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Justice Explains State Enabling Acts

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  • Legalbear
    The Enabling Act is the paramount law of this state and all constitutional provisions of our fundamental state document must be consistent with it. In the
    Message 1 of 1 , May 6, 2013
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      The Enabling Act is the paramount law of this state and all constitutional provisions of our fundamental state document must be consistent with it. In the event of a conflict the constitution must yield to the Enabling Act. The Enabling Act directed the Constitutional Convention of this state to form a constitution which would "not be repugnant to the constitution of the United States and the principles of the declaration of independence". Section 4. Both the Federal Constitution and the Declaration of Independence recognize the rights to life, liberty, and the pursuit of happiness. This word "liberty" has been construed to include freedom to contract and freedom to hold property under appropriate regulations where such are necessary.

       

      “An Enabling Act becomes "and is a fundamental and paramount law. It cannot be altered, changed, amended, or disregarded without an act of Congress." A state constitution "cannot be inconsistent with the Enabling Act." Murphy v. State, 65 Ariz. 338, 181 P.2d 336.

       

      “The term "liberty" appearing in the Declaration of Independence has the same meaning as it has in the federal and state constitutions. See McKinster v. Sager, 163 Ind. 671, 72 N.E. 854, 68 L.R.A. 273. Freedom to contract is embraced within the term "liberty" as used in these documents. 16 Am.Jur.2d, pages 704-706, substantiates the assertion:

       

      "Although the term `freedom of contract' does not appear in the Constitution, the right to enter into a contract, with some exceptions, is a liberty which falls within the protection of the due process clause of the Fourteenth and Fifth Amendments to the Constitution of the United States. It is also safeguarded by the constitutions of the states, and, by a constitutional guaranty of pursuit of happiness. In general it may be said that the privilege of contracting is both a liberty and a property right."” Western Colorado Power Co. v. PUBLIC UTILITIES COM'N, 411 P.2d 785, 804  (Colo. 1966) Justice Frantz dissenting.

       

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