The Indianapolis times. [volume] (Indianapolis [Ind.]) 1922-1965, 1923-10-25

BY LOWELL MEI4LETT
HE first assertion by the United
III States Supreme Court of a
- right to declare acts Of Con-
gress unconstitutional was made In
1903. 1t was likewise the last such
assertion for forty EIGHT years.
Just at the close of John Adams
administration the retiring Congress
rushed through an act creating q
large number of additional judicial
offices. Adams filed them by appoint
ment.
Among the number were four JUS
tees Of the peace for the District of
Columbia. including one William Mar
bury.
The commissions, however, making
these appointments good had not yet
been issued when Thomas Jefferson
took office as President He in
structed James Madison, his secretary
OF state, not to issue the commissions.
The preceding Congress had pro-
vided that the Supreme Court could
issue writs of mandamus to any per-
son holding office under the authority
OF the United States.
Decision Held Two Years
William Marbury applied for a
mandamus to compel the delivery Of
his commission by Madison. The Su
preme Court did not hand down its
decision for two years. The opinion.
wr1ttsn by John Marshall, was that
Marbhry's commission was not revok-
able and that to withhold his COM
mission was violative OF q vested
right.
This disposed of the Marbury case.
but Marshall. newly become chief Jus
tice, did not stop there He pro-
ceeded to declare the Act of Congress
under which Marbury had brought go
ton required the Supreme Court to
do something which It had no au-
thority under the Constitution to do.
This act OF Congress. he held, was
therefore unconstitutional and void
The John Marshall theory was ex-
pressed, in part, as follows:
"Tae powers of the legislature are
defined and limited: and that those
powers may not be mistaken or for
The distinction between government
with limited and unlimited powers IL
abolished IL those limits do not con-
nne the persona on whom they are I'm
posed, and II acts prohibited and acts
allowed are OF equal obligation. II Il
proposition too plain TO be contested,
islative act repugnRnt 20 It: or that the
legislature may alter the constitution by
an ordinary act. Between these siterne-
ttves there is no middle ground The con-
a Of
law. unchangeable by ordinary means.
or IT is on level with ordinary legts-
able when the Legislature shan piease to
alter It . Certainly all those
who have framed written constitutions
contemplate them as forming the funda-
mental and paramount law Of the ma
tion and consequently. the theory Of
every such government must DO that an
act of ths legislature. repugnant TO the
Constitution. is void,
t'This theory IS essentially attached
70 written constitution and Il ccnse-
duently to be considered by this court
as one Of the fundamental PRINCIPLES Of
our society. II is not therefore 10 Be
lost Sigh, OF IN the further consideration
III an act Of the legislature repuE-
nRnt 20 the constitution. Is void. does Il
s notwithstsnding it's invalidity. bind the
Or In other words. though II be noT law.
does Il constitute rule as operative as
II 1t was law Thus would be 70
in theory and would seem at first view,
an absurdity too gross TO be assisted
upon"
$50. II q law be I'm opposition to the
constitution; II both the law and the =
constitution apply 10 q particular case
30 that the court must either decide
that case eonformahy to the law dis
regarding the constitution. or conforma-
bly, to the constitution disregarding the
law. the court must determine which of
these conflicting rliles governs the caso.
This is OF the very essence Of judicial
duty"