Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1892-03-25

served, that this constitutional provision
is, that the system, of town and county
government ''shall be as nearly uniform
as practicable" This would seem to
leave to the legislature, at least mar
gin for the exercise of Legislative discre-
ton; and yet this court. in cases where
there was a material departure from the
constitutional requirement, has not
hesitated to declare the acts
void. In Dells V. Kennedy, 40
Wis, 500, the registry law was
declared unconstitutional on the ground
that qualified electors might thereby be
debarred from casting their votes. This
court recently assumed jurisdiction of a
mandamus case, to determine who was
elected member of the senate and had
the right TO the certificate of office. In
State ex rel. V. The Treasurer and Secre-
tary of State, Sc Wis, $50, there was a
mandamus to compel these officers to
appOrtion, and pay over certain moneys
in the treasury. In State ex rel. V. The
Secretary of State, 20 Wis, 627, cert-
Orari was allowed to obtain the record of
the school commissioners in the case of
the annulment of patent In State Elk
rel. V. The State Treasurer, "a Wis, 1870,
there was Il mandamus, to compel the
treasurer to pay back license moneys
wrOngfully collected. In State eX
rel. V. The Secretary of State
and Commissioners, 60 Wis, 344,
a mandamus was granted to compel
them to annul patent? These last cases
show also, that the official action of
these state officers may be judiCially
controlled in all matters ministerial or
administrative; and there can be no
question but that the duties of the sec
rotary of state in giving out the notices
of an election under the last appOrtion-
ment act are of this character.
The cases in this court in which va
rlous acts of the Legislature have been de
clared void, for being In conflict with the
constitution, are almost numberless; and
there never has yet been found a single
exception on account of the subject matter
of the act. This jurisdiction is so inher-
ent and universal in all the courts of last
resort In this country, that it may we'll be
asserted that this court Is vested by the
constitution Itself with the prerogative
Judicial power to prevent it from violation
by its final judicial decisions. This power
is lodged nowhere else. To this depart
ment of the government alone is commit
ted this high trust. 1t has never beer
abused and never will be, 1t acts within
well defined limits and the strlCtest rules
OF judicial recttude. 1t Is argued 10y the
learned counsel of the defendant, that if
we assume jurisdiction in this case, that
this court will invade the province of leg
iSlation, and place the court above the
Legislature. 1t is above the legislature, so
far as it has the judicial power to declare
its acts unconstitutional and void 1t is
an Independent aud coordinate depart
ment of the government, and the only one
having this judicial power. 1t has the
power which is vested in no other de-
partment, to declare and administer
che laws. An unconstitutional
act of the Legislature is no law. 1t is alb
sOlutely void. How then can this court
declare what the statutory law is without
first determining whether it conflicts with
the constitution? Without this power
this court would have no judicial func.
tons whatever and would be useless
appendage of the government. To repel
the suspicion even that this court in the
| above cases has usurped q power that it
Goes not constitutionally possess, it is
proper to consult the decisions of the
highest courts elsewhere on the question.
| That we may not lose sight of the real
question, before proceeding further, we
again quote the terse language Of Chief
Justice Ryan, in attorney general VS.. Eau
| Claire, supra: The question on which
| the exercise of jurisdiction here must turn
| is whether the subject mater Of the writ
Is one quod ad statum republican, perten t,
one affecting the sovereignty of the state,
| It's franchises or perOgatives or the liber-
ties of the people. We may be per.
united to make an extended eX-
tract from the opinion in Houston VS..
Moore, Wheat (U. S. /, because it fully
expresses, once for all, the jurisdiction of
this court. =" By course of judicial de
! cisiOns reaching from the earliest history
Of American government to the present
| day, without a dissenting voice, 1t has
| been adjudged that courts of justice have
| the right and are in duty bound to test
every law by the constitution as the funda-
mental and paramount law of the land,
governing all derivative power and the
exercise thee :. The judicial deplrt-
ment With u, IS the proper power under
| the constitution TO declare TIE cOrstitu-
| tionality of law, and every act of the
| Legislature contrary to the true intent and
meaning of the constitution, will be de.
| ctared by the courts null and void and of
no effect whatever. To contend that this
is not so, would be to assert that the legis-
laSive branch of the government is supreme
in its authority" In Brown on Jurisdic-
| ton it is said: The judicial department
is formed for the purpose of interpreting
! the laws, holding them within the limits
fixed by the fundamental or constitutional
rules" 2 In re Ruan St., 1872, Pa. st. 257,
it is said, that "the question of the con-
stitut1onality of a law is purely judicial,
and cannot be left TO the legislature. y
Commissioners appointed under an act Of
! the Legislature for the purpose of creating
a new county which is held to be in viola
ton of the constitution off the state, may
be perpetually eDjoined from proceeding"
Bradley V. Commissioners, 2 Humph ,
428. Whether given enactment IS con-
stituhonal, involves the Interpretation and
construction, the exercise Of purely Ju-
dicial functions. Whether the legis-
ature has transcribed its power and
passed an act in conflict with the consti-
ton, is essentially q question of law, and
must necessarily be passed urOn by the
courts State ex rel V. Newark; 40 N.
| J. Law, II. The constitutions of Massa-
lhusetts and New York provide, that an
| apporticnment shall not be changed until
after the next federal enumeration. When
the Legislature has violated this provision
and changed the apportionment, the courts
of those states have assumed jurisdiction
to declare their acts unconstitutional and
void Opinion of Judges. 6 Cush., 578;
Warren Y. Mayer, 2 Gray, 35 Kinney v.
City of Syracuse, 30 Barb, 349 People
ex rel. Attorney General V. HolIihan, 50
Mich, 116; aud People ex rel. Attorney
General V. Bradley, 96 Mich, AT,
were such cases. These cases in
unluad the discretion and noliticaI