The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-12-01
The Court. and the pcopIc.

In an interesting and timely article
on the relations between the Judiciary
and the community which appears in the
December number Of the Columbia LdV
Rcrier Judge JOHN WOODWARD of the
Appellate Division of the Supreme Court
in Brooklyn calls attention 20 a propo-
sition Of vital Importance in N branch
of the political controversies of the
present day.
That proposition is that the ~cOnstitu-
ton of q State expresses the paramount
will NJ the people; that any act Of the
Legislature passed in defiance Of the
constitution is an attempt TO disregard
tho peoples will. and therefore that when
the courts adjudge such an act to be
null and void lor. in legal ~phraseology,
10 be UNCONSTITUTIONAL the courts are
simply enforcing a command given by
the people themselves.
Judge WOODWARD expounds this doc
trine with ~clearness, supports il with
cogent reasoning and illustrates it by
reference to many striking facts in the
development of American Jurisprudence.
70 his arguments we would add a few
words by way Of commentary on the
same subject.
The constitution Of "a State is the only
law enacted by the people themselves.
Upon the question Of the adoption of
a constitution or its amendment every
qualified electOr is entitled TO vote. A
constitution thus adopted or amended
by popular vote is in the highest and
most direct seEse the expression OF the
will Of the people. Hence it is well de-
nominated the fundamental law. or the
organic law of the State.
Every State constitution contains ex-
press or implied y Ohioitions upon the
activities of executive. administrative
or legislative officers.
Take, for example, the present Consti-
tuition of the State Of Now York, adopted
by the people in 1894. II abounds in
restrictions upon the power of the
Legislature. Section is OF Article III.
specifies fourteen cases in which the
Legislature is forbidden to pass any local
OF private bill. Suppose the Legislature
ignores q OF these prohibitions and
dOes pass q bill in violation Of it, and
when the validity of the enactment is
questioned in a judicial proceeding the
court p~rouOmnces it unconstitutional and
hence wholly Ineffective. Under these
circumstances there are those who ig-
%nOrantly assert that the courts thereby
tiIwart the will of the people, whereas
in truth and in fact they thereby compel
obedience 10 the sovereign will of the
people a n expressed by themselves in
their constitution, which they have es-
tablishcd rs tire law paramount and
- which thoy have declared that the
members Of the Legislature, no less than
others, must render obedience.
IL would be useless 20 insert prOhibi-
tions and restrictions upCn official action
in a constitution Unless somewhere in
the system Of government authority
wa rGIOsed To snfOFCe such provisions.
What GOOD would " do, for instance. to
forbid any county OF city from becoming
indebted to On amount exceeding 10 per
cent. Of tho assessed valuation Of its
taxable real estate IL no one could in
Ieriere To prevent such an increase Of
liability on the part of a municipal
ny? Under the triple distribution Of
governmental powers which prevails
throughout the American Union into the
executive. the Legislative and the judicial
branches. the conservative function Of
compelling compliance with the COnsti-
tuition has been conferred upon the
courts; and as Judge WOODWARD shows
in the article to which we have referred
this function has been exercised for tho
most part wisely and we'll in strict OBJ
scrvance Of the rule that no act is to be
condemned as unconstitutional which is
capable o. a judicial construction which
viii uphold it.
But tho point which we desire to en-
plastic ss tending TO clarity OF thought
In cuffsnt discussions on the relations