, 1900-05-28

The ruling of the our was on the
demurrer to the answer of the respond
ent to the petition for a peremptory
writ of mandamus to compel County
Clerk McGibbon to issue a license to
Messrs. Higgins and White.
4 have given the questions raised
by the pleadings a great deal of careful
consideration, aside from reviewing the
authorities cited by counsel both for
the petitioners and the respondent
said Judge Bramel.
During the argument of the first de-
murrer and the motion to make more
definite and certain the answer, as
well as the last demurrer, both the
counsel for the state and the counsel
for the respondent alluded to the in
terest the people had in the rightful
decision of the questions involved in
this case, so that | took up every ques-
ton seriatim and have given the whole
case the most careful consideration.
the more so because of the stress laio
by counsel upon the interest taken in it
by the people.
But | think there must be some
mistake as to this interest. This
morning for the first time notes are be,
ing taken of the decision; the papers
said little or nothing of the progress Of
the case; the interest of the public
seems to have been confined to the pc
titions signed by the people of Tie Sid
ing and Sherman. Whatever interest
the public had would not, however,
effect the court in its decision.
While the right of petition is one OF
the constitutional p~rerogatives of the
citizen, under our law no petition Is
necessary. In no other state is the
statute on the subject of liquor license
like ours. l even went to Cheyenne to
examine the statutes of other states
and found one like that of Wyoming
Failing, | find that counsel have GOV
cred the whole ground by the law cited
in this case, as nearly as possible.
The consIitutionality of the law
having been brought in question by. the
frst mur ana also by the last
demurrer, | apprehend that, whatever
may be the decision, it will be taken as
setting the question so far as this court
is concerned.
On this question, as | view it, and
as the authorities view it, under our
statute it has, in my estimation, been
settled by the general Interpretation OF
the constitution and the statutory law.
delicate matter for the court to declare
an act unconstitutional, yet it is within
the prerogative of the court to do so
If it finds upon investigation that the
act is not in spirit with the constitu7
tuition, or is repugnant to it," Here
the court cited a California decision
holding in effect that there is no ques-
ton Of the power and duty Of the jul
dicial department of the government
to set aside a legislative act if it is in
conflict with the constitution, and that
the consideration by which courts arc
to be guided in dealing with such ques.
tlons is well settled,
A decision was also cited in which
1t is held that where the constitution
has come into force after legislation
by a territorial government, and that
constitution leaves the law as it is
found in force at the time of the enact.
ment of the constitution, the constitu-
tionality of the law is by that fact pass
ed upon, and that is an important
point in this case. The lawmakers of
| Wyoming left in existence these very
statutes concerning the issuance of
liquor license, the same as they did
other laws.
Again" continued the court, the
interpreters of constitutions and of
legislative acts have gone further and
said that IL subsequent legislation upon
the same subject was sought to be con
strued, that shows the legislative in.
tent to leave the former statute in
force. This has become a fundamental
principal. So it is found that these
! Continued on page 81