The times. [volume] (Richmond, Va.) 1890-1903, 1892-10-27
A DETEsrABLE BUT NOT UNCONs1I-
TUTIONAL STATUTE.

At It's last session the New York Legis-
Iature enacted the following statute:
Any person dwelling in a building in
city who wifully refuses TO truly answer
any question asked by any elector OF
such city between the first meeting Of
the boards Of registry therein for any
election and the closing Of the polls at
such election relating TO the residence
and qualifications as a voter Of any per
son dwelling in such building, or Of any
person who appears upon the list or
register of voters made by a board OF
registry as residing at such building, is
guilty of misdemeanor.
The law is being acted under in New
York city most Extensively. and has
aroused much feeling there. The New
York Herald. in an elaborate editorial.
severely reprobates it, and pronounces it
unconstitutional.
That it is an act Of that inquisitorial
and offensive character that no legisla-
ture ought to pass is perfectly evident.
1t is intolerable that the citizens must
submit to being asked every impertinent
question which any idle gossip may choose
to put to him concerning his domestic
affairs. But whether it is a void act,
being outside the constitutional power
OF the Legislature, is quite another ques-
ton. The Herald has no stronger ground
to place its alleged unconstitutionality
upon than it's allegation that it is UNI
American and contrary to the genius Of
our people which would be a very in
daGpfta a nd dopparotc ,rro,,pd 70 gouppde
to the courts as a basis for undoing the
expressed will of the lawmaking power.
The English theory OF constitutional
law is that Parliament is supreme, and
has power to enact any statute whatever.
1t is true that Lord Chancellor Thurlow
once declared that an act of Parliament
giving one mans property to another
would be void. but, though many acts
Of Parliament have ordered mems heads
to be cut off and have conhscated their
property. no court has ever yet held one
of it's acts to be void. The theory OF
American Constitutional law has always
been that State Legislatures are supreme.
except as they may be forbidden to enact
ENdNuANo ny TIC thUltSS ltl llo VI Ailtil
written State Constitutions. No specific
clause of a written constitution could be
pointed TO which would forbid a State
Legislature to pass such an act as the
New York statute, but American
judges have frequently said that Amer-
can courts would pronounce the acts Of
State Legislatures null and void which
undertook TO deprive the citizen OF
those fundamental rights which govern
ments are ordained and established 10
protect the citizen in. Chief Justice
Marshall said in the case Of Fletcher VS..
Peck 6 Cranch. 1872, speaking of the power
Of State Legislature to pass such acts:
1T must be considered a mere act OF
power which must find its Yindication in a
train of reasoning not often heard in a
court of justice. 1t may we'll
be doubted whether the nature OF society
and of government does not prescribe
some limits to legislative power; and if
| any be prescribed where are they 70 be
found. If the property Of an individual,
fairly and honestly acquired, may be
seized without compensation"
These remarks were quoted with ap-
prevail by Chief Justice Chase, in y Wal
lace. 5Sl. In Loan Association VS.. Topeka,
20 Wall. Mr.. Justice Miller, speaking for
the Supreme Court OF the United States,
said:
IT must be conceded that there are
such rights in every free government be-
yond the control of the State. a govern
ment which recognized no such right,
which held the lives the liberty, and the
property of its citizens subject at all
times to the absolute disposition and I'M
limited control of even the most demo-
crauc depository OF power. is, after all.
but a despotism. 1t is true, II is a des-
potism OF the many, Of the majority, II
you choose TO call IL so. but 1t is none
the less despotism. No court
would hesitate to declare void a statute
which enacted that A and 3. who were
husband and wife to each other, should
be SO no longer. but that should
thereafter be the husband OF c, and b
the wife OF d. Or which should enact
that the homestead now owned by A
should no longer be his. but should hence
forth be the property Of B."