Weekly Indiana State sentinel. [volume] (Indianapolis [Ind.]) 1853-1861, 1856-01-03

Insufficient to afford protection they are enlarg- Il
Il and moulded to meet the circumstances; so s.
hat revolution should begin with the PeoPte !,
nd not with the courts. Any other revolution l
'annot readily be distinguished from subVer- G
ZION. !
The system we have adopted Is marked iOr ?
simplicity. The judiciary and all the other de q
live and move and have their Oflclal e
being aud sphere OF action IN the constitution q
Art. 8, Sec. /. The duty OF the Courts Is Chief l
ly expository. When the constitution ana laws !
come up for adjudication, both must be regarded
as the work Of the same hands; both are of the !
both must be respected unless they con I
fiict. 4Ind. .342, and the authorities there cited.
Ia case of conflict, the temporary Will contained
in the law must yield to the paramount Will {
contained in the constitutions.
For the Courts To declare a law void on any
other ground; 10 set it aside because It is impol-
itic or inexpedicnt, or even like the liquor law,
odious aud oppressive in some of its features,
looks like assuming 10 protect the people against
themselves.
1t is easy To imagine that the Legislature may
pass a very OdiOus enactment. Our statute
books abound with them. Such we're both the
bankrupt laws passed by Congress. Interest
or passion, or, perhaps, Other dubious Inhuen.
ces often mould legislation. The advocates OF
ultra measures have the popular ear one year
A law is passed in accordance with their views
Next wear those who suffer from the new policy
appeal successfully To the same public. The
reason is on the surface. Any enactment IN al
vance of 4 sound and matured public opinion;
or based upon the iuctuating fever OF the hour;
or odiouS in itself under any healthy state oil
the public mind. is sure To be swept from the
Statute book before IL i dry.
But il does not thence follow that the Courts
must hasten To declare it unconstitutional
2 Much * said in the Reports about a law being
against common right" Under the old Con
stltution a revenue law might have exempted
half the property i'm the State from taxatlon.-
The whole burden would thus have bcenthrown
1 upun the other half. This would have been
against common righrs 4 Ind. 81. Yet the
Courts. acting within the ~phese which our pol
inv had assigned theIu, could not declare the act
Unconstitutional They could not inquire into
the expediency % policy of the measure. Rip
lev vs.. The State, 4. That belonged to legisla-
tion; that The people had committed to the Gen
eral Assembly. The Courts could apply the
rules of strict construction and they did so. Ba-
ker VS.. Orr; Ind, 81. Kent, Lecture ~. 81
| Ohio. 10. 4 Peters, 5I4. Blackwell, 1912.
The people remedied this evil by amending
the Constitution. Sect. ], Art. I'D.
All the courts can do with odiOus statutes
which are constitutional, Is TO ehasten their
harshness by construction. Such is the imper-
lection Of the best human institutions that
mould them as we may, n large discretion must
at last be repOsed somewhere. The best and in
many cases the only security as in the wisdom
and Integrity Of public servants and their iden-
tity with the people. Government cannot be
administered without committing powers IN
trust and confdeBce-lst Bibb, 6O2; Glbbon
~ Order 9: Wheat. 1: Pro. Bank VS.. Billings, 4
! Pet. 5l4. Exparte Alexander, s. j "A.
The settled rule of this court is a strict con
struction Of delegated powers 5 Ind. ! 4 Ind.
30I; 4 Ind. 3i2; ) Ind. $50; 6 Ind. These de-
cisions defined the powers of the Legislature un-
der various provisions of the new constitution.
If they have led 70 the superstition that we
could declare any statute void at pleasure, they
have indeed had an evil influence, for our judicial
, powers are also delegated. They must receive
the sam strict construction which we have so
often applied to those Of the other departments
> We hold them by the same tenure aud are bound
; by the same rules. We have no power over the
Legislature but what is given ms by the constr
tuition. In the polity of all these States, our own
among the rest. judicial and Legislative duties
are distinguished from each other. The assem-
| bly, cannot grant a new trial; nor can We in
quire into the necessity. policy or expediency O
4 the laws@ Ind. 30I. The third article of the
constitution defines the limits Of each depart
: Inent thus:
' 1.-The powers Of the government are divided
into three separate departments; the Legislative
the executive, including the administrative, and
4 the judicial; aud Ho person charged with Off
:, cial duties under one of these departments
: shall exercise any functions of anOther"I r.
' s. A.. Yonng W the Bank, 4 Ind. 30l. was 4
direct decision On a corresponding provision IL
v the old constitution. In that case the legisla
ture had granted a new trial. The court by
Judge Perkins pithily puts the case thus: 9TH,
# constitution says the Legislature shall not per
? form a judicial aet. The granting of a new tria
is n Judicial act; therefore the Legislature can
n not grant a new trial
e Apply this reasoning to our judicial powers
9 The constitution says the Judiciary shall M
:. perform a legislafive act. .rh subject, neces
sity. policy and expediency OF a law are matter
of legislation. Therefore they do not belong Il
the judiciary. The argument il complete; tn,
e authority pertinent and conclusive as an exposi
ton of the 3rd article of the constitution.
d Against this position there's not a single cas-
TN our own reports; but many in coinci6enc,
% with il. Thus what a law should embrace in
|, wolves questions of policy more properly legis
laiive than judicial; > Ind. $50. .Judge-mad,
9 law has over-rode the legislative department.
Perkins J. in Spencer W. the State; 5 Ind. 49,
Whether an act il polite nr expedient. or neces
sary is not a question with which the court
have any thing TO do: Biply vs.. the State,
Ind. 264. And it is the principle runnin.
a through all our reports. If there be no consti
tutioual objection to a statute it is as absolut
= under our system of government As in any sys
ID tenn; l Kent. Lee. 20.
IN On the other side the learning and diligenc
10 of counsel have failed to produce a STANDARD
~ authority or even anv decided case, in whicl
courts have assumed to declare a statute whicI
Al did not conflict with the constitution, void, be
.e cause to the judicial mind. it appeared TO b
/ against public policy or private right.
This court has, therefore. no duties outside O
the constitution; aud surely none of Legislative
character conflicting with The express letter Q
that instrument. Courts are not to array thei
,e own reason against that ofthe Legislature; Smitl
Com. 2s7. We cannot declare an act void be
,e cause it conflicts with our opinion of policy. ex
pedIency or Justice. This was said by Mr.. Jus
N tice Baldwin. OF the Supreme Court of the u
5, in Bennett vs.. Bull 1 Baldwin "a. So ais.
IS Calder VS.. Bull, 3 Dallas $50; 1 Kent 405.
= IL we had the power 10 look into the reason
4 and Justice of a liquor law. where would tn
2 principle endr We might look into the %justic
of a tax law, or any other enactment; and thu
place the representatives of the people at tn
# feet OF the judiciary. History informs us tina
n the arbitrary discretion of n Judge is the law o
a atyrant and warns Us that it may be So again.
o 5 Ind. 40.
That the people of the United States hav
such entire confidence in their courts has oftel
been remarked To our credit by foreign travel
ers-DeTOcqueyille, Chap. d. This sentimen
e so generally cherished, imposes upon that de
II partment reciprocal obligations. The iudiciar,
can only retain the public confidence by the
o means which acquired 1.-THE independence o
n ITS action and the exalted purity of its motives
But when the Judiciary enters the lists {,
S contest questions of necessity and expedieney
n with the Legislature, it sinks in the public esti
nation into a detested council Of r~erisiOns, sucl
g as ever held sway in the polity of a sister State
Kent Lect- DO. Ford's History of Illinois.
Y The history and Legislation of the times
o particularly what was the state Of the question
I at tie adoption of the constitution may be Of
some importance; Preston VS.. Browder. l Wheat
e lis. Rhode Island vs.. Massachusetts, ~ Pc
tiers 657.
Itmay be promised that most Of the colonies
Virginia as early as March, l660. enacted laws
5 "to prevent disorders and riots in places wher,
= drink was retailed." Since the Revolution IL i
: believed every State in the confederacy has
: passed laws more OF less stringent in relation Il
Z the retail of spirituous liquors At the present
D moment tie liquor traffic. its evil and remedies
Is warmly agitated in many Of the States.
The history of the territorial and State legis-
lation of Indiana shows that she has invariably
III I'LL -