preamble or body of the act) the General Assembly shall, by a vote of two-thirds of all the members elected to each house, otherwise direct. By the Constitution of Michigan,1 no public act shall take effect, or be in force, until the expiration of ninety days from the end of the session at which the same is passed, unless the legislature shall otherwise direct by a two-thirds vote of the members elected to each house. These and similar provisions are designed to secure, as far as possible, the public promulgation of the law before parties are bound to take notice of and act under it, and to obviate the injustice of a rule which should compel parties at their peril to know and obey a law of which, in the nature of things, they could not possibly have heard; they give to all parties the full constitutional period in which to become acquainted with the terms of the statutes which are passed, except when the legislature has otherwise directed; and no one is bound to govern his conduct by the new law until that period has elapsed. And the fact that, by the terms of the statute, something is to be done under it before the expiration of the constitutional period for it to take effect, will not amount to a legislative direction that the act shall take effect at that time, if the act itself is silent as to the period when it shall go into operation.3 *The Constitution of Indiana provides that " no act [* 157] shall take effect until the same shall have been published and circulated in the several counties of this State, by authority, except in case of emergency; which emergency shall be declared 1 Art. 4, § 20. * Price v. Hopkin, 13 Mich 318. See, however, Smith v. Morrison, 22 Pick. 430; Stine v. Bennett, 13 Minn. 153. Compare State v. Bond, 4 Jones, L. 9. Where a law has failed to take effect for want of publication, all parties are chargeable with notice of that fact. Clark v. Janesville, 10 Wis. 136. time it should take effect, and it was therefore held that it would not take effect until sixty days from the end of the session, and a vote of the electors taken on the 17th of March was void. See also Rice v. Ruddiman, 10 Mich. 125; Rogers v. Vass, 6 Iowa, 405. And it was also held in the case first named, and in Wheeler v. Chubbuck, 16, Ill. 361, that "the direction must be made in a clear, distinct, and unequivocal provision, and could not be helped out by any sort of intendment or implication," and that the act must all take effect at once, and not by piecemeal. 4 Art. 4, § 28. in the preamble, or in the body of the law." Unless the emergency is thus declared, it is plain that the act cannot take earlier effect. But the courts will not inquire too nicely into the mode of publication. If the laws are distributed in bound volumes, in a manner and shape not substantially contrary to the statute on that subject, and by the proper authority, it will be held sufficient, notwithstanding a failure to comply with some of the directory provisions of the statute on the subject of publication.2 The Constitution of Wisconsin, on the other hand, provides3 that "no general law shall be in force until published;" thus leaving the time when it should take effect to depend, not alone upon the legislative direction, but upon the further fact of publication. But what shall be the mode of publication seems to be left to the legislative determination. It has been held, however, that a general law was to be regarded as published although printed in the volume of private laws, instead of the volume of public laws as the statute of the State would require. But an unauthorized publication — as, for example, of an act for the incorporation of a city in two local papers instead of the State paper is no publication in the constitutional sense. The Constitution of Louisiana does not in terms require laws to be published, though it provides that when they are promulgated, it shall be in the English language. There is a provision in the Civil Code that all laws shall be considered promulgated at the place where the State gazette is published, the day after the pub 1 Carpenter v. Montgomery, 7 Blackf. 415; Hendrickson v. Hendrickson, 7 Ind. 13; Mark v. State, 15 Ind. 98. The legislature must necessarily in these cases be judge of the existence of the emergency. Carpenter v. Montgomery, supra. The Constitution of Tennessee provides that "No law of a general nature shall take effect until forty days after its passage, unless the same, or the caption, shall state that the public welfare requires that it should take effect sooner. Art. 1, § 20. 2 State v. Bailey, 16 Ind. 46. See further, as to this constitutional provision, Jones v. Cavins, 4 Ind. 305. 3 Art. 7, § 21. Under this provision it has been decided that a law establishing a municipal court in a city is a general law. Matter of Boyle, supra. See Eitel v. State, 33 Ind. 201. Also a statute for the removal of a county seat. State v. Lean, 9 Wis. 279. Also a statute incorporating a municipality, or authorizing it to issue bonds in aid of a railroad Clark v. Janesville, 10 Wis. 136. And see Scott v. Clark, 1 Iowa, 70. An inaccuracy in the publication of a statute, which does not change its substance or legal effect, will not invalidate the publication. Smith v. Hoyt, 14 Wis. 252. 5 Clark v. Janesville, 10 Wis. 136. See, further, Mills v. Jefferson, 20 Matter of Boyle, 9 Wis. 264. Wis. 50. lication of such laws in the State gazette, and in all other parts of the State thirty days after the publication. With these provisions in view, it has been held that "the promulgation of laws is an executive function. The mode of promulgation may be prescribed by the legislature, and differs in different countries and at different times. . . . Promulgation is the extrinsic act which gives a law, perfect in itself, executory force. Unless the law prescribes that it shall be executory from its passage, or from a certain date, it is presumed to be executory only from its promulgation." 1 But it is competent for the legislature to provide in an act that it shall take effect from and after its passage; and the act will have operation accordingly, though not published in the official gazette.2 In Pennsylvania, whose constitution then in force also failed to require publication of laws, the publication was nevertheless held to be necessary before the act could come into operation; but, as the doings of the legislature were public, and the journals published regularly, it was held that every enactment must be deemed to be published in the sense necessary, and the neglect to publish one in the pamphlet edition of the laws would not destroy its validity.3 *The Constitution of Iowa provides that "no law of [* 158] the General Assembly, passed at a regular session, of a public nature, shall take effect until the fourth day of July next after the passage thereof. Laws passed at a special session shall take effect ninety days after the adjournment of the General Assembly by which they were passed. If the General Assembly shall deem any law of immediate importance, they may provide that the same shall take effect by publication in newspapers in the State." Under this section it is not competent for the legislature to confer upon the governor the discretionary power which the constitution gives to that body, to fix an earlier day for the law to take effect.5 1 State v. Ellis, 17 La. Ann. 390, 392. * State v. Judge, 14 La. Ann. 486; Thomas. Scott, 23 La. Ann. 689. In Maryland a similar conclusion is reached. Parkinson v. State, 14 Md. 184. Peterman v. Huling, 31 Penn. St. 432. 4 Art. 3, § 26. See Hunt v. Murray, 17 Iowa, 313. 5 Scott v. Clark, 1 Iowa, 70; Pilkey v. Gleason, 1 Iowa, 522. [*159] CHAPTER VII. OF THE CIRCUMSTANCES UNDER WHICH A LEGISLATIVE ENACTMENT MAY BE DECLARED UNCONSTITUTIONAL. We have now examined somewhat briefly the legislative power of the State, and the bounds which expressly or by implication are set to it, and also some of the conditions necessary to its proper and valid exercise. In so doing it has been made apparent that, under some circumstances, it may become the duty of the courts to declare that what the legislature has assumed to enact is void, either from want of constitutional power to enact it, or because the constitutional forms or conditions have not been observed. In the further examination of our subject, it will be important to consider what the circumstances are under which the courts will feel impelled to exercise this high prerogative, and what precautions should be observed before assuming to do so. It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the constitution, is not conferred upon it. The constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in 1 Bates v. Kimball, 2 Chip. 77; 1 H. & J. 236; Hawkins v. Governor, Bailey v. Philadelphia, &c. R. R. Co., 1 Ark. 570; People v. Governor, 29 4 Harr. 402; Whittington v. Polk, Mich. 320; s. c. 18 Am. Rep. 89. some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the constitution as the paramount law, whenever a legislative * enactment comes in conflict with it.1 But [* 160] the courts sit, not to review or revise the legislative action, but to enforce the legislative will; and it is only where they find that the legislature has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assume to act and to render judgments or decrees without jurisdiction. "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden. by the constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law."2 Nevertheless, in declaring a law unconstitutional, a court must necessarily cover the same ground which has already been covered by the legislative department in deciding upon the propriety of enacting the law, and they must indirectly overrule the decision of that co-ordinate department. The task is therefore a delicate one, and only to be entered upon with reluctance and hesitation. It is a solemn act in any case to declare that that body of men to whom the people have committed the sovereign function of making the laws for the commonwealth, have deliberately disregarded the limitations imposed upon this delegated authority, and usurped power which the people have been careful to withhold; and it is almost equally so when the act which is adjudged to be unconstitutional appears to be chargeable rather to careless and improvident action, or error in judgment, than to intentional disregard of obligation. But the duty to do this in a proper case, though at one time doubted, and by some persons persistently denied, it is now generally agreed that the courts cannot properly decline, and in its performance they seldom fail 1 Rice v. State, 7 Ind. 334; Blood 2 Lindsay v. Commissioners, &c., good r. Mohawk and Hudson Railroad 2 Bay, 61. Co., 18 Wend. 53. |