The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1893-03-15
Lawyers Hold Them Uneonsti-
tutional In Making Men
Judges In Their
Own Cases.
CoGENT OPINIONS QUOTED.
Republicans Will Assurcdly Con-
test the Bills In the
Courts.

yers look into the question of the consti-
tutionality of tine act of the Legislature
which deprives Mayor Wanser of the
power the taxpayers of the city conferred
upon him, the more they are convinced
that the act is unconstitutional. talked
with a number of the leading Republican
lawyers today, and the concensus Of opiu-
ion was that the Supreme Court would
not uphold the act, and would, if it was
contested, declare it unconstitutional.
The Mayor, it Is said. will, at an early
date, request number OF leading lawyers
to give him their written opinions on the
subject. and after he receives them, he
will determine what action to pursue. 1t
is considered a certainty, however. that
the Mayor will take the case into the
Cou rUs for a judicial decision. His friends
sa that he believes the act that deprives
him of his powers is unconstitutional,
and one of the leading Republican
lawyers today cited to me some decisions
in the Supreme Court, which cover the
position of the Finance Commissioners.
VERY APRoPos, INDEED.
One of these decisions may be found In
VII Vroons. pages 395 to 404, and it was
delivered by Judge Bedle and concurred
IN by Judges Woodruff and Scudder. The
case was one of certiorari for review of
the return of a public road" Including
the assessment for damages and benefits.
One OF the objections alleged was that
one of the commissioners OF assessment
had personal interest In the result.
After citing the interest of the oommis-
sioner the opinion goes on to say
In Schweder VS.. Ehlers, Vroom a, the
present Chief Justice inclined to the opinion that
the rule that man cannot be a judge in his
ture cannot destroy it. and his references show
the strong tendency of the English Courts IN
the same direction, as respects an Act Of Par
lament. Lord Coke declared while sitting ju-
dIcialIy. that ''Even an Act of Parliament, made
against natural equity, as to make o
man judge in his own case, is void
in itseir, for jurd paturGe sunt inlmattdbili0g,
and they are leges legum, Hobart S7a. In Eng
land the courts would naturally avoid any de-
cision affecting the omnipotence of Parliament
and seek by possible construction to show an in
right and natural justice. But the question can
not now be disposed of in that way. 1t must be
distinctly met. Judge Cooley in his valuable
book, says that he does not see, apart from the
exception given, ''how the Legislature can
have any any power to abolish
U
forming their constitution may establish SO
great an anomaly, but if the legislature is en-
trusted with apportioning and providing for the
exercise Of the judicial, we cannot understand
them to be authorized, in the execution of this
trust to do that which has aeUer been recogn i,ed
as being aoithin the province of the judicial
dUthorttU.
TO empower one party to a controversy to de-
eide it for himself, is not within the legislative
authority; because it is not the establishment
of any rule of action or decision, but Is a
oix,rra af fhunf fhapf no rfrr fd has
troyersy is concerned, out of the protection of
the law, and submitting him to the control OF
one whose interest It will be to decide arbitrar-
lily and unjustly. Const. Linn 4l2; see also, on
the same subject, Ames v. Port Huron Co., II
Mich 139.
ELEMENTARY AND FUNDAMENTAL.
The maxim under consideration has always
been regarded in English Jurisprudence as
elementary and fundamental in judicial action
Coke Lit, p. 212, Vroom 109), and, think, can
no more be materially invaded by the Legisla-
ture than it could pass an act that q Judge
might decide according. to lot, or for party
VINO should give him the most money The
Chief Justice In Schroeder vs.. Ehlers says that q
person can not be judge in his own case, has
ever been regarded as one of the fundamental
maxims Of the law of nature; also that the n
Justice of allowing it is intnitive in the human
impotent o = to to- % break down this this = great
barrier to tyranny and fraud. The power
Of the Legislature has been seriously questioned
even in removing disabilities for common in
terest and the fair implication OF the cases is,
considering the ground upon which 1t is sus-
tanned, the remotenes5 and spnallness of the in
terest Of a general nature. (See cases referred
to)
nature of judicial action. and although, in many
matters, the Legislature may provice for the
exercise of judicial functions and designate the
persons who shall exercise them, yet it cannot,
in SO doing, lose sight of the essential
character of judicial action and authorize
or sanction a Judgment through instrument
taties contrary to the innate and universally re-
coonized sense of natural Justice In such a
case the power conferred would not be judicial
it would be tyrannical.
WHAT JUDGE BEAsLEY SAYS.
In the case of Schroeuer vs.. Ehlers,
Chief Justice Beasley says
A person cannot be judge in his
own case has ever been regarded as
one of the fundamental maxins of the
law of nature. A perception of its injustice
must have been intuitive in the human mind,
and if the legislative power is competent to au-
thorize so hagrant violation of natural equity,
it must be conceded that such power is poiit-
cally omnipotent withip the sphere of its opera
ton ~ In the case OF Day vs. Savadge,
Hob. sra, 1t was said from the Bench .'even an
act of Parliament made against natural equity.
as to make man a judge In his own case, is
void In itself. J" There are q number of other
cases which might be cited, but the above are
sufficient to show that If in England at this day
an act should be passed totally subversive of any
of fhe great natural rights Of mau, a question
by no means settled but open to very grave
doubts$would be presented for adjudication.
In this county. likewise, this Important sub
ject has received considerable attention at the
hands of both judges and speculative writer's,
and the preponderence of authority seems to be
adverse to the omnipotence of the legislative
power. This side of the controversy is certainly
sustained by the great names OF Marshall and of