The opinion of the court was delivered by
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,” etc.
To this indictment the defendant interposed a demurrer specifying several grounds, but the one relied upon by the 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 inalienable right 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 represen[159]*159tatives 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 co-ordinate department of the state government, declare a law to be void without a strong and earnest conviction, divested of all reasonable doubt, of its validity.
The following quotation from an opinion rendered by Chief Justice Maeshall 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 re-pugnancy 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 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 courts; 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 law, the other to construe and administer it. It may be mischievous in its effects, burdensome upon the people, [160]*160conflict with onr 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, as has 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. ’ The legislative and judicial are co-ordináte departments of the government, of equal dignity; each alike is supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of 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 arule 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 a law 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 . . . 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 [161]*161can 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. Rep. 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 [162]
Free access — add to your briefcase to read the full text and ask questions with AI
The opinion of the court was delivered by
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,” etc.
To this indictment the defendant interposed a demurrer specifying several grounds, but the one relied upon by the 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 inalienable right 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 represen[159]*159tatives 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 co-ordinate department of the state government, declare a law to be void without a strong and earnest conviction, divested of all reasonable doubt, of its validity.
The following quotation from an opinion rendered by Chief Justice Maeshall 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 re-pugnancy 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 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 courts; 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 law, the other to construe and administer it. It may be mischievous in its effects, burdensome upon the people, [160]*160conflict with onr 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, as has 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. ’ The legislative and judicial are co-ordináte departments of the government, of equal dignity; each alike is supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of 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 arule 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 a law 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 . . . 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 [161]*161can 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. Rep. 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 [162]*162cases, 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 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 Commonwealth v. McWilliams, 11 Pa. St. 61, 70, “to impeach the action of the legislature as unconstitutional when it happens not to accord with the party’s notion of abstract right.” But, says the court in Davis v. State, 3 Lea, 376, “whether a statute is ‘contrary to the genius of a free people’ is a question for the legislature, 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 lawr 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 [163]*163branch of the government, the judicial included, does injustice for which there is no remedy, because- everything human is imperfect.
The legislative power “may be unwisely exercised or abused, yet it is a power entrusted by the constitution to the legislature, which, while exercised within tiie scope of the grant, is subject alone to their discretion; with which the judicial tribunals have no right to interfere because, in their judgment, the action of the legislature is contrary to the principles of natural justice.” Williams v. Cammack, 27 Miss. 209.
In the case at bar no special constitutional limitation or inhibition is pointed out with which the law in question is in conflict, but it is contended by the defense that the right of liberty and pursuit of happiness is violated by the prohibition of any act which does not involve direct and immediate injury to another.
Counsel for appellant says in his brief that the parent may be compelled to send the child to school so many months in the year; the state may prescribe his studies and may tax the people to the verge of bankruptcy to mould the infant’s mind to its liking; but this right, he urges, is on the ground that the child is the ward of the state, and that such jurisdiction ceases when it becomes of age. It is difficult to see how the question of inalienable rights can be affected by age, when the law prescribes the age at which the ward arrives at his majority, and the time at which the inalienable rights attach. Doubtless the true theory on which compulsory education is sustained is, that the state has an interest in the intellectual condition of each of its citizens, recognizing the fact that society is but an aggregation of individuals, and that the moral or intellectual plane of society is elevated or degraded in proportion to the plane occupied by its individual members, and that the education is not compelled for the benefit of the [164]*164child during its minority, or for its exclusive benefit after its majority.
The state bas an undisputed right to, and does provide gymnasium attachments to its schools, and prescribes calis-thenie exercises for the muscular development of school children. The object to be obtained is not for the exclusive benefit of the child. The state has an interest in the health of its citizens, and has a right to see to it that its citizens are self-supporting. It is burdened with taxation to build and maintain jails and penitentiaries for the safe keeping of its criminals, and to protect its law-abiding subjects from their ravages. It is taxed to maintain insane asylums for the safe-keeping and care of those who become insane through vicious habits or otherwise. It is compelled to maintain hospitals for its sick, and poorhouses for the indigent and helpless, and surely it ought to have no small interest in, and no small control over, the moral, mental and physical condition of its citizens.
If the state concludes that a given habit is detrimental to either the moral, mental or physical well-being of one of its citizens to such an extent that it is liable to become a burthen upon society, it has an undoubted right to restrain the citizen from the commission of that act; and fair and equitable consideration of the rights of other citizens make it not only its right, but its duty, to restrain him. If a man willfully cuts off his hand or maims himself in such a way that he is liable to become a public charge, no one will doubt the right of the state to punish him; and if he smokes opium, thereby destroying his intellect and shattering his nerves, it is difficult to see why a limitation of power should be imposed upon the state in such a case. But it is urged by the defense that a moderate use of opium, or that the moderate use of an opium pipe, is not deleterious, and consequently cannot be prohibited. We answer that this is a question of fact which can only be inquired into by the legislature. Smoking opium is a' [165]*165recognized evil in this country. It is a matter of general information that it is an insidious and dangerous vice, a loathsome, disgusting and degrading habit that is becoming dangerously common with the youth of the country, and that its usual concomitants are imbecility, pauperism and crime. It has been regarded as a proper subject of legislation in every western state, and it is admitted by counsel for the defense in the argument of this case that the statute in relation to the suppression of joints kept for the purpose of smoking opium was constitutional and right.
Granted that this is a proper subject for legislative enactment and control, no limit can be placed on the legislative discretion. It is for the legislature to place on foot the inquiry as to just in what degree the use is injurious; to collate all the information and to make all the needful and necessary calculations. These are questions of fact with which the court cannot deal. The constitutionality of laws is not thus to be determined. Some criticism has been made on the fact that the statute did not declare in its title the purpose for which it was enacted. This is not necessary for the validity of a penal statute, and does not affect .the constitutionality of its provisions. People v. West, 106 N. Y. 297 (12 N. E. Rep. 610).
It is common to indulge in a great deal of loose talk about natural rights and liberties, as if these were terms of well-defined and unchangeable meaning. There is no such thing as an absolute or unqualified right or liberty guaranteed to any member of society. N atural rights and liberties of a subject are relative expressions and have relative or changeable meanings. What would be a right of liberty in one state of society would be an undue license in another. The natural rights of the subject or his rightful exercise of liberty in the pursuit of happiness, depends largely upon the amount .of protection which he receives from the government. Governments in their earlier existence afforded but little pro[166]*166tection to tbeir subjects, consequently the subject had a right to pursue his happiness without much regard to the rights of the government. The reciprocal relations were not large — -he yielded up but little and received but little. If he was strong enough to buffet successfully with the world, all well and good; if not, he must live on the charity of individuals or die neglected on the highway. But now all civilized governments make provisions for their unfortunates; and progress in this direction has been wonderful even since noted sages like Blackstone lectured upon the inalienable rights of man. Not only is the protection of individual property becoming more secure, but the vicious are restrained and controlled, and the indigent and unfortunate are maintained at the expense of the government, in comfort and decency, and the natural liberties and rights of the subject must yield up something to each one of these burthens which advancing civilization is imposing upon the state. It is not an encroachment upon the time-honored rights of the individual, but it is simply an adjustment of the relative rights and responsibilities incident to the changing condition of society.
Our conclusion is, that the law in question involves no inalienable right. It may be radical, injudicious and wrong; but, as we have before indicated, these are questions solely for legislative investigation and discretion, and as has been said by Judge Story, “Judges should regard it as their duty to interpret laws and not to wander off into speculations upon their policy.”
The judgment of the court below is affirmed.
Amdees, C. J., and Hoyt, J., concur.