upon a field where it is impossible to set limits to its authority, and where its discretion alone will measure the extent of its interference.1

The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it 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, unless those rights are secured by some constitutional provision which comes within the judicial cognizance. The remedy for 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.2 The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon paints of right, reason, and expediency with the law-making power.3 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 power can be pointed out in the constitution, and the case shown to come within them.1

1

"If the legislature should pass a law in plain and unequivocal language, within the general scope of their constitutional powers, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative and judicial departments, dangerous to the well-being of society, or at least not in harmony with the structure of our ideas of natural government." Per Rogers, J., in Commonwealth v. McCloskey, 2 Rawle, 374. "All the courts can do with odious statutes is to chasten their hardness by construction. Such is the imperfection of the best human institutions, that, mould them as we may, a large discretion must at last be reposed somewhere. The best and in many cases the only security is in the wisdom and integrity of public servants, and their identity with the people. Governments cannot be administered without committing powers in trust and confidence." Beebe v. State, 6 Ind. 528, per Stuart, J. And see Johnston v. Commonwealth, 1 Bibb, 603; Flint River Steamboat Co. v. Foster, 5 Geo. 194.

2 Bennett v. Bull, Baldw. 74.

222.

Perkins, J., in Madison & Indianapolis Railroad Co. v. Whiteneck, 8 Ind.

Sill v. Village of Corning, 15 N. Y. 303; Varick v. Smith, 5 Paige, 137;

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 allowed very little force in the case, since the 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 Blackf. 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; Whittington v. Polk, 1 Harr. & J. 236 ; Norris v. Abingdon Academy, 7 Gill & J. 7; State v. Lyles, 1 McCord, 238; Myers v. English, 9 Cal. 341; Ex parte Newman, Ibid. 502; Hobart v. Supervisors, 17 Cal. 23; Crenshaw u. 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; Colton v. Commissioners of Leon County, 6 Flor. 610; State v. Robinson, 1 Kansas, 27; Santo v. State, 2 Iowa, 165; Morrison v. Springer, 15 Iowa, 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 Geo. 102; Van Horn v. Dorrance, 2 Dall. 309; Calder v. Bull, 3 Dall. 386; Cooper v. Telfair, 4 Dall. 18; Fletcher v. Peck, 6 Cranch, 128.

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 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.2 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.3

1 Wheeler v. Wall, 6 Allen, 558.

2 People v. Draper, 15 N. Y. 547.

* 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

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 unquestionably

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 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.

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 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

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, Ibid. 232; Wynehamer v. People, 13 N. Y. 391, per Comstock, J.; Ibid. p. 453, per Selden, J.; Ibid. p. 477, per Johnson, J.