic as any OF
earth.
And we may here remark that the legisla-
ture can add nothing to its power over things
by declaring them nuisances. public nul-
gance is that which is noxious offensive to all