The Laurens advertiser. (Laurens, S.C.) 1885-1973, 1894-09-18

declare whether 1t is prepared Il
sustain them aud establish in the juris
prudence of the State the constitu
tional doctrines therein announced
have the most sincere and admirins
respect for the ability, learning, cool
judgment and integrity of the dis
tinguished jurists who united in thc
opinion in Mccullough rs. Brown, ant
l would not be here taking part in this
appeal if / did not honestly believe
that in that case, with the most
earnest desire to be right, they erred
and gave THEN approval to O. new and
unbelievable ground for tho restriction
OF legislative enactments by the Judi
clary which, If sustained, must serious.
ly hinder in the future the prosperity
and happiness of the people of the State,
1t is always u serious matter to seek
TO have overruled the decision of a
court of last resort. 1t is obviously tC
the interest of the people that as little
or uncertainty as possible should be
attached TO the law, and the doctrine
OF stare decisis, when properly under
stood and limited, has for it's support
sound and cogent considerations OF
right reason. The rule is founded on
n rational presumption in favor of the
correctness OF q carefully considered
Judgment, by competent judges, and
the desire to avoid uncertainty in the
law, but is imperative only in cases OF
reasonable doubt, and in which it is q
matter Of comparative Indifference
which view of the law is taken, and in
cases in which, owing to long action
by the people upon the law as declared,
the reversal OF the decision would be
too injurious to be compensated by q
correction of the error.
The mission of Supreme Court is
! to declare correct law and not to per-
petrate error, and it will not DO to per-
init the rule of stare decisis to pre-
serve an error harmful to the people
in It's operations. In Pratt VS. Brown,
3 Wis, 532, the Court said cit is
true that when a principle of law,
/ doubtful in It's character or uncertain
in the subject matter of it's applica-
tlon, has been settled by q series of
judicial decisions and acquiesced in
FOR considerable time, and important
rights and interests have become
established under such decision, court S
Will hesitate long before they will at
tempt to ovcrturn the result so long
established. So when it is apparently
indifferent which of two or more rules
is adopted, one of which shall have
been adopted by judicial sanction, it
will be adhered to, though it may not,
at the moment, appear to be tho pre-
ferable rule. But when n question
arises involving important private or
public rights, extending through all
coming time, has been passed upon, on
single occasion, and which decision
can in no just sense be said to havc
been acquiesced in, it is not only the
right but the duty of the Court, when
properly called upon, to re-examine
the questions involved, and again sub
Ject them to judicial scrutiny. We are
by no means unmindful of the salutary
tendency of the rule stare decisis, but
at the same time we cannot but bc
mindful of the lessons furnished by our
own consciousness, as we'll as by Judi
and the advantages of review. Wo
therefore enter upon the discussion of
the questions involved in this cas- ,.
not for the purpose of again reopening
the subject matter thereof to criticism
or investigation, but for the purpose
OF discharging our full duty in the
premises"
Whatever the force of the rule where
contracts and property titles are con-
cerned, there is strong authority for
saying that it has but little application
to decisions involving abstract con-
stitutional questions. In Willis VS..
Owen, 43 Texas Al, the court said :
The questions to be considered in
these cases have no application what
ever to the title on transfer of property
or to matters of contract. They in
volve the construction and interprcta-
tlon OF the organic law and present for
| consideration tn structure of tho
| government, the iimitators upon leg
islativc and executive power. as safe
CARDS against tyranny and oppression.
| Certainly 1T cannot be seriously insisted
that questions of this character can be
disposed Of by the doctrine of stare
| decisis."
He cites a great many authorities on
this question, and concludes that if,
wrong in principle, the rule of stare
decisis should not prevent its being
overruled. In the consideration of a
previous decision it is always q fortu-
nate circumstance when, as in this
case, the previous decision has been
recently promulgated and sufficient
time has not elapsed for it to become q
rule of action. 1t is likewise fOrtu-
nate circumstance when, as in this
case, the personnel of the court has
been so changed as to guarantee to the
people reconsideration uncontrolled
by the unconscious bias arising from q
deliberate opinion publicly expressed.
Col. Boyd took up the grounds upon
which the court in that case found
that the Dispensary Act of 1892 was
viOlatiye OF Sections l and II of Article
of the State Constitution, and so un-
constitutional, null and void, with the
exception of it prohibition of the grant
ing of spirituous license for the sale
of liquors after June, 1893. He urged
that the question as to the right OF
the State to engage in a trade or busi-
ness for the purpose of the gain has
been determined adversely to the righi
in Mauldin VS.. City Council, 33 S. c., /
where it was held that the city council
could own and run an electric light
plant for the purpose of lighting the
streets and public buildings, but that il
could not sell the light to individuals
the court saying: "As we understand it.
all the powers give to the city govern.
ment were for the sole, exclusive pur.
pose of government, and not to enter
into private. business of any kind out.
side of the scope of the city govern
ment."
[ fully appreciate the force of al
this, and OF the high intellectual
ability, learning and logical power
with which it is presented and support
ed but believe that it rests upon 6
theory OF the provinces of the State
Legislature, and of the State Judiciary
which, while having support in some
case from courts deserving higl
respect, and from dicta of eminent
judges, is not in accordance with the