The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1866-02-12
Senate Bill No. 2.

titled "a bill to prevent and PUNISH tne'
forcibie or unlawful obstruction Of pub |,
lie Justice" has been ordered to engross-;
ment, and will soon come up before the
Senate on it's passage. The bill is itself
a legislative curiosity, a sort Of ''alien
and. sedition Law" in a small way, and
falls so far short of the, purpose its au,
thor intended to accomplish that we
wonder somewhat why lawyer posses
sing the reputed ability of Mr., maxwell,
did not report from the Judiciary Conf
mlttee that II fought not to pass, or rath.
er that its passage was rendered entirely
unnecessary By existing laws, ne. @et0
It provides first that "the Circuit
Courts and especially the Supreme
Court of Appeals of West Virginia are
alone authorized to interpret and deter
mine the constitutionality of any saso of
the Legislature OF this State" The word
law makes the clause an atsurdity all
lars are necessarily constitutional, and
acts of the Legislature are not lars I'M
less they are in accordance with the con-
stitution of the State and of the United
States This is well settled doctrine
of the Courts, and it has been repeatedly
held by the highest judicial authorities
that Il legislative enactment which con-
fiicted with the constitution was abso-
lutely void- that it nsrer 'ras a lG'p--that
it never had any binding force OF effect.
The Supreme Court of Appeals cannot
repeal laia nor set it aside;
lit merely determines what. Is law,
and.what Is not, When legisiati7saoS
comes before it: if Che Court finds that it
lis in conflict with the constitution 1t
decides that the enactment is not o law
land never has been, Andfrem'this flows
directly the conclusion that an pmcer
who executes an unconstitutional act OF
the legislature does so at his own peril
and is personally liable therefor His
authority being VOID, he was acting IN
violation of the constitution and ofisw,
There are numerous decisions of courts
in support of this point and, less than
ten days ago in delivering his opinion in
the case of "WooD IS maxwell, Judge
BROWN assumed the identical position
which we have taken here. and which
we maintained il relation TO the
test oath act last fall A void authority
oannot protect the person acting under
| it 1858
l. .Ths same COntdsio': II ideas as r. the
distinction between an act of the legisla-
ture and q la0 prevails throughout the
entire structure of Senate Bill No ?. 1t
provides punishment for those who shall
obstruct or oppose officers in the "law-
fill discharge OF their duties, which is
all we'll enough but can be done equally
we'll under laws already upon the stat
ute books 1t would be more to the
purpose If the legislature would provide
a heavier punishment for officers who
anla,gfu1ly execute legislative enact
ments which have no force whatever.-
The author of the bill seems to have.
been burning with zeal to do something,
but did not know precisely how to do it.
If he profits by the hints we have given
he may give his bill a more formidable
appearance, but we are inclined to think
that there will still be radical defects in
whatever form of words seems to accom-.
plish his unlawful purpose