The New era. [volume] (Martinsburg, W. Va.) 1865-1871, 1865-10-19

tons who do not hesitate publicly to an
nounce their opinion that the law of the
18th of February, 1861 unconstitutional,
but yet who seem to doubt their right as
conducting officers of the election to
treat it as a nullity; this is most extra
ordinary reasoning. Do they not per-
ceive that they will treat the Constitu-
ton as nullity, if they obey that law:
Which it is their duty to support the
Constitution of the State, or the act OF
February, 1865? Which of the two is
the higher authority even if they were
not compelled to take the oath, which
the law requires:
It is the duty of the Judiciary, says
the Supreme Court, ''as the appropriate
means Of securing to the people, safety
from Legislative aggression to annul all
legislative action without the pale of
our written constitutions" Berbe, US.
State of Indiana, p. sol.
There is an axiom in our constitutions
al system. All admit it. But these
gentlemen say, we are no part OF the
judiciary. This is an error. You are,
it is true, no part ofthe regularly organ
lied system of Courts for the trial of
rights of persons and property between
man and man. But you form special
tribunal with all the powers and obliga-
tons of a Court, to decide questions of
Law and fact of the deepest Importance
to the country, in all controversies that
may arise between citizen AMI the
State, touching the elective franchise.
What do the best legal authorities de-
fine Judge to be? ga public officer
lawfully appointed to decide litigated
questions according to Law" In its
most extensive sense, it includes all Off
GERS who are appointed to decide such
questions, 4. Dallas 226. In its more
limited sense, the term Judgesignifies an
officer who is named in his commission
and who presides in some Court
But are we not bound to obey an act
of the Legislature, though it is in VIOLA
ton of the Constitution, until it is re-
pealed" Fortunately, we arc without
the highest judicial authority in the u
nited States upon that point. We will
lay before you acase, where the Supreme
Court of the United States with Chief
Justice Marshall at its head, held min
isteriak officer Of the State personally re
sponsiJle, for executing an unconstitu-
tional act Of the Legislature of Ohio.
The case was this, g. Wheaton Re
ports
The Legislature of Ohio in 1919, pass
ed an act imposing an annual tax of $50
600 on every branch of the United States
Bank in the State. The act directs the
State Auditor to charge the tax to the
Bank on the 18th of September in each
year, and issue a warrant under the seal
of his office to some person to collect it.
The person to whom the warrant was
delivered was required by the act to de-
mand payment at the Bank, and if it
was not paid, to levy the amount on the
money and property of the Bank. If he
could not find effects enough in the
banking room, he was authorized to
break open any room, vault or chest in
search Of what would satisfy his war
rant.
Osborn, who was the Auditor, APP
pointed Harper to collect the tax, who
went to Chillicothe and seized on $780,
600 of specie and bank notes belonging
to the branch at that place. The money
was delivered to Curry, who was then
Treasurer of the State, and afterwards
came into the hands of Sullivan, his sue
ceSSOr.
The Bank sued Osborn, Harper and
Sullivan individually for the money
Two questions, of course, arose in the
cause l. Was the act of the Ohio Leg
islature constitutional 2. If it was not,
was the auditor, collector, and treasurer
personally liable for executing it?
The Supreme Court of the United
States held the act to be demonstrations
al, but the other question was consider
ed so clear that the counsel for the de-
PENDANTS gave it up. Chief Justice Mar
shall delivered the opinion of the court !;
and in the course of it he stated (see 8,
Wheaton s39) "The appellants Osborn
& Co. )expressly waive THE EXTRAV-
| AGANT PROPOSITION THAT A
VOID ACT CAN AFFORD PROTEC-
TION TO THE PERSONS WHO EN-
LI(TITE IT'D A narSOna1 dacraa Woo