Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1921-11-19
Robinson And Grace
Opinion Reduces The
Constitution To "Scrap
OF Paper" Says Birdzelf
Continued from page ~

that all requirements as to the man
ner Of passing legislation are direc-
tory. It will readily be perceived that
this logic strikes out Of the cohstitu-
ton that portion Of the bill of rights
which il contained in Section Fl and
which reads:
THE provisions of this colistitu-
ton are mandatory and prohfbitory
unless, by express words, they are de-
clAred to be otherwise
This is stricken out III 80 far at
least as 1t has any application to legis-
lation. It Is a we'll established princi-
DIo Of constitutional Law that the
courts will not interfere with the legia-
lature in the performance Of. lesisia-
tive functions % direct how they are
to be performed. From this 1t neccs-
Sartly follows, under our system Of
government through coordinate
branches, that those who are injured
by the failure of the legislature to OBJ
serve the mandatory requirements
laid down in the constitution can only,
seek relief In the courts after the
legislative act is completed. If relief
be then denied on the pretext that
provisions which are expressly man
datory and prohibitory are directory
merely, the constitution is reduced to
a mere scrap of paper. 1t no longer
stands as the fundamental law OF the
state. It's protective features are in
reality but a 'deluston and a SNARE
And II the doctrine Of this opinion is
to be become the controlling principle
Of constitutional law in this state the
constitution should be repealed in
toto as a document inimical to the
public welfare on account OF theTfalse
hopes IL inspires and the false security
1t gives to individual rights against
governmental encroachment. The
whole history Of our constitutional ex-
perience will be searched in vain to
find an instance where legislative at
tempts to settle political issues or
unanimity Of action on a given sub
q reason for ~subverting tho plain tan
guagc of the fundamental law. Has
the day OF actual Legislative suprem-
acy arrived? Arc the bill Of rights and
the constitution no longer the law OF
the land?'
Recognize Court Authority.
cit may be true that the amend
ment to Section 80 ot~ tho constitution
requiring the vote Of four judges OF
this court to determine that an act OF
q legislative assembly is unconstitu.
tional. evidences a desire on the par
Of the people to accept more com.
pScLcly lIdu 'tIey nave III the past
legislation at its face value: but BY
the very fact that the people in the
constitution requires four Of the five
judges to declare an act unconstitu.
t1onal they recognize as a ,judicia
function the determination of consti
tutional questions. This court canno'
evade its grave responsibility under
this or any other section of the con.
stitution by a resort to homilies OF
the duty OF the courts to keep up with
the march OF time. So
TN passing upon constitutions
questions a court is of course reluctan'
to- determine that the Legislature ha!
t~ransgressed mandatory constitution
al provisions and it should never d.
so. except where the violation is clear
Even then. it acts with a due sens
Of the delicacy of the situation. 1
should not be deferred in its action
however, by the feeling that it is un
seemly for it to declare the law which
plainly exists as against void actor
Of the legislative assembly"