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 have 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 Kleeck (1811), 7 Johns. 477. Of this early theory a writer in 27 Am. Law Rev. 857, says: "During the early periods of the development of our constitutional law a theory was advanced, though possibly never actually applied in practice, by some of the courts that legislative enactment might be declared null and void on the sole ground that it was contrary to public policy or natural justice. This heresy soon gave place to the views which are now regarded as orthodox, and its revival in the original shape is not within the range of possibilities. History, however, is apt to repeat itself in jurisprudence as in other matters, and this exploded doctrine threatens once more to 'revisit the glimpses of the moon' under an entirely new form, which will endow it with a far greater potency for mischief than it possessed during its former incarnation. The difference between the standards appealed to under the new and the old theories is significant. A century ago judges who could not find in the constitution any direct warrant for invalidating a statute which they did not like spoke of the eternal laws of justice and right. In these latter days they have much to say of the laws of political economy and the wisdom of not restricting freedom of contract. More significant still is the difference between the modes in which these standards have been used as a test of the constitutionality of statutes. The old theory was that there were abstract principles of justice, which, although they were not embodied in the organic law of a state, might be referred to for the purpose of deciding whether the will of the legislature might be overruled in some particular instance. The new theory is that certain doctrines of a particular school of political economists are impliedly, if not expressly, recognized as sound by the constitution, and may therefore be utilized to elucidate and further the intentions of its framers. This improvement upon the simpler conceptions of the older judges is a master-stroke. It n'y a que le premier pas qui coute. Once let it be granted that there is this intimate connection between the principles underlying the constitution and the teachings of political economy, and courts will be armed with a weapon of portentous and unknown power. They will be able to follow in the footsteps of their predecessors in so far as the nullification of statutes on the mere ground of their antagonism to public policy is concerned. But they will have a great advantage over those predecessors in that they will always be able to refer to the constitution for a justification 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 legislators. 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.2 1 See articles in 32 Am. Law Reg. the provisions of the constitution, is 1, and 594. 2 Peel Splint Coal Co. v. State (1892), 36 W. Va. 802, 15 S. E. R. 1000. The supreme court of West Virginia said in this connection: "It has been de clared by a distinguished writer that the discussion of that head of constitutional law, prescribing bounds which the legislature itself cannot transcend, is peculiar to American jurisprudence. Sedg. St. Const. Law, 213. We cannot entirely subscribe to this view as a matter of history. The accurate student of English history, particularly of the debates in parliament, will be struck with the fact of the general recognition of a residuum of power in the nation or commonwealth itself, greater still than that of the parliament. The maxim of the omnipotency of parliament, according to Locke and Milton, was rather a legal fiction than a reality. The American Revolution was a protest against the alleged omnipotency of parliament, and settled the principle that the colonies could not be taxed without their consent, even by act of parliament. 2 Amer. Archives, 1775, p. 248. To change the organic structure of the government, including parliament itself, was doubtless within the power of the nation, as seems to have been established by the glorious revolution' of 1668. However this may be, it is perhaps indisputable that that branch of jurisprudence which permits the court of last resort to pronounce an act of the legislature null and void, because in conflict with peculiar to American institutions. It is a very valuable principle, and has been frequently invoked in the judicature of both the states and the general government. A further principle, at one time held in some doubt, but now, as we think, finally decided, is that the judiciary cannot pronounce void any act of the legislature upon any other ground than that of repugnancy to the constitution. It was at one time supposed that the judiciary could resort to the principles of natural justice or common right, and pronounce a legislative act void because in conflict with such supposed principles. This view, however, I think we may regard as finally abandoned. In fact, one of our earliest writers upon this subject lays down the principle, which has been sanctioned and adopted by our own state, that, although an act of the legislature contrary to the first principles of the social compact is not rightful,-as, for instance, to make a man judge in his own cause; or seizing the property of the citizen, honestly acquired, without compensation; or retrospective laws in general,- yet it seems the law cannot be declared void by a court of justice merely because it violates these general principles, if not prohibited by the constitution of the state in which it is passed, or of the United States.' Sedg. Const. Law, 348; Tied. Lim., p. 7, § 2, and notes. And it has been so held in our own court in Slack v. Jacob (1875), 8 W. Va. 612, where it is 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.1 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 relation to a subject within the scope of the legislative authority, on the ground that it conflicts with their notions of natural right, absolute justice or sound morality.' It may be said, therefore, that the doctrine of a higher law than the constitution has no longer any foothold in American jurisprudence." 1 Regarding the sweeping character of the guarantees contained in the fourteenth amendment the supreme court of the United States has said (Civil Rights Cases (1883), 109 U. S. 3, 23, 3 Sup. Ct. R. 18): "Under the fourteenth amendment it (congress) has power to counteract and render nugatory all state laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. . . Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horsestealing, for example) to be seized and hung by the posse comitatus, without regular trial; or denying to any person or class of persons the right to pursue any peaceful avocation allowed to others. What is called 'class legislation' would belong to this category, and would be obnoxious to the prohibitions of the fourteenth amendment." 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 constitutional 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 convictions 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 pur pose 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 Lis 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 46 1 Section 3 of article 2 of the constitution of Arkansas declares: 'All men are created equally free and independent, and have certain inherent and inalienable rights; amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation; and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed." Section 8 of the same article ordains that no person shall "be de prived of life, liberty or property without due process of law." Section 1 of the fourteenth amendment to the constitution of the United States provides: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." 2 State v. Goodwill (1889), 33 W. Va. 179, 10 S. E. R. 285. |