The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-03
OPINION OF JUDGE BROWN AGAINST THE
CONSTIrUTIONALITY OF THE BILL.


sent nom much OF their reasoning, and from their legal
conclusions. dissent from them because they sanction
exercise Of legislative power before exered In
this aie-a power which deprives portion OF Its people
Of rights hitherto deemed to DO Of tho utmost vaueho
right 70 select their own local officers and TO conduct their
local admnistraiion and which Ia In eject subversvc
Of the form OF framed under the constitution
At the consultation which ensued upon the close Of the
augment, my brethren, with . single exception, seeing
constitutional impediment, expressed their opinions in
favor Of tho validity Of the act Of tho 5,h Of APRIL 1857 70
establish Metropolitan Police District, and to provide for
the government thereof Nothing has since occurred 70
reverse that opinion recognize their greater learning,
their wsdom their riper Judgment; and bow be
fore heir superior authority Yet cannot surrender tho
convict ons Of my own mnd-couvicops carefully and
formed. and sincerely aud consccnuousy
tertsined. And IN vndcation Of tho dissent which an
constrained " expr propose TO enter into such an
amna ion of the constitutional power Of the Legislature TO
pass ths Set the pressure Of my daily employ mens,
and the prSaesd % oos Of ns CSS nave t@ s
express words Of The oonstkaion, from is spirit and
manifest nienhor-from the objects TO BIO attained BY
its various professionalism the adjudicattons OF the
Courts and the commentaries Of leaned VII
teri, 10 disprove, II can, The existence Of the
Of s s and
rights only, there considerations which would con
strain me 10 silence Bat pretending, a. do, tina. IL
foresee and the consequences Of which none can
estimAie 6iDk right 70 place side ~ side with The OBJ
mons given In ai nance Of It's oroe and validity mo
ascent
Limitations upon legislative power Is one Of the pur
u'e, unqualified grant Of the power 70 make laws implies
the po1er To do whatever the sovereign people them.
The government as wen a every other subject to Be- a.
fected by law, at the disposa! Of the Legislature
Without the limitations and restraints usually
Ssy, aud the dsriSut,oa Of is powers and The
an idle ceremony The right Of self government in the
local bodice and the power OF the people OF those comnu
mites 10 select The local officers and conduct the local Cd
muistraona right Of very ancient origin, and hitherto
deemed 70 be OF nesmablo value, would utterly disappear
exist only at the pleasure OF the Legislature These Ii
words are not essential TO create valid Limitation. II
may appear and result by necessary implication aud have
al me . S oD ss sy
authority "Necessary imp icatio,," says Lord don,
"means rot natural necessity, but 90 strong probability
puted cannot DO supposed (wilkinson vs. Adams We
sey and Besmss, 1867 at anlestablnhed rule In the
to be Seduced from view Of The Whole and Of every
part OF statute, 70 be taken and com pared together
The real intention, when actually ascertaned, will
teners ssd rin po.ts<m q Kent Com, 1922 By
the ID article Of the constitution the legislative po r.
nate and Assembly il d vested nowhere else. And 90
whenever laws have been made dependent upon the vote
Of The people e{ have been held S tbs Court SuS, 80
there s, .sy. ea b The
plea So The second section Of the sixth article de-
cares there shall DO Court OF Appe. and the third sec
having general jurisdiction In law and equity II 10 mo-
where said there shall NOT be other courts with IKE
plain g .dm Or doubt Hence rosu ron ibis rule Of
construction that what the people have done In tho funda
mental law tho Legislature shall mot do, and when
Etar
Of government, such ~ making laws administering ju.
iioe selecting cocrs the legislature prohibited
orsss be o. o ,ss sor
and that a. Circuit JUICE. requires express oousu
tuopai authority 70 do Ibis, and nowhere said IL sbai
not be done AMI why may 70 NOT be dopef Because the
prohibition rcsuss from tho seventh section Of the four
ieenb Article vhch declares thas s osioss Of CaADcslor
and Crcch Judge arc abolshed from and After sivon
dvy. 30 The insusuns curt for The sdminssrAou Of
justice would be within the powers usually exercked by
lsss!.'ive bodies and nos isibiddden IN EXPIRE.
outside q the Incorporated cities clearly implied from
ho authority given In The ourtcenh section Of the sixth
rsdicuon may be established by The Legislature cities"
The principle may be stated In this form: rnSi toe
created within certain svsu civil divisions Of tho ssss. or
thai certain power and jurisdictions shall DO eIerced by
certain courts or officers Of tho sA h equivalent N d.
rect prohibition aganst cxca Ing similar Institution. eso
where oonfcrripg similar powers and urdicton upon
o,her courts css For authority refer 70 II Coolies
VIM. zoo; Brew 500 COZ, 500; Cohen va hon f,ord
r. 2o6; ssradiing vs. Morgan; y. & Va More; 9 snrys
R Of so provide rove
for . peope-for . community Of mon just collected
together and without civil government Was tho amend
subsantsi and material Institutions and forms Of which
had como down 10 M from English ancestors. They
embodied the ,sason The wisdom .nd espstenoe Of many
By long usage, BY tradition ard the poblest historical
sssocaons II the object Of The organic instrument
ect ,hsm BY the knowledge and The Suggestions Of later
times: not 70 impair their strength doform their fair
n.s me bsm IN ,hs u vsch sucn
terms and expressions were understood II The time vN
made; and when speaks Of Insutuuons Of oG,eu. Of
htBs which senned By hs ters and forms Of ex
preston which n enploya MS rule Of interpretation,
. s. .ossrusd :. : frsss or Fundamental iss Of 90
cssAbahed By the people sccovdss 70 their IN
free pleasure and sovereign VIII ne 20 sers whic, arc
oonferrsA the restrictions aich imposei, tho suiao
rites which exercscd, the orgAnxsson and dhuibu
ton thereof which are provided, are In esoh case for
AMI not FOR he prsai or disnsy q the rulersJ
(ssory on The Constitution, zoo When the pro
sent instrument vas formed the cntre terrisovy OF he
STATE separated and appropriated by hs civil d.
vislons lie counties duss and osns rhey were estao-
shed BY ues l. asd q chapter q pars I, Of The Nc.
vsed slaistes Viii n statute adopsd By section ~ Of
the LIST article OF hs copsatuon. Some Of thcse civil al
vsions are referred 70 In many Of liz Arcerln thai In
rssp-cs 70 the elective franchise, In " judicial and lse.
tve articles that Nrnine oorpos anons and IN thai,
aso which provides for the election and appsntment OF
officers These civil divisions ooeval with the Cover IN.
meut The State has never existed . moment without
them All thoughts and notions Of civil government
nsepsraby asyoated with les cities and towns
They permanent eleDents In Tie frame OF the gwen
nen and 90 treated In The Instrument that creates ~
Upcn the paipest russ OF Interpretation they are 70 be
regarded q insuoIIoas sfshe sss.e, durable and inie
suucsls BY any power ess Than hal which gave being
10 the organic lac.
fSey are subec 70 control and regulation BY bo Legs
laiurc may enlarge circumscrlbe their territorial
it increase diminish their numbers separate them
Into parts, and some Of tho parts " parts q oshcr
but they must SIN aSume the form and be known and
governed only counties, cities ovns because their
distinctive character and attributes caupos be CD anget or
destroyed without coafoundng The entire scheme OF civil
government provided IN the insuument The S,sie At
large b, and has been, aggregate Of these lcAl
bodies They have habituaiy and uninsvrupaedy sxer
cieed many Of the powers and functions Of government
These assus lead me 70 the ooDcusiou that vs
designed 10 place these civil divisions and The poves
appointment election and lorai adminisvaton vhion
The people thea exercised beyond The reach q essnve
abrceauon and destruction. We learn from nao.,
stone and the eemeutary vriter, that me civi
divisions Of Eghnd-in counties HUNDREDS u.s 49,