Daily new dominion. [volume] (Morgantown, W. Va.) 1897-1906, 1901-05-28

-. 4lsseuting opinion filed BIZ Jus.
/ tice Dean aud concurred in by JUS.
tees McCallum and Mestrezat saws
/ in part:
/ ''If this act were not clearly In con.
] fiict with the fundamental law az II
! the consequences to which the iudo.
ment may lead were not deplorable
or If it affected only the immediate
/ parties to It. and would nor sar1e as
a precedent for future cases wouId
! not feel algself called upon to dissent
i of record But all these reasons ex-
/ ist. and It is not without reeret that
/ | feel constrained 10 expl ess q de-
/ cided disee ont from the Indictment Te
my mind ISIS act IS palpabiy unconsti-
I tutioneI. because It violates section
Z Of article III of that instrument.
! which section is as follows: The
i general assembly shall not pass any
local or special law regulating the
affairs Of counties, cities, townships,
wards, boroughs or school districts,
Incorporated cities. towns or villages,
or changing their charters-ereating
Offices or prescribing the powers and
duties of officers in counties, cities
school districts.
Many authorities are quoted by
Justice Dean in support Of his conten
ton that the act comes under the
head Of special legislation. Continu
ing, he said in part:
by our decision ia the case BE-
fore us we are going a step beyond
anything heretofore allowed In the
fsf en- toll 81 fg l.,
question of law whether section Z
| of the constitution has been violated
Yet we. in effect, say it is the province
Of the legislature to decide the ques
ton, and that we will not inquire
| into it. This, on our. part, is great
mistake. | would not encroach one
| inch on the authority of the legisla
| lures, but would not allow that body
| nor the executive, to encroach one
| inch on ours. We have now before
| us an act which, it is true, does not
take one mans land and give it to an
| other, but it does take from one SET
| of men the Offices given them by the
| people, hands them over to the gov
| ernor, that he may confer them on
others Here we should call halt
upon such unconstitutional usurpation
VI power
What the next step in this direc
ton viii be we can only conjecture
fractional politics and partisan poll
tics are not troubled by scruples
under the principles OF this decision
there is nothing to hinder q hostile
partisan majority in the legislature
from ousting the party in power in
Philadelphia, city of the first class
A.
possession Of the minority power
The time is not very remote in the
past in English politics when the vic.
torious political party, as soon as I,
was seated in power, promptly pro
eeeded to cut off the physical heads
OF their leading antagonists and con.
fiscate their property; it is not very
remote in the future when the vic.
torious party will promptly proceed
to cut off the political heads of its
opponents when they hold office by
the municipal votes of the people.
Il fear the time is not far distant
when the pernicous results of our de.
cision will either bring about that
constitutional amendment or remedy
the mischief or move us to oyerrule
1t.
Every member of this court con.
cedes that this legislation is vicious.
Why? They do not answer. But, to
my mind, it is apparent that its vice
consists in its fragrant violation of
the fundamental law. We know its
purpose was to Dust one set of Off
GERS in three certain cities, put in
place, either directly or indirectly, by
the people, and give their offices "a
others through the chief executive OF
the state. This is the inevitable re.
suit from the bill itself. Can we as,
sumo that our lawmakers do not in
tend the obvious results of their
acts?"