has elapsed.1 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.2 * 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 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.5 1 Price v. Hopkin, 13 Mich. 318. See, however, Smith v. Morrison, 22 Pick. 430; Stine v. Bennett, 13 Minn. 153. 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. 2 Supervisors of Iroquois Co. v. Keady, 34 Ill. 293. An act for the removal of a county seat provided for taking the vote of the electors of the county upon it on the 17th of March, 1863, at which time the legislature had not adjourned. It was not expressly declared in the act at what 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. And it was also held in this case, 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. 3 Art. 4, § 28. 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. State v. Bailey, 16 Ind. 46. See further, as to this constitutional provision, Jones v. Cavins, 4 Ind. 305. The constitution of Wisconsin, on the other hand, provides 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.2 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.3 [*158] * The constitution of Iowa provides that "no law of 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." 4 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 Art. 7, § 21. Matter of Boyle, 9 Wis. 264. 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. 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. 50. 3 Clark v. Janesville, 10 Wis. 136. See further, Mills v. Jefferson, 20 Wis. 4 Art. 3, § 26. 5 Scott v. Clark, 1 Iowa, 70; Pilkey v. Gleason, ib. 522. [166] * CHAPTER VII. OF THE CIRCUMSTANCES UNDER WHICH [* 159] 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 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 * en [* 160] actment comes in conflict with it.1 But 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 of proper support if they proceed with due caution and circumspection, and under a proper sense as well of their own responsibility, as of the respect due to the action and judgment of the law-makers.3 1 Rice v. State, 7 Ind. 334; Bloodgood v. Mohawk and Hudson Railroad Co. 18 Wend. 53. 2 Lindsay v. Commissioners, &c., 2 Bay, 61. There are at least two cases in American judicial history where judges have *I. In view of the considerations which have been sug- [* 161] gested, the rule which is adopted by some courts, that they - . been impeached as criminals for refusing to enforce unconstitutional enactments. One of these the case of Trevett v. Weedon, decided by the Superior Court of Rhode Island in 1786 — is particularly interesting as being the first case in which a legislative enactment was declared unconstitutional and void on the ground of incompatibility with the State constitution. Mr. Arnold, in his history of Rhode Island, vol. 2, ch. 24, gives an account of this case; and the printed brief in opposition to the law, and in defence of the impeached judges, is in possession of the present writer. The act in question was one which imposed a heavy penalty on any one who should refuse to receive on the same terms as specie the bills of a bank chartered by the State, or who should in any way discourage the circulation of such bills. The penalty was made collectible on summary conviction, without jury trial; and the act was held void on the ground that jury trial was expressly given by the colonial charter, which then constituted the constitution of the State. Although the judges were not removed on impeachment, the legislature refused to re-elect them when their terms expired at the end of the year, and supplanted them by more pliant tools, by whose assistance the paper money was forced into circulation, and public and private debts extinguished by means of it. Concerning the other case, we copy from the Western Law Monthly," Sketch of Hon. Calvin Pease," vol. 5, p. 3, June, 1863: “The first session of the Supreme Court [of Ohio] under the constitution was held at Warren, Trumbull County, on the first Tuesday of June, 1803. The State was divided into three circuits. The Third Circuit of the State was composed of the counties of Washington, Belmont, Jefferson, Columbiania, and Trumbull. At this session of the legislature, Mr. Pease was appointed President Judge of the Third Circuit in April, 1803, and though nearly twenty-seven years old, he was very youthful in his appearance. He held the office until March 4, 1810, when he sent his resignation to Governor Huntingdon. . . . During his term of service upon the bench many interesting questions were presented for decision, and among them the constitutionality of some portion of the act of 1805, defining the duties of justices of the peace; and he decided that so much of the fifth section as gave justices of the peace jurisdiction exceeding $20, and so much of the twenty-ninth section as prevented plaintiff's from recovering costs in actions commenced by original writs in the Court of Common Pleas, for sums between $20 and $50, were repugnant to the Constitution of the United States and of the State of Ohio, and therefore null and void. . . . The clamor and abuse to which this decision gave rise was not in the least mitigated or diminished by the circumstance that it was concurred in by a majority of the judges of the Supreme Court, Messrs. Huntingdon and Tod. . . . At the session of the legislature of 1807-8, steps were taken to impeach him and the judges of the Supreme Court who concurred with him; but the resolutions introduced into the house were not acted upon during the session. But the scheme was not abandoned. At an early day of the next session, and with almost indecent haste, a committee was appointed to inquire into the conduct of the offending judges, and with leave to exhibit articles of impeachment, or report otherwise, as the facts might justify. The |