The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1894-10-10
in Lor don, acting as Supreme Court of

in Lor don, acting as Supreme Court of
Appeals for all the colonies, decided
conflicts between laws and charters.
Indeed the learned Judge Cooley OBJ
served that it is worthy Of note that
the first case in which legislative en-
acsment was declared unconstitutional
and void on the ground of incompati-
bility with the Constitution Of the
State, was decided under one of these
royal charters" referring to a Rhode
Island case. Certain it is no power
like this has ever been exercised by the
English 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 ut
most that an Euglish court can do
when the Acts of Parliament conflict
is to declare that the earlier act is set
aside as superseded by the latter one.
Another rule is thatwhen there is a
conflict between an Act of Parliament
and judicial decision the English
courts set aside the decision and sustain
the acts 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 Sd
preme Courts and the work of the leg
islative department is rendered of none
effect by the judicial department. And
it may also be said that the veto power
lodged by the Constitution exclusively
in the executive is thus assumed by
the judiciary. And this in face of the
fundamental doctrine that the three
departments, the executive, judicial
and legislative, must be kept separate
and distinct.
Thus we have two departments with
the power of veto, the Governor and
the judiciary, and two departments
with the power. to repeaE-tbe legisla-
tive ard the judiciary. This encroach-
ment by the judicial department upon
the powers and prerogatives of the ex-
exutive and the legislative, utterly
without warrant in the constitutions,
State and Federal, has gone to greater
length than could have been foreseen
both here and elsewhere. It seldom
attracts the attention Of the general
public. It is only when, as in the case
of the dispensary law, measure which
has come home to the people and af-
fected them closely has been declared
null and void, that the people find to
their surprise that toe writing, ~ con-
cur" by majority of one in court Of
three operates as repeal of the meas
ure.
In contrast to this simple and sum-
mary process the formalities attending
the passage of the Act: The introduce
ton, placing on the Calendar, the print
ing, referring to committee, report Of
committee, first reading, second read
ing, third reading, the debate and
mendments, the passage by 8 branch
of the General Assembly, the sending
to the other branch; there to 60 through
the same formalities, the final passage,
the enrolment, tt approval ard sigma
ture of the Governor.
1t may be we'll, it may be wise, to in
vest the court with these powers, tut
it is unsatisfactory to consider that it is
an usurped and not conferred power.
Ifthere is to be- Constitutional Con-
vention it will be worthy Of considers
ton whether to confer this power or
not. If this great power IS to be exer-
cised by the courts then surely it should
be in terms conferred on them by the
Constitution. If is to be exercised then
should it be in terms denied them.
Certainly if it is to be exercised it
should bespeci6cally conferred. Thus
would much unpleasant friction be-
tween the different departments be
removed. Then no longer would the
anomalous condition of affairs exist
wherein laws stand unrepealed by the
only power that can lawfully repeal
them-the Legislature-and yet are
cancelled and annulled and rendered
imperative by the judicial department
of the government, which constitu-
tionally has no more power to repeal
than it has to enact laws.