Louthan v. Commonwealth

Decision Date24 July 1884
Citation79 Va. 196
PartiesLOUTHAN v. THE COMMONWEALTH.
CourtVirginia Supreme Court

Error to judgment of hustings court of city of Richmond, rendered 7th May, 1884, against Carter M. Louthan on an indictment for a misdemeanor, whereby he was sentenced to pay a fine of $50 to the commonwealth, and the costs of the prosecution, and to be removed from his office of superintendent of schools for Clarke county.

The indictment was based on an alleged violation of the act of the general assembly which was approved 18th March, 1884 entitled " an act to prohibit the active participation in politics of certain officers of the state government." (Acts 1883-4, p. 698.)

The first and second sections of said act are as follows:

§ 1. " It shall not be lawful for the judge of any court, the superintendent of public instruction, any superintendent of schools, the superintendent, manager or any employee of any asylum, or state institution of learning, actively to induce or procure, either directly or indirectly, or to attempt either directly or indirectly to induce or procure any qualified elector to vote in any election for any particular candidate, or in favor of any particular political party, or to vote against any particular candidate, or against any particular party.

§ 2. It shall not be lawful for any of the officers or employees mentioned in the foregoing section to participate actively in politics, and making political speeches, or the active or official participation in political meetings, shall be deemed to be an active participation in politics within the meaning of this section."

Any violation of this act is declared a misdemeanor, and is punishable by fine and forfeiture of office.

The indictment is as follows:

" The grand jurors of the commonwealth, for the body of the city of Richmond, on their oaths present, that Carter M Louthan, on the 23d day of April, in the year one thousand eight hundred and eighty-four, at the said city, and within the jurisdiction of the said hustings court of the city of Richmond, being then and there a superintendent of public schools for the county of Clarke, unlawfully did participate in a certain political meeting, or convention, which assembled at the said city of Richmond on the 23d day of April, in the year 1884, and did then and there advocate the ticket of electors proposed by said convention for president and vice-president of the United States, to be voted for at an election to be held in November next, against the peace and dignity of the commonwealth of Virginia."

To this indictment the defendant appeared and filed a demurrer, which was overruled. He then plead not guilty. Thereupon he was tried by a jury, who returned their verdict in these words " We, the jury, find the defendant guilty, and assess his fine at fifty dollars." The defendant moved the court to set aside the verdict as being contrary to the law and the evidence, and to grant him a new trial, which motion the court overruled, and entered judgment as follows:

" Whereupon it is considered by the court that the said Carter M. Louthan pay and satisfy the said fine of fifty dollars, and the costs of this prosecution, and in default of the payment thereof, that he be confined in the jail of this city until the same be paid, or he be otherwise discharged by due course of law, such confinement not to exceed six months. And it is further ordered that the office of superintendent of public schools for the county of Clarke, held by the said Carter M. Louthan, be and the same is hereby declared vacated.

And a capias pro fine is awarded against the said Carter M. Louthan."

To this judgment Louthan obtained a writ of error and supersedeas from one of the judges of this court.

R T. Hubard, A. A. McDonald, for plaintiff in error.

Attorney-General F. S. Blair, for the commonwealth.

OPINION

LACY J.

It is not necessary to notice the various defences set up to the prosecution. The main defence relied on, by the plaintiff in error, if not the only one, is that this act of the legislature is in violation of the constitution of the United States and of the state of Virginia. If the act of the legislature set forth above, is in violation of either the constitution of the United States or of the constitution of the state of Virginia, then the constitution infringed shall rather prevail than the act of the legislature which infringes it. The superior law must prevail, and the inferior law must give way before the superior law. And when a court is called upon to enforce the inferior law, or the superior law with which it is in conflict, if they are so opposed that both cannot be enforced, but if one is enforced then the other is invalidated, the inferior law must be disregarded and the superior law must be enforced. Being in conflict both cannot be enforced, and the superior law must govern, the inferior law to the contrary notwithstanding. The court cannot refuse obedience to the mandates of the constitution. The legislature is called into existence by the constitution, and its powers are restrained and limited by the constitution. The legislature cannot alter, amend, or modify the constitution. The constitution in all its provisions, is beyond the reach of any legislative enactment, however seemingly wise and beneficent its provisions. It is always with reluctance, and never in a doubtful case, that the court will set aside and decline to enforce an act of the legislature. As has been often remarked in this court, the legislature is endowed by the constitution with the legislative power of this commonwealth. It does not possess only granted, but supreme power in the exercise of legislative powers limited and restrained only by the express terms of the constitution, or the necessary implications therefrom. It will be admitted that the acts complained of in this indictment, are not in themselves wrong. If our government is a government by the people, to seek active participation in the government, is the plain privilege of every citizen. It is not only the privilege, but it might reasonably be held to be the plain duty of all the people; and this will not be denied as an original proposition, true in itself.

But that this principle is recognized in the charter of our liberties, in the constituion of the United States and in the constitution of Virginia, is equally clear. Under the constitution of the United States, congress is forbidden to pass any law respecting an establishment of religion, or prohibiting the full exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the government for a redress of grievances.

Under the constitution of Virginia the legislature is forbidden in express terms from putting any restraint upon the freedom of the press, or the freedom of the citizens to freely speak, write and publish his sentiments on all subjects, for that instrument declares: " That the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments, and any citizen may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty." Art. I, § 14, const. of Va.

And again: " All citizens of the state are hereby declared to possess equal civil and political rights and public privileges." Art. I, § 20, const. of Va.

And again, when prescribing the powers and duties of the legislature, the constitution in terms forbids the legislature from abridging the freedom of speech, declaring: " The general assembly shall not pass any law abridging the freedom of speech or of the press. " Art. 5, § 14, const. of Va. Thus we find freedom of speech and protection to the equal political rights of all the people deeply imbedded in the fundamental principles of our government.

And not content with the most solemn declaration of principles, an impregnable barrier is erected before them in this last quoted unmistakable limitation upon the legislative power; and the legislature is deprived of the power to abridge the freedom of speech of any citizen; it takes its existence and its powers, absolutely deprived of this power. And then the constitution covers this inalienable right of the citizen with a shield which confronts every legislature which can ever have any existence under the constitution, with an oath of office which records its fealty to the constitution before it can either enact laws or have any existence. And in every department of the government this safeguard is not forgotten, but is kept steadily in view to maintain all its provisions sacred as the years pass. We have ventured to say that none will be found in the limits of this commonwealth to deny to the citizen these inalienable rights.

It is admitted also that Carter M. Louthan is a citizen of Virginia, and that he has never in any wise abused this inestimable privilege guaranteed to all her citizens by the state in her organic law. It is admitted that the said plaintiff in error has committed no excess in the exercise of his rights of citizenship, it is only alleged that he did peaceably assemble together with his fellow-citizens, and did advocate a certain set of electors for president and vice-president of the United States at the coming election in November next. For this he has been indicted by a grand jury in the city of Richmond, tried for it and convicted, and sentenced to be punished. Now why may not Carter M. Louthan do these acts, in themselves so harmless, and under the supreme law of this land so entirely lawful? We have already seen the act in question which has declared the exercise of these constitutional rights a crime. What is it that makes the exercise of these rights of...

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7 cases
  • State ex rel. Jones v. Sargent
    • United States
    • Iowa Supreme Court
    • January 11, 1910
    ...would hardly seem necessary to cite authorities, but see Cooley's Const. Law, 483; Brown v. Haywood, 51 Tenn. 357, 4 Heisk. 357; Louthan v. Com., 79 Va. 196 ; Attorney-General v. Detroit, Mich. 213 [24 N.W. 887, 55 Am. Rep. 675. ]" In further discussion of the case, the court say: "The stat......
  • People v. Gansley
    • United States
    • Michigan Supreme Court
    • June 1, 1916
    ...for in the last clause of section 3. Section 11 provides how they may make their contributions, thus distinguishing Louthan v. Commonwealth, 79 Va. 196, 52 Am. Rep. 626. The corporation is not embraced within the provisions of section 4, art. 2, of the State Constitution. That section, in o......
  • State ex rel. Jones v. Sargent
    • United States
    • Iowa Supreme Court
    • January 11, 1910
    ...clear it would hardly seem necessary to cite authorities, but see Cooley's Const. Law, 483; Brown v. Haywood, 4 Heisk. [Tenn.] 357;Louthan v. Com., 79 Va. 196 ;Atty. Gen. v. Detroit, 58 Mich. 213 [24 N. W. 887, 55 Am. Rep. 675].” In further discussion of the case, the court say: “The statut......
  • State v. Van Wye
    • United States
    • Missouri Supreme Court
    • December 1, 1896
    ... ... 4 Black. Com. 152; Rex v. Dean, 3 T ... R. 431; Rex v. Cobbitt, 39 How. St. Tr. 49; Rex ... v. Cuthall, 17 How. St. Tr. 675; Louthan v. Com., 79 Va ...          R. F ... Walker, attorney general, Morton Jourdan, assistant attorney ... general, and A. B. Duncan, ... thoroughly calculated to exercise a most corrupting and ... depraving influence not only upon the youth of the ... commonwealth but upon adults, save those of firm and stable ... minds. The object and design of the statute is most ... praiseworthy and commendable. The ... ...
  • Request a trial to view additional results
2 books & journal articles
  • The South Counterattacks: the Anti-Naacp Laws
    • United States
    • Political Research Quarterly No. 12-2, June 1959
    • June 1, 1959
    ...withtheir fellow-citizens on governmental questions, to directly or indirectly influence thevotes of others." Loutham v. Commonwealth, 79 Va. 196 (1884). The law in questionwas held to be an abridgment of free speech and The Open Society and Its Enemies (Princeton: Princeton University Pres......
  • The Hatch Act Cases
    • United States
    • Political Research Quarterly No. 1-2, June 1948
    • June 1, 1948
    ...35 (Ohio App., 1940). 39 This is the view adopted in the one state case which invalidates restrictive legislation, Louthan v. Commonwealth, 79 Va. 196, 52 Am Rep. 626 the Act was that the employee remained as free as before to make politicalcontributions; all that was cut off was a particul......

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