Sloane v. Hammond , 81 Cal. App. 590 ( 1927 )

I concur in the opinion, except that I must withhold, at this time, assent to the language which declares that courts would disregard restrictive provisions of constitutions which to the courts might seem to be at variance with the purposes of government. Restrictive provisions of state constitutions which in operation should fail to accord to citizens equal protection of the law, or to afford a republican form of government, or should be destructive of the purposes of a republican form of government, would undoubtedly fail by reason of violating section 1 of article XIV or section 4 of article IV of the United States constitution. But the courts of this country derive their authority and their being from constitutions, which are expressions of the will of the people in whom rests, ultimately, the entire power of government. And as water can rise no higher than its source, so the courts cannot be superior to their creator.

The authorities cited in support of this enunciation in the main opinion involve legislative action. The legislature owes its being to the constitution in the same manner as do the courts. Legislative power is restrained by constitutional limitations. As was said in People v. Central Pac. Ry. Co., 43 Cal. 398-432, "The deference we owe to the legislative will is only second to that which we owe to the commands of the Constitution, which both the Legislature and the Court are sworn to obey." We also read in 12 C.J. 753, "Courts are never at liberty to question the wisdom or policy of an act of the legislature, their duty being to enforce such acts as are passed to the extent to which they are found to be constitutional and no further." As the power of the court to question the wisdom of legislative enactment is limited to whether it contravenes constitutional guaranties, certainly the power of the court to question the wisdom of constitutional restrictions is bounded by similar limits.