Eagle River review. [volume] (Eagle River, Wis.) 1890-1927, 1892-03-31

iohihenS law, and hence with
ouI any law for the election of
another legislature. The goyernor
may convene the present legislature, if
ne lIlnKs proper. and when SO con-
veneo, there can be no doubt of it's
uonment law. po4-
| II. For the foregoing reasons tho
motion to dismiss the informatinn 'n az
complaint is denied, and the secretarv
Is allowed twenty days to make answer
theer1eto, as he may be advised
ne Whole court concurred. Opinion
by Lyon, Orion, Pinnev.
| OPINION BY JUSTICE ORION.
me loli0Wlng IS an abstract from the
opinion of Justice Orion:
The. cases in this court in which yari.
GUS acts OF the legislature have been
ueclared VOID for being in conflict with
Che constitution, are almost numberless.
ana there never has yet been found a
single exception on account of this sub
Iect-matter of the act. This jurisdic-
tlon is SO Inherent and univer-
sal IN all the courts of last
resort in this country that it NAV we'll
De asserted that this court is vested by
the constitution itself with the pre1oga-
i've Judicial power to protect it from
Hloiatlon by It's final judicial decisions.
Inns power is lodged nowhere else. To
this department of the government alone
Is committed this high trust. 1t has
never been abused and never will be.
1t acts within well-defined limits and
the strlctest rules of judicial rectitude.
IT 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.
iature.. 1t is above the Legislature, so
1ar as 1t 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 1t
has the power which is vested in no
other department to declare and ad-
minister the laws.
AN unconstitutional act of the Leg
lslature is no law. 1t is absolutely void.
How, then, can this court declare what
the statutory law is, without irst deter
mining whether it conflicts with the
constitution? Without this power this
court would have no judicial functions
whatever, and would be useless APP
pendage of the government.
ITO repel the suspicion even, that
this court in the above cases has
usurped power that it does not con-
stitutionally possess, it is proper to con-
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-matter of
the writ is one q,tOd 0d statun repub-
leo, q 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, 5 Wheat. (U. S. l.,
because it fully expresses, once for all,
course of judicial decisions reaching
from the earliest history of American
government to the present day without
dissenting voice, it 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 thereof. The judicial
department with us is the proper power
under the constitution to declare the
constitutionality of law, and every act
OF the Legislature, contrary to the true
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 i s authority,
but again, this apportionment act
violates and destroys one of the high
est and most sacred rights and privl-
leges of the people of this state, guaran-
teed them by the ordinance of 1857 and
the constitution, and that is equal rep
resentation in the legislature This
also is matter of the highest public in
terest and concern, to give this court
jurisdiction in this.case. If the remedy
for these great public wrongs cannot be
found in this court, it exists nowhere.
It would be idle and useless to recon-
NIT such an apportionment to the vol
untary action Of the body that made It,.
But it is sufficient that these questions
are judicial and not legislative.
s"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
eminent invaded. The law itself is the
only object of judicial inquiry, and its
constitutlonality is the only question to
1
be decided. A..
"The particulars in which the constit.u,,,
ton has been violated by this act will
he more fully considered by my breth-
rem It is proper to say that perfect eN-
actness in the apportionment according
to the number Of inhabitants is neither
required re nor possible. But there should
be as close an Approximately to exact
ness as possible, and this is the
,,t t limit for the exercise
of legislative discretion. If, as in this
case there is such wide and bold de-
parture from this e s tit s'ed Tq he
that it cannot # POSSIBLY p pe or d
c ere and that evinces an intention
on the part of the Legislature to utterly
IGNORE In ore a and disregard the rule of the
Constitution, in order to promote some
other object than consl n,e;oni i i ;p
pvitable that the Legislature did not use
onv Indictment or discretion whatever.