The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1894-09-05
THE DISPENSARY LAW.
IMPUDENT ASSERTION OF POWER.

If Judges Would Busy Themselves In Con-
sidering the Implied Limitations upon
Their own Power, Instead of Hatching
Implied Limitations upon the Power OF
Another Branch of the Government,
they Would Present "a more Decent
Spectacle.
American Law Review.
Ap examination of the opinion OF
Chief Justice McIyer Of sSn,n Gaf9!ma Gnn1t m OF
that State overthrow the so-called "Dispensa;'
nv Act,"s shows that majority OF the co9rl
place their conclusion that the statue unue'
consideration Is ;n eyerV fre.
State implied limitations upon the power o,
the legislature. The decisions In the margin
are cited by the learned chief justice 10 Sup,
limitations Restraining State legislatures from
Imposing taxes for other than pubic puI-
pnses.+ The first of these cases u geneIaiS
cited as the leading case upon the doctrine r
we believe that it was first announced by Mr.
United States Circuit Judge Dillon, anu Snal
this case simply affirmed his decision. No.
withstandIng the great names giving sappot,
as principle or constitutional law. In order
to understand how utterly out OF place ~ is,
1t ia necessary to do no more tnan consu1i &c,
the theory upon which the power Oh tne ~.
dietary 10 refuse to give effect to an ACT OF the
legislature can alone be supported. IN inc
first place. attention is TO be drawn 10 the fact
that the power was never granteo II any
written constitution, Federal OF SIase nos ~ tor
long time contested as an usurpatlon, anu ~
is we'll remembered that an attempt was
made In Pennsylvania to impeach tne yuasSGs sG
of the Supreme Court OF Inc SiaSe on oarI~ sriS
ground. The only ground on which the early
Judges who first seized the power attemPteu
10 defend themselves against the cnaTge VI
usurpation OF legislative poWeIunecautsaes sci ~ as
TO enact statute-was that the constitu
was the paramount law, designed TO impose
limitations upon all departments OF the soS,
eminent and to protect the reserved rigns " "
the people; that the judges were sworn 10
support the constitution-not to support tne
acts OF the legislature; that when they were
requested to give effect to statue Wnlch WEE mae
challenged as being In conh1ct VIVID tne oon on,
stitution, IL became their duty TO lay the con-
stitution and The statute before them sioe o9
side, and II there appeared TO be PLAIN con,
flct, TO give effect, according TO the opllgalioh
seouen tly to deny effect 10 the act OF the leg
islature which was inhibited by the para
mount law. 1t was always conceded oy tIie
judges that this was an extraordinary eAgr.
tion of power on their part. They naturally
felt that they assumed position more or less
unseemly in the public estimation-the posi-
tion of one coordinate department OF tne
government assuming the right 10 slI 10 Juos-
ment upon the acts OF another co, ,oroinats ue
partment; and they consequently exercised
the power under the Just feeling that nothing
but a plain and undeniable connlct DetWeen
the statute and the paramount law SouIa Jus.
tify them in exercising It. Such belnx the
ground and the only ground, on wnicn tne
American courts assumed the power 70 set
aside acts of the legislature-.a power e1ercls.
ed by no other Judiciary In the world-no
room was eft for the exercise OF the power on
mere caBuistric or doctrinal grounas. No
room was left to exercise 1t merely because
acts of the legislature come In connlcC VIII
the theories entertained by the Judges upon
economic questions, as they have 80 often ex-
ercised II in setting aside legislation Pronl1lt
ing the so-caled "truck store system" OF MIN.
ing and manufacturing companies. NO room
absolutely no room-was left to exercise IL
on any such conception as that there are I'M
piled limitations upon legislative power not
found In the written constitution, but iouno
somewhere else. in the breast OF the judge or
In his unWritten constitution containing tucn
implied limitations. No power, express OF
implied, has ever been granted to him TO In
wade the functions OF coordinate oepaIt-
ment Of the government-a department. III
turn its acts on this on the power OF the legls,
lRturs: but these limitations rest upon moral
sanctions which appeal to the legislators ana
TO their constituents, but not TO the Jnoges;;
II one legislature oversteps those lmpleo
limitations. an ample remedy 10 found IN an
appeal 10 the people and In the election OF an-
other legislature which Will repeal the oono3-
ious statute + bat no other theory can pc oe,
themselves against the imputation OF usnrpa.
tion when they assume 10 set aside an act OIL
the legisla lure on that ground. II is nothing
more nor less than an impudent Invasion on
their part OF the functions OF a coordinate
branch OF the government-an impudent az
sertion OF their power 10 oyerturn acts OF tne
legislature upon the grounds that are merely
moral and theoretical. II judges would busy
themselves In considering the implied lim,ta'
tions upon their own power, instead OF hatcn.
ing implied Limitations upon the power OF
another branch Of the government, they
would present more decent spectacle
.McCullough Brown, 10 p: Rep. 45s.
fLoan Assn. v. Topeka, 20 Wall. 6oo far.
City OF Boston, Ill Mass. 45l; Allen y. Jay 90
Me. 1874: Feldman v. City Council, % 8. c. 81.
In suggestive article on the South Carolina
decision OF the Supreme Court OF the Uniteq
States in the Chicago Lake Front cases i46 U.
8, S8O is referred TO as resting on an afhrma-
tion OF this doctrine The reasoning OF the
court does not necessarily affirm the doctrlne.
II is, In substance, that the legislature cannot
commit the breach Of trust OF giving away 10
a private corporation one OF the public mar.
bors OF the State. The real reason tS that
when the legislative trustee commlts sucn
breach OF trust, no constitutional restraint
prevents IL successor in the trust, that 1s 10
say q succeeding legislature, from unoolng
the breach OF trust, by repeating the act OF lts
predecessor. The decision necessarily over
rules-or at least refuses 70 apply In that In
stance-the Dartmouth College case. and that
was the ground OF the dissenting opinion.
tJust as was successfully done In the Chic