Year: 1873

JUDGE LEES ARGUMENT.


We hoped to be able to present thi,
morning a full report of the very schol-
arly and convincing argument delivered
BY Judge LEE before the Supreme Court
Of Appeals in relation to "the Penten-
tary case" Other duties and i'll health
OF the Judge have, however, prevented
him from preparing a full and complete
version of his speech on the case and
we have only the mere outline, the skel-
eton as it were, of his argument. Every
point urged by him was supported by
q perfect wealth OF authority that LETT
no room for doubt as to the correctness
Of his positions. In the following out
line we omit the citations. They are
OF interest 10 the professional reader
bu: are Of little avail to toe public at
large.


In opening his argument Judge LEE
alluded TO the delicacy and Importance
OF the question as to whether law is
consistent with or repugnant to the
constitution ofthe State and the caution
and solicitude with which Judges
should approach it's consideration,
showing by numerous citations that the
presumption is always in favor OF the
validity OF statute and that it i5 for
those who deny its validity to show that
it is forbidden by clear and conclusive
demonstration. The legislative power
OF State is full and complete, as it re =
sides in or may be exercised by the
sovereign power of any State, subject
only to the limitations and restrictions
imposed by the people themselves or by
the constitution of the United States.
The constitution Of State is the grant
Of power to the executive aud Judiciary
departments of the government, while
it is only the limitation to the pow
ers OF the legislative department
The authority 10 make laws must have
O large discretion as to the means by
which they shall be executed, and 1t
may refer the performance OF many du-
ties provided by law to the Chief E xec-
utive or 10 any other executive or min
i.terial officer.


The cotemporaueous or practical con-
s:ruction of q provision in o conssitu-
ton or OF a similar PROVISION in previous
constitutions, may be resorted to and Is
entitled to great weight With
the courts when the time arrives
at which judicial decision becomes
necessary: and it,,..furnishes q strong
presumption, when it has been generally
acquiesced in and accepted as correct
that such construction rightly inter
prets the intention. 1t has been time
honored usage in Virginia and contin-
ued in West Virginia ever since Its
formation, TO cause certain duties
which might have been assigned to cth-
GERS specially appointed for the Pur'
pose, to be performed by officers al
ready appointed for general service and
associated by law in the form OF a
Board or "corporatiOn," foE
the more convenient discharge
of such duties, and for
the supposed benefit OF united counse!s
and the acts prescribing this form OF
service have never been questioned as
unconstitutional either because they
violated the provision in the constitu-
ton separating the three departments OF
government and forbidding the exercise
by either of the powers belonging to
the other or the exercise by any person
of the powers OF more than one OF these
Departments at the same time, with q
single exception permitting Justices Of
the Peace to be members Of the Gener-
al Assembly,; or because ofthe provis-
ion forbidding certain officers from per-
forming the duties OF any other Office
during their term Of service. The
Constitution OF l776 forbids the exercise
by either department otthe powers prop
erly belonging to the others, or the ex'
ercise by one person OF the powers o'
more than one department at the same
time. and vet an act OF February II
1911 constitutes the Governor, Lieu
tenant Governor, Treasurer, Attorney
General and President OF the Court Q
Appeals body polite and corporate
under the name OF president ana ~
rectors OF the Literary fund. lhl'
was re-enscted in 1919. An act o
February 5, 1916 constituted q corpora
ton under the name Of the "PreSlden
and Directors OF the Board OF Puoll'
Works" to consist Of the Governor
Treasurer and Attorney General an
ten citizens. An act of February ~
1920, provided that in the absence o
the President of the Court OF Appeal
the senior Judge OF that Court shoui(
act as a member of the Board OF Direc'
tors of the Literary Fund, in lieu ofth
President. An act of February %
1899, made the Board to consist OF th
Governor, Treasurer, and First Auditor
10 perpetuate the corporation OF tn
p-oa;Jant and Directors OF the Ilterar'