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IOWA SUPREME COURT.

STATE of Iowa, ex rel. James A. HOWE, directors of independent school districts to fix

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1. The legislature cannot delegate the power to fix and determine the amount of a tax for a public library, which must be levied by the common council to a board which

is not chosen by, and directly responsible to, the

taxpayers, unless the people assent thereto.

2. Consent to the levying by a board of a tax for a public library is not given by

a vote adopting a statutory plan for such library by which the tax is to be levied by the common council, although the board subsequently provided for is to be appointed by the mayor with

consent of the council.

A

(October 9, 1897.)

PPEAL by complainant from an order of the District Court for Polk County deny ing a writ of mandamus to compel defendant to levy a tax for the purpose of erecting a library building and maintaining a library. Affirmed.

The facts are stated in the opinion. Messrs. Read & Read, for appellant: All legislative authority, which includes the power of taxation without limitation, is vested in the legislature.

Const. art. 3, 1; Davenport v. Chicago, R. I. & P. R. Co. 38 Iowa, 633.

It may confer the taxing power upon municipalities to such extent as it may deem expedient or desirable.

2 Dill. Mun. Corp. 3d ed. § 740; Cooley, Taxn. 1st ed. p. 51.

A board of library trustees appointed pursuant to the provisions of chap. 41, Acts of the 25th General Assembly, is an agency of the city appointing it, clothed with the power and charged with the duty of performing, on behalf of the city, the acts specified in the stat

ute.

Orvis v. Des Moines Park Comrs. 88 Iowa, 674; State, Merrick, v. Hennepin County Dist. Ct. 33 Minn. 235.

The legislature may select such municipal agency as it deems proper to exercise the power conferred, and is not limited in its power in that respect, and compelled to select the city council as the sole municipal agency for the purpose of exercising the taxing power.

State, Merrick, v. Hennepin County Dist. Ct. 33 Minn. 235; Baltimore v. State, Board of Police, 15 Md. 376, 74 Am. Dec. 572.

A statutory provision that commissioners may levy a tax for school purposes is manda

tory.

Jones v. State, Board of Public Instruction, 17 Fla. 411.

The statutes make it the duty of boards of

NOTE.-As to delegation of authority by legislaA. 582, and note; Dowling v. Lancashire Ins. Co.

ture, see also Bradshaw v. Lankford (Md.) 11 L. R.

(Wis.) 31 L. R. A. 112, and other cases cited in footnote.

and determine the amount of tax necessary to be levied for the support of the schools within the district, and to certify the amount thus fixed and determined to the board of supervisors, and requires the board to levy the tax thus certified.

Independent Dist. v. Sioux County Supers. 51 Iowa, 658.

No case is found which holds that the power of taxation may not be delegated by the legis lature, in the absence of constitutional restrictions and limitations, to be exercised by such cies as the legislature may provide. Supportmunicipal authorities, representatives, or agening the proposition are found:

Orvis v. Des Moines Park Comrs. 88 Iowa, 674: State, Merrick, v. Hennepin County Dist. Ct. 33 Minn. 235; Baltimore v. State, Board of Police, 15 Md. 376, 74 Am. Dec. 572; 2 Dill. Mun. Corp. 3d ed. § 740; 25 Am. & Eng. Enc. Law, pp. 22, 71-75.

The question of what tax or for what purpose taxation should be made, is one of policy and expediency, which concerns the legislature only.

Cooley, Taxn. 2d ed. p. 119; Merchants' Union Barb- Wire Co. v. Brown, 64 Iowa, 275. Messrs. Hubbard & Dawley also for appellant.

Messrs. Bishop, Bowen, & Fleming and J. K. Macomber, for appellees:

The act of the 25th and 26th General Assem

bly is void in so far as it authorizes the levy of a tax, and in so far as it gives that power to the board of library trustees, it never having been voted on and adopted by the people after these changes were made.

Cornell v. People, 107 Ill. 372.

It is not within the legislative power to compel the city council against its will to levy a tax for the purposes either of maintaining the library or the erection of a library building.

Cooley, Const. Lim. 5th ed. **230, 231; Hanson v. Vernon, 27 Iowa, 73, 1 Am. Rep. 215.

While the legislature has the right to delegate the power of taxation to municipal and political corporations, it has not the right to delegate that power to any other than the proper legislative body of such corporations. The people have delegated their inherent right of taxation to the legislature. The legislature may again delegate that right back to the people, or to the representatives of the people, the legislative bodies of the different municipal and political corporations of the state. But it has not the right, for unusual purposes, to delegate the right of taxation to any but the legislative body of the municipal or political corporations.

Cooley, Taxn 2d ed. p. 61; People, McCagg, v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; Harward v. St. Clair & M. Levee & D. Co. 51 Ill. 130; Hinze v. People, Halbert, 92 Ill. 406; Updike v. Wright, 81 Ill. 49; People, Dunham, v. Morgan, 90 I11 558; Parks v. Wyandotte County Comrs. v. Abbott, 52 Kan. 148; People, Park Comrs. 61 Fed. Rep. 436; Wyandotte County Comrs., v. Detroit, 28 Mich. 227, 15 Am. Rep.

202.

The constitutional provision of the state of

Illinois has no different force or effect than ter 45, Acts 13th Gen. Assem., provided that that which is implied in all state Constitutions. cities of the first and second classes might levy Cooley, Taxn. p. 61; Wyandotte County an annual tax not exceeding one-half mill on Comrs. v. Abbott, 52 Kan. 148; Hanson v. Ver-the dollar of the taxable property in such city non, 27 Iowa, 73, 1 Am. Rep. 215.

Kinne, Ch. J., delivered the opinion of the court:

1. The conceded facts in this case are as follows: The city of Des Moines, a city of the first class, in 1882, by a vote of its electors, accepted the provisions of the statute of this state relating to the establishment and maintenance of free public libraries, and had, in the exercise of the powers conferred upon it, established and was maintaining such a library. In pursuance of law a board of library trustees had been appointed, and was exercising the powers and duties imposed upon it. On July 31, 1896, said board of trustees did fix and determine a rate of taxation of one mill on the dollar of the taxable valuation of the property in said city for the purpose of maintaining the public library, and at the same time did fix and determine a rate of taxation of three mills on the dollar for the purpose of creating a sink ing fund for the purchase of a lot and the erection of a library building, and did cause said amounts so fixed and determined to be certified to the city council of said city. Said city council refused to levy and certify to the county auditor said amounts so certified to them by said board of library trustees, but did levy and certify one half a mill tax for the purpose of the maintenance of the library. Thereupon this action was brought to obtain a writ of mandamus compelling the city council to levy and certify the rates of taxes fixed and deter mined by the board of library trustees. As is said by counsel for appellants: "The ultimate question to be determined is whether or not the city council in cities of the first class accepting the provisions of the statute relating to the establishment and maintenance of free public libraries, and maintaining such library, is bound and required to levy and certify the amount of taxes or the rate of taxation fixed and determined by the board of library trustees of said city."

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for the maintenance of a free public library and reading room, provided a suitable lot and building be first donated for such purposes. The city council was authorized to appoint officers for such library and reading room. 14th Gen. Assembly, in chapter 47, extended the provision of the former act so as to include incorporated towns, increased the amount of the levy, and authorized all the municipalities referred to in the act out of the money raised to purchase land and erect buildings or lease rooms. The act also provided that before exercising any of the powers conferred it should be accepted by a vote of the people. The same provisions, in substance, were incorporated in the Code of 1873 (§ 461), in which it was declared that "the establishment and maintenance of a free public library is hereby declared to be a proper and legitimate object of municipal expenditure." Such was the law in force at the time the electors of the city of Des Moines voted to accept its provisions, and to establish a free public library. By chapter 41, Acts 25th Gen. Assem., it was provided that in any city which had accepted the provisions of Code, 461, there should be created a board of library trustees, to be appointed by the mayor, with the approval of the council. That act vested in said board full power of control over the library, including the power to appoint and remove librarians and employees; that they should have full power over the moneys raised for the library by taxation; and said act also contained the following, viz.: "The board of library trustees shall, before the 1st day of August in each year, determine and fix the amount of rate to be appropriated for one year under § 461 of the Code of Iowa for the maintenance of such library, and cause the same so fixed to be certified to the council, and the council shall make such appropriation and levy the necessary tax for such year to raise said sum and certify the percentage or rate not exceeding one mill on the dollar or such tax to the county auditor, . . . provided that in cities of 2. On the one hand it is contended that the the first class the city council may and shall levy statute vests in the board of library trustees ab- and certify such further sum of tax as it may solute power to fix and determine the amount deem expedient to create a sinking fund and pay of the levy to be made for the purpose of main- interest under the provisions of chapter 18, Acts tenance of the library, and of creating a sink- of the 22d General Assembly, and acts amendaing fund for the purchase of a lot and the erectory thereof." By chapter 99 of the Acts of tion of a library building, subject only to the limitations in the statute; and that the duty devolves upon the city council to levy and certify the sums so certified to them by said board; that the city council is without any discretion in the matter. On the contrary, the appellees contend that the board of library trustees has no such power; that its power in the matter is advisory merely, and that the city council is invested with a discretion as to the amount or amounts which shall be levied for the purposes mentioned. As in the discussion which may follow reference may be made to various acts of the legislature touching the creation and maintenance of free public libraries, it may tend to brevity to here recite the substance of all such statutes which can have any bearing upon the question under consideration. Chap

the same general assembly power was conferred upon the city to levy and collect a tax of not exceeding three mills on the dollar to pay interest on any indebtedness theretofore contracted or to be thereafter contracted or incurred for the purchase of real estate and the erection of a building or buildings for a public library, and to create a sinking fund for the payment of such indebtedness. By chapter 5, Acts 26th Gen. Assem., the tax was authorized to be collected annually. By chapter 50, Acts 26th Gen. Assem., it was provided that the board of library trustees should determine and fix the rate, not exceeding one mill on the dollar, for the maintenance of the library, and not exceeding three mills on the dollar for the purpose of paying for a building and the creation of a sinking fund, and "cause

STATE, ex rel. HOWE, v. DES MOINES.

287

each of the amounts or rates so determined | matters of taxation; the state in very many and fixed to be certified to the council, and the cases doing little beyond prescribing rules of council shall levy the taxes necessary to raise limitation within which for local purposes the said sums respectively for such year and cer- local authorities may levy taxes. tify the percentage or rates tax to the county auditor." In pursuance of tion of the power to tax, must take it to the of such legislature, however, in thus making delegaThe the provisions of chapter 41, Acts 25th Gen. corporation itself, and provide for its exercise Assem., a board of library trustees had been by the proper legislative authority of the corappointed. In March, 1892, the city of Des poration. Moines, as it then existed, by a vote of the is equally true of the municipalities; that the What is true of the state electors accepted the benefit of the law relat-power they possess to tax must be exercised by ing to public libraries. Prior to the passage the corporation itself and cannot be delegated of the acts of the 26th General Assembly, the to its officers or other agencies." Cooley, city council was clearly invested with discre- Taxn. 2d ed. pp. 61, 63, 65. The doctrine tionary power as to levying a tax for a library laid down by the learned author is that the building and for the creation of a sinking delegation of the power to tax by the legisla fund. The act of the 26th General Assembly ture must be made to the municipality itself, in terms seems to require the council to levy and that it cannot be delegated to other agenand certify the tax certified to it for mainte-cies. nance and for building or sinking fund so long as the same does not exceed the amount provided by the statute.

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must be understood as "those municipal officers who are either directly elected by the people to be taxed, or appointed in some mode to which they have given their assent. McCagg, v. Chicago, 51 Ill. 17, 2 Am. Rep. 278. The same court, in construing the same People, constitutional provision, said: "The power of taxation is, of all the powers of government, the one most liable to abuse, even when exercised by the direct representatives of the people; and if committed to persons who may exercise it over others without reference to their consent, the certainty of its abuse would be simply a question of time. No person or class of persons can be safely intrusted with irresponsible power over the property of others, and such a power is essentially despotic in its nature, and violative of all just principles of government. the present instance, it is to be professedly exIt matters not that, as in ercised for public uses, by expending for the public benefit the tax collected. If it be a tax, as in the present instance, to which the persons who are to pay it have never given their consent, and imposed by persons acting under no responsibility of official position, and clothed with no authority, of any kind, by those whom they propose to tax, it is, to the extent of such which our forefathers thought just cause of revtax. misgovernment of the same character olution.

tains the following provision: "The corporate The Constitution of the state of Illinois con3. The questions involved in this appeal are tricts, cities, towns, and villages may be vested authorities of counties, townships, school disof great interest and importance. Irrespective with power to assess and collect taxes for corof our duty to uphold the act of the legisla- porate purposes.' ture as constitutional, if it be possible to do 5. In construing this provision, the supreme Ill. Const. 1848, art. 9, so without doing violence to well-known le- court of that state said that the phrase "corgal principles and accepted canons of construc-porate authorities," as used in the Constitution, tion, our interest in the welfare of the people, which is so largely promoted by the establishment and maintenance of public libraries, would prompt us to give the questions presented most careful consideration. If it be conceded that a tax for the maintenance of a public library and for the erection of a library building is a tax for a public purpose, and hence one which, in furtherance of the general public policy of the state, may be compelled to be levied, may the legislature authorize its levy by the board of library trustees? Touching the power of the legislature to delegate the taxing power, Judge Cooley says: "It is a general rule of constitutional law that a sovereign power conferred by the people upon any one branch or department of the government is not to be delegated by that branch or depart ment to any other. This is a principle which pervades our whole political system, and, when properly understood, permits of no exception. And it is applicable with peculiar force to the case of taxation. The power to tax is a legislative power. The people have created a legis lative department for the exercise of the legislative power; and within that power lies the authority to prescribe the rules of taxation, and to regulate the manner in which those rules shall be given effect. nevertheless, one clearly defined exception to There is, the rule that the legislature shall not delegate any portion of its authority. The exception, however, is strictly in harmony with the general features of our political system, and it rests upon an implication of popular assent which is conclusive. This exception relates to the case of municipal corporations. Immemorial custom, which tacitly or expressly has been incorporated in the several state Constitutions, has made these organizations a necessary part of the general machinery of state government, and they are allowed large authority in matters of local government, and to a considerable extent are permitted to make the local laws. This indulgence has been carried into 39 L. R. A.

lence to the language of the clause in the ConWe are of opinion that we do no viostitution we have been considering, by holding that it was designed to prevent such illadvised legislation as the delegation of the taxing power to any person or persons other than the corporate authorities of the municipality or district to be taxed. These authorities are elected by the people to be taxed, or appointed in some mode to which the people have given their assent, and to them alone can this power be safely delegated.' M. Levee & D. Co. 51 Ill. 130. In still another Harward v. St. Clair & case, in which the constitutionality of the metropolitan police act of the city of East St.

and has been applied as well to local assessments or improvement districts as to taxes levied in local, political, and municipal corporations. . Self-taxation, or taxation by officers chosen by or answerable to those directly interested in the district to be taxed, is inseparable from that protection of the right of property that is either expressly or impliedly guaranteed by all written Constitutions, under our system of government. Of all the powers of government the one most liable to abuse is the power of taxation. If placed in hands irresponsible to the people of the district to be taxed, its abuse is a mere question of time.

Louis was under consideration, and in which | plies with equal force to all kinds of taxation, the police commissioners were appointed by the act, and given power, not to levy a tax, but to estimate what sum of money would be necessary for each fiscal year to enable them to discharge the duties imposed upon them, and the act required the city council to appropriate and set apart the amount so certified out of the general fund of the city, and, in case the council failed so to do, then it was made the duty of the board of commissioners to issue certificates of indebtedness in the name of the city for the amounts so certified, the court said: "These police commissioners are not the corporate authorities of East St. Louis, and therefore can have no power of taxation. They are not elected by the people of that city, nor appointed in any mode to which the people have given their assent. The act creating them has never been accepted by the people or by the city council, but, on the other hand, as alleged in the bill, the council has constantly denied the authority of the commissioners." Hinze v. People, Halbert, 92 Ill. 406. See also Updike v. Wright, 81 Ill. 49; People, Dunham, v. Morgan, 90 Ill. 558.

The act is a plain violation of the prin ciple of self taxation, and a clear invasion of the right of property. The legislature is not the fountain-not the source-of power. Under our system of government the legislature can exercise only such powers as the people have delegated to that body, either expressly or by necessary implication, by the Constitution. All rights not so delegated are retained by the people. The right to life, liberty, and property is among the inherent and inalienable rights that the people did not commit to the legislature. Constitutions are adopted and governments administered for the protection, and not for the destruction, of these reserved rights of the people. Illegal or oppressive taxation is destructive of the right of property, and is not government, under the Constitution, but is misgovernment." Parks v. Wyandotte County Comrs. 61 Fed. Rep. 436.

The legislature of the state of Kansas passed an act authorizing the creation of a board of road commissioners, and empowering them, among other things, to levy taxes. The act was held unconstitutional. Wyandotte County Comrs. v. Abbott, 52 Kan. 148. The question of the constitutionality of the same act came before the Federal court, and the court said: "Does the Constitution of the state of Kansas authorize the legislature to delegate the power of taxation either to the signers of these peti- The legislature of the state of Michigan tions or to these road commissioners? Can a tax passed an act creating a board of park combe arbitrarily forced upon the taxpayers of a missioners to be appointed by the governor, county, either by the individuals or by officials with authority to create an indebtedness, and in whose appointment they have no voice? the act was held unconstitutional. Mr. Justice The power of taxation is a power inherent in Campbell, in specially concurring, said: "I all governments. In a constitutional govern- am not willing, however, to leave out of view ment, the people by the Constitution confer an objection which has seemed to me quite as it on the legislature. It is one of the highest fundamental as the one referred to, and more attributes of sovereignty. It includes the dangerous, if that be possible, in its tendencies. power to destroy. It appropriates the prop- I think that the very essence of municipal exerty and labor of the people taxed. Unre- istence consists in a government which allows strained power of taxation necessarily leads to no discretionary power beyond that of mere tyranny and despotism. Hence, in all free administration to be exercised without the imgovernments, the power to tax must be limited mediate or ultimate control of the freemen or to the necessities for the purposes of govern- their immediate representatives. A city is, ment, and the agencies for local taxation and must be, as I conceive, a unit for purposes should be fixed and their powers limited by of government; and all bodies employed in the organic law; and they should be so selected as service of the municipality, and not directly to be directly answerable for their official acts representing the freemen, must act as agencies to their local constituencies or districts to be subordinate to the council. If powers in any taxed. If they act corruptly those directly in way involving the municipal prerogative can terested may then remove them, and appoint be given to any bodies except the common others. If those directly interested have no council, to the exclusion of any regulation or voice in their appointment or power to remove control of that body, they can all be so given, them, they have no means of correcting their and the people may be entirely deprived of repabuses. No other rule can secure those to be resentative government. It is a misnomer to taxed from oppression and fraud on the part apply that term to a system where there is any of the taxing officers. In McCullough v. legislative power over which the people's repMaryland, 17 U. S. 4 Wheat. 428, 4 L. ed. 606, resentatives have no control. A school district Marshall, Ch. J., said: The only security is as well organized a municipality as a city, against the abuse of this power [the taxing and may coexist with it in territory in whole power] is found in the structure of our govor in part, as a city may cover the territory of ernment itself. In imposing a tax the legisla- a county wholly or partially. There is no inture acts upon its constituents. This is, in compatibility between them, and both are general, a sufficient security against erroneous separate and in some sense independent popuand oppressive taxation.' This reasoning ap-lar representative bodies exercising different

1897.

STATE, ex rel. Howe, v. DES MOINES.

functions. The duties of the others are no, power of the legislature to delegate the power part of the ordinary concerns of towns or city of taxation. This, of necessity. must be so, corporations. But from time immemorial otherwise the legislature might clothe any perevery municipal government, properly so son with the power to levy taxes, regardless of called, and acting within its peculiar sphere, the will of those upon whom such burdens Whatever the effect of bas acted through its common council, com- would be cast, and such person might be directly posed either of the burgesses or their represen-responsible to no one. tatives, subject in some cases to checks and the constitutional provisions in Illinois and vetoes, but not subject to legislation or final Kansas may be, the reasoning of the cases is action in defiance of their own decisions. in line with the views expressed by Judge no express constitutional Their supremacy cannot be given up by them- Cooley, and it is equally applicable to cases selves any more than it can be taken from where there are them. No doubt the state can limit their limitations. It is said that it is not true that powers, but it cannot transfer them. The ap power to determine the rate of taxes must be pointment and incorporation of boards as mere committed to the proper legislative authority agencies is competent, and may be very con- of the corporation, and certain instances in this venient. But making them anything but state are cited as the power given the executive agencies is a direct invasion of representative council to determine the rate of tax for state government, and would bring into existence a purposes. Code 1873, § 835. But counsel class of cities unknown to our institutions, and have cited no instances in the legislation of this very different from the municipal corporations state, and we have found none, where the recognized by our Constitution as the author power to tax was conferred upon a board or ized recipients of local legislative power. officer not elected by and immediately responWhether the law of 1871 contains any pro-sible to the people, and we are unwilling to visions obnoxious to this principle it is not extend the right to delegate such power to any But if there are such body or person rot directly representing the necessary to discuss. provisions, I do not conceive they could be people. The danger which lies in delegating made valid by any recognition from the city. such power to any person or board not directly Concurring entirely in the general views of my responsible to the taxpayers is so forcibly set Brother Cooley, I have not deemed it necessary forth in the citations we have made that we to do more than indicate very briefly my views need not enlarge upon it. If the power to tax on the point which he has waived, which, in may be by them vested in a board of library my judgment, is inseparable from the princi-trustees, against the will of the people, it may ples underlying the decisions heretofore made in People, Le Roy, v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103, and in People, Hubbard, v. I Springwells Twp. Board, 25 Mich. 153. therefore agree in the conclusion of my breth ren." People, Park Comrs., v. Detroit, 28 Mich. 228, 15 Am. Rep. 202.

be reposed in any other body which is not directly accountable to the people.

appellant; and the Maryland case sustained the constitutionality of an act authorizing the board of police commissioners to levy and collect taxes for the support of the police department of the city. If this case is sustainable at all, it is upon the theory that the state may insist upon the proper exercise of the police power by a municipality, and, if the municipality fails so to do, the state may arbitrarily provide therefor. This is on the theory that one of the objects of the government of the state is to preserve peace and good order.

Counsel for appellants rely upon the cases of Baltimore v. State, Board of Police, 15 Md. 376, 74 Am. Dec. 572, and State, Merrick, v. Hennepin County Dist. Ct. 33 Minn. 235. The latter case, in its facts, is so different from the Under our Constitution the power of taxa-case at bar as not to support the contention of tion has been vested by the people in the legislature. Iowa Const. art. 3, § 1; Davenport v. Chicago, R. I. & P. R. Co. 38 Iowa, 643. There is no express constitutional restriction or limitation upon the power of the legislature in this state, and that body may, for proper and legitimate purposes, confer the taxing power upon municipalities. 2 Dill. Mun. Corp. $740; 25 Am. & Eng. Enc. Law, pp. 18, 71. Nevertheless, in the absence of such constitutional restriction, the power of the legislature to confer the right of taxation is limited by im We have treated this statute as, in effect, plication. Prouty v. Stover, 11 Kan. 225. So it is said in Hanson v. Vernon, 27 Iowa, 73, 1 authorizing the library board to levy the tax. Am. Rep. 215: "It cannot be maintained that In fact, it in terms directs them to fix and dethe Constitution confers upon the state gov- termine the amount of the tax, which, upon ernment absolute and unlimited legislative being certified to the council, it must levy. power, authorizing all laws affecting the rights The right to thus fix and determine is equivaand property of the people, not expressly pro-lent to the right to levy. Now, the uses to There is, which this tax is to be put are local, and the hibited by that instrument. as it were, back of the written Constitution, an benefits to be derived from such library must unwritten Constitution, if I may use the ex- necessarily inure mostly to the people of the pression, which guarantees and well protects city of Des Moines. Such being the case, we all absolute rights of the people, The govern- think that the legislature had no power to vest ment can exercise no power to impair or deny the levying of this tax in a body not directly them. Many of them may not be enumerated responsible to the people of the city. The levy in the Constitution, nor preserved by express and collection of a tax is a taking of the propprovisions thereof, notwithstanding they exist, erty of the taxpayer against his will, and such and are possessed by the people, free from a necessary, arbitrary, and far-reaching power We say, then, ought not to be conferred upon a body of pergovernmental interference." that there is an implied limitation upon the sons who are not the direct representatives of

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