Hutchinson gazette. [volume] (Hutchinson, Kan.) 1895-1902, 1897-06-17

contact with the suprems executive
head of the state and actually had the
temerity to issue an order restraining
the governor as commander in chief
from musteringa military company out
of service; and this court instead Of
resting its denial of its right to do so
upon the clear ground of distinction be-
tween coordinate branches of the gov
eminent and their independence one of
another, as it should have done, de-
graded the question into one of mere
statutory construction and official prac-
tice.
Instances of which the above are
characteristic are constantly occurring
in both state ard federal courts and in
my Judgment an imperative duty rests
upon the Judiciary to disavow in en-
phatic terms the extravagant measures
of authority so frequently ascribed to
it.
SIT is now too late for any effective
purpose to deny the right of the court
to sit in Judgment upon acts of the leg
islature. Accumulated precedent has
established such right beyond ques-
tion of one or even many judges. If,
however, it were an open inquiry, l
would have no hesitation in denying
the existence of the jurisdiction assum-
ed. No close student of the structure,
history and philosophy Of the govern
ment but will agree that the exercise
of such power was not within the de-
sign of the trainers of either the state
or federal constitution.
Jurisdiction, like appetite, grows by
what it is fed upon. One assumption of
power by the courts hes but given cour-
age and capacity for another, until from
a hesitating, apologize refusal to effec-
tuate legislative acts, clearly violative
of constitutional right, we have grown
to arrogate the prerogative of control
ling executive acts, settling questions
of legislative membership, condemning
forms Of Legislative procedure, enjoin-
ing the enforcement of legislative pro-
visions, marking out the scope and pol
icy of legislative inquiries and gener-
ally of directing the plan and supervis-
ing the machinery Of political govern
ment. So far as am concerned l shall
refuse to join in any assumption of
constitutional jurisdiction beyond
those boundaries which are already de-
Tended by impregnable walls Of prece
dent and yielded over as undisputed
ground.
"The first and principal act of muni-
cipal control is the making of laws.
Leaving out of view for moment, the
people in their primary capacity as
fountain of authority and looking only
az the source from which it directly and
proximately proceeds it is inevitably
perceived that power resides alone in
the legislative body and furthermore
that in natural sense il is the only
tribunal to which primary power has or
can be confided. AS a depositary of
delegated authority the legislature is
the only logical and necessary provision
of nature in its bearing upon the gov.
eminent of men. All other powers are
of secondary delegation from it. Gov
errors and judges are but preachers of
legislative fasbioning and executioners
of legislative will. In social economy
determined upon principles of natural
law there is no provision of executive
or judicial office. 1t is only because the
subjects of municipal law do not al
ways yield that ready obedience neces-
sary to an orderly social state that the
Legislative will must create an agency
for it's vindication; and this is all it
does create, and these are all the pow
crs that do exist-legislative and exec
utive. Among the divisions of govern
ment hnalytically considered there is no
such thing as judicial power What we
call by that name is a function of ex-
ecutive power merely.
81 do not believe it was the intention
of the masters of political science who
framed and set in motion the machine.
ry of this government to disregard the
fundamental character of legislative
and executive power, and of judicial
power socalled and invert the order of
nature by elevating the agent above
the principal above the agent the
creature above tho Creator, and mag
nifty mere function of one of the parts
the system into the life and dominance
of the system itself.
Department Stores.
A friend writes and asks us our opin-
ion of department sto .'es, and the heat
ed discussions which have arisen con-
corning them.
W. boya folyop No no ~ IN tba 6.bt