which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majority, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments, State and National, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments, are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A. and B. who were husband and wife to each other should be so no longer, but that A. should thereafter be the husband of C., and B. the wife of D. Or which should enact that the homestead now owned by A. should no longer be his, but should henceforth be the property of B. Whiting v. Fond du Lac, 25 Wis. 188; Cooley on Constitutional Limitations, 129, 175, 487; Dillon on Municipal Corporations, § 587."

In Munn v. Illinois, 94 U. S. 113, 124 (1876), WAITE, C. J. (for the court) said: "When the people of the United Colonies separated from Great Britain, they changed the form, but not the substance, of their government. They retained for the purposes of government all the powers of the British Parliament, and through their State constitutions, or other forms of social compact, undertook to give practical effect to such as they deemed necessary for the common good and the security of life and property. All the powers which they retained they committed to their respective States, unless in express terms or by implication reserved to themselves. Subsequently, when it was found necessary to establish a national government for national purposes, a part of the powers of the States and of the people of the States was granted to the United States and the people of the United States. This grant operated as a further limitation upon the powers of the States, so that now the governments of the States possess all the powers of the Parliament of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions.”

In Chic. & Grand Tr. Ry. Co. v. Wellman, 143 U. S. 339 (1891), on error to the Supreme Court of Michigan, a question involving the validity, under the Constitution of the United States, of a State law regulating the charges of a railroad corporation, had been raised on an agreed statement of facts, supplemented by the evidence of two witnesses. In sustaining the decision of the State court, which had refused to hold the law unconstitutional, the Supreme Court of the United States (BREWER, J.) said: "The Supreme Court of Michigan in passing upon the present case, felt constrained to make this observation: It being evident from the record that this was a friendly suit between the plaintiff and the defendant to test the constitutionality of this legislation, the Attorney-General, when it was brought into this court upon writ of error, very properly interposed and secured counsel to represent the public interest. In the stipulation of facts or in the taking of testimony in the court below, neither the AttorneyGeneral nor any other person interested for or employed in behalf of the people of the State took any part. What difference there might have been in the record had the people been represented in the court below, however, under our view of the case, is not of material inquiry.'

“Counsel for plaintiff in error, referring to this, does not question or deny, but says: The Attorney-General speaks of the case as evidently a friendly case, and Justice Morse, in his opinion, also so speaks of it. This may be conceded; but what of it? There is no ground for the claim that any fraud or trickery has been practised in presenting the testimony.'

We think there is much in the suggestion. The theory upon which, apparently, this suit was brought is that parties have an appeal from the legislature to the courts;

NOTE.

I. ADMINISTRATIVE RULES IN CONSTITUTIONAL LAW.

"THE following general propositions," it is remarked by Cooley (Principles of Constitutional Law, 2d ed. 152),1 “will be found to state the obligations of duty and of forbearance for such cases which are generally recognized.

"1. The duty to pass upon a question of constitutional law may devolve upon a court of any grade, and of either the Federal or the State jurisdiction. Wherever the question can arise in court of the conformity of a statute to the Constitution, the court to whom the question is addressed must in some manner dispose of it, and the power of the court to apply the law to the case necessarily embraces the power to determine what law controls. In the absence of authoritative precedents, there can be no other test of this than the judgment of the court. The validity of a Federal statute may therefore be a necessary question for consideration in a State court, and that of a State statute in a Federal court. Nevertheless, when the court to whom the question is addressed is not the court of last resort in respect thereto, it may well be expected to proceed with more than ordinary caution and hesitation, and to abstain altogether from declaring a statute invalid unless in the clearest cases, especially if, without serious detriment to justice, the decision can be delayed until the Superior Court can have opportunity to pass upon it. There may be cases where, by inadvertence or accident, a bill which has gone through all the forms required for valid legislation is, nevertheless, clearly and without question invalid; but except in such cases the spectacle of an

and that the latter are given an immediate and general supervision of the constitutionality of the Acts of the former. Such is not true. Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any Act of any Legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the Act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity, in the determination of real, earnest, and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legisla tive Act.

"These observations are pertinent here. On the very day the Act went into force the application for a ticket is made, a suit commenced, and within two months a judgment obtained in the trial court; a judgment rendered not upon the presentation of all the facts from the lips of witnesses, and a full inquiry into them, but upon an agreed statement which precludes inquiry into many things which necessarily largely enter into the determination of the matter in controversy. A single suggestion in this direction: It is agreed that the defendant's operating expenses for 1888 were $2,404,516.54. Of what do these operating expenses consist? Are they made up partially of extravagant salaries; fifty to one hundred thousand dollars to the president, and in like proportion to subordinate officers? Surely, before the courts are called upon to adjudge an Act of the Legislature fixing the maximum passenger rates for railroad companies to be unconstitutional, on the ground that its enforcement would prevent the stockholders from receiving any dividends on their investments, or the bondholders any interest on their loans, they should be fully advised as to what is done with the receipts and earnings of the company; for if so advised, it might clearly appear that a prudent and honest management would, within the rates prescribed, secure to the bondholders their interest, and to the stockholders reasonable dividends." - ED.

1 Quoted by permission of the author, and of the publishers, Messrs. Little, Brown, and Co., of Boston. - ED.

inferior magistrate, having merely police or other limited jurisdiction, assuming to pass judgment upon the legislation of his State or country, and declare it invalid, can only be ludicrous.1

"2. The judicial sense of propriety and of the importance of the occasion will generally incline the court to refuse a consideration of a constitutional question without the presence of a full bench of judges. With many courts this is a rule to which few exceptions are admitted, and those only which seem to be imperative.

"3. Neither, as a rule, will a court express an opinion adverse to the validity of a statute, unless it becomes absolutely necessary to the determination of a cause before it. Therefore, in any case where a constitutional question is raised, if the record presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, the court will adopt that course, 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. This course has not always been followed; but it has seldom occurred that a constitutional question has been considered settled, or been allowed to remain without further dispute and question where the opinion given upon it was rendered in a case not necessarily requiring it. Want of jurisdiction of the particular case is always reason why the court should abstain from expressing opinions on other questions which parties may attempt to raise.

"4. The court will not listen to an objection made to the constitutionality of an Act by one whose rights are not affected by it, and who consequently can have no interest in defeating it. For example, one who has received compensation for property appropriated by statute to a public use will not be suffered afterwards to dispute the constitutional validity of the statute. The statute is assumed to be valid until some one complains of it whose rights it invades. The power of the court can be invoked only when it is found necessary to secure and protect a party before it against an unwarranted exercise of legislative power to his prejudice.

"5. Nor can a court declare a statute unconstitutional and void when the objection to it is merely that it is unjust and oppressive, and violates rights and privileges of the citizen, unless it can be shown that such injustice is prohibited, or such rights and privileges guaranteed, by the Constitution. The propriety or justice or policy of legislation, within the limits of the Constitution, is exclusively for the legislative department to determine; and the moment a court ventures to substitute its own judgment for that of the legislature, it passes beyond its legitimate authority, and enters a field where it would be impossible to set limits to its interference, except as should be prescribed in its own discretion. 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. The question of the validity of a statute must always be one of legislative competency to enact it; not one of policy, propriety, or strict justice.

"6. Nor can a statute be declared unconstitutional merely because in the opinion of the court it violates one or more of the fundamental principles of republican liberty,

1 Some courts have intimated that only the superior courts should assume to deny validity to a statute. Ortman v. Greenman, 4 Mich. 291. Compare Mayberry v. Kelly, 1 Kans. 116. [It is a rule of practice in some States, that a single judge shall never hold a statute invalid. In Rhode Island (Pub. St. R. I., 1882, c. 220), it is provided that in cases before a magistrate or court other than the Supreme Court, on an objection to the constitutionality of a legislative Act, the court or magistrate shall hold the Act valid, and if judgment goes against the party raising this objection, the case shall be certified to the Supreme Court for its decision. An instance of this procedure is found in Com. v. Amery, 12 R. I. 64. — ED.]

unless it shall be found that those principles are placed beyond legislative encroachment by the provisions of the Constitution itself. The principles of republican government are not a set of inflexible rules, vital and active in the Constitution even when 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 that any departure from the settled course must work injustice and confusion, that it is customary to incorporate them in the Constitution in such a way as to make them definite rules of action and decision. The following are illustrations. The principle that taxation and representation go together is important and valuable, and should never be lost sight of in legislation; but, as commonly understood, it can never be applied universally without admitting every person to the elective franchise; for taxes in some form fall upon all, - the rich and the poor, the infant and the adult, the male and the female, and Federal taxes reach the unrepresented Territories as well as the represented States. So the principle that local affairs shall be managed in local districts, and that these shall choose their own local officers, constitutes one of the chief excellencies of our system of government; but in applying it the difficulty is at once encountered of determining what are local concerns and what general; and it may perhaps be found in a given case that the concerns that are set apart as local, if neglected or imperfectly performed, subject the whole State to embarrassment, so that State intervention becomes necessary. And it is obvious that, wherever a recognized principle of free government requires legislation for its practical application and enforcement, the body that passes laws for the purpose must determine, in its discretion, what are the needs of legislation and what its proper limits. The courts cannot take such principles as abstract rules of law, and give them practical force.

"7. When a question of Federal constitutional law is involved, the purpose of the Constitution, and the object to be accomplished by any particular grant of power, are often most important guides in reaching the real intent; and the debates in the Constitutional Convention, the discussions in the Federalist and in the conventions of the States, are often referred to as throwing important light on clauses in the Constitution which seem blind or of ambiguous import. We may discover from these what the general drift of opinion was as to the division line between Federal and State power on many subjects, and we can sometimes judge from that whether a particular authority lies on one side of the line or on the other. But we shall be misled if we attempt in this manner to judge of State legislative power when the limitations of the Federal Constitution are not in question. We cannot test the validity of any State statute by a general spirit which is supposed to pervade the State Constitution, but is not expressed in words. Presumptively, when the people of the State, by their Constitution, call into existence a legislative department, and endow it with the function of making laws, they confer upon it the full and complete legislative power, -as full and complete as the people, in the exercise of sovereignty, could themselves have wielded it, subject only to such restrictions as were by the same instrument imposed. 'The law-making power of the State 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 confine and restrain it. tutional 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 gov ernment. 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.' Presumptively, therefore, if an Act of the legislative department is not an encroachment upon executive or judicial power, it is valid. To show its invalidity, it is necessary to point out some particular in which, either in form or substance, it is inconsistent with the Constitution. The inconsistency may consist, either, (1) in the failure to observe some constitutional form which is made essential to a valid enactment, such as the taking of the final vote thereon by yeas and nays when the Constitution requires it; or (2) in the disregard of

Without the consti

an express prohibition, as where it consists in a special charter of incorporation when the Constitution forbids incorporation except under general laws; or (3) in the disregard of some fundamental right declared in the bill of rights, as would be a statute compelling support of sectarian worship or schools when the Constitution proclaims religious liberty. And in all these cases it is not the spirit of the Constitution that must be the test of validity, but the written requirements, prohibitions, and guaranties of the Constitution itself.

"8. A statute may sometimes be valid in part and invalid in other particulars. This often happens under State constitutions that require an Act to contain but one object which shall be expressed in the title. If in such a case the Act embraces two objects while the title expresses but one, the Act will be unconstitutional and void as to the one not so expressed. So in the absence of such a requirement the Act might be void as to one object because the legislation attempted was expressly forbidden by the Constitution, while in other particulars it was plainly within the legislative competency. The general rule therefore is, that the fact that part of a statute is unconstitutional does not justify the remainder being declared invalid also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislature would have passed the Act otherwise than as a whole. It is immaterial how closely the valid and invalid provisions are associated in the Act; they may even be contained in the same section, and yet be perfectly distinct and separable, so that the one may stand though the other fall. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. But if the intent of the Act is to accomplish a single purpose only, arome provisions are void, the whole must fail unless sufficient remains to effect the object without the invalid portion. And if they are so mutually connected with and dependent on each other as conditions, considerations, or compensations, as to warrant the belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the resi due independently, then, if some parts are unconstitutional, all the provisions that are thus dependent, conditional, or connected must fall with them.

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"9. A doubt of the constitutional validity of a statute is never sufficient to warrant its being set aside. It is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between e Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.' It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed, to presume in favor of its validity, until its violation of the Constitution is proved beyond all reasonable doubt.' To be in doubt, therefore, is to be resolved, and the resolution must support the law.

"This course is the opposite to that which is required of the legislature in considering the question of passing a proposed law. Legislators have their authority measured by the Constitution; they are chosen to do what it permits, and nothing more, and they take solemn oath to obey and support it. When they disregard its provisions, they usurp authority, abuse their trust, and violate the promise they have confirmed by an oath. To pass an Act when they are in doubt whether it does not violate the Constitution, is to treat as of no force the most imperative obligations any person can assume. A business agent who would deal in that manner with his principal's business would be treated as untrustworthy; a witness in court who would treat his oath thus lightly, and affirm things concerning which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgment of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts, and give it their support.1

[Perhaps more exactly, because it is the duty of the legislature to do this, and