Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-08-16


varying failure has been the result; and in
no instance is this more conspicuous than in
the answer to the bill Of injunction Of the
corporation of Nashville against the Metro
politan Police commissioners, prepared by
Messrs. TRBIBLE, HARRISON and others, and
published few days since. 1t is not pro
posed TO review this paper in detail
and point out the confessions and
avoidances Of which it is chiefly
composed, or the many fallacies anduntena-
bic positions which it assumes, but one error
provokes remark, and by a recurrence to the
elemental principles Of government may be
easily exploded. 1t is that which denies the
power Of the Courts Of the State to examine
into the validity Of an act of the Legisla-
ture, and to review its proceedings in order
to ascertain if the requirements Of the Con-
stitutioA have been complied with in its pas
sage, and to determine the constitutionality
Of the body which claimed to make it law.
In the following extract from the answer,
these legal apologists for the informal and
unconstitutional action Of the Legislature,
pronounce the inquiry Of Court upon
such questions a "glaring Judicial usurpa-
ton" They say:
To that portion of the bill pronouncing
said Acts, or any part Of either, void on ac-
count Of the exclusion from the Senate and
House Of Representatives of certain persons
alleged to have been duly elected thereto,
defendants have only to say that, under our
Constitution, each house of the Legislature
is constituted the sole judge as to the quail
icatiOns Of its members, and from its decis-
ion no appeal lies TO the Courts
BY Sec. !, Art. IL, Const. Tenn.-it is pro-
vided that "the power Of Government shall
be divided into three distinct departments,
the Legislative, Executive, and Judicial"
And 80 defendants would respectfully in
sist that all questions as to the proper con-
stitution Of the Legislature, the presence or
absence Of a quorum in either House,
whether constitutional mandates addressed
to the Legislature, as to the readings of bills,
etc, were obeyed or nOt-are beyond the
Cognizance Of the Courts being in fact pOliti-
cal, and not Judicial questions.
The consideration Of such questions by
the courts would be q glaring judicial usur-
patton of right of supervision over CO.
ordinate branch Of the Government which,
did such a right exist, would be no longer
coordinate with, but subordinate to the Ju-
dietary.
Issue is taken with this proposition in
every branch and feature, and it can be con-
clusively shown that it is in conflict with
fact, precedent, and principle, and at vari.
ance with the American system Of Govern
ment, Federal and State. 1t opens with
statement that has no foundation in fact
The Constitution nowhere declares that each
House of the Legislature is the "sOle" Judge
Of the qualification and election Of its men,
bers Section eleven of article second, de-
clares thatthey arethe judgesof qualifications
and election returns, and this has never
been denied but the term sole is not used,
for very good reason which will be shown
directly, and which is forci5ly illustrated in
the very example in question. Judging of
the qualifications prescribed in the Constitu-
ton, and Judging of the returns Of elections
legally conducted, is quite different thing
from excluding members who have every
requisite constitutional qualification because
their views happen to differ with those of
the majority. The one is constitutional
prerogative of the legislative body-the
other is a gross usurpation of power by a
portion Of the members Of such a body. 1t
is in Just such a contingency that it becomes
the function and duty of one of the equal
and coordinate departments of the Govern
ment to arrest the consequences of such usur-
patton by pronouecing it unlawful and
declaring against the validity of all acts
passed after such unwarrantable exclusion.
To concede the limitless power of judging
claimed would be to practically invest a
with thesupreme authority of the
State without let orhiDdrance. A majority of
each House could easily thus make themselves
the Executive and Judicial depart
ments, by impeachment and removal Of the
officers Of those departments, and WELD
absolute power. To provide against such
the wise system of checks and
balances which is the GROWING feature Of
American Constitutions was ordained. The
powers Of government are divided into
distinct bnt not entirely Independents
departments. Each is dependent on the
other, and within prescribed limits exercises
control and restraint over the others, while
all are dependent on the people. Every act
that the occupant Of either department may
do is subject TO review by one or both Of the
others. The Executive, and the Judiciary
may be impcached 10y the Legislative. The |
Legislative may be advised and instructed |
by the Executive The Judiciary may de-
tide on the constitutionality not only Of the |
acts and doings Of the Legislative and Exc |
'utive, but whether the occupants hold by |
tenure, and in such investiga- |
ion they have the full range Of the Consti-
ution TO inquire into all the facts that may
pear upon the case The Executive does
lot declare himself such, and il the question
PC made as to his right to act as such he does
lot decide. The Judiciary are commissioned
" the Governor, but are removable when
ound ineligible by the Legislature. It
would be an anomaly in the system II the
legislative department alone had the sole
lower 10 declare and decide absolutely upon
Is relations to the other departments-to
ssume itself a constitutional body without
question from its coordinate branches of the
Government This is the extraordinary
POSITION taken in the answer when it denies
he right Of the Judiciary to decide upon
he validity Of the Metropolitan Police
-aw.
The Jurisprudence Of many Of the States
urnish precedents Of such action by the
'ourts as these learned gentlemen protest
gainst and pronounce an invasion, by the
judiciary, Of the rights Of the Legislature.
scarcely year Of our history as a nation
las passed that acts of State Legislatures and
{ Congress have not been adjudged uncon-
iitutional, null, and void. The judicial
light to decide upon the constitutional COM
osition Of the law-making body, and the
lode in which law may have been enact
4, is as clear as that 20 adjudge whether the
royisions Of The law, may or not be repue-
ant 20 the Constitution Indeed the exami-