The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1894-10-10
between laws and charters.

between laws anu CuaEteIs.
Indeed the learned Judge Cooley
observes that it is worthy of note
that the first case in which legisla-
tive enactment was declared uncon.
stitutional and void, on the ground
of incompatibility with the Constitu-
ton of the State, was decided under
one of these royal charters, referring
to Rhode Island case"
Certain it is, no power like this
has ever been exercised by the Eng
lish courts or the courts of any other
country. There the legislative body
that enacts laws is the only body
that repeals or annuls them
The utmost that All English court
can do, when two acts of parliament
conflict, i. to declare that the earlier
act is set aside, as superseded by the
later one.
Another rule is that, when there is
conflict between an act Of par'ia
ment and judicial decision, the
English courts set aside the decision
and sustain the act of parliament as
the higher authority.
But, whatever be- the source Of
this extraordinary power, it certainly
is not found in the Constitution
Yet it is exercised by circuit
Judges and Supreme Courts and the
work of the Legislative department is
rendered of no effect by the judicial
department
And it may also be said that the
veto power lodged by the Constitu.
tion exclusively in the executive ia
thus assumed by the judiciary.
And this in face of the fundamen-
tai doctrine that the three depart
ments, the executive, judicial and
legislative, must be kept separate aud
distinct.
Thus we have two departments
with the power of veto. the Cover
nor and the judiciary and two de.
partments with the power to repeal
the Legislative and the judiciary.
The encroachment by the judicial
department upon the powers and
prerogatives of the executive and the
legislative utterly without warrant in
the Constitutions, State and Federal,
has gone to greater length than could
have been forseen both here and else
where.
1t seldom attracts the attention of
the general public 1t is only when
as in the case of the dispensary law.
measure which has come home to
the people and affected them closely,
has been declared null and void, that
the people find to their surprise that
the writing II concur" by majority
of one, in court of three, operates
as repeal of the measure.
In contrast to this simple and sum.
mary process, contrast the ferma|ities
attending the passage of an act !:
The introduction placing on the
calendar the printing referring to
committee !; report of committee !;
first reading; second reading; third
reading; the debate and amend
ments; the passage of q branch of
the General Assembly (; the sending
to the other branch; there to 60
through the same formalities the
final passage /; the enrolment, and
the approval and signature Of the
Governor.
1t may be well, it may be wise, to
invest the court with these powers !;
but it is unsatisfactory to consider
| that it is an usurped and not con-
ferred power. If there is to be q
constitutional convention, it will be
worthy of consideration whether to
confer this power or not. If this
great power is to be exercised by the
courts, then surely it should be in
terms conferred on them by the Con.
stitution If it is not to be exercised
then should it be in terms denied
them? Certainly if it is to be exer-
cised, it :shodld be specifically con.
arFed. Thus ~ould. much unpleasant
ffr55csien between the different depart.
manss Be removed.
ghen no longer would thesanom.
alons condition of. affairs exist,
wherein laws stand un,epealed by the
only power that can lawfully repeal
them-the Legislature-and yet are
cancelled and :annnlled and render.
ed imperative by the judicial depart.
ment of the government, which con-
stitutlonally has no more power to