judicially recognized as a reason for subverting the plain language of the fundamental law. Has the day of actual legislative supremacy arrived? Are the Bill of Rights and the constitution no longer “the law of the land?”
It may be true that the amendment to § 89 of the constitution requiring the vote of four judges of this court to determine that an act of a legislative assembly is unconstitutional, evidences a desire on the part of the people to accept more completely than they have in the past, legislation at its face value; but by the very fact that the people in the constitution require four of the five judges to declare: an act unconstitutional they recognize as a judicial function the determination of constitutional questions. This court cannot evade its grave responsibility under this or any other section of the constitution by a resort to homilies on the duty of courts to keep up with the march of time.
In passing upon constitutional questions a court is of course reluctant to determine that the legislature has transgressed mandatory constitutional provisions and it should never do so, except where the violation is clear. Even then, it acts with a due sense of the delicacy of the situation. It should not be deterred in its action, however, by the feeling that it is un- seemly for it to declare the law which plainly exists as against void action of the legislative assembly. In this connection a striking inconsistency is to be noted in the opinion of Mr. Justice Robinson. It is there regarded as unseemly for a court to uphold the constitution against void action of the legislature as involving an imputation of “bad faith or want of common sense” on the part of members of the legislative assembly. But there is no hesitancy in the same opinion to declare that every member of the assembly habitually violates his oath of office through the failure to observe constitutional requirements in the passage of measures. In determining a law to be unconstitutional, this court obviously does not impugn either the “good faith” or the “common sense’ of the legislature, nor does it even inquire into its motives, but the same dignified respect that dictates a reluctance to interfere with the action of another governmental department upon such a serious matter prompts the majority of this court, at least, to refrain from wholesale characterization of the members of a coordinate branch of the government as deliberate perjurers.
The division of opinion between the majority and the minority members of the court upon the legal principles involved may doubtless best be illustrated by considering the principles stated and applied in the opinion of Mr. Chief Justice Grace. In that opinion, House Bill 25 (which be-
