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a general principle, on the reason and nature of things; a principle which would impose laws even on the Deity.” Another great legal light has said: “Our constitutions do not admit the power assumed by the Roman Prince (interlocutis principis), and the principle we are considering (no retroactive laws) is now to be considered sacred. It is not pretended that we have any express constitutional provisions on the subject, nor bave we any for numerous other rights dear alike to freedom and to justice.”1
Of late it has been urged that the courts are powerless to pronounce an act of the legislature void unless it is specifically
1 Chancellor Kent in Dash v. Van between the modes in which these Kleeck (1811), 7 Johns. 477. Of this standards have been used as a test of early theory a writer in 27 Am. Law the constitutionality of statutes. The Rev. 857, says: “During the early old theory was that there were ab periods of the development of our stract principles of justice, which, constitutional law a theory was ad. although they were not embodied in vanced, though possibly never actu- the organic law of a state, might be ally applied in practice, by some of referred to for the purpose of decidthe courts that legislative enactment ing whether the will of the legislamight be declared null and void on ture might be overruled in some parthe sole ground that it was contrary ticular instance. The new theory is to public policy or natural justice. that certain doctrines of a particular This heresy soon gave place to the school of political economists are imviews which are now regarded as pliedly, if not expressly, recognized orthodox, and its revival in the orig- as sound by the constitution, and inal shape is not within the range of may therefore be utilized to elucipossibilities. History, however, is apt date and further the intentions of to repeat itself in jurisprudence as its framers. This improvement upon in other matters, and this exploded, the simpler conceptions of the older doctrine threatens once more to re- judges is a master-stroke. It n'y a visit the glimpses of the moon’under que le premier pas qui coute. Once an entirely new form, which will let it be granted that there is this inendow it with a far greater potency timate connection between the prinfor mischief than it possessed during ciples underlying the constitution its former incarnation. The differ- and the teachings of political econence between the standards appealed omy, and courts will be armed with to under the new and the old theories a weapon of portentous and unknown is significant. A century ago judges power. They will be able to follow who could not find in the constitu- in the footsteps of their predecessors tion any direct warrant for invali- in so far as the nullification of statdating a statute which they did not utes on the mere ground of their anlike spoke of the eternal laws of jus- tagonism to public policy is contice and right. In these latter days cerned. But they will have a great they have much to say of the laws of advantage over those predecessors in political economy and the wisdom of that they will always be able to refer not restricting freedom of contract. to the constitution for a justification More significant still is the difference of their views.”
prohibited by some provision of the constitution, state or federal. It is urged that there is great danger in permitting judges to oppose their notions of fundamental rights to the notions of logislators. And the argument seems to have force that if the constitution is silent the opinion of the legislative body as to what is or is not against fundamental rights is as valid and binding as the opinion of the judicial body.?
1 See articles in 32 Am. Law Reg. the provisions of the constitution, is 1, and 594.
peculiar to American institutions. It 2 Peel Splint Coal Co. v. State (1892), is a very valuable principle, and has 36 W. Va. 802, 15 S. E. R. 1000. The been frequently invoked in the judisupreme court of West Virginia said cature of both the states and the in this connection: “It has been de general government. A further princlared by a distinguished writer that ciple, at one time held in some doubt, the discussion of that head of consti- but now, as we think, finally decided, tutional law, prescribing bounds is that the judiciary cannot prowhich the legislature itself cannot nounce void any act of the legislatranscend, is peculiar to American ture upon any other ground than that jurisprudence. Sedg. St. Const. Law, of repugnancy to the constitution. It 213. We cannot entirely subscribe was at one time supposed that the to this view as a matter of history. judiciary could resort to the princiThe accurate student of English his ples of natural justice or common tory, particularly of the debates in right, and pronounce a legislative act parliament, will be struck with the void because in conflict with such fact of the general recognition of a supposed principles. This view, howresiduum of power in the nation or ever, I think we may regard as finally commonwealth itself, greater still abandoned. In fact, one of our than that of the parliament. The earliest writers upon this subject maxim of the omnipotency of parlia- lays down the principle, which has ment, according to Locke and Mil- been sanctioned and adopted by our ton, was rather a legal fiction than a own state, 'that, although an act of reality.' The American Revolution the legislature contrary to the first was a protest against the alleged principles of the social compact is omnipotency of parliament, and set- not rightful,—as, for instance, to tled the principle that the colonies make a man judge in his own cause; could not be taxed without their con- or seizing the property of the citizen, sent, even by act of parliament. 2 honestly acquired, without compen. Amer. Archives, 1775, p. 248. To sation; or retrospective laws in genchange the organic structure of the eral,- yet it seems the law cannot be government, including parliament declared void by a court of justice itself, was doubtless within the power merely because it violates these genof the nation, as seems to have been eral principles, if not prohibited by established by the glorious revolu- the constitution of the state in which tion' of 1668. However this may be, it is passed, or of the United States.' it is perhaps indisputable that that Sedg. Const. Law, 348; Tied. Lim., p. 7, branch of jurisprudence which per- $ 2, and notes. And it has been so mits the court of last resort to pro- held in our own court in Slack v. nounce an act of the legislature null Jacob (1875), 8 W. Va. 612, where it is and void, because in conflict with said that 'the courts have no right
But a consideration of the arguments upon both sides, and of the many decisions affecting fundamental rights, leads to the conclusion that the practical result will be essentially the same no matter which view is accepted. So far as the binding force and effect of any particular statute is concerned, it is quite immaterial whether a court in holding it unconstitutional does so upon the broad grounds urged in earlier days, that the statute is contrary to fundamental notions of right, or whether the court follows the later practice and holds that the statute is unconstitutional and contrary to some of the broad provisions of the constitution, as, for instance, the clause of the fourteenth amendment which provides that “no state shall ..
deprive any person of life, liberty or property without due process of law,” which is the favorite clause nowadays upon which to hang sweeping decisions regarding fundamental rights.
The only difference in the administration of the law and the exercise of judicial discretion lies in the fact that the courts of the present day protect the fundamental rights of men by stretching the constitutional provisions so as to embrace the court's notions of fundamental rights, whereas in the earlier days the courts held laws void and unconstitutional for iden
to arrest or nullify a law passed in liberty or property without due prorelation to a subject within the scope cess of law, or to deny to any of of the legislative authority, on the them the equal protection of the ground that it conflicts with their laws... Many wrongs may be notions of natural right, absolute obnoxious to the prohibitions of the justice or sound morality.' It may fourteenth amendment which are be said, therefore, that the doctrine not, in any just sense, incidents or of a higher law than the constitution elements of slavery. Such, for exhas no longer any foothold in Amer. ample, would be the taking of priican jurisprudence.”
vate property without due process 1 Regarding the sweeping char- of law; or allowing persons who have acter of the guarantees contained in committed certain crimes (horsethe fourteenth amendment the su- stealing, for example) to be seized preme court of the United States has and hung by the posse comitatus, said (Civil Rights Cases (1883), 109 without regular trial; or denying to U. S. 3, 23, 3 Sup. Ct. R. 18): “ Under any person or class of persons the the fourteenth amendment it (con- right to pursue any peaceful avocagress) has power to counteract and tion allowed to others. What is render nugatory all state laws and called “class legislation' would beproceedings which have the effect to long to this category, and would be abridge any of the privileges or im- obnoxious to the prohibitions of the munities of citizens of the United fourteenth amendment.” States, or to deprive them of life,
tically the same reasons, without troubling themselves to inquire whether any particular phrase or clause in state or federal constitutions was broad enough to cover the rights and liberties upheld.
It is entirely clear that the courts continue to exercise a wide discretion in determining the validity of legislative enactments. They do not hesitate to oppose their notions of what is fundamentally right to the notions of legislators, and no difficulty is experienced in finding in some of the more sweeping generalizations of federal or state constitutions sufficient guaranty against the invasion of any of the rights and liberties which the courts deem fundamentally essential to social progress and welfare.
It is idle to attempt to restrict the courts in the application of these general tests of validity. The discussion of any ccnstitutional limitation involves fundamental principles; the very definition of terms used in a written constitution depends largely upon the prevailing ideas concerning principles of a fundamental character, and men who do not agree upon the fundamental principles involved could not by any possibility agree upon the definition of any term affecting these principles. So that, in the long run, the decisions of courts as to the exact construction of any particular phrase or clause of a constitution must turn largely upon the ideas, beliefs and convictiors of the members of the court concerning the fundamental principles involved. The interpretation that a Charles I. would, in good faith, place upon a constitutional restriction would differ radically from the interpretation that would be given it by a Cromwell or a Hampden.
$ 660. Decisions upholding generally the freedom of contract.— The fundamental character of the right to contract freely and without restriction has been recognized directly and indirectly in so many decisions of both state and federal courts that it would be superfluous to attempt anything like a complete summary of the cases. The following cases serve for the purpose of illustration:
$ 661. In a case involving the validity of a statute requiring parties engaged in constructing railroads to pay their employees in a certain manner under certain conditions, the supreme
1 Leep v. St. Louis, I. M. & S. Ry. Co. (1894), 58 Ark. 407, 25 S. W. R. 75.
court of Arkansas, referring to certain provisions of the state constitution,' said: “The right to acquire and possess property necessarily includes the right to contract, for it is the principal mode of acquisition, and is the only way by which a person can rightly acquire property by his own exertion. Of all the rights of persons' it is the most essential to human happiness. But the right to contract is not unlimited. The conflicting interests of individuals make this impossible. Rights in conflict with each other cannot be unlimited. Duties to persons, to society, the public and the government are imposed on every individual. Every man, when he enters into society, undertakes to perform these duties, and necessarily surrenders some rights or privileges on account of his relation to others. His right to contract becomes subject to these duties, among which is the duty to so conduct himself and use his own property as to not unnecessarily injure another. He submits himself to such restraints and burdens as may conduce to the general comfort, health and prosperity of the state. To conserve and enforce these rights and duties the government can impose such restrictions upon his actions as may be appropriate for that purpose. This power inheres in every sovereignty, and is essential to the maintenance of public order and the preservation of mutual rights from the disturbing conflicts which would arise in the absence of any controlling, regulating authority.”
$ 662. In considering the constitutionality of a statute prohibiting mining companies from issuing in payment for labor any order or other paper notes, the supreme court of West Virginia? said: “The property which every man has in his own
1 Section 3 of article 2 of the con- prived of life, liberty or property stitution of Arkansas declares: “All without due process of law.” Secmen are created equally free and in- tion 1 of the fourteenth amendment dependent, and have certain inher- to the constitution of the United ent and inalienable rights; amongst States provides: "No state shall which are those of enjoying and de- make or enforce any law which shall fending life and liberty; of acquir- abridge the privileges or immunities ing, possessing and protecting prop- of citizens of the United States; nor erty and reputation; and of pursuing shall any state deprive any person of their own happiness. To secure these life, liberty or property without due rights governments are instituted process of law, nor deny to any peramong men, deriving their just pow. son within its jurisdiction the equal ers from the consent of the gov- protection of the laws." erned." Section 8 of the same article 2 State v. Goodwill (1889), 33 W. Va. ordains that no person shall “ be de- 179, 10 S. E. R. 285.