The herald and news. [volume] (Newberry S.C.) 1903-1937, 1906-05-11

rcpugnant to the constitution that
/ when pointed out by the judges, all
men Of sense and reflection in the
community may perceive the repug-
nance. BY such Il cautious exercise
of this judicial check no jealousy
of it will be excited, the public conf
dence in it may be promoted, and it's
just and salutary effects be justly and
fully apprcciatcd.' Mr.. Justice Nc
Gowan i'll OK parte Lynch, 16 S. G. 80,
says: cit is delicate thing to declare
an act Of the legislature unconstitu-
tional. This section of the constitu-
tion must be construed, if possible, as
allowing full force and effect to Sec.
| |, Art. Of the constitution Of 1863,
! which is See. 1, Art. 3, Of the consti-
tuition of 1895, to wit: 'Thc legisla-
tive power Of this state shall be vest
ell III two distinct branches, the ono
to be styled the senate, and the other
the house of represent atives, and both
together the general assembly of the
State of South Carolina.' - Shaw,
{. j., in speaking for the court in OK
partc Wellington, 16 Pick. 95, says:
"When courts are called upon to pro-
nouncc the invnlidity of an aat Of
legislature. passed with all the forms
and ceremonies requisite to give it
force of law. they will approach the
question with great caution, examine
il in every possible aspect and ponder
upon it as Ion" as drlibrration and n
| patient attention can throw any new
| light on the subject and never de-
clare Il statute void unless the nulli-
ty and nvalidity are placed in their
judgment beyond reasonable doubt.'
! 1t is thus seen that the same degree
OF moral certainty to demonstrate the
Stituiinnality Of an act of the gen.
rral assembly is requisite as is nee
| rSSary to secure the conviction Of
! defendant in the court Of sessions. TO
! say that the various objections urged
by Mr.. Smyth" to the constitutions
ality OF the acl under consideration
are only merely highly plausible
would be doing injustice, not only To-
the intrinsic strength If the positions
taken in the objection themselves,
but to lhrir elaborate presentation,
oral and written and the rnrrrruI ar
"umrntS by which they were support
ell. but not "tn fatigue the under
standing with the painful process Of
recommendations with which Grafton
charged Murray. suffice it to say that
after the most careful consideration
Of the reasons pro ct con, | cannot
advise YOU that the unconstitutional
ity of the act has been made to ap-
pear with that moral certainty or that
approximation to moral certainty nee
rssary to my y" advising you. Ii is
worthy to remark that the returns to
br made I" the comptroller general,
mcntionr: in See. Of the act, arc
not required to be made until within
90 days after December 3lst. Thus,
ample time will be allowed for such
resort to the courts, as persons ag-
gricvcd by any alleged unconstitu-
tionality Of the act may see fit to
make. am sure that both in giving
this opinion and your cxcellcncy in
your action under it, even though the
act should be dcclarcS unconstitution-
al by The judicial department Of the
government, would hail such dccis-
ion by the department specially charg-
cd with settlement of matters Of such
grave moment with more satisfaction
than we would rcgar, the action or
the executive department of the gov
rrnmrnt which could be submitted
to the proper tribunal for its deter
mination only in The event of a veto
by your honor being overcome by the
requisite constitutional ma, a,iority.
therefore. cntrrtainin" very grave
doubts H> 10 the Sollm,lncsS ur this
opinion. ! advise you not to veto the
ac, ON the ground Of its unronstitu-
,i"nnliiy. bui in so far AZ this ob.irc-
tion is concerned, I" approve it. Very
respectfully,
Leroy +. InumanS,
Attorney Gc'.cral.