Clarke courier. [volume] (Berryville, Va.) 1869-1997, 1902-05-21

asked for would be 10 use public
funds for private purposes, and if
1t be true that the inspection, treat
ment and eradication of the San Jose
scale is a private and not a public
use of the county funds, then his
conclusion is certainly correct,
Moreover, if he is correct in his in
depreciation of section s of the Act
which Is the only section that relates
especially to Frederick or any other
county, then the whole statute is in
valid and unconstitutional, and all
the provisions made by the Legisla-
ture for the cure and prevention of
the harm being done throughout the
State by the San Jose scale are con-
trary to law. If the act is invalid
for Frederick County it is invalid in
all ITS provisions.
am impressed at the beginning
with the unusual circumstance Of
an act of the Legislature being de-
clared unconstitutional by a Board
OF Supervisors. Every Act of the
Legislature is valid unless it is ex-
pressly forbidden by the Constitu-
ton, and even before the Courts
every such Act is to be considered
constitutional unless the contrary
plainly appears, and the Supreme
Court of Virginia itself, cannot de-
clare an Act unconstitutional except
by vote of majority Of the mem
bers elected to it-that is to say, the
Act stands unless three members Of
the highest Court of Virginia de-
clare against it.
As the provisions of this law are
very clear and free from doubt. so
far as what is intended to bee accom-
plished by it is concerned. had sup
posed that it was the duty of the
Board to obey it and put it in force.
unless it should be restrained from
doing so by an injunction from the
Court. If now, however. the Court
should be called ON to compel bv
mandamus the Board TO obey the
law, the questions presented to it.
would be:
1. Is the appropriation asked for
one of public money for private or
public purposes, and
?. If for public purposes, has the
Legislature the power to COMPEL
the Board to make the appropria-
ton:
1t is to be inferred from the Ian
guage of the Board in their report.
that if they should be satisfied upon
the first question, they would
at once make the appro-
priation, and if this be the real
meaning of their words. then it is
clearly the part of wisdom &c at
tempt first to get the Board to re-
consider its action, or rather to Law
the matter again before Mr.. Byrd
and to endeavor to effect a change in
his mind, for the Board would not.
and indeed ought not to act against
his opinion, although / think in this
case it was its duty to obey the plain
mandate of the law and not to have
asked from him an opinion on the
constitutional question.
The first question seems to have
been plainly determined by the au-
thorities. They lay down the rule
again and again that an Act of the
Legislature on the subject of taxa
ton and appropriations is not to be
considered other than a disposition
of public money for public purposes
unless it is plainly and manifestly-
or to use the words of the books. cat
the first blush"-an appropriation
of public money for private purposes.
The Legislature is itself to Judge
of and determine that, and its deter
mination stands unless it has WITH
OUT DOUBT violated the rule.
1t is said by the Courts that the
determination of what is and what
not public purpose belongs in the
first instance to the legislative de-
partment. That "the Legislature
cannot lie under the necessity of re-
quiring the opinion or the consent of
another department of government
before it Will be at liberty to exer-
else all of its acknowledged powers"
and "that the Legislature must con-
sequently determine for itself in
every instance whether a particular
purpose is or is not one which so far
concerns the public as to render tax
alton admissible"
To be deemed invalid on the |
ground that the tax was not imposed |
for the benefit of the public, the |
absence of public interest in the /