1

VI. Nor are the courts at liberty to declare an act void, because in their opinion it is opposed to a spirit supposed to pervade the constitution, but not expressed in words. "When the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the legislature, we cannot declare a limitation under the notion of having discovered something in the spirit of the constitution which is not even mentioned in the instrument." "It is difficult," says Mr. Senator Verplanck, "upon any general principles, to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written constitution give that authority. There are indeed many dieta and some great authorities holding that acts contrary to the first principles of right are void. The principle is unquestionably sound as the governing rule of a legislature in relation to its own acts, or even those of a preceding legislature. It also affords a safe rule of construction for courts, in the interpretation of laws admitting of any doubtful construction, to presume that the legislature could not have intended an unequal and unjust operation of its statutes. Such a construction ought never to be given to legislative language if it be susceptible of any other more conformable to justice; but if the words be positive and without ambiguity, I can find no authority for a court to vacate or repeal a statute on that ground alone. But it is only in express constitutional provisions, limiting legislative power and controlling the temporary will of a majority, by a permanent and paramount law, settled by the deliberate wisdom of the nation, that I can find a safe and solid ground for the

be consulted in its assessment; and if there were, we should find it violated at every turn in our system. The State legislature not only has a control in this respect over inferior municipalities, which it exercises by general laws, but it sometimes finds it necessary to interpose its power in special cases to prevent unjust or burdensome taxation, as well as to compel the performance of a clear duty. The constitution itself, by one of the clauses referred to, requires the legislature to exercise its control over the taxation of municipal corporations, by restricting it to what that body may regard as proper bounds. And municipal bodies are frequently compelled most unwillingly to levy taxes for the payment of claims, by the judgments or mandates of courts in which their representation is quite as remote as that of the people of Detroit in this police board. It cannot therefore be

said that the maxims referred to have been entirely disregarded by the legislature in the passage of this act. But as counsel do not claim that, in so far as they have been departed from, the constitution has been violated, we cannot, with propriety, be asked to declare the act void on any such general objection." And see Wynehamer v. People, 13 N. Y. 878, per Selden, J.; Benson v. Mayor, &c. of Albany, 24 Barb. 248 et seq.; Baltimore v. State, 15 Md. 376; People v. Draper, 15 N. Y. 532; White v. Stamford, 37 Conn. 578.

1 People v. Fisher, 24 Wend. 215, 220; State v. Staten, 6 Cold. 238; Walker v. Cincinnati, 21 Ohio St. 14; State v. Smith, 44 Ohio St. 348; People v. Rucker, 5 Col. 455; Whallon v. Ingham Circ. Judge, 51 Mich. 503; Wooten v. State, 5 Sou. Rep. 39 (Fla.).

authority of courts of justice to declare void any legislative enactment. Any assumption of authority beyond this would be to place in the hands of the judiciary powers too great and too undefined either for its own security or the protection of private rights. It is therefore a most gratifying circumstance to the friends of regulated liberty, that in every change in their constitutional polity which has yet taken place here, whilst political power has been more widely diffused among the people, stronger and better-defined guards have been given to the rights of property." And after quoting certain express limitations, he proceeds: "Believing that we are to rely upon these and similar provisions as the best safeguards of our rights, as well as the safest authorities for judicial direction, I cannot bring myself to approve of the power of courts to annul any law solemnly passed, either on an assumed ground of its being contrary to natural equity, or from a broad, loose, and vague interpretation of a constitutional provision beyond its natural and obvious sense." 1

The accepted theory upon this subject appears to be this: In every sovereign State there resides an absolute and uncontrolled power of legislation. In Great Britain this complete power rests in the Parliament; in the American States it resides in the people themselves as an organized body politic. But the people, by creating the Constitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union; and that portion they cannot resume, except as it may be done through amendment of the national Constitution. For the exercise of the legislative power, subject to this limitation, they create, by their State constitution, a legislative department upon which they confer it; and granting it in general terms, they must be understood to grant the whole legislative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and uncontrolled power of legislation, the legislative bodies of the American States possess the same power, except, first, as it may have been limited by the Constitution of the United States; and, second, as it may have been limited by the constitution of the State. A legislative act cannot, therefore, be declared void, unless its conflict with one of these two instruments can be pointed out.2

1 Cochran v. Van Surlay, 20 Wend. 365, 381, 383. See also People v. Gallagher, 4 Mich. 244; Benson v. Mayor, &c. of Albany, 24 Barb. 248; Grant v. Courter, 24 Barb. 232; Wynehamer v.

People, 13 N. Y. 378, per Comstock, J.; 13 N. Y. 453, per Selden, J.; 13 N. Y. 477, per Johnson, J.

2 People v. New York Central Rail road Co., 34 Barb. 123; Gentry v. Grif

It is to be borne in mind, however, that there is a broad difference between the Constitution of the United States and the constitutions of the States as regards the powers which may be exercised under them. The government of the United States is one of enumerated powers; the governments of the States are possessed of all the general powers of legislation. When a law of Congress is assailed as void, we look in the national Constitution to see if the grant of specified powers is broad enough to embrace it; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no laws but such as the Constitution authorizes either expressly or by clear implication; while the State legislature has jurisdiction of all subjects on which its legislation is not prohibited. "The lawmaking power of the State," it is said in one case," recognizes no restraints, and is bound by none, except such as are imposed by the constitution. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations, the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication. The leading feature of the constitution is the separation and distribution of the powers of the government. It takes care to separate the executive, legislative, and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority." 2

It does not follow, however, that in every case the courts, before they can set aside a law as invalid, must be able to find in the constitution some specific inhibition which has been disre

fith, 27 Tex. 461; Danville v. Pace, 25 Gratt. 1; s. c. 18 Am. Rep. 663; Davis v. State, 3 Lea, 377. And see the cases cited, ante, p. 201, note 3.

1 Sill v. Village of Corning, 15 N. Y. 297; People v. Supervisors of Orange, 27 Barb. 575; People v. Gallagher, 4 Mich. 244; Sears v. Cottrell, 5 Mich. 250; People v. New York Central Railroad Co.,

24 N. Y. 497, 504; People v. Toynbee, 2 Park. Cr. R. 490; State v. Gutierrez, 15 La. Ann. 190; Walpole v. Elliott, 18 Ind. 258; Smith v. Judge, 17 Cal. 547; Commonwealth v. Hartman, 17 Pa. St 118; Kirby v. Shaw, 19 Pa. St. 258; Weister v. Hade, 52 Pa. St. 474; Danville r. Pace 25 Gratt. 1, 9; s. c. 18 Am. Rep. 663.

2 Sill v. Corning, 15 N. Y. 297, 803.

garded, or some express command which has been disobeyed.1 Prohibitions are only important where they are in the nature of exceptions to a general grant of power; and if the authority to do an act has not been granted by the sovereign to its representative, it cannot be necessary to prohibit its being done. If in one department was vested the whole power of the government, it might be essential for the people, in the instrument delegating this complete authority, to make careful and particular exception of all those cases which it was intended to exclude from its cognizance; for without such exception the government might do whatever the people themselves, when met in their sovereign capacity, would have power to do. But when only the legislative power is delegated to one department, and the judicial to another, it is not important that the one should be expressly forbidden to try causes, or the other to make laws. The assumption of judicial power by the legislature in such a case is unconstitutional, because, though not expressly forbidden, it is nevertheless inconsistent with the provisions which have conferred upon another department the power the legislature is seeking to exercise.2 And for similar reasons a legislative act which should undertake to make a judge the arbiter in his own controversies would be void, because, though in form a provision for the exercise of judicial power, in substance it would be the creation of an arbitrary and irresponsible authority, neither legislative, executive, nor judicial, and wholly unknown to constitutional government. It could not be necessary to forbid the judiciary to render judgment without suffering the party to make defence; because it is implied in judicial authority that there shall be a hearing before condemnation. Taxation cannot be arbitrary, because its very definition includes apportionment, nor can it be for a purpose not public, because that would be a contradiction in terms. The right of local self-government cannot be taken away, because all our constitutions assume its continuance as the undoubted right of the people, and as an inseparable incident to republican government.

1 A remarkable case of evasion to avoid the purpose of the constitution, and still keep within its terms, was considered in People v. Albertson, 55 N. Y. 50. In Taylor v. Commissioners of Ross County, 23 Ohio St. 22, the Supreme Court of Ohio found itself under the necessity of declaring that that which was forbidden by the constitution could no more be done indirectly than directly.

2 Ante, pp. 104-133, and cases cited. Post, pp. 506-509, and cases cited.

4 Post, pp. 431-433. On this subject in general, reference is made to those very complete recent works, Bigelow on Estoppel, and Freeman on Judgments.

5 Post, ch. 14. And see Curtis v. Whipple, 24 Wis. 350; Tyson v. School Directors, 51 Pa. St. 9; Freeland v. Hastings, 10 Allen, 570; Opinions of Judges, 58 Me. 590; People v. Batchellor, 53 N. Y. 128; Lowell v. Boston, 111 Mass. 454.

6 People v. Mayor, &c. of Chicago, 51 Ill. 17; People v. Hurlbut, 24 Mich. 44;

The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat. There is no difficulty in saying that any such act, which under pretence of exercising one power is usurping another, is opposed to the constitution and void. It is assuming a power which the people, if they have not granted it at all, have reserved to themselves. The maxims of Magna Charta and the common law are the interpreters of constitutional grants of power, and those acts which by those maxims the several departments of government are forbidden to do cannot be considered within any grant or apportionment of power which the people in general terms have made to those departments. The Parliament of Great Britain, indeed, as possessing the sovereignty of the country, has the power to disregard fundamental principles, and pass arbitrary and unjust enactments; but it cannot do this rightfully, and it has the power to do so simply because there is no written constitution from which its authority springs or on which it depends, and by which the courts can test the validity of its declared will. The rules which confine the discretion of Parliament within the ancient landmarks are rules for the construction of the powers of the American legislatures; and however proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibition can never be regarded as essential, when the extent of the power apportioned to the legislative department is found upon examination not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot, by implication, confer power.

State v. Denny, 21 N. E. Rep. 274 (Ind.), for strictly private purposes at all, nor See cases post, pp. 227, 282.

1 Bowman v. Middleton, 1 Bay, 252; Wilkinson v. Leland, 2 Pet. 627; Terrett v. Taylor, 9 Cranch, 43; Ervine's Appeal, 16 Pa. St. 256. "It is now consid ered an universal and fundamental proposition in every well regulated and properly administered government, whether embodied in a constitutional form or not, that private property cannot be taken

for public without a just compensation; and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plenitude of power of the legislative department." Nelson, J., in People v. Morris, 13 Wend. 325, 328. See Bank of Michigan v. Williams, 5 Wend. 478.