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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.1

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 power which may be exercised under them. The government of the United States 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. “The law-making power of [* 174] the * State,” it is said in one case,“ recognizes no re

straints, and is bound by none, except such as are imposed by the constitution. That instrument has been aptly termed a

1 People v. New York Central Railroad Co., 34 Barb. 138 ; Gentry v. Griffitb, 27 Texas, 461. And see the cases cited, ante, p. 168, note 4.

? 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. An. 190; Walpole o. 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.

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.” 1

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 disregarded, or some express command which has been disobeyed. Prohibitions are only important where they are in the nature of exceptions to a general grant of power; and if the authority to do an act has not been granted by the sovereign to its representative, it cannot be necessary to prohibit its being done. If in one department was vested the whole power of the government, it might be essential for the people, in the instrument delegating this complete authority, to make careful and particular exception of all those cases which it was intended to exclude from its cognizance ; for without such exception the government might do whatever the people themselves, when met in their sovereign capacity, would have power to do. But when only the legislative power is delegated to one department, and the judicial to another, it is not important that the one should be expressly forbidden to try causes, or the other to make laws. The assumption of judicial power by the legislature in such a case is unconstitutional, because, though not expressly forbidden, it is nevertheless * inconsistent with the provisions which have conferred (* 175] upon another department the power the legislature is seeking to exercise. And for similar reasons a legislative act which should undertake to make a judge the arbiter in his own controversies would be void, because, though in form a provision for the exercise of judicial power, in substance it would be the crea

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tion of an arbitrary and irresponsible authority, neither legislative, executive, nor judicial, and wholly unknown to constitutional government." It could not be necessary to forbid the judiciary to render judgment without suffering the party to make defence ; because it is implied in judicial authority that there shall be a hearing before condemnation. Taxation cannot be arbitrary, because its very definition includes apportionment, nor can it be for a purpose not public, because that would be a contradiction in terms. The right of local self-government cannot be taken away, because all our constitutions assume its continuance as the undoubted right of the people, and as an inseparable incident to republican government. The bills of rights in the American constitutions forbid that parties shall be deprived of property except by the law of the land; but if the prohibition had been omitted, a legislative enactment to pass one man's property over to another would nevertheless be void. If the act proceeded upon the assumption that such other person was justly entitled to the estate, and therefore it was transferred, it would be void, because judicial in its nature; and if it proceeded without reasons, it would be equally void, as neither legislative nor judicial, but a mere arbitrary fiat. There is no difficulty in saying that any such act, which under pretence of exercising one power is usurping another, is opposed to the con

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Post, 410-413, and cases cited. 2 Post, 353-4. On this subject in general, reference is made to those very complete recent works, Bigelow on Estoppel and Freeman on Judgments.

3 Post, ch. 14. And see Curtis. v. Whipple, 24 Wis. 350; Tyson v. School Directors, 51 Penn. St. 9; Freeland v. Hastings, 10 Allen, 575; Opinions of Judges, 58 Me. 590; People' v. Bacheller, N.Y. Court of Appeals, Albany Law Jour. vol. 8, p. 120; Lowell v. Boston, Sup. Court of Mass., not yet reported.

* People v. Mayor, &c. of Chicago, 51 III. 31; People v. Hurlbut, 24 Mich. 44.

6 Bowman v. Middleton, 1 Bay, 252; Wilkinson v. Leland, 2 Pet. 657; Terrett v. Taylor, 9 Cranch, 43; Ervine's Appeal, 16 Penn. St. 266.

It is now considered an universal and fundamental proposition in every well-regulated and properly administered government, whether embodied in a constitutional form or not, that private property cannot be taken for a strictly private purpose at all, nor for public without a just compensation ; and that the obligation of contracts cannot be abrogated or essentially impaired. These and other vested rights of the citizen are held sacred and inviolable, even against the plenitude of power in the legislative department.” Nelson, J., in People v. Morris, 13

” Wend. 328.

stitution and void. It is assuming a power which the people, if they have not granted it at all, have reserved to themselves. The maxims of Magna Charta and the common law are the interpreters of constitutional grants of power, and those acts which by those maxims the several departments of government are forbidden to do cannot be considered within any grant or apportionment of power which the people in general terms have made to those departments. The Parliament of Great Britain, indeed, as possessing the sovereignty * of the country, has the power to disregard [* 176] fundamental principles, and pass arbitrary and unjust enactments ; but it cannot do this rightfully, and it has the power to do so simply because there is no written constitution from which its authority springs or on which it depends, and by which the courts can test the validity of its declared will. The rules which confine the discretion of Parliament within the ancient landmarks are rules for the construction of the powers of the American legislatures; and however proper and prudent it may be expressly to prohibit those things which are not understood to be within the proper attributes of legislative power, such prohibition can never be regarded as essential, when the extent of the power apportioned to the legislative department is found upon examination not to be broad enough to cover the obnoxious authority. The absence of such prohibition cannot, by implication, confer power.

Nor, where fundamental rights are declared by the constitution, is it necessary at the same time to prohibit the legislature, in express terms, from taking them away. The declaration is itself a prohibition, and is inserted in the constitution for the express purpose of operating as a restriction upon legislative power.1 Many things, indeed, which are contained in the bills of rights to be found in the American constitutions, are not, and from the very nature of the case cannot be, so certain and definite in character as to form rules for judicial decisions ; and they are declared rather

; as guides to the legislative judgment than as marking an absolute limitation of power. The nature of the declaration will generally enable us to determine without difficulty whether it is the one thing or the other. If it is declared that all men are free, and no man can be slave to another, a definite and certain rule of action is laid down, which the courts can administer; but if it be said that

Beebe v. State, 6 Ind. 518. This principle is very often acted upon when not expressly declared.

" the blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue,” we should not be likely to commit the mistake of supposing that this declaration would authorize the courts to substitute their own view of justice for that which may have impelled the legislature to pass a particular law, or to inquire into the moderation, temperance, frugality, and virtue of its members, with a view

to set aside their action, if it should appear to have been [*177] influenced by the opposite qualities. It is plain that * what

in the one case is a rule, in the other is an admonition addressed to the judgment and the conscience of all persons in authority, as well as of the people themselves.

So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not be exercised under any other. A statute which does not observe them will plainly be ineffectual.1

Statutes unconstitutional in Part.

It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or in regard to which the necessary conditions have not been observed, must be treated as a nullity. Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority ; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States or of the State. A statute may contain some such

1 See ante, p. 130 et seq. 2 Commonwealth v. Clapp, 5 Gray, 100. “A law that is unconstitutional is

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