New Orleans Republican., 1871-04-06

s&O ..se u GkSgI ksSsgNIsss, sa 0sx-s
- ~ fsdSssi soaalif if1tloa prohIbits ex-
i,ssssiy tke exersiss Of certain powers and,
"a imuiioofion, othsrs; true, that the oonst-
fsfion AZ every State In tbs Union contains
numerouo spcci6c restrictions and kmita-
tions expressive of the great princi--
plea of the magna chmta and .f e
modera liberty .till AS NJ; .a Chief
caee Of Sharpless vs. Philadelphia: ''Be-
yond this there lies vast field Of power
granted to the Lsgislature by the general
words Of the constitution, and not reserved,
prohibited or given away - others. Of
this field the General Assembly is entitled
q full and uncontrolled possession. Their
use of il can be limited only by their own
discretion. The reservation Of some powers
does not imply restriction on the exercise
Of others which are not reserved. On the
contrary, it il . universal rule of cOnstruc-
ton, founded in the clearest reason, that
general words in any instrument or statute
are strengthened by exceptions, and weak
ened by enumeration. To me it is as plain
that the General Assembly may exercise all
powers which are properly legislative, and
which are not taken away by our own, or
BY the federal constitution, g it is that the
expressly reserved" 81 Pa, 166.
This rule has been often declared by our
own Supreme Court. In the case Of the
State Va. VOlkman, tho court said: ''rhe
theory of our form Of government is that
the Legislature in its sphere, is supreme in
all respects, save whom restricted BY the
Constitution of the State or Of the United
|. by such authority" 20 An. 5S5. These
words were quoted with approval by the
court in the case Of the State vs. Pagan, q
An. 545.
But when il the legislature within ''its
sphere" and who il to determined This is
the problem.
Il is . fact which the historian of consti-
tutional government will note that the men
who have beon celebrated a. jurists in En-
admit that the legislative power has no
| limitation in its own nature and in the
nature Of government. We have seen
what Lords Coke, Hobart and Holt de-
clared even of tho power of parliament, that
parliament to which the king and his minis
! ters are subservient; even where the House
Of Lords dare not refuse to pass . law in
seen how Chief Justice Marshale doubted
| whether tho nature Of SOCIETY and
of government does not prescribe
some limits to the legislative power"
| These doubts" run through all Of the
early decisions. In the case of Calder vs.
Bull. Dallas, 386, Mr.. Justice Chase,
while admitting the full and unrestricted
powers Of the State Legislatures within
their spheres, said:
.'The people of the United States erected
| their constitutions, or forms of government,
! to establish justice, to promote the general
| welfare, to secure the blessings of liberty,
and to protect their persons and property
from violence. The purposes for which
men enter into society will determine the
nature and terms of the social compact (;
and as they are the foundation of the legis-
lative power, they will decide what are the
proper objects of it. The nature and ends
of legislative power will limit the exercise
of it. An act of the Legislature flor
can not call it . law) contrary to the first
great principles Of the social compact, can
not he considered . rightful exercise OF
legislative authority. The genius,
the nature and the spirit of our State gov.
eruments amount to prohibition of such
acts of legislation"
Such expressions might be quoted from
numerous other cases. Mr.. Smith, in his work
ON statutory and constitutional construc
tion, after considering the subject, remarks
that 1.-THE weight of authority seems to pre-
ponderate the scale In favor of the doctrine
that there are restrictions upon the legisla'
tive power, growing ont Of the nature Of
the civil contract and the natural rights OF
men. Independent of any written c0nstitu.
tiOnal restrictions and certain limits beyond
which that power cannot be lawfully called
into exercise" 148.
Other authors and Judges have expressed
their opinions in q general way, but have
held that the courts have no authority to
interpose to check the Legislature. Yet il
will be found that when the decision or the
article has been prepared, in full view OF
the whole subject, that certain limit
is "hinted at" as cur Supreme
Court remarked, at which it would
fere. In the recent able work of Mr.. Justice
Cooley ON constitutional limitations he says
in considering the subject Of his book, that
there are other limitations upon Legislative
| authority than those prescribed in the con
stitution, springing from the very nature
of free government" Among these restric
tions he remarks the inhibition to raise taxes
or appropriate the public money except fol
public purposes. These, however, are mat
ters of legislative wisdom, discretion and
conscience. This discretion Of the Legiela
ture can not be controlled by the courts
except. perhaps, where its action is clearly
evasive, and where, under pretence of law
full authority, it has assumed to exercise one
that is unlawful"
In the Supreme Court of our own State
in the case of Oakley VS.. Mayor. ct al,
Louisiana, II, Judge Porter, in sustaining the
c0nstitutionality OF an ordinance OF the city
of New Orleans laying tax, remarked
because law might be passed plunderins
citizen under the pretense of raising reve
nne, and therefore void it does not follow thai
| all inequality in taxation draws with it the
Same consequence. And again he remarks
"It is not necessary for us to say in this case
whether there are not in the constitution o.
every free country certain Fundamental
principles under which the citizen can find
shelter and protection in extreme cases
We will think of that when q case arises
which requires us to do So" So in the cele
brated drainage tax cases reported in thu
IL An, Judges Spofford and Ogden ad
mitted that perhaps q court might arres
legislative action, although not directly
or implicitly unconstitutional, in case o
flagrant wrong.
Thus we find that the way has been pre-
pared by far-seeing jurists, for the decision
which public sentiment indicates will in
evitably be rendered throughout the land
But there are cases intimately allied in prill
ciple with this, in which the subject ha
been more fully discussed. In the leadin!
case of Sharpless VS.. Mayor Of Philadelphia
above referred to, Chief Justice Black wa
tho organ Of the court in render
ing the opinion sustaining the consti
, tutionality Of an act authorizing the city o
Philadelphia to subscribe to the stock OF
certain railroad corporation. The law wa
contested, among other reasons, because
| was eaid to impose the burden of taxation
, for q purpose not warranted by the cOnsti
tuition. Judge Black considered the natur
of the taxing power, and quoted Chief jus
tice Marshall. in the case OF McCulleck vs.
Maryland, 4 Wheaton, 4oS, who declared tina
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