The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-04-06

astate ia the dnlya Constituted government
OF TINT State was conferred upon the; Presi-
dent, and any procianiati lon stating MA de-
scision must necessarily have rec1ted the TACT
decided. His decision that the charter gov
eminent 0f Rhode Island was the duly con-
stituted government Of that State WIS neld
to be conclusive upon the courts and. the
country, because that was fhe TACT ne hao
to decide. In oil such cases, IN Whatever
department OF government arising, tue de-
termination Of the fact is the duty 10 oe
performed, and the decision OF the tribunal
charged With that duty is necessarily nnal.
| In the language OF the Supreme Court Of
the United States, in Town OF Coloma Us.
Eanes, Otto, 484-490, : the recital itself Is
the decision OF the fact by the appointed
tribunal"; or, IN the language OF the same
court, in Town OF Murdoch, 4 Otto, 494,
"the recital Is declaration OF the decl-
sion."
| But it is not the duty or function OF the
Legislature in the exercise OF any OF the
ordinary powers OF legislation, such as that
OF taxation, to decide or to declare what are
and what are not facts for the other depart
ments of the government or for the outside
| world. Its proper and legitimate function
Is to act upon what 1t supposes to oe facts,
and generally its action, II otherwise con-
stitutional, is binding whether the facts It
assumes to be true are true or not. But
it has no more jurisdiction or power to de-
clare what are past or present 1acts .and
| bud the world by its declarations than IL
| has to declare what the law was or Is on
those supposed facts. Such an act would
be necessarily judicial in its nature, and u
it could be performed by the Legislature
would be er parte judicial, which Is sole
cism. A legislature may pass an act decla-
| ratory OF the law, which may operate in the
| future, though imperative in the past "
| Wheat, 149); but in the exercise OF its
powers OF legislation it can pass no binding
act deciding or declaring what facts have
been, what facts are, or what facts shall be
IN existence.
| Whether, therefore, the present rate OF
taxation on property is the highest that the
people OF Virginia can pay is matter OF
fact not within the province Of the Leglsla-
ture to declare or to decide. 1t may I'M
doubleday fail or decline to levy any higher
taxes, or 1t may levy taxes at lower rate,
and it may we'll be Of opinion that this or
that rate Of taxation is most iudicious, and
act accordingly. That, indeed, is its legiti-
mate power and duty. But that is a differ
emit thing from judcally or otherwise de-
termining beforehand, for the purposes OF
! affecting litigation in the courts, that GER
tain fact does or does not exist as to the
ability Of the people to pay taxes. 1t can
not determine the popular ability to pay
taxes by paper declaration; the ability
to pay can only be determined by the
practical test OF a trial under judi
cious system OF enforced taxation, hon.
esty administered. Necessarily. therefore,
any declaration upon the subject by the
Legislature, while it would be entitled to
/ nt no
copied as judicially binding by the courts;
and if not absolutely conclusive upon the
courts, il the alleged fact is not closed to
all inquiry, then the fundamental dSSunp-
ton upon which the constitutionalty OF the
Barbour bill was rested is swept away, and
| the whole structure necessarily topples
down.
But, in closing, it may be added there is
a class OF legislative recitas which is. con-.
elusive and binding upon the courts, and
even upon the Legislature itself. The reci-
tai, in bond issued by authority OF the
Legislature and in the language OF con-
stitutional legislative act, is binding for
ever upon all departments OF the Govern
ment, when that bond has passed into the
hands of third parties for valuable conside-
ration. And mot to mention any OF the cases
referred to and relied upon by the Supreme
Court of Appeals Of Virginia in Antoni Us.
Wright from the leading case OF Knox Us.
Aspinwall, in 21 How, $50, to the cluster
of late cases in second Otto, in third Otto,
and in fourth Otto-these last themselves
dozen in number-the Supreme Court OF
the United States has held such recitals to
be binding upon the obligors and to consti-
tute or evidence contract which no power
OF State legislatures, or State courts, or
State constitutions, could set aside or i'm
pair. And OF such description is the re-
cital on the coupons attached to the bonds
Of the State Of Virginia issued under the
funding act: "Receivuble at and after
maturity for all ta1ss, debts, and de-
naands due the State" That any recital
of alleged facts in the preamble OF subse-
queut act can obliterate or lay the founda-
| ton directly or indirectly for obliterating
the obligation created by that recital and
stipulation would seem to be the merest
yagary in the light of the overwhelming tide
OF the decisions Of the Supreme Court ,af-
tirming the validity Of such contracts against
hostile legislation OF every character and
device. To have adopted the Barbour bill,
therefore, would, as Governor Holiday in
his able veto-message so forcbly pointed
out, have been simply to transfer the debt
question from the Legislature to the courts,
with the certainty, il certainty can be pre-
dicated Of anything human, OF having the
question in time remitted by the courts to
the Legislature. y. II.
RICHMOND, March IA, 1878.
DEATHS.
Died, on the morning Of April 9th, Mrs. ELIZA
BETH HARE, wife Of Jacob Hare; aged seventy