New-York daily tribune., 1856-03-31
TBE PROHIBITORY ACT.
opIEIoN OF JUDGE SEIDET, OF T1tK
COURT OF APPEAL&
y.or V x,sz d. Complaint Of John Asfshevs sst sn@Dse


advance of every other whether the act Tor the pre-
vention Of intempersnee, paupersn and erime' con
sder,d in ref,reIce TO IL ooecf the means snopee
to SECURE that object, and it, alleged effect IN FHaAy
apnihia,,re a large amount Of property, VOID. a.
beng without the pale OF Legslstse power. IL IL
claimed, Il That irr.ePeetve OF any po-iu'e ies~'
tons the principles Of natural equity snd justice SET
bounds 10 the power Of the Legislature, Wnlc1 are
uauscend-d BY this law And .. That il y IN conflict
with tie express provisions Of the Constitution.
In examining this subject, speculative opmions IN
regard the wisdom of the act, or the oenehcal r
-u.ir hkey to flow from IT, can have morning WnSteFs
10 do with queston which depends upon ab-uact
principles Of governmental la9-pnncIples wbcn can
not be nodded To meet the views or interests OF any
portion OF the people. 1t il question n% OF exPe-
ditncy, but Of power. .
Every sovereign State possesses within i;selt ab-o-
ute and uumit. leg 8tive power. IL Il true, that
e. covernu, nj is instituted for benehcent purposes,
sna To protect the welfare of the governed, has no
moral r1g TO enact a law which Is pl Inly repGgualt
Ia n sson ard Justice. But is principle belongs to the
,cence Of political ethics and not that OF la" lhfe
srber beyond the State itseh TO determine "ha'
legislation lust Whatever therefore, Il to be de-
cnred by The ultims.e power OF State as there can
be- appeal must in vies of the laS, be taken To oc
Just night Tie Of the aDeaons o. nAsas And qeei
r upon laws, constitutes, Of neeessy sos?1's IesI'e
pov.f While therefore the rfgt Of sovereign >tate 70 pa"
arbitrary ryrsnrea avs may i's LEGAL poSs' aanot e
be ceLied TEis se<videut and eeis 10 pIoJ s'eaA'
Of course OF whole, all re poEe-s ar coz
the hAHes Of tee people al large or OF one '' more
iCov. L.t society # people wishing to form al or
M Del AZ nn;, y ;us cso Executive Iower ia one the
l,t,t il aIoteT anc Judicial u ihirt; as t- taee
Ions, the people IN the GO eet.Ve capacity 1e Le-'use
D. srineii eoull nee az Jaw % "llCo 'le ools -
W. er such drtfbudou 4 he GoyerDsnta pO~ers, some
an biiy n vested N the judiciary 20 pa- upon proPnety
evident that this Legislative. .ad Judicial pow
er II necessarily 70 be eNeEcet IN toe hfst iu.ance
least WI. passed sLd obviously constitutes the mot
portion Of the dufy Of the Legislature iset TSsap
rose the power vested IL the ue sry ehb y
he distinction between the two departments Besde' whel
1erscc BY the It becomes supervisory aud appellate
POWER, AID thus ei'iuo!g 'uIr1'tt o. az Hgidton II -
iherefIe in JaesmeLt that IN perfectly "os1a aAS
u1k s;rbaon Of The Governmental powers Il not "thA
the province Of the Jude'1Ty 70 pohunse any ae o. @
le,isaiure VOID II howeveT acquire his nsl hrousA
artificial dabGton Of those powers BY means o the oi
Let Us look then At our Constitution Section Art 3,
ed in and Assembly" This means, OF cJuf.e ne
eAOis lr2. alive power The words are genera and aea
Bsr,o sst Hnnod Sed 4 that the people had parted with
eli eir power Of egaon except IN the single eae Pro'dei
Mbv then a. hss been showp people could make
lis scs1s by other clauses in the Constitution hereafter 70
he noticed portion Of this absolute power has been anerrei
the Judiciary Not u true III d'eet tetnsi eut s % o.
.ution bens the result ofieaon By the people
eeie ts . r ..,e5 ,a. Sy the e.sseT caacs viii this
e Judiciary between them az does between the
st.ys, IL viii be .een that In this restriction uPo1
the Iower OF the lie gaure effected without eoIo1ndins
exercise only its sTproPriae Judicial funeons
70 'e.WTe then the rent Of 'ae making power We
ani have other limit than such as Is there preseoei
and the doctrine ta there exists IN the Judiciary some vague
oo@e and underlined power BnDu law because IN IT. Judg
conuery natural equity ana nsce Il IN oonnet
the fIt principles OF government and can never think
lam aware Jud when the question
before them have expressed tue exeuce OF Gch
power but 10 Court has ever believe assumed 70 dee-e
explicit enactment OF the Legislature void on that around
his Commentaries after rel, rnng 70 the doc
ne adytrced W other writers on THIS SUBJECT mat ec
Of Parliament contrary ssUn" void, says: But
the Parliament will positively ensct thing 20 oe done which
know of no power the ordinary forms OF
the eramJ les usually sed support Of this OF the
rule do Of them that when the main OBJECT OF
for that the Judicial power above the legsSve,
rhoA could be '06ts'"'e II a. G0'e'""e"|' BLACK.
Ch.isu commentary upon this passage When
the ssnhcHtion OF statute manifest a. dHmor,ry !e~
than that Of Parliament, restrain s operation see
note 70 Black These sgthoe It Is tfue have reference 70
the bish Constitution bat the following relate TO those OF our
Lieber IN his work on Civil Liberty and sefGovernment
that the State Leif.uIes have the night, a. general
rule 10 DO ali that seens Necessary foI the general welfare
Hd is lot ,eeiay prohibited" lie suggests no exceptions
NJ Justice IIee, the Of Calder elt Bull Dali 1885,
lowing language IT, Aen, government composed
.gslse executive and Judicial departments were esao
"led By Constitution winch imposed ne limits the less
stNe power the consequence would os th. what
de legislative power chose TO enact would be Lawfully
aced and the Judicial power could never nerpose TO pro
Ch Justice Church of Connecticut also in the of the
Cy .f Bridgeport a+t Houstonc Railroad Company IS
cnm X. 475, expresses bis views thus; There mey not
oxen be great difficulty in determining what ae the prH
c Of natural justice nor whG would tend TO undern ae
that which theorists may suppose 70 be the Fundamentals pm
Cpes Of tie social compact BY thoss
ledge the Ireeeps aid obligations o. revealed religions yet
application 70 he lfnitey vaii,d form. Of hama acton
aid we khow Of no other municipal power which
,eey make such application usH tae LesAAtuei ana a.
Court although may dsent ou It's conclusions yet 1e
G,ea.n aHy rtsht Gie ,d tt>m for other than
dat might eOnsder them unreasonable inPo'e or un-
/ ssree with the learned Chief this power
deeinLg what laws eNpedent and ost, which must
noe. be lodsed soGewhere Be safely eposed in the
Legislature which power frequently through The
the hands OF the people IN the Judiciary TIE
remedy tor unjust legislation proyded does not conflict with
the organic law the ballot boz and know Of no provision
OF the Constitution fundamental principle Of soyeTDmen'
which authorizes the minority when defeated at the poll
uren an issue Involving the re.y Of aay % appeal % the
| majority and nullfy the ltgisiAiiye power
upcn which il claimed that the law whole void,
That is iDcouen with the letter spirit OF the
rroyisics Of the State Constitution The pa!cusr clauses
With which alleged conflict those which povids
That no member OF this STATE shall Be distrane ed or
deprived any the nights privileges secured to say
citizen thereof b. law Of the land the Judgment
"o hs Peers" . Ths pesoss shall be deprived OF Aie
The hr.t of th,ee esa.es which had it, origin in Magma
CbSts. brief IS smbodes the most essential raatsu'i7.
contained Its meaning ss there usel plain
,icer that was The result Of e. se which had aed foF
nau had suppsnied laws and OF the
AHsoss,os and eabbed in their place the rreossyes Of
royalty The Ensh yeomAny u whose inscnce as e.sa'e
inserted BY the law Of the Iand' rHL Az
SAXON ConMoS Law. To put say other cons ue.
non uIon would render he claus nt'eny unlns1S a.
that period in fagh history the kns exercised legislative
ItwsI ADO y law ,h o. Se .hs Wa s1H, cay '
But the meaning rendered more clear % the pa-arnse
TesE OF Edyad Ill in which the clause but by tae A"o 10
Ind t Of bis wa. char ged o the woTcs;
vLon, Lsing brousht answer by due process flaw"
This change shows hat tee Ject oi the proYson was II
eminent bafseE ssaiHst BY other depart
Hence both courts aud commentators IN h country
cise uoa teiore be be deprived life liberty