Smyrna times. [volume] (Smyrna, Del.) 1854-1987, 1856-06-11
WHOLE NO., 272.

necessary TO effect the purpose are within the
scope OF that authority
MIR. Justice Mclean said :--N The acknow.
ledged police power of a State extends often to
'he destruction OF property. The State NAV
regulate the sale of foreign spirits and snch
regulation IS valid though it reduce the ouant,-
" oil spirits consumed" A license NAV be
required to sell foreign articles when those of
domestic manufacture are sold without one:
anu II Tue foreign article be injurious to the
Heaiun or morals Of the community, a State
may III the exercise of that great and conser-
VdtPe police power which lies at the founda-
Ton OF It's prosperity, prohibit the sale of it,"
IL Is trne that these views of the Judges Of
inc supreme Court have not the force of iudp
heht binding on this Court and the same NAV
be Sid of the State decisions directly on tho
question Of legislative power But ihev arc
me Opinions OF emlnent Constitutional LAWYERS:
and we might add the names of many oil or
Judges' as well as OF common law writers in
support OF the same principles. We have seen
no adJudged case which denies the power of
ii state LII the exercise of its sovereignty to
regulate the traffic in liquor for restraint, as
wei as TOR revenue; and; as police measure.
70 restrict, or prohibit, the sale of lieuor as in
furious to public morals, or dangerous to pub-
iIc peace. The subsection of private property
Ia the mode OF its enjoyment to the public good
! anu l's suooFullation 10 general rights liable
10 be injured by Its unrestricted use, is a prin-
clple lying at the foundation of government
1t Is condition of the social state: the price
of its enjoyment; entering into the very struc-
ture OF organized society; existing by necessi-
| " Tor lis preservation, and recognized by the
Constitution IN the terms of its reservation
as . the right OF acquiring and protecting repr-
talon and property, and of attaining objects
suitable to their condition, Without INJURY one
TO another"
We came then to consider whether the act
OF $500, " for the suppression of Contemporaries"
violates any of the provisions of the Constitu-
tloh OF TINS State; or is in any other way an
unconstitutional exercise of legislative power.
We have already considered this question with
reference to what are supposed to be the innate
lnalienable rights of citizens, and rhe powers
Of the Judiciary to impose limits to Legislative
discretion, other than those imposed by the
Constitution itself; and we have failed to dis
Germ the existence of such a power, with refer.
ence, at least, to the act of legislation which
we are now reviewing. We will not say that
1t cannot be maintained with reference 10 any
supposable case, SO plainly tyrannical and un-
Just as to challenge universal condemnation;
and yet it would be difficult to conceive case
such Legislation which would not violate some
provision of the Constitution itself lis unsafe
basis OF so violent presumption. 1t were bet
ter TO presume that no such Legislation could
omanate from the representatives of the peo-
pie, TO whom is committed Legislative power
to review Legislative acts upon any other ground
than their conformity with constitutional re.
sirictions.
A few instances of such supposed extreme
legislation have been mentioned in the arou-
; ment; yet no decision of this or of any other
Court has been cited which is founded on such
power. The language of Judge Chase in
Calder as. Bull, g Dallas Rep. 1850 and of the
late Chief Justice of this Court in Rice u.s. Eos.
ter, a Harr. Rep 479) may imply the claim
2 OF such power in extreme cases, but neither
: the case then under consideration, nor the in
r stances specified, require any such basis to sup
(; port the opinion. They are all instances fall
ing within the Constitutional prohibition. A
: law thnt should make man Judge in his own
n cause would violate the provision of section s,
] for an impartial trial, and take away the RENEE
S dy which it secures in all cases by due course
d of law; and an act which would subvert our
republican form Of government, would Violate
n the entire Constitution of the State and come
n IN conflict with provision of the CONSTITUTE, n
: of the United States, which guarantees this
: form of government 10 each of the States
t The judgement in Rice Us. Foster imposed no
# limit on legislative power as existing in the
G General Assembly. 1t only denied the right
: to delegate that power to be exercised by di-
rect vote of the people themselves; a principle
G which has since been recognized, we believe,
e wherever it has been judicially considered
b Without denying the judicial power, there
1t fore, in any supposable extreme case to annuI
n a legislative act upon higher grounds than
n those of express constitutional constitution we
" do not affirm it. Our case does not require it,
y and we are not ambitions of the distinction for
Is this court of furnishing the first adiudged case
lie founded on such principle. The New York
Is cases certainly'de not furnish precedent
is On the question whether the grant Of legs-
D. latve power was restricted not only by the ex-
b. press provisions of the written constitutions but
to might be further restrained by judicial construc-
&c ton as against fundamental principles Of .iber-
il ty, common reason and natural rights, all the
Judges in terms repudiated the doctrine, except
at Judge Comstock, and he reeoiled from IT, Gas
It, Chief Justice Marshall did in Fletcher vs.
" Peck) [6 Cranch, l35, and avoided il by say
A. ing what is equally true in the case before MS.
le that "there is no process of reasoning by which
n it can be demonstrated that the Act TO pre-
" vent intemperance, pauperism and crime, is
Is void upon principles and theories outside Of the
nc constitution, which will not also, by al easier
or deduction, bring il in direct conflict with the
se constitution itsclfn
Judge Hubbard said, g 4 am opposed TO tho
he Judiciary attempting to set bounds TO legisla
ri tive authority, or declaring statute invalid
OF upon any tancifal theory Of higher law, OF frs
q principles OF natural right, outside the consti
Il. lutionn
Judge Seldom To determine the extern
on Of the law-making power, we have only TO lool
I'M to the provisions OF the constitution. Il has
Us and can have. no other limit than such as
10 there furnished; aud the doctrine that Their
,e- exists in the Judiciary some vague, loose, an
he underlined power to annul law, because in il
lis Judgment IT'S contrary to natural equity ap
he justice, Is IN conflict With tue first principle
to lot Cover ment, and can never, think,
err maintained
The Judge Johnson is equally emphatic In deny
W. Ing the power, and argues against il II som
)nc length, With great force and concinsivcness.
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