The Indianapolis journal., 1897-04-17


the United States adopted by the conven-
ton OF I'M perilously near failing OF
adoption by nine States. by reason of the
absence from the Constitution Of a bill OF
rights. and that probably the adoption OF
the Constitution was only secured upon
confident belief that the methods of amend
ment provided in IL would be Immediately
used to incorporate these declarations Of
rights. which some of the States deemed
essential and that almost Immediately fol-
lowing the organization of government un-
der the Constitution. this bill OF rights. in
the form OF the first ten amendments to the
Constitution. was adopted. In the case of
the Constitution of the United States il is
true that II provides a government OF speci-
fled power In the case of the States. all
power not given to the general government
and not prohibited by the Constitution of
the United States to the States is reserved
II ask your honor to note the distinction-
Is reserved not To legislatures OF states, but
10 the people OF the States. 1t will not
do. then. to say that in constituting the
Constitution Of State We are 10 assume
that all legislative power. except those
powers granted TO the general government.
and those powers prohibited by the COnsu-
tuition OF the general government 10 the
States. inhere to the legislatures of the
States. or tho executives of the States. as
the power may be legislative or executive.
The people of the respective States before
the adoption of the Constitution of the
United States had formed their own con-
stitutions- These consisted Of a frame of
government constituting universally. be-
1eve. three great departments, giving them
authorized powers and putting on all or
them restrictions Our own Constitution
contains a formal bill of rights. and II con-
tains limitations upon executive and legiS-
1atfve power. Therefore, when we come to
consider the powers or the Legislature OF
Indiana we are TO consider that body as
a body constituted under the Constitution
OF Indiana, and not having general Iegisla-
tive powers with the exceptions named. but
with the added exceptions that the people
of Indiana have placed in their own Con-
stitution. In other words. the people nave
declared in this State and in every State
"a a things which should
not be done at all, either b. the general
government or by the state government.
powers OF attorney TO governmental agents.
The Constitution as your honor suggested
I'm a remark yesterday is. according 10 the
American idea Of the making or constltu-
ti0ns the act OF the people themselves d.
rectly. Every provision of the Constitution
of Indiana has been submitted TO the refer
end,Im- Every voter of the State-not
through an agent. but directly. at the pal
lot box--has expressed himself upon It's pro-
visions. The Interpretation of these instru-
ments the enforcement of these limitations,
IS with the courts If the Legislature. or
its Congress were left free to determine tnt
limitations of their powers, our government
might be wrecked and probably would have
been before this time.
TRIBUTE TO FEDERAL COURTS.
7 think there is nothing in the whole
history of government that more IL
lumines and glorifes the wisdom OF those
who framed our institutions than the use
fulness which we have observed i'm the
federal judiciary. The United States could
almost as we'll have lost Washington as
John Marshall. 1t was the federal power
to interpret. finally. ultimately. all Of the
Constitution OF the United States and all
laws made under it, that has secured the
orderly development of the government
the progressive and intelligent application
OF principles TO new conditions that has
preserved our Institutions As / have said,
the federal courts have the ultimate ue-
termination of all questions involving the
Interpretation of the Constitution and laws
of the United States. but it is not con-
versely true that the state courts have in
all cases an exclusive or ultimate power to
construe interpret and apply their own
constitutions to all persons. The courts
of the United States have jurisdiction
that depends i'm part upon the questions
tnvOlyed and in part upon the citizenship
of the parties before the court. IL was
thought necessary to give to the citizen OF
one State right to seek the tribunals
of the United States. as impartial tribun-
ais that would be free from local influence
and prejudice when he had contention
with citizen of another state, and the
duty OF the courts OF the United states;
Judgment to interpret the laws and Con-
stitution of one State when that interpreta-
ton is invoked by citizen OF another
TO interpret the Constitution and laws of
the United States. Nothing has more saved
the courts of the United States than their
constitutional powers.
IL has been suggested here that there
invoked by the complainant here into mat
ters that belonged exclusively To the State
of Indiana. 1t Is not true: Whenever citi-
action i'm this court and his rights depend
in any measure upon the Interpretation of
the Constitution of Indiana. or of any law
of Indiana. your Honor has not only the
same right that the state courts would have
TO pronounce Judgment. but you act Just
as independently in the case as the state
courts can act There has come 10 be rule
that generally, where a question of the
interpretation of a state constitution. or
OF a state law, was involved, and the nigh
est court of the State had passed judg-
ment upon the question, until there had
come to be a settled rule--until the ques-
ton might be considered as settled-that
in such cases the courts or the United
States usually follow the courts OF the
State i'm the Interpretation of its own Con-
stitution and laws. 1t is curious incident
here, that these gentlemen who suggest
that there has been some invasion-some
attempt 10 put hand over the supreme
Court. il was expressed by one of the
counsel-should cite here and rely upon
the decision of Judge Sawyer. i'm which he
eauarely refused to abide by decision of
the Supreme Court of California interpre-
tatng it's own Constitution 1 think IL is
constitutional right Oh a citizen OF another
State to invoke the protection OF the
United States courts, except where the
state courts have already interpreted its
Constitution and laws. so that the question
may be regarded as a settled rule-a case
in which a court as to matters wholly
within the State. would apply the doctrine
of 'stares decisis- In all other cases this
court, when its jurisdiction is invoked even
If IL be upon the question OF citizenship
alone. Is not invading the constitutional
powers of the State. is not asking the Su
preme Court of the State TO sit at its feet,
but Is exercising constitutional power
which IL cannot evade and which il should
exercise. not timorousy and fearfully. but
in the light of good conscience and cOur-
age. The courts owe the legisla ture defer
ence and, in the consideration OF laws that
Is arraigned. should be considered careful
ly and with Difference TO the hiGh authority
that passed IL. But. while this Difference is
shown TO the legislative action. the court
regards the Constitution not simply with
respect. but regards IL with reverence. L
shall show your Honor. as L progress that
a Scent fare for Indianapolis would be
dearly bought FOR the people of the State
OF Indiana. ara dearly bought for the citI-
zens of indianapolis. If these constitutional
provisions are 10 be rested on the conten-
ffons of those who here represent the city
and the State. local advantage, a tenn
poPary advantage. cannot be sought at the
cost of the relaxation or the misapPlication
OF these fundamental principles which are
embodied I'm our Constitution.
FEDERAL QUESTIONS.
But we have in this case. If your Honor
please not only a jurisdiction based upon
citizenship. but we have federal questions
involved l shall argue To your Honor
presently that the provision of the Consti-
tuition OF the United States forbidding a
State TO pass law impairing the obliga-
ton of contracts is under consideration
here. and that this legislation is subject to
that prohibition l shall ask your Honor