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" The undisputed powers of the judiciary, are very great. They not only expound statutes, and mold and modify their own judgments, but they declare what is meant by the comity of nations, and apply the laws of foreign countries. The daily habits of business are under their control; new customs every day arising, stand or fall by their decisions; and under the cover of the right to enforce public policy, and protect good morals, they excite a large and undefined authority over private conduct. To all this is added in America, the undisputed right to declare constitutional, law, and thus, in certain cases, to override the express will of the legislature itself. These functions, are ample enough to gratify the most eager love of power; and to demand the exercise of the noblest intellect, and the application of the most vigorous industry.”a

When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. And what is true of an act void in toto, is true also of any part of an act which is found to be unconstitutional, and which consequently, is to be regarded as having never, any time, possessed any legal force. b So that nothing is law simply and solely because the legislature have declared it to be so, unless they have expressed their determination to that effect, by the mode pointed out by the instrument which invests them with the power, and under all the forms, which that instrument has rendered essential.

But in giving judicial construction to statutes, the courts ever keep in mind the marked distinction that exists between statutes of the congress of the United States under the national constitution, and the statutes passed under the constitutions of the several states. The government of the United States, is one of enumerated powers; all its powers are specified ;-they are either expressed in the constitution itself, or are necessarily to be implied from the powers that are expressly conferred. And when these powers are

a Sedgwick on Const. Law 219. b Cooley on Const. Lim. 188.

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questioned, the only duty of the courts, is, to see whether the grant of specified power is broad enough to embrace the act. But statutes passed by state legislatures, under state constitutions, the courts will presume to be valid, for the reason that state legislatures have jurisdiction of all subjects on which its legislation is not prohibited by their own constitutions, or limited by the consti tution of the United States, a

The rule of interpretation by which the two constitutions are distinguished, is just this; the constitution of the United States must have a strict construction; state constitutions a liberal one. All

l powers not granted to the Union are withheld, while the states, retain every attribute of sovereignty which is not taken away. By the constitution of the state of New York, “the legislative power of the state, is vested in the Senate and Assembly. This means of course, the whole legislative power,"c because the words are general and unlimited. The people have thus parted with all the power of legislation, (which was originally in them,) except such as is prohibited. Where, therefore, the constitution is silent, and the legislature are guilty of no usurpation of power distributed to the other departments of the government, their power, humanly speaking, is omnipotent.

It is not therefore for courts to define, or set limits to the legislative power, nor can they hold a law to be void, which is not prohibited by the constitution because in their opinion, it violates the spirit of our institutions, or impairs any of those rights, which it is the object of a free government to protect; nor can they declare it to be unconstitutional, because it is morally wrong and unjust. The constitution itself contains all the inhibitions that exist, against legislative action. If the courts can add to these, they alter this fundamental instrument, which they are not authorized to do, and themselves become aggressors, and violate both letter and spirit of that organic law, as grossly as the legislature could. d If

a Sill v. Village of Corning, 15 N. Y. R. 303; People v. Supervisors of Orange, 27 Barb. 593, 2 Park. Cr. R. 490; People v. N. Y. Cent. R. Co., 24 N. Y. 497, 504; Commonwealth v. Hartman, 17 Penn. St. R. 119; Kirby v. Shaw, 19 id. 260; Wiesler v. Hade, 52 id. 477.

6 Commonwealth v. Hartman, 5 Harris, 119.
c People v. Toynbee, 2 Park. Cr. R. 510.
d Sharpless v. Mayor of Philadelphia, 9 Harris 161.

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the courts can add to the things that are inhibited, they can also take away. If they can change at all, they can destroy entirely. They cannot supply what they may suppose is a casus omissus in the constitution, nor declare unconstitutional an act of the legislaure which they conceive wrong, unjust, or oppressive.

Nothing then, is more important, in securing the harmonious workings of our system of free government, than that each of these three departments between whom the sovereign power is distributod, should, respectively, keep within its own legitimate sphere of action.

While the legislature cannot overstep the prescribed bounds of power contained in the constitution, the judicial power is also limited, and they are confined to the duty of ascertaining whether any given laws do violate the constitution. It is not for the judiciary or the executive departments to enquire whether the legislature has violated the genius of the government, or the general principles of liberty, or the rights of man, or whether these acts are wise or expedient,-but only whether the legislature has transcended the limits prescribed by the fundamental law. a

Upon the American theory of state governments, the legislature possess all legislative power not prohibited. Upon this theory, there is a vast field of undefined power, not reserved, given away or prohibited, in which the legislature can exercise full and uncontrolled dominion ; their use of this great domain is limited only by their own discretion; the people have conferred on them the whole omnipotence of the British parliament, except in so far as it is limited by the prohibitions of the constitution itself, and by those powers which they had previously granted to be exercised by the federal constitution. True, these great powers so conferred by the people, are liable to be abused, and experience has taught the lesson, that they are abused; but this is inseparable from the nature of all human institutions. The wisdom of man has never conceived of a government with power sufficient to answer its legitimate ends, and at the same time incapable of mischief. b

a Weisler v. Hade, 52 Penn. St. R. 478; Sill v. Village of Corning, 15 N. Y. 303; People v. Supervisors of Orange, 27 Barb. 593; People v. Toynbee, 2 Park Orim. R. 533. a Sharpless v. Mayor of Philadelphia, 9 Harris 161.

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No political system can be made so perfect that those entrusted with power will not sometimes depart from the true course of reotitude. In the best, much must be trusted to the discretion of those to whom power is committed. So in ours, the people have

, confided large powers to the legislature, and must rely upon the wisdom and honesty of their representatives for a faithful execution of their duties; and the representative well knows, that he is directly accountable to his constituents for the manner in which he discharges his trusts, and that those constituents possess the power to correct the evil by dismissing him, or more properly, by refusal further to continue him in place.

In the practical workings of our system it is seen, and to be deplored, that from time to time, members of the legislature, not only forget their duties, but utterly disregard the obligations they owe to their constituency, nay, even recklessly trample upon the most sacred principles of right and justice; still, if they act within the scope of powers conferred upon them, and are not prohibited by the constitution, the judicial power cannot pronounce the act void, merely because in their judgment it is contrary to the principles of natural justice. a Nor is it certain that it would be wise to change the constitution for this cause, and confer upon judges the power of exercising a corrective against unwise, oppressive, or corrupt legislation. The power would still be left to the exercise of the judgment of fallible men, and it is not beyond the power of imagination, to conceive of judges, as corrupt as legislators.

But the question will be further discussed as to the legislative powers under state constitutions of the right to take private property for public use, when we come to treat of the right of eminent domain, and the extent of the taxing power.

a Culder v. Bull, 3 Dallas, R. 399. Satterlee v. Mattemore, 2 Petons, R. 380 Fletchor v. Peck, 6 Oranch. 87.

CHAPTER XI.

OF THE LIMITATION OF CONSTITUTIONAL POWER IN TAKING PRI

VATE PROPERTY FOR PUBLIC USES, UNDER THE RIGHT OF EMINENT DOMAIN.

We have already shown the omnipotence of absolute legislative power, when unrestrained by constitutional restrictions. Under the sovereign power of every government, the right of taking private property for public use is one of its incidents. The necessity for exercising this right, is to be determined by the legislative power, subject to the constitutional permission, and its condition of limitation,

The fifth article of the amendments to the federal constitution prohibits private property from being taken for public use, without just compensation. This condition, is a right that pertains to, secures, and may be claimed by every citizen of the United States. This right to take, subject to this condition, has ever been held to be one of the high prerogatives of sovereignty, when necessity calls it into exercise for the public use, only, and it is thus limited by the national.constitution, and by the condition annexed, or rendering to the citizen, a just compensation. The same condition is imposed by the constitution of the state of New York, by section 6, article 1, of the constitution of 1846. In states where no such condition is found in the constitution, it has been held to be secured to the citizen by the principles of natural justice, a which is ever the universal common law of mankind.

We find it declared by the highest court in this state, b notwithstanding the constitutional protection to private property, that there are still two different and distinct principles upon which private property may be justly taken, used, or destroyed for the benefit of others. Both of these principles, are commonly compre

a Bristol v. Newchester, 3 N. Hamp. R. 535; Jones v. Walker, 2 Paine, 688; De Verraigne v. Fox, 2 Blatch. 95.

6 Stono v. Mayor of N. Y, 25. Wend. 173.

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