Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-10-13

! De enforced In the inferior court; and
the same principle has since been re-
! peatedly sanctioned by the same court ::
! Marbury V. Madison. L Cranch 113
/ Counsel for the defendant, cites that
| portion of the opinion of the great
| Chief Justice in which he disclaims any
right in the court to interfere with any
! of the discretionary powers vested in
| the executive and his subordinateS; and
! then asks US to consider the language
| employed, with the word legislature
put in the place of executive. We cheer
! fully do so. In fact we have already.
| in the recent appOrtionment case dis
| claimed any and all right to interfere
with any of the discretionary powers
of the legislature or Of any state officer
| Mr.. Justice Orion in the same case
! speaking for the whole said: But it Is
! sufficient that these questions are jul
dicial and not legislative. The legiS-
/ lature that passed the act is not aSail-
ell by the proceeding, nor is the con-
sdtutiOnal province of that equal and
I coordinate department of the govern
ment invaded. The law itself is the
only object Of judicial inquiry, and its
cOnStitutionality is the only question
to be decided" 81 Wis. 4S4. That was
! done because in that case,
as in this, a learned and able
member of the bar cOntended, that
the question presented was political,
! and not judicial; but after very care
! full consideration we unanimously de-
! tennined that the question presented
was strictly judicial and in no sense
political. However unpleasant it may
! be to be again so soon confronted with
the same questiOTs, yet the duCy CAN
not be avoided. In the language of
Marshall, c.. J., chose who fill the jul
dicial department have no discretion
in selecting the subjects to be brought
before them" 6 Peters 541. SO what
ever course other official may pursue
this court is under q constitutional
mandate to proceed in the spirit of the
oath which each member has taken>
and perform its duty, which was per-
hapS never more aptly and tersely
expressed than by Marshall, c.. J,
when he said Judicial power as con-
tradistinguiShed from the power of
the laws, has 10 existence. Courts are
the mere instruments of the law.
and can will nothing. When they
are said to exercise a discretion, it
is a mere legal discretion, a discretion
to be exercised in discerning the course
prescribed by law; and when that is
discelned it is the duty of the court
to follow it. Judicial power is never
exercised for the purpose of giving
effect to the Will of the judge; always
for the purpose of giving effect to the
/ will of the legislature, or i'll other words
to the will of the law" Wheaton
S6G. In the case at bar the viii Of
the law is the will of the people of
the state, as expressed in the organic
law of the state. In tue last judicial
uttCranc9 of Chief Justice fancy, he
said: ANY legislation by congress
beyond the limits of the power dele
gated, would be trespdSSing upon the
rights Of the states or the people, and
would not be the supreme law of the
, land, but null and void; and it would
be the duty Of the courts to declare
it so. For whether an act of congress
is within the limits of it's delegated
power or not is a judicial question, to
be decided by the courts" Gordon VS..
Z. S. III u. S. 705. AS already in
! dicated, the state government is di-
Vided by the constitution into
three separate, Independent and co-or-
dinate departments legislative,
executive and judicial. The
legislature necessarily precedes each
Of the others in the making of the
laws. The executive department is CO.
ordinate with it in carrying the laws 50
made into execution. The judicial de-
partment is coordinate with both
in that it is required to
ity Of such laws and such official ac-
ton. By each of the three departments
keeping strictly within the scope
of the powers conferred upon
it by the constitution, harmony will
prevail and the government will be
respected Certainly this court Will
now, as heretofore, scrupulously re-
frain from exercising any doubtful
pOwer-much less transcending the
limit of it's powers.
s. In granting the motion to strike
out the demurrer to the complaint
as frivolous and for judgment, leave
was given to the defendant to rpesent
for the consideration of the court an
answer upon the merits to the COM
plant. Such answer has been received
and carefully considered. 1t admits
all the material allegations of fact al
legged in the complaint. 1t consists
largely to a reputation of statements
suggestions made by counsel upon the
argument of the demurrer and motions,
and duly considered i'll disposing of
them. Among other things it alleges
il effect, that the legislature had the
discretionary power to apportion and
redistrict the state anew, as they did,
that in doing so the legislature had
given weight and effect to many various
considerations such as that the
census of 1890 was mac
curate and did not by several
thousand give to the counties of Chip
pewa, Florence, Forest, Oneida, Lang
lode, Price and Taylor, the population
to which they were respectively entitled;
that these several counties were rapidly
increasing in population while such
counties as Adams, Waushara, Green
Lake and Marquette were making but
little, if any, increase in population;
that the fourth senate district Of Nil
waukee with only 30,723 inhabitants,
was between the Milwaukee river and
the lake ShOra-pytaDdino OOrthar1v.