Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1880-03-09

and in accordance with the existing
state Of things at the time, 10 have said
the powers 81 maintain q judicial de-
partment. All Of the thirteen States
were in the possession VI this power,
aud bad exercised II ut the adoption Of
the Constitution; and u Is not pretend.
ell that any grant Of Il 10 the general
government u found In that Instrument.
II Is. therefore. one Of the sovereign
powers vested In the States By their
constitutions, which remained unaltered
and unimpaired, and in respect to
which the State Is as independent OF
the general government Us that govern
ment Is independent Of the States. -
| THE Collector VI. Day, II Wall, 1916.
The cases OF Texas vs.. White and
Collector VS.. Day were decided after the
Thirteenth and fourteeth Amendments,
upon which il is sought 10 maintain tue
legislation In question, were adopted;
and with their provisions the Chief JUS
tice and MIR Justice Nelson aud the
court for which they spoke were ianiil-
lar. Yet neither they nor any other
Judge Of the court suggested that the
doctrines announced In the opinions
from which have quoted were In any
respect modified or affected by the
| amendments
Nothing, Ia my judgment, could have
q greater tendency 30 destroy the indie
| pendence and autonomy Of the States;
reduce them 10 humiliating aud de.
grading dependence upon the central
government; engender constant irrlta-
ton, and
DESTROY THAT Domestic Tranquility
which IL was one OF the objects OF the
| Constitution TO insure, than the loc'
| trine asserted in this case, that Congress
can exercise coerCiye authority over ju'
| dcial officers OF tho States in the dis
| charge OF their duties under State laws.
IL will be only another step in the same
| direction towards consolidation when u
assumes to exercise similar coerciye au.
| thority over Governors and legislators
Of the States
The Constitution declares that "per-
sou charged in any State with treason,
| felony, or other crime, who shall ileo
| from Justice aud be found in another
State, shall, on demand OF the oNccu'
! tive authority Of the State from which
| hc He'd, he delivered up, TO bc removed
10 the State having jurisdiction OF Tho
crime Aud yet IN the case OF tue
| Commonwealth oi Kentucky W.. Dennl'
son, where fugitive from Justice from
| Kentucky WIS demanded irom the Gov
ernur of Ohio, and on his refusal apph
cation was made to this court ior man-
ddmm 10 compel him 10 perform his
! duty in this respect, II was held that
| there was no clause Or provision IN the
| Constitution which armed the Govern
ment Of tho United States with author
ity 10 compel the executive Oi u State
TO perform his duty,
NOR TO INILiCr ANY ruNlsnMENr
| for his neglect or refusal. Indeed,
such power, said Nj. Chief Justice Ia
ney, speaking for the whole court,
would place every Stale under the con
| troll aud dominion oi the General toy
| ernmemcnt even ia the administration
| Of ila internal concerns aud reserved
rights. ga How, lO1.l Aud Mr.. Jus
| ticc Nelson, in the case Oi Collector vs.,
| Day. where il was held that 1t was not
| competent for Congress 10 impose tax
upon the salary OF q judicial officer Ol a
| State, said that any government whose
means employed in conducting its oper-
atoms are made subject to the control Of
another aud distinct government, can
exist only at the mercy oi that govern
meut." | could add 10 these authOri-
ties, il anything more were required,
that all tho recorded uttcranCcs ui the
statesmen, who participated In framing
the Constitution and urging It's adop-
ton, aud OF the publicisis and IuriSts
who have since studied its language and
aided in the enforcement OF its proyis-
ions,
Ara INCONSISTENT wIru rus rgErENriON
ADVANCED
in this case by the counsel OF tho'Gov
ernmcni
The duties OF the county Judge in the
uclrction IT Jurors were judicial in their
nature. They involved the exercise OF
discretion aud judgment, lie was to
determine who were qualified To serve
in that character, and, Tor that purpose,
whether they possessed sound Iudg'
ment aud were Tree from legal eNccp-
tons. The law under which he acted
had been in force for many years, aud
had always been considered by the judi
eial authorities OF Virginia to he In con
iurmity with It's constitution, which IN.
hibits the l., legislature from requiring oi
its Judges any other than judicial du'
ties. A test as 10 the character ol an act
il found in the power Oi u writ OF man.
dapiu, to enforce It's performance in a
particular way.
~ ruE ACT M A IuCiAL oNE,
the writ can only require the judge 10
proceed in the discharge OF his duty
with reference Ia 1t. The manner OF
performance cannot he dictated. Here the
writ couldnot command the county Judge
10 select ~ Jurors any particular persons
black or white but only 10 proceed aud
select such as are qualified, its command
i'm that respect being subject to the Inn
itation incident 10 all commands Oi such
wri,s upon judicial officers,
Tho Thirteenth aud Fourteenth
Amendments are relied upon, IA already
stated, 10 support the legislation ia
question. The Thirteenth Amendment
declares: That neither slavery nor in.
voluntary scryiludc except as n punish
ment iOr crime whereof the party shall
have been duly convicted, shall exist
within the United States, or any place
subject 10 their jurisdiction The
Fourteenth Amendment, in it, first See
ton, which il the only one having any
bearing upon the questions involved in
this case, declares that. "All persons
born OF naiuraliled In the United States
and subject 10 the jurisdiction thereof,
are citizens Of the United States and OF
the State wherein they reside. No
State shall make or enforce any law
which shall abridge the privileges or
immuniiics II citizens OF the United
States NOT shalt any State
pGrgyE ANY PERSON or INA,
liberty, or property, without due pro
cess OF Law. nor deny Ia any person
within ils jurisdiction the equal prutcc-
tioE Of the laws" The Fifteenth
Amendment (which declares that "The
right oi citizens Of the United States 10
vote shall not DC denied or abridged by
the United States or by any State, on a.
count II race, color OF previous condition
Of scrVitulc," is not material to the
question before ". except as showing
that il was only With respect 10 the