question; and the considerations he suggests are by way of argument, to show that the power to do certain unjust and oppressive acts was not covered by the grant of legislative power. It is not intimated that if they were within the grant, they would be impliedly prohibited because unjust and oppressive.

In another case arising in the Supreme Court of New York, one of the judges, in considering the rights of the city of New York to certain corporate property, has said: "The inhabitants of the city of New York have a vested right in the City Hall, markets, water-works, ferries, and other public property, which cannot be taken from them any more than their individual-dwellings or storehouses. Their rights, in this respect, rest not merely upon the constitution, but upon the great principles of eternal justice which lie at the foundation of all free governments." The great principles of eternal justice which affected the particular case had been incorporated in the constitution, and it therefore became unnecessary to consider what would otherwise have been the rule; nor do we understand the court as intimating any opinion upon that subject. It was sufficient for the case,

to find * that the principles of right and justice had been [* 167] recognized and protected by the constitution, and that the people had not assumed to confer upon the legislature a power to deprive the city of rights which did not come from the constitution, but from principles antecedent to and recognized by it.

So it is said by Hosmer, Ch. J., in a Connecticut case: "With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist what I know is not only an incredible supposition, but a most remote improbability— a case of direct infraction of vested rights, too palpable to be questioned and too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the control of the judiciary. If, for example, a law were made without any cause to deprive a person of his property, or to subject him to imprisonment, who would not question its legality, and who would aid in carrying it into effect? On the other hand, I cannot harmonize with those who deny the power of the legislature, in any case, to pass laws which, with entire justice, operate on antecedent legal rights. A retrospective law may be just and 1 Benson v. Mayor, &c., of New York, 10 Barb. 244.

reasonable, and the right of the legislature to enact one of this description I am not speculatist enough to question." The cases here supposed of unjust and tyrannical enactments would probably be held not to be within the power of any legislative body in the Union. One of them would be clearly a bill of attainder; the other, unless it was in the nature of remedial legislation, and susceptible of being defended on that theory, would be an exercise of judicial power, and therefore in excess of legislative authority, because not included in the apportionment of power made to that department. No question of implied prohibition would arise in either of these cases; but if the grant of power had covered them, and there had been no express limitation, there would, as it seems to us, be very great probability of unpleasant and dangerous conflict of authority if the courts were to deny validity to legislative action on subjects within their control, on the assumption that the legislature had disregarded justice or sound policy. The moment a court ventures to substitute its own judgment for that of the legislature, in any case where the constitution has vested the

legislature with power over the subject, that moment it [* 168] enters * 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.2

The rule of law upon this subject appears to be, that, except where the constitution has imposed limits upon the legislative

1 Goshen v. Stonington, 4 Conn. 225.

"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 barmony 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; State v. Kruttschnitt, 4 Nev. 178.

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, 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 law-making power. 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

Bennett v. Bull, Baldw. 74.

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

222.

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 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; 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 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

[* 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.1 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, con

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.

4 Wheeler v. Wall, 6 Allen, 558.

venience, 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

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 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 can