380
The Green Bag
The next and third subject of the amendment is to deprive all of the courts of the state of jurisdiction which they have heretofore had as follows: "None of said courts, except the Supreme Court, shall have any power to declare or adjudge any law of this state, or any city charter or amendment thereto, adopted by the people, under Article 20 hereof, as in violation of the constitution of this state or of the United States, provided that, before said decision shall be binding, it shall be subject to approval or disapproval of the people, as follows . . ." All of the courts have heretofore had the power to express their honest convictions, and follow the dictates of their conscience in determining and declaring the con stitutionality of any law by whatever power made. Now they are stricken dumb upon the subject, all save the Supreme Court, and the final conclusive authority heretofore held by it is taken away, and vested in the electorate by the procedure following: "Such deci sion shall be filed in the office of the Clerk of the Supreme Court within ten days after it is finally made. If it con cerns itself with a state law, it shall not be binding until sixty days after such date. Within said sixty days a referen dum petition, signed by not less than five per centum of the qualified electors, addressed to and filed with the Secre tary of State, may request that such law be submitted to the people of this state for adoption or rejection at the election to be held in compliance herewith." As to how far the Court, in constru ing this provision of the constitution, will permit itself to be shorn of power and its jurisdiction destroyed, remains to be seen. It is a fundamental prin ciple of law that the courts have a right to protect, maintain and preserve their existence, and should ignore any law
which tends to destroy utterly the pur pose for which they were brought into existence. The judicial department, from the nation down, is one of the co-ordinate branches for the administration of the law in the jurisdiction of which it is a part, and constitutes one of the co ordinate branches of our sovereignty, and, as a part of this co-ordinate branch, the Supreme Court in every jurisdiction has been since the creation of our republic recognized and held to be the Court of Last Resort, beyond which there was none higher. Just the same as the legislative bodies have been recog nized as the supreme law-making power of the land, and the chief executive as the head of the executive department, when this power is taken away and thrown back to the people to administer, the distinction between a republican and democratic form of government is destroyed utterly. This fact may not render the law bad, as it is doubtful if a democratic form of government was ever regarded as inimical to the form of government adopted by our people, as they had in mind as the thing to be avoided another form of government, more particularly the monarchical or aristocratical form; but it seems to stand beyond contradiction that a re view of the opinion or judgments of the courts of last resort by the people is repugnant to and destructive of the republican form of government. If this provision is valid, the constitutionality of any statute is not determined, and will not be determined until the people have voted upon it. While the amend ment suspends the operation of the judg ment for sixty days, in order that it may be referred by petition to the people on request of five per centum of the qualified electors, and provides that notwithstanding the judgment of the Court "All such laws or parts of
