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which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it, and when consequently a decision upon such question will be unavoidable.

III. Nor will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it. On this ground it has been held that the objection that a legislative act was unconstitutional, because divesting the rights of remainder-men against their will, could not be successfully urged by the owner of

the particular estate, and could only be made on behalf [ * 164] * of the remainder-men themselves.” And a party who has

assented to his property being taken under a statute cannot afterwards object that the statute is in violation of a provision in the constitution designed for the protection of private property. The statute is assumed to be valid, until some one complains whose rights it invades. “ Prima facie, and on the face of the act itself, nothing will generally appear to show that the act is not valid ; and it is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void, as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the legislature, therefore, concurs with well-established principles of law in the conclusion that such an act is not void, but voidable only; and it follows, as a necessary legal inference from this position, that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of the act, and not by strangers. To this extent only is it necessary to go, in order to secure and protect the rights of all. persons against the unwarranted exercise of legislative power, and to this extent only, therefore, are courts of justice called on to interpose.” 4

· Ex parte Randolph, 2 Brock. 447; Frees v. Ford, 6 N. Y. 177, 178; White v. Scott, 4 Barb. 56; Mobile and Ohio Railroad Co. v. State, 29 Ala. 573.

2 Sinclair v. Jackson, 8 Cow. 513. See also Smith v. McCarthy, 56 Penn. St. 359; Antoni v. Wright, 22 Grat. 857.

3 Embury v. Conner, 3 N. Y. 511; Baker v. Braman, 6 Hill, 47 ; Mobile and Ohio Railroad Co. 7. State, 29 Ala. 586. * Wellington, Petitioner, 16 Pick. 96. And see Hingham, &c., Turnpike Co.


IV. Nor can a court declare a statute unconstitutional and void, solely on the ground of unjust and oppressive provisions, or because it is supposed to violate the natural, social, or political rights of the citizen, unless it can be shown that such injustice is prohibited or such rights guaranteed or protected by the constitution. It is true there are some reported cases in which judges have been understood to intimate a doctrine different from what is here asserted; but it will generally be found, on an examination of those cases, that what is said is rather by way of argument and illustration, to show the unreasonableness of putting upon constitutions such a construction as would permit legislation of the objectionable character then in question, and to induce a more cautious and patient examination of the statute, with a view to * discover in it, if possible, some more just and [* 165] reasonable legislative intent, than as laying down a rule by which courts would be at liberty to limit, according to their own judgment and sense of justice and propriety, the extent of legislative power in directions in which the constitution had imposed no restraint. Mr. Justice Story, in one case, in examining the extent of power granted by the charter of Rhode Island, which authorized the General Assembly to make laws in the most ample manner, “so as such laws, &c., be not contrary and repug

, nant unto, but as near as may be agreeable to, the laws of England, considering the nature and constitution of the place and people there,” expresses himself thus: “ What is the true extent of the power thus granted must be open to explanation as well by usage as by construction of the terms in which it is given. In a government professing to regard the great rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would not lightly be presumed that the great principles of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter to the General Assembly of Rhode Island, as an exer

v. Norfolk Co., 6 Allen, 353 ; De Jarnette v. Haynes, 23 Miss. 600; Sinclair v. · Jackson, 8 Cow. 543, 579; Heyward v. Mayor, &c., of New York, 8 Barb. 489; Matter of Albany St., 11 Wend. 149; Williamson v. Carlton, 51 Me. 449 ; State v. Rich, 20 Miss. 393.

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cise of transcendental sovereignty before the Revolution, it can scarcely be imagined that that great event could have left the people of that State subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them — a power so repugnant to the common principles of justice and civil liberty – lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expressions of such an intention.” “We know of no case in which a legislative act to transfer the property of A. to B., without

his consent, has ever been held a constitutional exercise of [* 166] legislative power in any State in * the Union. On the

contrary, it has been constantly resisted, as inconsistent with just principles, by every judicial tribunal in which it has been attempted to be enforced.” 1 The question discussed by the learned judge in this case is perceived to have been, What is the scope of a grant of legislative power to be exercised in conformity with the laws of England ? Whatever he says is pertinent to that question ; and the considerations he suggests are by way of argument to show that the power to do certain unjust and oppressive

· Wilkinson v. Leland, 2 Pet. 657. See also what is said by the same judge in Terrett v. Taylor, 9 Cranch, 43. “ It is clear that statutes passed against plain and obvious principles of common right and common reason are absolutely null and void, so far as they are calculated to operate against those principles.” Ham v. McClaws, 1 Bay, 98. But the question in that case was one of construction; whether the court should give to a statute a construction which would make it operate against common right and common reason. In Bowman v. Middleton, 1 Bay, 282, the court held an act which divested a man of his freehold and passed it over to another, to be void “as against common right as well as against Magna Charta.” In Regents of University v. Williams, 9 Gill & J. 365, it was said that an act was void as opposed to fundamental principles of right and justice inherent in the nature and spirit of the social compact. But the court had already decided that the act was opposed, not only to the constitution of the State, but to that of the United States also. See Mayor, &c., of Baltimore v. State, 15 Md. 376.


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 reasonable, and the right of the legislature to enact one of this description I am not


| Benson v. Mayor, &c., of New York, 10 Barb. 244.

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speculatist enough to question.” 1 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 power, it must be considered as practically absolute, whether it

i Goshen v. Stonington, 4 Conn. 225.

2. 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; State v. Kruttschnitt, 4 Nev. 178.

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