Daily globe., 1881-09-11


judicial power is required as contempt OF the
sovereign which may result in injury to the
State or citizens. shN
Three things are essential to justify the writ:
First-That the court officers or person is
about to exercise judicial or quasi Judicial
power.
Second-That the exercise of such power by
such court officers or person is unauthorized
by law.
Third-That it will result in injury for
which there is no adequate remedy.
The act of March 2, 1881, does not attempt
to confer on the respondents Judicial power IN
the strict sense of the term. 1t submits to
their decision judicial question, and al
though their decision upon it could not have
the authority and binding force of decision
of court of justice, yet The act provides for
carrying it into effect as though it were bind
ing, thus giving it quasi judicial operation.
That injury to the State and to the citizens
will result is apparent from the fact that such
result will be the issue of invalid obligations
of the State to the amount of millions OF dol
lars, and except this writ there is no judicial
remedy for the threatened evil. If the act is
void, and SO confers no authority on the re-
spondents, the writ must issue.
Before proceeding to reconsideration OF the
main questions involved in the case, we take
pleasure in acknowledging the signal assist.
ance which the requirements of the counsel
on both sides have rendered to the court. The
discussion took very wide range and occu-
pied an unusual time, though not more than
was profitably employed, and disclosed the
most thorough AMI minute research and in
vestigation. 1t has rarely been the
good fortune of any court to
| have a cause before it SO ably and
exhaustively presented by counsel as this has
| been. The basis of the application is the pro-
position that the act of March 2, 1881, is un-
constitutional and void. 1t is claimed to be
unconstitutional for various reasons, only
| two of which, on account OF their superior
| importance, we think it necessary to consider.
| We state them in the order of their import
ance They are first, because it is contrary TO
| the amendment to the constitution OF Novem-
| ber 6, 1860, to the effect that no law levylng
tax or making other provision for payment Of
the bonds shall take effect till approved by
vote of the electors of the State. Second, be-
cause it is an attempt to delegate to the judges
| legislative power, inasmuch as it leaves it for
| them to determine whether section or sec
| ton of the act shall be law. In answer to
the first of these positions the respondents
urge that the amendment of 1860 referred to,
| is itself void, because repugnant to the con-
stitution of the United States.
A more important and difficult question has
rarely, if ever, come before court IN THIS
country. Courts always regard it matter
of great delicacy to pass on the
validity of an act of the legislature. 1t
is much more SO when the validity OF
a constitution adopted by the people OF State
| State is alleged to be contrary to some clause
in the constitution of the United States, it is
| immaterial whether it was passed by the legis-
lature or by the people ia framing constltu-
| ton for themselves. The constitution OF the
United States is in some particulars limita-
tion upon the sovereign power OF State, and
operates equally upon an attempt TO exercise
| the prohibited power, whether by the legisla-
| ture or by the people. In both cases the at
| tempt at exercising it stands upon the same
| footing, and must be judged upon the same
principles.
| One of the limitations imposed by the feder-
al constitution is upon the pOwerswhlch 1t is
assumed State would otherwise have to legis-
| late with respect to contracts. This 1t does
| by the clause which declares that no State
shall pass any law imposing the obligation OF
contracts. It may be doubted that any other
single provision of that constitution has had
SO beneficial and conservative an operation as
this inhibition against improvident and unjust
legislation, which might affect the life of busi-
ness throughout the country. By it the great
principle was established that contracts shall
be inviolable. Sturgess VS.. Crowningshield, 4
Wheaton, 122.
Probably no provision of the constitution
has been more frequently before the courts or
more thoroughly and learnedly discussed than
this. There seems to have been doubt sug-
gested at an early day that the clause applied
to contracts made by State. The question
| was first raised in the supreme court Of the
United States in 1910 in the case OF Fletcher
vs. Peck, Cranch, 81. That was the case OF
| contract of a State, an executed contract,
grant of lands. The court held that the con-
1 ,,,,f \; -, fha io1i Of ho
| constitution, and said, p. 157: "Since the con-
stitution uses the general term contract with
out distinguishing between those which are
| executory and those which are executed, it
| must be construed to comprehend the latter
as we'll as of the former"
| In Green VS.. Biddle, Wheaton, l, came in
question the validity of two acts of the legis-
| ature of Kentucky which were claimed to i'm
| pair the obligation of contract between that
State and the State of Virginia. The objec-
ton that contract made by State is not
protected by the constitution against legisla-
| ton by the State seems to have been made,
| though, as the court said, was not much
pressed. Referring to the decision in Fletcher
vs. Peck, the court, p. 80, said: "The princi-
pies laid down in that case are that the con-
stitution of the United States embraces all
contracts executed or executory, whether
| between individuals or between State and in
dividuals, and that State has no more power
| to impair an obligation into which she herself
has entered than she can the contracts of in
! dividuals."
| The two acts of the legislature were ac-
cordlngly adjudged repugnant to the consti-
tuition and void, because they impaired the
| obligation of the contract between the two
| States. The cases are important, as the
| Judges who decided them and defined the ex-
tent of the principles included in the decisions
were contemporaries with the constitution. or
| SO nearly so that they knew well the evils in
| the past which the clause in question was in
| tended to prevent for the future, and that re-
pudiation by States of their own contracts
was among such evils.
| Although there have been since those de-
cisions very many cases in that court where
the validity of State legislation, claimed to
have impaired the obligation of State con-
tracts came in question, the court has never
departed from nor limited the application of
the principles laid down and applied in those
| two cases. Nor are We aware of any lntima-
ton by any Judge of that court that contracts
of State. either executed or e1ecutory, are
not, as fully as any other contracts, embraced
within the constitution. As lately as the case
of Mariwether VS.. Garret, 102 .. s. Rep, 472,
decided in 1880, the court said: " The federal
Judiciary has never failed, SO far as was in its
power, to compel the performance of all law
| full contracts, whether of the indlvidual of the
municipality or of the State. 1t has unhesi-
tatingly brushed aside all legislation of the
States imparing their obligation"
| The relator does not deny there may be
contract of a State, the obligation of which