New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1871-01-15
[ColnmunicateI
Unconstitutional Legislation Never Bind.
in4s

| ing.
2Dr.oa REPU8LIC AN:
| (i!ancing over the debates i. che Stat.
Senate. the other dav. WAS surprised a
the enunciarion Of u distinguished Senator
as to the effect of legislation Ia centravsn
ton .: the constitution. To NE it iras
! also little surprising that no one in thai
| eminent body saw fit to dispcte the propo
sition. He was speaking of some reeo!,I
| ton which had passed that body, ant
which. though he deemed it unconst;
| tutiona:. ne said "must bind the Senate
until -econs;dered." and ne illustrated his
idea By adding. just az IN 'Unconstitu
! tiola; ac: Of the Legislature i. binding OF
| the people until :he courts aiec.are it other
wise:"
Il i. respectfully @;bn;t:ed TIA: an "a
| constitutions: ac. Of the Legislature II,
| more binds che people than the courts. anG
| ia no more valid bctor. the judiciary pro
| claims it void than it - at.c..
! Otherwise, and upon :hc :heory of The
| honorable Senator. come startling PROPOSE
! :ions would seem to follow; as. for example
We may. for II time. have y mere Legislative
act superior 10 che constitution. because
| though at variance with that instrument, il
mus: contro! from the date Of enact
| men: until the time when some court pro-
nounccs il Il nuility: or. it may follow tina,
| for all time we have au act higher than thl
| constitution: for though in opposition 70 t..
| Latter. as it must be to be declared uncon
stitut;onal. yet, If no court happens eve: >,
20 declare, according to the Sena tor it hind;
| the people forever. What then becoI:.es o.
| the proposition that the constitution - tll,
! supreme law of the State:
| Again. upon the Senator. theory. :: Is III,
| decision of a cour. which makes any pnr.
| ;.ci!ac act unconstitutional or otherwise
and not til fact that it is in Coa:raventiol
of. or accord with Che constitution. Thus
| the Judiciary become, the A.w-makln.. in
stead of The Llw-cXpoundin: department: o
| :he government.
! The t-,Ic theory would seem 10 be. TIA
! .he courts. III passing :ipon the con-ti,u
! t;onailtv "t an ac:. mc-e! declare !. tav.
sn existing i'ct. one :hat had existence. IA
! He.l before d !: does hare after IA. adjuhi
Cation, though i, Ma:. by such ad;u,!ica
ton. become Il fac: proved, OK ec! at rc-:
| wh;ci, before was III iispH.:.
To make the-. ideas a !ic,.c c!c,rer i: neet
bc. take a hxpothe..,a. cas-. The Leg;sla
.urc passes and .i.a Governor approves u.
&C. .mpo-:n: on :he citizen. an uncon>,it;,
t.on.l 'ats. The &C. requires the co.lec:in.
office. - collect. and il pay,nen: is refused
Ac is 70 seize ard sell the citizens propert,
a. auction un.:! enough I. realized in cash
| 10 pay tax and cu-;@. \ is = citizen who i
| assessed under TIE ac;. Il Is thc collector
| he believes thc act So,l. and refuses 10 pay
i believes the act constitutional. the assess
! meut Conseuuent.. valid. and. determined t
do his duty IN pe:tec; good FAITH, h. seize
! and .e.IS tAa pro,"r'.: of 4 a. satisfy til,
tax.
| u. ~ his '.n.c 40 "";lc: has passed upol
| the act ~ say that j: was or wa. not con
| stitlitionai. 4 now sue, L for the value %
! his property seized and sold, and for sncl
other damages as may hav. resulted I,
, hlm from the seizure and sale. Upon tn,
| Senator'S theory. the act not having beer
| declared void by the courts. and therefor,
blad!ng. should je a complete defense tt
.!,a sui: OF A. But can B plead all these
facts in bar. Would not the most learned
plcadev in all the world look in vain through
Al; til. books for the form for such a plea
|: i attempt. thus 70 defend will not the
s.N; u; 7 -;
:aturc. being unconstitutional, is nullity
1t .s not a law, and never was. and there
Gore i: affords you no protection. \ shee,
OF blank paper would serve you as well 70,
\ defense rs viii the page. On which it i.
printed"
Mr.. Editor. as a lawyer. YOU are su.fi-
cientiy familiar with the book, to know
tina. in the supposed case. the Judgment of
the court would be precisely as above indi-
Gated. You know, TOO. that though the forego-
ing illustration is put as hypothetical. it is in
fact not imaginary. Almost its literal
parallel Is to be found in the reports of the
highest judicial tribunal of the land, So en-
inent Il .;nr;st as Chief Justice Marshal
holding On unconstitutional act TO be null
hty. and saying in so many words Counsel
tor appellants are too intelligent and have
too much selt-respect 10 pretend that void
act can afford any protection 20 the officer
acting under it
While the legal doctrine is as above in
dicated it is bu. fairness to add, that never
the!ess. the decision of the court of last
rcsort is the only incontrovcrtiblc proof as
70 whether any given act i. constitutional
Or otherwise, and though the citizen in the
absence of such an adjudication may feel
confident that it is void and act accordingly.
Te: he 50 acts y: his peril. If the court at
.ast happens to differ with him he can no
more plead his own convictions rs IA shield.
than can the officer who has collected taxes
under an enactment which is pronounced a
aullit-.
Say the books the presumption is in
favor of the constitutionalit,y of a legislative
enactment" Such being the presumption. it
i the part of prudence. as "a general rule
t" ac. upon it, so long as important interests
or valued rights are not thereby sacrificed,
o, imperiled.
There will De a match game of base ball
to-day at halfpast two o'clock. sharp at
The foot of Clouet street between the cham
i,ion Lone Star Juniors and the Mutual Base
Bail Club. Look out for good game.
Both mines are requested to be on the