Trainer v. Sphalerite Mining Co.

CONCURRING OPINION.

GRAVE'S, P. J.

I concur in the opinion of our brother in this ease, but not because of any special efficacy of the statutes to which reference is made, i. e., Revised Statutes 1909', sections 1850' and 2082. In so far as these sections express the rule of conduct fixed by the courts themselves they are all right, but in so far as they undertake to trespass upon the prerogative of the courts, if they do, they cannot stand. As a matter of fact they do but express the established rules of the courts — rules in existence long before the statutes. I do not object to the rule announced in the statutes, because, as said, such has been the established rule of the courts for a time long antedating these statutes. What I do say is that these statutes, and none other of like tendency, are binding upon the courts. The Constitution of this State has confided the business thereof to three separate and distinct *375magistracies, i. e., the Executive, the Legislative and the Judicial. The same instrument prevents one magistracy from interfering with the duties of the other.

The court can not compel legislative bodies to act or keep them from acting. Neither can the Legislature by legislative act stifle the conscience of the courts in the decision of causes. Both are constitutional bodies, and act within their own sphere. The Legislature has no power to interfere with the free and full exercise of the judicial mind in determining a cause committed to the judiciary by the Constitution.

So that I prefer to place my concurrence upon the long established law of the courts, rather than upon the supposed efficacy of these statutes. The statutes, are but expressive of this established law of the courts and for that reason perform no function, but to approve of statutes of this character might lead to the enactment of more drastic ones, which would call for the assertion by the court of its constitutional powers. The Legislature cannot directly nor indirectly tell this court how it must decide a case. The conscience of the court cannot be bound by legislative enactment, any more than the Legislature can be forced to act by judicial action. The sooner the respective departments of government recognize the constitutional limitations above mentioned the better it will be for all.