Year: 1873

we zee that if it had been objected


that the remedy adopted was not tn,


proper one, that such objection coulc


be successfully maintained under th'


authorities.


A case which presents to court fol


determination, the question whether q


law or laws enacted by the Legislature


according to the forms prescribed by


the constitution, or are null and void


because contrariant to the constitution


becomes at once greatly more grave
and important than other ordinary
cases, IN which such question is moi
involved and deserves and demands
from the court, and each member
thereof the most serious and deliberate
investigation to the end, that proper
and rightful decision may be had.


Approaching fully the magnitude and
importance Of the questions involved in
this case, for our determination, we en-
tered upon the investigation. and de-
cisiou OF the case with great caution
and delicscy, and with fixed purpose
to arrive at a correct judgment 30 far
as we are possessed Of ability to per-
ceive the right, according to the true
meaning of the Constitution. In the
case OF Fletcher v. Peck, 9th Cranch,
R, 81 Judge Marshall says: "The
question whether a law be void for its
to the constitution is, at
all times, q question OF much delicacy,
which ought seldom. if ever, to be de-
cided in the affirmative in q doubtful
case. The court when impelled by
duty to render such judgment wou Id
be unworthy OF it's station, could it be
OF the solemn obligations
which that station imposes. But it is
not no slightimplication and vague con-
lecture that the legislature is to be pro-
nounced to have trangressed its powers,
and its acts to be considered void the
opposition between the Constitution
and the law should be such that the
judges feel clear and strong conviction
Of their incompatibility with each
other"


In the case OF Sharpe vs.. Robertson
5th Grattan r. 574 and SIS Judge
Daniel holds this language "the duty
Of euquiripg into and deciding upon
the legal validity OF an act oi the leg
has always been regarded by
this court, and justly. as one OF the
most delicate it can be called upon to
and further under a deep
ser se OF the caution with which the
subject, under such circumstances, ought
to be approached, l have in its investi-
CATION, earnestly endesvored to discard
from my mind every influence calcula.
lated to mislead the judgment, and
have been watchful to suffer no inn
preston TO mature into conviction
until it's correctness had been first sub
iected to the test of a calm and impair
tial enquiry" In the same case Judge
Brooke says: 1.-THE question before
us is a different one. l have said 1t
was a delicate question. This results
rom the different functions Of the var
ious departments Of the government.
The legislature is elected by the peo-
pie; came Immediately from the people;
and they take au oath to support the
They are clothed with
he power TO make laws; and many
of the members are able lawyers. 1t
should not therefore be in doubtful
case, that the acts of that body, should
be decided by the courts to be uncon-
10 the case Of Eyre
,s. Jacob, sheriff l4th Grattan
Judge Lee, who, delivered


he opinion of a majority OF the court
says: at has always been considered to
be most delicate office for q judge to
to pronounce an act otthe leg
stature to be uuco Institutional" When
. plain and palpable infraction of con-
,titutioaal provision is shown in q law
lpou the validity OF which it is called
lpon to decide, it is OF course one Of
he highest and most solemn duties OF
he court TO declare such law to be in
operative and void. If, however, it be
only, upon slight implication or incon.
elusive reasoning that the supposed


nfrac,ion can be made out the court
should never undertake to rescind and
annul the solemn and deliberate act OF
the legislative department OF the govern.
ment. To doubt in such a case should
be to affirm" In the case OF Adams vs
Howe, ct al. IA, Massachusetts r. 344,
345., Parker C. j., in delivering the
opinion OF the court says: I'VE must
premise, that so much respect is due to
any legislative act, solemnly passed,
and admitted into the statute book,
that q court oflsw, which may be cali
led upon to decide its validity, will pre-
sumo it to be constitutional, until the
contrary clearly appears; 30 that in
any case OF the kind substantially
doubtful, the law would have Its force.
The legislature is in the first in-
stance the judge of its own
constitutional powers; and it is only
when manifest assumption Of au'
or misapprehension Of
it shall appear, that the judicial power
will refuse to execute it. Whenever such
a case happens, it is among the most
important duties Of the judicial power


to declare the invalidity Of an act 90


passed. In the case OF the Common


wealth ps. McWilliams, ii Pa. State


reports, Bell, i. in delivering the opin-


ion OF the court. expresses himself


thus "Ot late years it has been much


the fashion to impeach the action oI


legislative bodies as unconstitutional


when it happens not to accord with the


party, notion of propriety and abstract


right This is very frequently done 10


sheer oblivion OF the doctrine that ex-


press prohibition or necessary implics'


ton is essential to oust the State Legis-


lature OF authority. Where this pro.


hibition is not found in the primordis'


part, the exertiou Of power cannot b


deemed unconstitutional, even though