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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 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. 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

1 Wheeler v. Wall, 6 Allen, 558; impolitic. Considerations of that sort Smith v. Macon, 20 Ark. 17.

2 "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 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

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.

All mere questions of expediency, and all questions respecting the just operations of the law within the limits prescribed by the constitution, were settled by the legislature when it was enacted." Ladd, J., in Perry . Keene, 56 N. H. 514, 530. And see remarks of Ryan, Ch. J., in AttorneyGeneral v. Chicago, &c. R. R. Co., 35 Wis. 425, 580.

People v. Draper, 15 N. Y. 547.
See post, pp. *191, *192.

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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.1

1 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 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.

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*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 un[* 172] questionably * 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 pro1 People v. Fisher, 24 Wend. 220; State v. Staten, 6 Cold. 233; Walker v. Cincinnati, 21 Ohio, N. s. 14.

ceeds: “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 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

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

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 . Courter, 24 Barb. 232; Wynehamer v. People, 13 N. Y. 391, per Comstock, J.; 13 N. Y. 453, per

Selden, J.; 13 N. Y. 477, per Johnson, J.

2 People v. New York Central Railroad Co., 34 Barb. 138; Gentry v. Griffith, 27 Tex. 461; Danville v. Pace, 25 Grat. 1; s. c. 18 Am. Rep. 663. And see the cases cited, ante, p. *168, note 3.

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.1 "The law-making power of [* 174] 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.'

*

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

Sill v. Village of Corning, 15 N. Y. 303; People v. Supervisors of Orange, 27 Barb. 593; People v. Gallagher, 4 Mich. 244; Sears v. Cottrell, 5 Mich. 257; 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
Penn. St. 119; Kirby v. Shaw, 19
Penn. St. 260; Weister v. Hade, 52
Penn. St. 477; Danville v. Pace, 25
Grat. 1, 9; s. c. 18 Am. Rep. 663.
2 Sill v. Corning, 15 N. Y. 303.

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