New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1873-06-15

State, would be to disregard these laws,
and to deny to persons those rights and
privileges they were designed 10 establish
and TO secure the enjoyment OF.
Further still, it would be an emphatic
and practice, denia: 10 a large class OF per.
sons which the general government, in the
exercise of its political omnipotence lquoad
them. and OF lis sovereign wisdom, has
seen proper to invest with all the attributes
Of citizenship; OF 1.-THE equal protection OF
its laws Fourteenth amendment of the
constitution of the United States. Meeker
VS.. Klemm II A.. 10i. With what reason
OF propriety Can the courts, Which are Dat
the creatures OF the law. refuse 10 yield
obedience to the requirements OF that con-
stitutional power upon which alone they
must depend Tor existence and without
which they would possess no authority
whatever! The constitutions are the
supreme laws of the Land, and good
government requires that every officer and
every citizen should act accordingly. Il is
true that whenever mere legislative enact
ments are unconstitutional. the courts
should so declare them. and that Judge
would be unworthy OF his erm!ne who
would shrink from such duty. But the
constitution is the only limitation to leg;s-
lative power and l am not aware that Gus
toms ever have, in any country. been
deemed of such high authority as to super
seie the behests of even the common law.
See Winder vs. Blake. Jones, n. c. Re-
ports 1872; Knowles VS.. Dow. Fost. n. II.
Reports, p. J3'.
Illegal customs can have no weight and
courts can not recognize them, however
lona thew NAV have been established. See
PIERCE VS. United States, Mott & Hunting
don's R. go. They are obligatory on par
ties only when the law does not provide for
the case. The Lucy Ann, % Law Reports.
5l5 And when they are opposed to the pro-
visions of a statute they are not binding.
The Forester. Newberry's Reports. 81.
have thought X prudent to collate author.-
ties on this point to greater number than
is ordinarily deemed necessary, by reason
of the generally prevailing impression con.
corning some personal rights that customs
are laws, legislation to the contrary not
withstanding. Counsel has laid much stress
on the fact that the plaintiff knew all about
the rules and regulations which steamboats,
had established when she went on board
the Governor Alien. This is doubtless true;
but it is equally true that Captain Benson
knew of the existence OF the laws whose
authority had superseded those rules and
regulations If, then, it is fair to argue
that plaintiff should have been governed
by those rules and regulations, when
they had been swept away by legs
latioa. it is far more just to In
sist that he should have been 0uieted by
the imperative requirements OF the laws.
A systematic disregard OF them furnishes
no argument to excuse their violation, bat,
on the contrary. should admOnish courts to
vindicate their authority the more prompt
", the more impartiaily. 1t is the peculiar
province of the Legislature to enact laws.
and of the courts to interpret, construe and
administer them. Viewed rightly, they are
the special ministers of that science which
Hooker speaks OF as having ''her seat ID
the bosom OF God; whose voice is the har-
mOny Of the world. unto whom all things
in heaven and earth do homage; the very
least as feeling her care, and the greatest
as not exempted from her power
Whether laws are adapted to the present
state OF society Or not is al important mat
ter, it is true, but i: is one with which
courts have nothing to do. COoleys Con.
Inns, p. ICY. las: sentence, and PIP. loS and
III. Social necessities and enlightened
opinions are often in advance OF legislation.
but whenever the supreme power OF the
State speaks out in the definition of what
it considers right. and the prohibition Of
what i. is pleased to term wrong. society
mast pause and the people obey. 1t is the
duty Of courts to declare what the law ..
not to prescribe what it should be. States
are possessed of all power not prohibited
by the constitution. Counsel for defend
ant cites the case of Day Va. Owen, htth
Mich. Reports. p. 52o. where the court he!o
that thu right to De carried was one tang.
the privilege OF passenger on boat
quite another. both being subject to the
reasonable rules and regulations OF the
boat. Can a rule or regulation be judicial
IL declared reasonable. which supersedes
express law and bids defiance to Its au-
thOrity. A fair analysis OF that case will
show that it does not favor the conclusion
which he deduces from it. The rule es.
tablished by law. may give rise to personal
or private injuries, and it will no doubt 90
so in this case, but, while it is the duty OF
government 70 protect che right OF each
individual, however humble or obscure ne
NAV be. private interests are never lnsup-
erably set W as barrier to PUBLIC neces'
sity.
Again counsei cited the case Of jerks VS..
Cole man, :. Sumner, p. 22l, in which Judge
Story said that the right of passengers on
steamboats, was not unlimited, but was
subject to such reasonable rules and regu-
latioDs as the proprietors may prescribe Tor
the accommodation of passengers. Ihae
they are no. bound to admit passengers on
board who :etuse 20 obey the reasonable
rules ant. regulations of the boat Here
again he question recurs. can courts say
rules are reasonable which are contrary to
and subyers:ve OF positive law
II IS not pretended that boats may not
establish regulations. but they are prOhib-
tied from making determinations on &C
count OF race OK color.
The next point urged by counsel III argu-
melt Is TIA. any interference by State
with the rules and regulations of vessels Is
in substance an atteMpt to regulate com
neccc. Tle government Of the United
States Is enc y; enumerated powers. These
powers are expressly delegated by the con-
stitutior, and the government can right
fully claim none which are not granted by
il. They are such as are actually AND ex-
pces:ly given, OK such as are given by
necessary implication. See opinion OF Chief
Justice Marshall. il Martin vs.. Hunters
Lessee. Wheaton. 326; see also Cranch.
81: VIZ. iI5; Pets. 2i3; Cooley's Con.
Linn. ~. The tenth amendment to the con
stitution Of the United States provides that
the powers not delegated to the United
States by the constitution nor prohibited
by it to tn: States. are reserved to the
States respectively, or to the people. Now,
what are the powers OF Congress as estab-
lished By the constitution with regard to
this matter TO regulate commerce with
foreign nations and among the several
States. and with the Indian tribes" Chan
cclior Ken. said of this section: the power
was restricted to that commerce which con-
cerned NOR. States than one, and the com
pletely internal commerce of a State was re-
served for the State ITSELF ! Kent. i3G:
Cooley's Con. lin. Isl, JS5.
Il will hardly be denied that inspection
laws relative to the quality of articles 70 be
exported. quarantine laws oil every descrlp-
ton and such as were desig ned 20 regulate
the strictly internal commerce OF State.
formed anu are component parts OF an I'M
mense mass OF legislation, which was never
surrendered to the general government.
See Vol. Kent. PIP. 1901. See also the
celebrated case OF Gibboa VS.. Ogden re-
ported in > Wheaton. In the late
Slaugh.erhouse decision. the Supreme Court