operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the State, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the lawmaking power.2 Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions. upon the legislative authority can be pointed out in the constitution, and the case shown to come within them.3

1 Bennett v. Bull, Baldw. 74.

* Perkins, J., in Madison & Indianapolis Railroad Co. v. Whiteneck, 8 Ind. 222: Bull v. Read, 13 Grat. 98, per Lee, J.

3 Sill v. Village of Corning, 15 N. Y. 303; Varick v Smith, 5 Paige, 137; Cochran v. Van Surlay, 20 Wend. 365; Morris v. People, 3 Denio, 381; Wynehamer v. People, 13 N. Y. 430; People v. Supervisors of Orange, 17 N. Y. 235; People v. New York Central Railroad Co., 34 Barb. 138; People v. Toynbee, 2 Park. Cr. R. 490; Dow v. Norris, 4 N. H. 16; Derby Turnpike Co. v. Parks, 10 Conn. 522, 543; Hartford Bridge Co. v. Union Ferry Co., 29 Conn. 210; Holden v. James, 11 Mass. 396; Norwich v. County Commissioners, 13 Pick. 60; Dawson v. Shaver, 1 Black f. 206; Beauchamp v. State, 6 Blackf. 305; Doe v. Douglass, 8 Blackf. 10; Maize v. State, 4 Ind. 342; Stocking v. State, 7 Ind. 327; Beebe v. State, 6 Ind. 528; Newland v. Marsh, 19 Ill. 376, 384; Bliss v. Commonwealth, 2 Litt. 90; State v. Ashley, 1 Ark. 513; Campbell v. Union Bank, 6 How. Miss. 672; Tate's Ex'r v. Bell, 4 Yerg. 206; Andrews v. State, 3 Heis. 165; s. c. 8 Am. Rep. 8; Whittington v. Polk, 1 Harr. & J. 236; Norris v. Abingdon Academy, 7 Gill. & J. 7; Harrison v. State, 22 Md. 491; State v. Lyles, 1 McCord, 238; Myers v. English, 9 Cal. 341; Ex parte Newman, ib. 502; Hobart v. Supervisors, 17 Cal. 23; Crenshaw v. Slate River Co., 6 Rand. 245; Lewis v. Webb, 3 Greenl. 326; Durham v. Lewiston, 4 Greenl. 140; Lunt's Case, 6 Greenl. 412; Scott v. Smart's Ex'rs, 1 Mich. 306; Williams v. Detroit, 2 Mich. 560; Tyler v. People, 8 Mich. 320; Cotton v. Commissioners of Leon County, 6 Fla. 610; State v. Robinson, 1 Kansas, 27; Santo v. State, 2 Iowa, 165; Morrison v. Springer, 15 Fowa, 304; Stoddart v. Smith, 5 Binn. 355; Moore v. Houston, 3 S. & R. 169; Braddee v. Brownfield, 2 W. & S. 271; Harvey v. Thomas, 10 Watts, 63; Commonwealth v. Maxwell, 27 Penn. St. 456; Carey v. Giles, 9 Geo. 253; Macon and Western Railroad Co. v. Davis, 13 Geo. 68; Franklin Bridge Co. v. Wood, 14 Geo. 80; Boston v. Cummins, 16

[* 169] * V. If the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, neither can they do so because they appear to the minds of the judges to violate fundamental principles of republican government, unless it shall be found that those principles are placed beyond legislative encroachment by the constitution. The principles of republican government are not a set of inflexible rules, vital and active in the constitution, though unexpressed, but they are subject to variation and modification from motives of policy and public necessity; and it is only in those particulars in which experience has demonstrated any departure from the settled practice to work injustice or confusion, that we shall discover an incorporation of them in the constitution in such form as to make them definite rules of action under all circumstances. It is undoubtedly a maxim of republican government, as we understand it, that taxation and representation should be inseparable; but where the legislature interferes, as in many cases it may do, to compel taxation by a municipal corporation for local purposes, it is evident

*

that this maxim is applied in the case in a much restricted [*170] and very imperfect sense only, since the representation of the locality taxed is but slight in the body imposing the tax, and the burden may be imposed, not only against the protest of the local representative, but against the general opposition of the municipality. The property of married women is taxable, notwithstanding they are not allowed a voice in choosing representatives. The maxim is not entirely lost sight of in such cases, but its application in the particular case, and the determination. how far it can properly and justly be made to yield to considerations of policy and expediency, must rest exclusively with the law-making power, in the absence of any definite constitutional provisions so embodying the maxim as to make it a limitation upon legislative authority. It is also a maxim of republican government that local

Geo. 102; Van Horne v. Dorrance, 2 Dall. 309; Calder v. Bull, 3 Dall. 386; Cooper v. Telfair, 4 Dall. 18; Fletcher v. Peck, 6 Cranch, 128. 1 Wheeler v. Wall, 6 Allen, 558.

There are undoubtedly fundamental principles of morality and justice which no legislature is at liberty to disregard, but it is equally undoubted that no court, except in the clearest cases, can properly impute the disregard of those principles to the legislature. . . . This court can know nothing of public policy except from the constitution and the laws, and the course of administration and

...

concerns shall be managed in the local districts, which shall choose their own administrative and police officers, and establish for themselves police regulations; but this maxim is subject to such exceptions as the legislative power of the State shall see fit to make; and when made, it must be presumed that the public interest, convenience, and protection are subserved thereby.1 The State may interfere to establish new regulations against the will of the local constituency; and if it shall think proper in any case to assume to itself those powers of local police which should be executed by the people immediately concerned, we must suppose it has been done because the local administration has proved imperfect and inefficient, and a regard to the general well-being has demanded the change. In these cases the maxims which have prevailed in the government address themselves to the wisdom of the legislature, and to adhere to them as far as possible is doubtless to keep in the path of wisdom; but they do not constitute restrictions so as to warrant the other departments in treating the exceptions which are made as unconstitutional.2

decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must in general be addressed to the legislature. Questions of policy there are concluded here." Chase, Ch. J., in License Tax Cases, 5 Wall. 469.

1

1 People v. Draper, 15 N. Y. 547. See post, p. 191, 192.

* In People v. Mahaney, 13 Mich. 500, where the Metropolitan Police Act of Detroit was claimed to be unconstitutional on various grounds, the court say: "Besides the specific objections made to the act as opposed to the provisions of the constitution, the counsel for respondent attacks it on general principles,' and especially because violating fundamental principles in our system, that governments exist by consent of the governed, and that taxation and representation go together. The taxation under the act, it is said, is really in the hands of a police board, a body in the choice of which the people of Detroit have no voice. This argument is one which might be pressed upon the legislative department with great force, if it were true in point of fact. But as the people of Detroit are really represented throughout, the difficulty suggested can hardly be regarded as fundamental. They were represented in the legislature which passed the act, and had the same proportionate voice there with the other municipalities in the State, all of which receive from that body their powers of local government, and such only as its wisdom shall prescribe within the constitutional limit. They were represented in that body when the present police board were appointed by it, and the governor, who is hereafter to fill vacancies, will be chosen by the State at large, including their city. There is nothing in the maxim that taxation and representation go together which requires that the body paying the tax shall

[* 171] * 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."1 "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 dicta and some great authorities holding that acts contrary to the first

principles of right are void. The principle is unquestion[* 172] ably 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

alone 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 an act void on any such general objection." And see Wynehamer v. People, 13 N. Y. 429, per Selden, J.; Benson v. Mayor, &c., of Albany, 24 Barb. 256 et seq.; Baltimore v. State, 15 Md. 376; People v. Draper, 15 N. Y. 532; White v. Stamford, 37 Conn. 587. 1 People v. Fisher, 24 Wend. 220; State v. Staten, 6 Cold. 233.

1

But it is only in express

repeal a statute on that ground alone. 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 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 [* 173] 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

1 Cochran v. Van Surlay, 20 Wend. 381-383. See also People v. Gallagher, 4 Mich. 244; Benson v. Mayor, &c., of Albany, 24 Barb. 252 et seq.; Grant v. Courter, ib. 232; Wynehamer v. People, 13 N. Y. 391, per Comstock, J.; ib. p. 453, per Selden, J.; ib. p. 477, per Johnson, J.