The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1882-02-10
Tho Powers of the Courts.


the Dispatch has madcfntendcd TO snow
that the Supreme Court OF Appeals can by
its decisions bind the Legislature, the de-
cisions being, II Il understood always,
either that the acts Of Assembly involved
arc or are not constitutional.
We do not pretend 10 say that the courts
can dictate legislation, nor that they can
declare an act Of Assembly null and void
because Of It's inexpediency, or impolicy.
ar even because il will work manifest in
,ury Ia the Commonwealth or to portion
Of her people. These are questions over
which the legislative department has COM
pttc and absolute control. But we DO
contend that when the Supreme Court OF
Appeals pronoumecs an act OF Assembly
unconstitutional that act Is thereby de-
c,ared 10 be no iaw--to be null and void
and no subsequent Legislature can breathe
life into II.
"D. 6. H." commands our respect by MS
courtesy, calmness, and manifest sincerl'N'
but he fails, we think, TO draw the dlstlnc-
ton which exists between the power OF the
above described and it, power to make that
law which the courts have decided can
no, he made law. Certainly, the
Virginia Constitution, a. we shower
Yesterday, clothes our highest State
court with full power to declare any
act OF Assembly null and void by rea-
son Of its repugnance TO either the state
Constitution or the Federal Constitution.
II does, therefore, seem to us to be MOTH
inc more than truism, that whatever the
Supreme Court OF Appeals declares to be
constitutional is constitutional, ana what-
ever that tribunal declares to be unconsti-
fntional is unconstitutional. Similarly,
when the constitutional question Is elilnl-
mated. il is also tiriIsm that whatever the
legislative department decides TO be eXpe-
dent is expedient. The courts must yield
to the will OF the Legislature in the latter
case Just rs the Legislature must yield to
the courts in the former case.
Let us Illustrate: II the Legislature
should pass law fixing the State taxes at
five dollars on each hundred dollars worth
of property, the courts would have no
power to relieve the Taxpayer from the
operation Of such a law; because there is
no question OF constitutionality involved.
But il the Legislature should pass an act
fixing the capitation-tax at five dollars, the
courts would have the power to declare
that act null and void by reason OF
its repugnance 10 the State Constr
ton: and their decision would be
lust as binding upon the Legislature rs
upon any person. so rs to the terms OF Of
flee OF the judges. The Court OF Appeals
was fully authorized to decide whether the
act of Assembly providing for the election
of judges TO serve ont uncXpired terms was
constitutional or unconstitutional, and,
having decided that il was null and void,
there is now no such law in existence. The
decision of the Court settled the question.
There was no appeal, and could be none i'll
the very nature OF things.
Take the case OF jude WELDON again
viii any lawyer claim that the present Lee
eislature is not bound by the decision Of
the Supreme Court Of Appeals that he Is
lawfully in officer
But il will be said that the new Court Of
Appeals may decide these questions dif-
fcrently? Surely il may. And when its
decisions are rendered these will then be
the supreme law Of the land, binding upon
us as upon every good citizen. 1t viii
still be true that whatever the SuTseme
Court Of Appeals declares to be unconstitu-
tional is unconstitutional, and whatever it
declares to be constitutional is constitu-
tional. legislative decision Of a consti-
tutional question is good and binding upon
all good citizens until it is decided TO be
wrong by the courts. But afterwards,
Governor, Legislature, and all, are bound
by the decision OF the courts. a legisla-
tive decision OF a question of policy, or en-
pediency, or whenever no constitutional
question is involved, is binding upon the
courts ~ well rs everybody else.
We DO not understand any OF the au-
thorities quoted by "D. S. H." as being in
conflict with the positions we have assumed.
We copy. to exemplify our meaning, what
he ouotes from Chief-Justice CHASE. Mr..
CHASE says:
"The Congress is the legislative depart
ment of the Government; the President is
the executive department. Neither can be
restrained in its action by the judicial de-
partment, though the acts OF both when
performed are IN proper eases subject to its
cognizance."
That language expresses exactly ouridea
on the subject. The courts can't know in
advance what the Legislature is going to
do, nor prevent the Legislature from dong
what 1t will-passing any act II chooses to
pass. But ,chen these acts are performed,
says Mr.. CHASE, and so say we, then they
are In proper cases THAT is, when eOnstitu-
tional questions are involved] "subject to
the cognizance" OF the courts.
We could go over all the authorities
cited by I'D. $. H." and show that they do
not conflict with our views. What follows
Is n running commentary upon those au-
thorities. The House of Representatives
Is sole judge OF the qualifications OF It's
members, and therefore, Of course, its de-
clsion az 10 SMITHS citizenship was final,
just as the decision Of our House OF Dele
gates was final in the case OF FRAZIER and
LADY. Nobody claims that the courts have
a right 70 interfere In such cases. The de-
cision OF the House of Representatives did
not, however, affect the courts de-
cision in DUASE's case. Nor can the courts
issue ntdnd0mus 10 a Legislature. Nobody
atfjrms that right. Nor il the President of