The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-08-30

a.
lied by the constitution - asserted as the
basis Of a legal right2"
To what purpose are powers limited,
limitation committed to writing II these
limits may. at any time be passed by
those intended to be restrained" And he
answered.: Certainly all those who have
framed written constitutions contemplate
them as forming the fundamental and
paramount law Of the nation, and, conse-
Quently. the theory OF every such govern
ment must be that an act of the 1egisla-
ture repugnant to the constitution IS
void" Mark the word ''void''-not doubt
full or questionable, but void.
It was in this great case that we find
our 1ldicial history. sitfe government Of
ia f-1ite states Il q s~rsS-arnr,,ant ~ IA US
and not of men" Within the last twelve
months the supreme court Of the United
States, speaking by Justice Brewer, again
announced it in Railway Company vs.
Tompkins.
stitution was McCuIloch vs. Maryland.
famous in our judicial annals, because it
the relations of the national government
TO the governments of the states.
You know the two questions invOlved:
], Has congress power to incorporate
q If it has, can a state tax it?
OF this last question Marshall said: 1t
must be decided peacefully, or remain a
source Of hostile legislation, perhaps hos
if it is to be so decided, by this tribunal
alone can the decision be made
government of the nation is supreme with
IN the scope of its powers, that 1t may
avail itself of all necessary and proper
means of exercising those powers. and
that neither Maryland nor any other state
can interfere with, cripple or impede its
lawful operations as a government
At the same term the celebrated Dart
If is familiar LEGAL history mat the old
college charter was held to be. a contract,
and that the legislature of New Hamp-
shire could not amend or materially alter
it.
It seems to me the decision was sound,
statutes for the organization of corpora
tons contain provisions authorizing the
legislature to alter or amend, and so the
right to do so becomes a part of the con-
As have already said, and as you know
from your familiarity with the history of
the times, the subject of commerce. and
the commercial relations of the different
states, was one Of the great inducing
motives that led to the adoption of the
constitution 1t was not the only one,
was a very powerful one. Trade and
traffic, buying and selling, exchanging
sive operations which are incident to mod
ern civilization, were in mems minds then
as they are now. and will be always Be-
fore the constitution, Maryland, Delaware
and Virginia; New York, New Jersey and
Pennsylvania wrangled and disputed over
duties, restrictions and regulations calcu-
lated to advance the interests of one
against the others, for seIfishness has al
ways been the handspring of human ac-
ton. When the trainers of the cOnStitu-
ton inserted the provision vesting in con-
gress the power to regulate commerce
among the several states. they stamped
upon their work the indubitable evidence
of practical wisdom. But what is COM
merce? What is regulation? These ques-
tons have followed the path of our ma
easy to answer them, and they have left
in their wake many unsettled and indie
state commerce law is an attempt to
solve some OF them, and Is certainly a
fbe SleR n4rWaro IN IhS oeVe19pne +15 Of
the belief is shared by our profession and
by the business interests OF the country.
that the time will come when the great
purpose of the constitution in respect to
commerce VIII be attained. It takes time
to build up the structle~e of legal right
upon the basis of acknowledged prin-
ciples, and We must remember that sue
cessful legislation seldom precedes the ac-
qulescence of those most largely affected
Gibbons VS.. Ogden, decided in 1924. is the
great source to which all must go who
would understand the scope and import
ton Again, the great chief justice had
to face the pretensions of a SOVEREIGN state
and to strike down one of its statutes.
The court there upheld the exclusive
power of congress to regulate commerce
lated upon the subject The argument
in the case dealt largely with the question
shall, answering that question in the af-
frmative, added in that conclusive way
preached: Commerce undoubtedly is
traffic, but it is something more: it is
he was prophet as well as judge, for in
that sentence he unconsciously foretold
and all the wonderful appliances by which
science compelS nature to be the servant
and minister of man.
In TINS great case Marshall vtndicated
the constitution as working instrument
of government He made it. If I may say
So, what in modern litigation we call "a
going concern"
What do gentlemen mean" he asks.
'fby a strict construction? If they con-
tend for that narrow construction which
powers which the words of the grant, as
usually understood, import. and which
would cripple the government and render
declared to be instituted. then we can
not perceive the prOpriety of this strict
CONSTRUCTION. nor adopt it as the rule by
And so, gentlemen. the constitution
marched; and without exaggeration it may
be truly declared that John Marshall was
its guide, its light and its defender. Our
profession looks upon him with some
think it is excessive. When we consider der
what might have been our fate if another
we may well believe that Providence
watched over the republic. He interpreted
the comprehensive way which made it a
thing OF life instead of death; a chart
eanngea phrases No dge ever bsd Cd
a more lofty idea of his office, upheld
cans are better entitled to the gratitude
OF our peOple-GeOrge washington and
Abraham Lincoln.
MarshalPs judicial temperament was
such that it was not possible for him to
see any question simply on its technical
large discourse Of which shakespe ear
speaks, looking before and after"
shall, was a man eminently fitted for that
exalted position. Learned. able. patient,
honest, he filled the ideal of a great judge.
But, like Marshall, he had a temporal
ment: like Marshall. he belonged to a
school. Strict construction was as dear
q To S0T-
After referring with regret to the bred
Scott case the speaker said: Let US be
just Judge fancy was sustained by the
entire court. save two, Mclean and Cur
tbs. 1t matters little now who was right
and who was wrong; for the issue went to
a higher court and was settled forever"
In the License Cases Judge fancy sus-
their proper field of police regulation In
Charles River Bridge VS.. Warren Bridge.