Page:The World's Most Famous Court Trial - 1925.djvu/67

 Section 12, Article 11 of the constitution of Tennessee, and they point to that part of the constitution which makes it the duty of the legislature to cherish literature and science. Now, your honor, there is a case of Green vs. State of Tennessee, which to my mind settles that proposition thoroughly. This brief was prepared in accordance with another motion that was filled and I will have to lose some time in looking through it, because the chronological order in this is different than from the other.

The Court—Have you the books here?

Gen. Stewart—The books? I have some of the cases here. Most of them are just quoted from, your Honor. This case Green vs. State of Tennessee, says this: It is cited a number of times in various reports and decisions and they quote from Judge White in a dissenting opinion, in dissenting on the particular point in question—dictum you might call it—that is what they do call it, but, nevertheless, it is an authority in which he states—

The Court—Judge White, of the Supreme Court of the United States?

Gen. Stewart—No, sir, of the Supreme Court of Tennessee.

Mr. Malone—General, can you give us the citation?

Gen. Stewart—I lost it in my brief case. Here it is. Here is the footnote of the annotation here in the volume of the constitution. (Reading the constitutional provision making it the duty of the legislature to cherish literature and science.) That is merely a direction to the legislature, but, nevertheless, it indicates the popular feeling on this question. That was the comment Judge White made in his dissenting opinion in 5 HumpheysHumphreys [sic], 215.

To cherish literature and science. The constitution maksmakes [sic] it the duty of the legislature to cherish literature and science, but this is our position in following that reasoning that is merely directory to the last legislature and constituting as to that, and is stated in the opinion of Judge White, that indicates the popular feeling of the people, that they realize the inportance of education, they realize the importance of literature, they realize the importance of scientific investigation, and they say to the legislature through the constitution, that they should cherish literature and science.

Now, that, if your honor pleases, is merely directory to the legislature. Being so, the legislature has a right to exercise its discretion in placing its discretion on that when they speak to us through the statute.

And that, your Honor, disposes of the matter.

The Court—Was that case disposed of by Judge White rendering a dissenting opinion?

Gen. Stewart—The case in which he rendered a dissenting opinion, if the court pleases, this particular construction of this particular part of the constitution was invoked and this section of the constitution was invoked. But in this particular part it was a taxation question, a question of taxation.

Mr. Neal—May I ask the General does he know the date of this decision?

Gen. Stewart—Yes, sir. It is 1874, I believe.

The Court—Have you got the opinions here? Let us see it.

Gen. Stewart—No, sir. I have not that book. Only the annotation I have here.

Mr. Neal—Did you cite Humphreys?

Gen. Stewart—Green vs. Allen, 5 Humphreys, 215.

I find that opinion dissented from in a number of other cases. They can be found running through this brief.

The Court—You say the majority didn't pass upon that question?

Gen. Stewart—No. It was mere dictum. It is cited and recognized in several cases and annotated under this section of the constitution, and I read from the annotation, to cherish literature and science, which means to recognize, to protect, to