Year: 1876

THE CONSTITUTIONAL QUESTION.


Upon the points decided in a case in
Illinois, another in Michigan, and the
late case of People Us. Lynch, in our
Supreme Court, doubt has been
founded of the constitutionality of the
Act now under consideration, not
withstanding that the facts of those
cases have no resemblance to the pres
ent one, and that it is by no means
clear, that our Supreme Court has de-
cided any thing more than is expressed
in the first proposition of the opinion
of Chief Justice McKinstry, in accord
ance with Art. XI, Sec. IS Of our Con-
stitution, substantially, that a street
assessment, like any other tax, not
equal and uniform, is void. Judges
Wallace and Rhodes concur with
him, on this proposition, and no other.
Judges Crockett and Niles concur, in
silence as to the reasons; and properly
under the circumstances. can be held
only to the above stated proposition,
which was sufficient to reverse the de-
cision below in favor of the right of
unconstitutional assessment.


In his elaborate opinion, the Chief
Justice presents new theory of con-
stitutional construction, tending some-
what to limit the power of the Legis-
lature over the discretion of the Coun-
Gil of a city, in local legislation.
Granting that majority of the Court
so held-which is far from being cer-
tain-and that while the Council is
left to legislate on a particular subject,
the Legislature may not lagislate
within the city, on the same matter.
No such point can arise under he Act
creating this Board, which really does
not interfere with a discretion existing
over matters which the Council is
competent to act upon, but in fact,
takes away all discretion, and vests the
same in another class of city officers,
over certain branch of legislation.
By this disposition of the Legislature,
the municipal independence ESQ to
speak) is preserved intact; the corpo-
ration has lost none of its rights, even
if its local government may be little
more complicate or at first appear
somewhat strange and out Of the old
routine, or Gf you willy defective. 1t
will scarcely be held that the Supreme
Court has intended in People Us Lynch
to deny the power of the Legislature
absolutely to abrogate, or in its own
discretion, to amend and alter the
charter of municipal corporation.


The dissenting opinion of Judge
Rhodes, to the second and third pro-
positions of the Chief Justice, Is wor-
thy of attention, as showing what has
been the course of decision in this
State, and most probably reflects the
actual opinion of the majority of his
learned associates:


~ am unable to concur with Mr..
Justice McKinstry, in the conclusions
announced under the second and third
grounds discussed by him.


''Some of the positions laid down
by him might, perhaps, with pro-
priety, have been accepted and APP
piled at the commencement of the
Judicial history of the State, as sound
rules and meaning in the construc-
tion of our constitution, and others,
perhaps, are deserving of a place in
the instrument itself.n e


"But at an early day different con-
struction was adopted in respect to the
power which the Legislature might
exercise over municipal corporations,
and In respect 20 persons and property