The Superior times. [volume] (Superior, Wis.) 1870-1912, 1892-03-26
same county, having due regard to the

~. lhlS decision does not lmpeach
the validity of acts otherwise valid of @
legislature elected under an invalid legis-
latlve apportlonmelt statute. Neither
is the jurisdiction of the court affe cted
nor the exercise thereof embarrassed by
the fact that this decision may leave the
state without valid legis' 'ative appor-
tonment law, and hence with
out any law for the election OF
another legislature. The governor
may convene the present legislature, il
he thinks proper, and when so con-
vened, there can he no doubt of its
power to enact a valid legislative appor,
tionment law.
II. For the foregoing reasons the
motion to dismiss the Information OF
complaint is denied, and the secretary
is allowed twenty days to make answer
thereto, as he may be advised.
The whole court concurred. Opinion
by Lyon, Orton. Pinney.
OPINION BY JUSTICE ORION
Legislature wilIfulIy Violated the Pro-
vision of the Constitution.
The following IS an abstract from the
opinion of Justice Orton:
''The cases in this court in which yari
Gus acts of the legislature have been
declared void for being in conflict with
the constitution, are almost numberless
and there never has yet been found s
single exception on account of this sub
Ject-matter of the act. This iurisdic
ton is SO inherent and univer.
sal in ali the courts of last
resort in this country that it may well
be asserted that this court is vested by
the constitution itself with the preIoga
tive judicial power to protect it from
violation by its final judicial decisions
This power is lodged nowhere else Tc
this department of the government alone
is committed this high trust 1t has
never been abused and never will be
1t acts within well-detined limits and
the strictest rules of judicial rectitude
1t is argued by the learned counsel
of the defendant that if we assume
| jurisdiction in this case that the court
| will invade the province of Legislation
and place the court above the Legis
/
far as it has the judicial power to de-
| clare its acts unconstitutional and void
| 1t is an independent and coordinate
! department of the government, and the
only one having this judicial power. II
| has the power which is vested in nc
| other department to de clare and ad
minister the laws.
"An unconstitutional act of the Leg
| isature is no law. 1t is absolutely void
| How, then, can this court declare wha
| the statutory law is, without first deter
| mining whether it conflicts with the
| constitution? Without this power this
court would have no judicial functions
whatever, and would be useless ap,
| pendage of the government.
''Go repel the suspicion even, tina,
! this court in the above cases has
usurped power that it does not con
| stitutonally possess, it IS proper to con,
| suit 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 mus,
| turn. is whether the subjectmatter OF
the writ is one quot at Stdttm repub-
| lic0, pertinent one affecting the sover-
eighty of the state, its franchises or pre-
negatives or the liberties Of the people.
| We may be permitted TO make an ex-
| tended extract from the opinion in
| Houston vs. Moore, ) Wheat. L. S. |,
| because it fully expresses, once for all
| the jurisdiction of this court. By a
| course of judicial decisions reaching
| from the earliest history of American
| government to the present day without
| a dissenting voice, it has been adjudged
| that courts of justice have the right and
| are in duty bound 10 test every law by
| the constitution as the funda-
| mental and paramount law OF
the land, governing all derlvatiye
| mower and the exercise. The judicial
| department with us is the proper power
| under the constitution to declare the
| constitutionality of a law, and every act
| of the Legislature, contrary 10 the tone,
| intent and meaning OF the constitution
| will be declared by the courts null and
| void. and of no effect whatever. To
| contend that this is not SO would be to
| assert that the legislative branch of the
! government is supreme IN It's authority.
But again, this apportionment act
| violates and destroys one Of the bright
| est and most sacred rights and prlvl-
| leges of the people of this state, guaran-
.aed them by the ordinance of l9S1 and
| the constitution, and that is equal rep
resentation in the Legislature This
also is matter of the highest public in
| terest and concern, 10 give this court
! irrisdictiou in this case. If the remedy
/ for these great public wrongs cannot be
| found in this court 1t exists now here.
would be idle and useless TO recon-
nit such an apportionment 10 the vol
untarv action of the body that made IT,
| But il is sufficient that these questions
| are judicial and not legislative.
The legislature that passed the act is
not assailed by this proceeding, nor is
the constitutional province OF that equal
and coordinate department of the gov
ernment invaded The law itself is the
on!v object of judicial inquiry, and lis
onstituronslity is the only question to
be decided.
| The particulars in which the consutu-
| ton has been violated 10y this act, will
pe more fuily considered by my bteth-
rea. 1t is proper 10 say that perfect eA-
actness in the apporttonment according
10 the number OF inhabitants is neither