Iowa voter. [volume] (Knoxville, Iowa) 1867-1874, 1870-02-17
Judge Coles Opinion.


then, it seems to me-, that neither OF
these sections apply to thecase under
consideration, and hence they do not
and cannot afford any strength to the
argument made by the Chief Justice.
But the majority opinions are
grounded upon what is not in the
Constitution, but whicil is supposed
to have an existence somewhere and
To be referred to in the last section OF
the Bill ofIights by the words "this
enumeration Of rights shall not be
construed to impair or deny others
retained by the, people," For my
self, think that this section Of the
constitution does not provide or
establish any additional or further
Limitation upon the Legislative power.
And, indeed, ] think that If this
section had been omitted entirely
from the constitution, the fact it
declares would have had just as
potential an, existence, as it now has.
In other words, that by a uniform
rule Of interpreting constitutions,
they are construed as not denying or
impairing rights retained by the
people, other than those enumerated
in them. lie sssa asqsd ,ydH
But deny, most confidently, that
Under this provision, whether ex-
pressed or implied, courts of law
snayiYightfully declare an act of the
legislature unconstitutional and void,
as being in conflict with lib. 10 50
Jold, is to place the legislative de-
.partment at the feet of the Judicial,
and to render the immediate repre-
sentatives Of the people powerless to
protect them in their rights, or from
the enroachments Of judicial power.
III the views Of the majority are
sound, then it is certainly true, that
our constitution does not define the
powers of the respective departments
Of our government, but leaves them
to the necessarily uncertain, as, ever
changing, measurement Of Judicial
discretion. And this, l think, fairly
illustrates the two fundamental errors
Of the majority: First, in surprising
that there is IN unwritten c0nstitu-
ton by which courts may increase
the legislative power; and Second, in
supposing that the courts are the
only protectors, though not in any
just sense the representatives, Of the
people-that the people must look to
the courts, and not to the legislature,
to relieve them from actual or sup
posed unwise legislation. 1t Is well
settled that statute cannot be de-
clared void on the ground of its vio-
lating fundamental principles of
republican government, when it does
not come in conflict with written
constitutional provisions. People v.
Mahony, 10, Mich. 4sl. People v.
Gallaghan, i, Mich. 244.
FIFTH. Taxation Is an attribute
Of sovereignty, which is, under our
form of government, entrusted ex-
clusively to the legislature, and as
was said by Chief Justice Marshall
IN the case Of Brown V. McCulloch,
4th Wheat, 42S, 'the only security
against the abuse Of this power is
found in tile structure Of the govern
ment itself In imposing q tax the
legislature acts upon its constituents.
This il, in general, sufficient secu-
rity against enormous and oppressive
taxation. The people Of State,
therefore, give to their government
right Of taxing themselves and
other property; and as the exigencies
Of the government cannot be limited,
they prescribe no limits to the exer-
else Of this right, resting confidently
on the interest Of the legislature, and
0nthe influence Of the constituents
over their representative, to guard
them against its abuse; and again,
the same pie-eminent Judge said, in
Providence Bank v. Billings, 4th
Peters, 5G1, "This vital power may be
abused; but the interest, wisdom, and
Justice Of the representative body,
and Its relation with its constituents,
furnish the only security against un-
tnstand excessive taxation, as well
as against unwise taxatipn.,' S
The legislature Being thus entrust-
ed with the unlimited power of tax
atipn, which It may be conceded, is
only rightfnllyor wiselyto DC, exer-
cised for public purposes, is necessa-
fly made the sole and Anal Judge Of
the fact whether the purpose Is public
oronot; and the courts cannot, with
6utarrogatfng to themselves powers
With which they are not constitu-