Washington standard. [volume] (Olympia, Wash. Territory) 1860-1921, 1890-04-04
OPIUM SMOKING.
The Supreme Court Sustains the Va
idity Of the Statute.
Opinion Rendered by Judge Dunbar.

~ ~~~6o ~~A~~A'
TERRITORY OF WASHINGTON, Pn,
vs.
All LINN, Deft
The defendant was indicted at the
August term of the District Court for
King county, for the crime of smoking
opium, as follows, to-wit: [Omitting
the formal part of the Indictment
The said Ah Lin on the 9th day of Sep
tember, A. D., 1888, in the county of
King, in the district aforesaid, then
and there being, did then and there,
wilfully and unlawfully smoke opium,
by then and there burning said opium
and inhaling the fumes thereof through
an instrument commonly known as an
opium pipe, contrary to the form OF
the statute, etc.
To this indictment the defendant
interposed a demurrer specifying sew
eral grounds, but the one relied upon
by defendant and tive one to be con-
sidered here, is that the statute upon
which the indictment is based is un-
constitutional as being in violation of
the inalienable rights to life, liberty
and pursuit of happiness; anG that it
involves a deprivation of liberty and
property through a limitation upon
the means and ways of enjoyment,
without due process of law.
The duty of passing upon the con-
stitutionality of a law should be ap-
preached by the Court with the ut
most caution, and demands the most
solemn, thoughtful and painstaking
consideration. And in view of the
consequences to society from the an
nulling of laws made by representa-
tives of the people and presumed to
have been enacted in response to the
express desire of the people. it becomes
the gravest question with which courts
have to deal; and we believe it has
been the uniform conviction of the
courts that they ought not, and cannot
in justice to a coordinate department
Of the State government declare q law
to he void without strong and earnest
conviction, divested of all reasonable
doubt, of its validity.
The following quotation from an
opinion rendered by Chief Justice
Marshall, in the case OF Fletcher VS..
Peck, s CfAnch 81, commends itself to
our appreciation as resting upon sound
principles of propriety and right.
Said the Judge: The question
whether law be void for its repugnan-
cy TO tie Constitution is at all times a
question of much delicacy, which
ought seldom, if ever, to be decided in
the affirmative in doubtful case.
The Court when impelled by duty to
render such judgment would be un-
worthy Of its station: could it be un-
mindful of the solemn obligations
which that station imposes. But it is
not on slight implication and vague
conjecture that the legislature is to
be pronounced to have transcribed its
powers, an / its acts to be considered
as void.
The organic act extends the power
of the Territorial Legislature to all
rightful subjects of legislation, and
when once we conceive the rightful-
ness of the subject, the extent ard
character of the legislation on that
subject cannot be called in questit q
by the courts; it has right to take a
comprehensive view in determining
the necessity. of the law, and the
character Of the purpose to be accom-.
plished by it. This j. the especial
function Of the legislature, and in the
investigation of legislative power
courts have nothing to do with ques-
tions OF policy or expediency, for as q
learned author says: The Const;-
tuition has created the Legislative and
the judicial departments, the one to
make the law the other to construe
and administer it. It may be mis-
chievOus in its effects, burdensome
upon the people, conflict with our con-
ceptions Of natural right. abstract jus
tice or pure morality, and of doubtful
propriety in numerous respects, and
yet we would not be justified to hold
that it was not within the scope OF
legislative authority for such reason ;
and as has been well said by Mr.. Cool
| ey in his work on Constitutional Linn
| itations, 1t must be. evident to any
one that the power TO declare legis-
lative enactment void, is one which
the Judge, conscious of the fallibility
of human judgment, will shrink from
exercising in any case where he can
conscientiously and with due regard to
duty and official oath, decline the
responsibility"
The legislative and judicial are CO.
ordinate departments OF the govern
ment, of equal dignity; each is alike
functions, and cannot directly or in
directly while acting within the limit
of its authority, be subjected to the con-
troll or supervision of the other with
out an unwarrantable assumption by
that other power which by the Consti-
tuition is not conferred upon it"
OF course we do not pretend to argue
that this is responsibility which can
at all times be obviated or avoided; but
we insist that it must always be done
with great caution and circumspection.
Indeed, 80 weighty have the Courts
felt this responsibility that many
Courts have adopted rule that they
WILL uOt OCCAuC - AC6iSAaOAvC oCt W UC
unconstitutional by a majority of a
bare quorum OF the Judges only.
Many Courts have held that before a
law can be pronounced uncOnstitu-
Monal that some particular prohibition
must be pointed out. In the case Of
Samuel Bertholf vs. James O'Reilly,
IA N. Y. 51l. Justin Andrews in deliv-
ering the opinion OF the Court says i:
+" The question whether the act under
consideration is valid exercise of leg
islatiye power is to be determined sole
ly by reference to constitutional pro-
hibition. The legislative power has no
other limitation. If an act can stand
when brought to the test of the Con-
stitution the question of its constitu-
tionality is at an end; and neither the
executive or judicial power of the
Government can refuse to recognize or
enforce it. The theory that laws may
be declared void when deemed to be
opposed to natural justice and equity,
although they do not viola 9 any con-
stitutional provision. has some support
| in the dicta of learned judges; but
has not been approved SO far as We
know by any authoritative adjudication
i.nd ia repudiated by numerous author-