The Manning times. [volume] (Manning, Clarendon County, S.C.) 1884-current, 1894-10-03
Judge McIyer Criticised by the Amerl.
can Law Review.

|
An examination of the opinion Of Chic
Justice McIver, of Snnth Carolina, III tLt
decision III whc;! tie Snpr me Court O
that State overthrew :he So-cal!eI ''D!sp.n
sary Act, shows t2at lajority II III,
ourt place their conclusion that tue STAT
ute under consideration is unconstitutional
partly npon the ground that there are Ii
every free State implied limitations upon
the power Of the Legislature. The daciS
ions n the margin are cited by th, learned
chiet justice IN support OF the proposition
that there are implied limitations restrain.
ing State Legislatures from imposing taxes
for other than public purposes. Tie first
Of these cases is generally cited rs the lead
ing case upon the doctrine, but We believe
| that it was first announced by Mr.. United
States Circuit Judge Dillon, and that this
case simply affirmed his decision. Not.
| wlthstanding the great names giving sup
port to the doctrine. We utterly prot S!
against 1t rs Il principle of constitutional
INV. In order tc understand low utterly
ont of place it is, it is necessary to do no
more than consider tn. theory upon which
| the power Of the Judiciary to refuse to give
effect to an act OF the Legislature can alone
be supported. III the first place. attention
| is to be drawn to the fact that the power
was never granted in any written colstltu-
ton, Federal or State. Il was 81, zcd by the
! judges, and its seizure WAS for long time
| contested rs an usurlmtlon, and it is well
remembered that an attempt WAS made IL
| Pennsylvania to impeach the judges OF the
Supreme Court of the State on this ground |.
The only around on which the early judges
who first seized the power attempted to de-
fend themselves against the charge OF usur-
patton of legislative power because 1t is
an act OF Legislative power to repeal rs Well
as to enact statute was that the couStltu-
ton was the paramount law, designed to
impose limitations upon all departments Of
the government and to protect the reserved
rights Of the people; that the Judges were
sworn to support the cousli:ution-not 10
supper, the acts % The Legislature; that
when they were requested TO give effect 10
statute which was challenged as being in
conflict with the constitution, it became
their duty to lay the constitution and the
statute before item side by side, and if
there appeared to be PLAN conflict, to
give effect, according to the obligation Of
their oath, to the paramount law, aud con-
seouently to deny effect to the act OF the
Legislature wh' 'ch was inhibited by the
paramount law. It was always conceded by
| the Judges that this was an extraordinary
exertion of power Oh their part. They
naturally felt that they assumed positi q
more or less un >eemly in the public eStl-
mation--the position OF one coordinate de-
partment Of the government assuming the
right to sit in judgment upon tie acts of
another coordinate department.; and they
consequently exercised the power under
the just feeling that nothing Lut plain
and uudeniable conflict between the stat
ute and the paramount law could justify
them in exercising it. Such being the
ground and the only grouud, Oh which the
aside acts Of the Legis!uture-a power ex-
ercise5 by no other judiciary il the world
no room was left tor lIe exercise Of the
power on mere caS;i:strc or doctrinal
grounds No room. WAS left t, exercise il
merely because acts ci the Legislature
come in conflict with the theories enter
tained by the judges upon economic ques-
tions, as they have so often exercised 1t n
setting aside legislation prohibiting the
So called truck store system" of mining
and manufacturing panies. No room
absolutely no room lett to exercise 1t
on any such conception as that there are
implied limitations upon Legislative power
not found in the written constitution, but
found somewhere else, in the breast of the
Judge or in his unwritten constitution con.
tanning such implied limitations No
power, express or implied has ever been
granted to him to invade the functions of 8
coordinate department of the government
"a department directly responsible TO the
people--and to overturn its acts on this
on the power Of the Legislature: but these
limitations rest upon moral sanctions which
appeal to the legislators aud to their con-
stituents, but not to the judges. If one
Legislature oversteps those implied lim!ta-
tons. an ample remedy is found in an ap
peal to the people and in the election of an
other Legislature which will repeal the
obnoxious statute;t but no other theory
can be devised By which the judiciary can
defend themselves against the imputation
of usurpation when they assume to set
aside an act of the Legislature on that
ground. It is nothing more nor less than
an impudent Invasion on their part Of the
functions of coordinate branch of the
government-an impudent assertion Of
their power to overturn acts of the Leglsla-
ture upon the grounds that are merely NOR
al and theoretical. If judges would busy
themselves in considering the implied lim-
itations upon their own power, instead Of
Matching implied limitations upon the
power Of anotLer branch of the govern
ment. they would present more decent
spectacle.
sNnrrllouob rc Rrorn 10 G Pan