Territory v. Ah Lim

• Citation: 1 Wash. 156,24 P. 588
• Parties: TERRITORY v. AH LIM.
• Decision Date: 28 February 1890
• Court: United States State Supreme Court of Washington

24 P. 588

1 Wash. 156

TERRITORY v. AH LIM.

Supreme Court of Washington

February 28, 1890

Appeal from district court, King county.

SCOTT and STILES, JJ., dissenting.

Humes & Andrews, for appellant.

Stratton & Fenton, for the Territory.

DUNBAR, J.

The defendant was indicted at the August term of the district court for King county for the crime of smoking opium as follows, to-wit, (omitting the formal part of the indictment:) "The said Ah Lim, on the 27th day of September, A. D. 1889, in the county of King, in the district aforesaid, then and there being, did then and there willfully and unlawfully, smoke opium, by then and there burning said opium, and inhaling the fumes thereof through an instrument commonly known as an 'opium pipe,' contrary to the form of the statute," ^[1] etc. To this indictment the defendant interposed a demurrer specifying several grounds, but the one relied upon by defendant, and the one to be considered here, is that the statute upon which the indictment is based is unconstitutional, as being in violation of the in alienable rights to life, liberty, and pursuit of happiness, and that it involves a deprivation of liberty and property, through a limitation upon the means and ways of enjoyment, without due process of law.

The duty of passing upon the constitutionality of a law should be approached by the court with the utmost caution, and demands the most solemn, thoughtful, and painstaking consideration and in view of the consequences to society from the annulling of laws made by the representatives of the people, and presumed to have been enacted in response to the express desire of the people, it becomes the gravest question with which courts have to deal; and we believe it has been the uniform conviction of the courts that they ought not, and cannot, in justice to a coordinate department of the state government, declare a law to be void without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity. The following quotation from an opinion rendered by Chief Justice MARSHALL in the case of Fletcher v Peck, 6 Cranch, 87, commends itself to our approbation as resting upon sound principles of propriety and right. Said the judge: "The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by a duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void."

The organic act extends the power of the territorial legislature to all rightful subjects of legislation; and, when once we concede the rightfulness of the subject, the extent and character of the legislation on that subject cannot be called in question by the court. It has a right to take a comprehensive view in determining the necessity of the law and the character of the purpose to be accomplished by it. This is the especial function of the legislature, and, in the investigation of legislative power, courts have nothing to do with questions of policy or expediency; for, as a learned author says: "The constitution has created the legislative and the judicial departments,-the one to make the law, the other to construe and administer it. It may be mischievous in its effects, burdensome upon the people, conflict with our conceptions of natural right, abstract justice, or pure morality, and of doubtful propriety, in numerous respects, and yet we would not be justified to hold that it was not within the scope of legislative authority for such reason; and, has as been well said by Mr. Cooley in his work on Constitutional Limitations, it must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of human judgment, will shrink from exercising in any case where he can conscientiously, and with due regard to duty and official oath, decline the responsibility. Page 192. The legislative and judicial are co-ordinate departments of the government, of equal dignity. Each is alike supreme in the exercise of its proper functions, and cannot, directly or indirectly, while acting within the limit of its authority, be subjected to the control or supervision of the other without an unwarrantable assumption by that other power which by the constitution is not conferred upon it." Of course, we do not pretend to argue that it is a responsibility which can at all times be obviated or avoided; but we insist that it must always be done with great caution, and circumspection. Indeed, so weighty have the courts felt this responsibility that many courts have adopted a rule that they will not decide a legislative act to be unconstitutional by a majority of a bare quorum of the judges only. Many courts have held that, before it can be pronounced unconstitutional, some particular prohibition must be pointed out. In the case of Bertholf v. O'Reilly, 74 N.Y. 511, Justice ANDREWS, in rendering the opinion of the court, says: "The question whether the act under consideration is a valid exercise of legislative power is to be determined solely by reference to constitutional limitations and prohibitions. The legislative power has no other limitation. If an act can stand when brought to the test of the constitution, the question of its validity is at an end; and neither the executive nor judicial department of the government can refuse to recognize or enforce it. The theory that laws may be declared void when deemed to be opposed to natural justice and equity, although they do not violate any constitutional provision, has some support in the dicta of learned judges, but has not been approved, so far as we know, by any authoritative adjudication, and is repudiated by numerous authorities. *** No law can be pronounced invalid for the reason, simply, that it violates our notions of justice, is oppressive and unfair in its operation, or because, in the opinion of some or all of the citizens of the state, it is not justified by public necessity, or designed to promote the public welfare." The remedy for unjust or unwise legislation, not obnoxious to constitutional objections, is to be found in a change by the people of their representatives according to the methods provided by the constitution. Again, in People v. West, 106 N.Y. 293, 12 N.E. 610, the court says: "The power of the legislature to define and declare public offenses is unlimited, except in so far as it is restrained by constitutional provisions and guaranties. A legislative act is presumptively valid; and whoever questions its validity must be able to point to some limitation or restriction, or to some guaranty in the constitution of the state or the United States, which it violates, before its operation can be stayed or the court be called upon to pronounce it void. *** The unnecessary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practicable liberty of individual action; but, nevertheless, the justice and wisdom of penal legislation, and its extent, within constitutional limits, is a matter resting in the judgment of the legislative branch of the government, with which courts cannot interfere."

Whether or not the main current of decisions flows in the exact direction taken by the court in the New York cases, we are satisfied that the doctrine is well established that the power of the legislature cannot be restrained by the courts upon considerations of policy or supposed natural equity. Were this power, however, given to the courts, the law, instead of being administered and decided upon uniform principles, would be decided according to the particular bent or inclination of mind of the ruling judge. What would appeal to one judge as natural equity would not be so received by another; and the different views of what constitutes a natural equity would only be equaled in number by the number of judges on the bench, each judge following his own ideas of abstract right, not limited to any well-defined path of investigation, but controlled and impelled only by his personal ideas of what ought or ought not to be allowed in a particular case,-pointed in no definite direction, but drifting aimlessly, like mariners at sea under a clouded sky, with neither compass nor log. "Of late years, it has been much the fashion," says Judge BELL in Com. v. McWilliams, 11 Pa. St. 61, 70, "to impeach the action of the legislative bodies as unconstitutional when it happens not to accord with a party's notion of propriety and abstract right." But, says the court in Davis v. State, 3 Lea, 378, "whether a statute is 'contrary to the genius of a free people' is a question for the legislature, and not the judge. It cannot be annulled upon supposed natural equity, the inherent rights of freemen, or any general and vague interpretation of a provision of the constitution beyond its plain and obvious import." The judiciary could not set aside a law, free from conflict with the constitution, because it seemed unjust. It could only interfere by overstepping the limits of its sphere, by appropriating to itself a power beyond its province, and by setting an example which other organs of the government might not be slow to follow. It is its peculiar duty to keep the first lines of the constitution clear, and not to stretch its power in order to correct legislative or executive abuses. Every branch of the government, the judicial included, does injustice for...