New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-03


Some subordinate questions have been argued, but
the views above expressed, II correct dispose Of the
We Of the opinion that the Judgment Of the
Supreme Court should be affirmed, and it Is accord
ipgly affirmed
Comstock, j., and Brown, j., dissented.
OPINION OF JUDGE SHANKLANDs
By SHAxKLASD, 1.-THE act of the Legislature en-
titled Gan Act to establish Metropolitan Police Dis
"trict and to provide for the government thereof
lie, by these proceedings, alleged to be uneonstitu-
tiona That act having received the sanction OF tho
Legislature and executive department of the Govern-
ment, is clothed with all the formsof law Neverthe-
less if its pre- visions are directly, or BY necessary
IMPLICATION, repugnsnt to the Constitution, Il u The
province and duty Of the Courts so to declare it. Bsk
if the law should be found to be withia tho coups-
tency Of the Legislature, however much we may
doubt the policy wsdom Of the Enactment it d oar
duty to uphold it, and vndicate the Legislative power.
IT needless to ray the Judicial records OF this Court
show that we have never shrunk from the perform.
ance of this duty on Just occasions.
The Constitution vests all legislative power IN the
Senate and Assembly, with certain restrictions ana
fself Independent Of those limitations the legisa-
tive power Is Omnipotent within its proper sphere.
The Legislature in this respect + the direct Iepreseo-
res of their power. Hence, the limitations OF the
Constitution not much limitations OF the Legs
of the power Of the people themselves, self
imposed, by the constitutional compact. When the
court declares law unconstitutional il in effect de-
clares that the sovereign power Of the people has 70
far been abdicated by themselves This consideration
has led the courts in all governments which are based
the theory that all power resides In the people, to
give strict construction 10 compacts which deprive
the people of this sovereign power 1t will not DO
presumed that they intended to abdcate heirpower,
unless they have declared in express terms or bI
necessary. implication.
These principles are fundamental, conservative
upon the reserved rights and power Of the people.
Hence the Courts have frequently and uniformly
declared, that they will not adjudicato law uncou-
stutopal when it 10 to be made by differences az
presumptions only, or when the question sssts in
doubt.
Apy other rule of construction would bring the egs.
Iative and judicial branches Of Government into col
lision, to the ruin Of one or both.
The wisdom Of the conservative maxims Of tho
Courts are further exhibited by the consider sioo
that the Legislature are chosen at fre, ,ueptIy-
occurring elections, and for short terms. Hence. il
they in expressing the wants OF the oeope or ex.
coed their powers the error of NAV be quietly
and quickly corrected oy the people themselves,
But if this Court waDders rom its iudicisl orbit and
in its progress coides with coordinate power when
moving in its political sphere, who. shall restore the
system 70 harno and regulate its dynamical forcesi
Such coisoE mpsi terminate either In Judicial revo-
iu,ion, or rev constitutional cOmpacts.
Ire APPELLANTS counsel base their objection to the
~" mainly upon its supposed repugnancy to the SEQ
ond section OF the tenth article OF the Constitution,
which declares that "Ali county officers whose cleo
on or appointment is not provided for by this Con-
"stituon shall be elected by the electors Of the re-.
"spectve counties or appointed by the Boards Of Su-
"pervsors, other county authorities, the Iegs
"lature shall direct. All city, town and village
officers, whose election or appointment Is not pro-
yided for by this Constitution, shall be elected By
the electors OF such cities towns and villages or Of
division thereof or appointed BY such author
itfes thereof the Legislature shall designate for
hat fhara f}icers vhnsae eli finn r
appointment is not provided for by this Constitu-
"tion and ali officers whose offices may be hereafter
"created by law, shall be elected by the people or
This objection, when reduced 10 Its last analysis, q
that the officers created by the act in question should
have been directed to be elected by the people OF tho
district or appointed by the local authorities hereof
and It does not but eonfers that power upon tho
Executive of the State it violates the Constitution In
respect Of the mode Of appointment. To this o9ec-
tiOn il Is answered that these officers are neither
county town city, village officers, but paramount,
in respect of territorial limits, and jurisdiction, and
duties, to any Of them.
And we are Of opinion this answer is legitimate:
The limits Of the Metropolitan Police District extend
contiguous cities and intervening rivers and hsr6o.
Within this extended district all the lesser civil dvs
ions offhe State are for the purpose Of police reguls
ton ard action, oberated but left intact fer gu osncr
elect or appoint their local officers as heretofore.
cannot say therefore, that the provisions Oh tne C9n-
stituon. in this respect have been disturbed. IN
deed il is certain they have not But It Is said that
the Legislature may erect districts Of territory.
other than those mentioned in the s'fy
may defeat the intentions Oh thst instrument N
office. This Argument may have much force
TO Drove the Constitution defective in its pro-
visions against its own subyersion by the people
Themselves, by virtue Of their reserved legislative
power. But il does not advance step in proving
the power duty Of this Court to nterpose the judi
cial sbie ID between the people and the Constitution,
when the latter has been Left defective, either inten:
tionslly inadvertently. We cannot make jndic,sa
supplements 10 that solemn compact We are the DE-
posifores Of no such power. Bat the possibility Of
infringing upon the existing manner Of eecng or ap-
pointing officers is greatly overstated by counsel IN
all the three great departments of Govevnment--the
executive legislative ard udiciathe cces, and the
mode Of electiDg the eboers to Gil them are liked y
the Constitution in such clear and definite language
as 10 exclude all otner Offices and modes Of appoint
nent 10 competition with substitution fer them. Il
declares that the legislative power Of the State snsu
be vested in q Senate and Assembly Article . secuoa
~ Ul,a .vann,;xa oouar shafl he vested Gov