The Providence news. (Providence [R.I.]) 1891-1906, 1893-08-12


the substitution Of It's own discretion or
Judgment in the plan OF chat to which
the constitution has confided the decision
would be imperttnent and intrusive"
Under every constitution" says the
same learned author, "cases of this des-
cription are to be met with and. though
IL will sometimes be found difficult to
classify them, there can be no doubt when
the case Is properly determined to be one
OF this character. that the rule must pre-
vail which makes the decision final"
A Political Power.
The power of the executive which we
are considering Is = political power, ''in
the exercise Of which In the language
Of Chief Justice Marshall in Marbury
VS.. Madison, l Crouch. 1877. ''he
is to use his own discre-
tion, and IL accountable only
TO his country la his political character
and to his own conscience, and whatever
opinion mgy be entertained OF the
manner In which the execu.
tive discretion may he used
still there exists in power to control that
discretion. 'The subject is polite H."
1T respects the state. not individual
rights. aud being intrusted TO the execu-
tive, the decision OF the executive 10
conclusive. Sce also, McCauley VS..
Brooks, 10 Cal. 81 ct seq Uuited States
va. Arredondo. ct als 9 Peters 1890 ana
cases cited; Hawkins vs. the Governor, I
Ark. $50 SO. In Mauran vs. Smith.
Governor. etc, Rnoiei yLslan1
1929, which was petition
for a writ Of msudamus to compel the
governor to prefer charges against and
convene q court martial for the. trial of
the petitioner, the general question here
involved was very fully and ably discussed
by eminent counsel aud 1t was held by
this court, Durfee j.. giving the opinion
that the court had no authority to grant
the writ for the reason that the governor,
while acting within the sphere OF his au-
thorty constituted, an independents co-or-
dinate department Of the government.
See also Taylor VS.. Place, 4 X. l., $780,
364.
Duties OF the Judiciary.
We can no better define and illustrate
the power and duty of the judiciary in
the premises than by quoting from the
able opinion Of Cation. q. j., In the people
vs. Bissell. 10 Ill. 23i. He says: ITO the ju-
deceary IL confided the power and the duty
of interpreting the laws and the constitu-
tion whenever they are judicially pre-
sented for considerati on. Hence it be-
comes our duty to determine
what 10 the meaning Of the
laws passed by the legislature, and
also, whether those laws are such as the
legislature was authorized by the consti-
tuition to pass So, also. of the acts Of the
executive. We are bound to determine
whether such acts are autho-
rized by the laws and the
constitution whenever they are brou ght
before us judicially, but not other wise.
And hence the judicial exercises a certain
controlling or rather restraining power
over both the other departments OF
the governpAent. Notwithstanding
all this, when Carefully considered it will
be seen that each department., within the
proper constitutional spher'. acts inde-
pendently of both the others and re-
straint is only placed upon it when such
is actually transcribed, or express au-
thority is given by the constitu-
tion for restraint, by another de-
partment. As from necessity and
the very nature Of all government.
there must be an ultimatum some-
where, whose duty 1t Is to determine
whether such sphere has been passed or
not. That duty in most cases falls upon
the judicial department, from the fact
that in this department. is
reposed the responsibility of
enforcing or giving effect to the acts Of
the other department. But it is only
when thus called upon in some form
known to the law. to give
effect to such net OF the other
departments, that the judiciary
can determine whether such acts were
done in the exercise OF constitutional
power. In no other way nor in any other
case can this department construe the
constitution for, or exercise any control
over any other department. Where
final action upon any subject is conf1ded
to either of the other departments.
there the responsibility must rest of con-
forming such action to the law aud the
constitution"
1t is because such final action Rener-
ally devolves upon the judiciary. that the
| judiciary is most frequently called upon
to give final and conclusive construc.
tion to the constitution and laws.
Restraining Not Compulsory.
It results. therefore, from this philo-
sophical arrangement OF our govern
menJai system, tnaJ tIe contrOl
which the judicial department exer-
cises over the others. is of a restraining
aud not Of q compulsory power. But
this is only practically and not literally
SO. We may enjoin the others from doing
an unconstitutional act, but by refusing
| to give effect to such an act, or relieving
against 1t, when properly and judicially
applied to for that purpose, we may re-
strain them. We cannot restrain
the governor from issuing the
bonds Of the state contrary to law, but
when the question Is properly presented
before US, we eau declare such bonds void;
and SO OF q patent for the public land
which be might issue. And so. IL he
should step beyond his constitutional
sphere, and unlawfully imprison party,
we could discharge such party on habeas
corpus. But we have no power to COM
pel either or the other departments OF
the government to perform any duty
which the constitution or the law mn y
impose upon them, no matter how palpa
BILE such duty may be. any more than
either OF those departments may compel