FREDERICK R. COTTEN AND WILLIAM G. PONDER, APPELLANTS,

v.

THE COUNTY COMMISSIONERS OF LEON COUNTY, ET , AL. APPELLEES

delivered, the opinion of the Court.

It would prove but a useless waste of words—an unprofitable expenditure of time—to engage in any labored effort to impress the importance of the question presented by this case for the adjudication of the court.

The bare announcement that it-involves the construction and interpretation to be given to certain clauses of the Constitution of the State—the fundamental law of the land—the embodiment of the delegated sovereignty of the people—is a sufficient guarantee that it has received at the hands of the court that calm, thorough and anxious consideration which befitted the occasion. Without, therefore, indulging in the encomiums upon our republican institutions which usually constitute the exordium to efforts of this character, we the rather address ourselves at once to the particular point involved in the case, and, aided as we have been by the arguments and investigations of the able counsel engaged on either side, we shall endeavor, plainly and briefly as we may, to assign the reasons which have operated to conduct our minds to the conclusion at which we have arrived.

Before, however, entering upon the discussion of this point, it may not be inappropriate or unprofitable to consider and endeavor to define the legitimate power of the judicial department, when called upon to arrest the action of a co-ordinate branch of the government. Indeed, we deem a clear apprehension of the limits of this power not only essential to the harmony of the three great departments which have been established by the fundamental law as contained in their State Constitution, but absolutely neGGSsarv. for the very conservation of that instrument itself; for it has happened, and may again happen, that the arm which is invoked for the protection of that sacred palladium of our political rights may, from a misapprehension of its legitimate functions, give it its most deadly wound. Instances are not lacking to show that the judiciary, in essaying to shield the Constitution against the presumed aggressions of the Legislature, has itself become the greater aggressor. Every enlightened court will be admonished by these instances, of how delicate a character is the duty imposed upon it, when called to decide upon the constitutionality of an act of the Legislature. While it is an essential element in the character of an independent judiciary firmly to maintain and resolutely to exercise its appropriate powers when properly invoked, it is equally its duty to be careful not rashly and inconsiderately to trench upon or invade the precincts of the other departments of the government.

That the judicial department is the proper power in the government to determine whether a statute be or be not constitutional will not, at this day, be questioned. That matter, though once mooted by no less a man than Thomas Jefferson, was put finally to rest by the decision in the case of Marbury vs. Madison, wherein C. J. Marshall gave it the sanction of his great name. But it is a most grave and important power, not to be exercised lightly or rashly, nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers. If there exist upon the mind of the court a reasonable doubt, that doubt must be given in favor of the law. In support of this position is the case of Hylton vs. the United States, 3 Dallas R., 171, in which Mr. Justice Chase declares, “if the court have such power, I am free to declare that I will never exercise it but in a very clear case.” And in Cooper vs. Telfair, 4 Dall., 14, Mr. Justice Washington gays, -“'the presumption must always be in favor of the validity of the laws, if the contrary is not clearly demonstrated.” In Fletcher vs. Peek, 8 Cranch R., 87, C. J. Marshall, who in the previous case of Marbury vs. Madison, had dwelt so strenuously upon not only the power but the duty of the judiciary to restrain the other departments within their appropriate boundaries, declared, “it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers and its acts to be considered void. The opposition between the Constitution and the laws should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.”

In further support of this position may be cited any number of decisions by the State courts. We shall refer to only a few of them, remarking, however, that if there be one to be found which constitutes an exception to the general doctrine, it has escaped our search. In Adams vs. Howe, 14 Mass. R., 345, the doctrine is thus stated: “The Legislature is, in the first instance, to be the judge of its own constitutional powers, and it is only when manifest assumption of authority or misapprehension of it shall clearly appear that the judicial power will refuse to execute the law.” In Wellington vs. Petitioners, &c., 16 Pick. R., 95, the same court announce their determination “ never to declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. In the case of City of Louisville vs. Hiatt, 2 Mon. 110, the Court of Appeals of Kentucky, say: “If it be doubtful or questionable whether the legislative Jiower has exceeded its limits, the judiciary cannot interfere, though it may not be satisfied that the act is constitutional.” The same doctrine is again announced by that court in the case of Lexington vs. McQuillan’s heirs—-9 Dan., 514—they declare: “ We should be justly chargeable with wandering from the appropriate sphere of the judicial department were we, by subtle elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that-such a power may be questionable, and on such unstable and injudicious ground to defy and overrule the public will, as clearly announced by the legislative organ.”

In the case of Police Jury vs. Succession of McDonough, decided in the Supreme Court of Louisiana and reported in 8th Lous. An. Reports, 341, Slidell, C. J., says : “ It is true, that if a statute passed by the Legislature is not warranted by the powers vested in that body, such act cannot have the force of law, and it is the solemn duty of the judiciary so to declare it when an attempt is made through the judiciary to enforce it. But this is a most grave judicial power, not to be exercised lightly nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers. In just deference to a coordinate department of the government, it is always to be presumed that a statute is conformable to the Constitution and has the form of-law until the contrary is clearly shown.”

Ranny, J., in delivering the opinion in the case of the Cincinnati, Wilmington and Zanesville Railroad Company vs. the Commissioners of Clinton county, reported in 1st Ohio State Reports, 77, has placed this matter in such strong light that we cannot resist a further citation, even at the hazard of being considered unnecessarily prolix, lie says: “But while the right and duty of interference in a proper case are thus undeniably clear, the principles by which a court should be guided in such an enquiry are equally clear, both upon principle and authority. It is never to be forgotten that the presumption is always in favor of the validity of the law, and it is only when manifest assumption of authority and clear incompatibility between the Constitution and the law appear that the judicial power can refuse to execute it, which interference can never be permitted in a doubtful case; and this results from the very nature of the question involved in the enquiry. The Legislature is of necessity, in the first in. stance, to be the judge of its own' constitutional powers. Its members act under an oath to support the Constitution, and in ¿very way under responsibilities as great as judicial officers. Their manifest duty is never to exercise a power of doubtful constitutionality. Doubt in their case, as in that of the courts, should be conclusive against all affirmative action. This being their duty, we are bound in all cases to presume they have regarded it, and that they are clearly convinced of their power to pass a law before they put it in the statute book.”

But why multiply authority to sustain a proposition so plain—so reasonable and perfectly conclusive to the mind of any one, who has the slightest apprehension of the prin-" ciples underlying the great fabric of a Republican Government ? Upon the rigid observance of the principles embraced in this proposition, depends the harmony of the great departments of the government. Violate it, and soon they will be seen like errant spheres madly shooting from their appropriate orbits, and engendering passion, strife, embarrassment, confusion, uncertainty, where there should alone exist love, peace, union, concord and co-operation.

The Constitutional power of the General Assembly to confer upon the several counties of this State as they have attempted to do by the enactment of the 22d section of the act of 1855, entitled “an act to provide for and encourage a liberal system of Internal Improvements in this State,” the authority to subscribe for’shares in the capital stock of certain Railroad Companies therein referred to, and to provide by taxation through their respective Boards of County Commissioners, for the liquidation of the debt so to be incurred, is the particular question submitted for our decision.

In order to a better understanding of the argument, and as in its progress we shall have occasion to refer specially to its provisions, it may be proper to set forth the section in full. It is as follows:

“ Sec. 22. Be it further enacted, That it shall be lawful for the Board of County Commissioners of any County, or the Mayor and Council of any City, or the Trustees of any Town, through or near which such Railroad or their extensions may pass or in which they may terminate, and they are hereby authorized to subscribe and hold stock in said Company, upon the same terms and conditions, and subject to the same restrictions as other stockholders: Provided, it shall be first submitted to the vote of the legal voters of said County, City, or Town, to be held and taken at such times and places, and in such a manner, as said authorities respectively may appoint, whether or not stock shall be taken ; and if when the vote be thus taken it shall appear that a majority of the votes shall be in favor of such subscription, it shall thereupon be lawful for the board of county commissioners, city or town authorities, by agents by them appointed, to subscribe and take in such company such an amount of stock as they shall determine: Provided, That in no case of county subscription the amount shall exceed fitty per cent of the eost of construction through said county; and to issue the bonds of said county, city or town, payable with interest at such times and places as they may deem proper, and dispose of the same for the payment of such subscription, pledging the faith and resour ces of said county, city or tówn, for the payment of such .Bonds and interest, and they shall from time to time, levy and collect such a tax as shall be necessary to pay the instalments of interest on the bonds, as the same become due, or to create a sinking fund for the gradual reduction of the same: Provided, That the rate of interest shall not exceed ten per centum per annum ; or funds may be raised by such Board of County Commissioners, or city or town .authorities, by tax, in such sums or instalments as will meet such subscriptions and the receipt for the payment of such tax, shall entitle the payers thereof for every one hundred dollars so paid, to have one share or more, as the, case may be, of the stock so subscribed by said county oommissioners, city or town, in said company, and which receipts shall be assignable. Bo stock held by any county, city or town, shall be asssignable by said county, city or town until the bonds issued for the purpose of procuring funds for the payment of said county, city or town subscription, shall be paid, except in exchange for such bonds.”

The counsel for the appellants, contesting the exercise of this power by the General Assembly, have cited us to several geueral principles of government which, even if they were not expressly enunciated in our “Declaration of Bights,” are of too universal acceptation in this country to admit of any question as to their correctness. Among the propositions thus cited is the one “ that all political power is inherent in the people.” While we readily admit the truth of this proposition, we by no means concur in the application which has been made of. it, or in the argument attempted to be deduced therefrom. If we correctly apprehend the use intended to be made of this political-axiom, it was to assimilate the Federal and State Constitutions and to invoke the same stringency of construction when applied to the one as to the other. But there exists a manifest difference in the very elements of the two instruments, and this elemental difference induces also a difference in the rules of construction to be applied to either instrument. Whilst the Federal Constitution contains only specific grants of powers, coupled with a general reservation, the State Constitution makes a general grant of all the political power of the people, restricted only by specific reservations. This characteristic difference will be readily perceived by a bare reference to the two instruments. In the 8th section of the first article of the Federal Constitution is enumerated specially the several powers delegated to the legislative department of the General Government. But, so jealous were the people of the respective States, that, not content .with this special enumeration of the powers intended to be granted, they afterwards fortified their reserved rights by an afiirmative declaration, in the nature of an amendment to that instrument, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Here, as before remarked, is a specific grant, with a general reservation. In section 1st of article 2nd, in our State Constitution, may be found the grant of power which the people have delegated to the State government. It is couched in these terms :

“The powers of the government of the State of Florida shall be divided into three distinct departments, and each of them confined to a separate body of magistracy, to wit: those which are legislative to one; those which are executive to another, and those which are judicial to another.”’

This is certainly a full, entire and express grant of all political power, and may be correctly denominated a general grant; but, in the 27th clause of the first article constituting the “ Declaration of Bights,” is contained the re striction upon that grant, and that clause is in the following words, viz:

“That to guard against transgressions upon the rights of the people, we declare that everything in this ai'ticle is excepted oat of the general powers of government, and shall forever remain inviolate"; and that all laws contrary thereto, or to the following provisions, shall be void.”

Here, then, is a general grant of powers, coupled with specific resti’ictions, and this comparison serves to verify the characteristic difference existing between the two instruments, as before announced. Indeed, all winters who have commented upon the subject, readily admit the elemental difference and freely recognize the difference to be observed in applying the rules of construction.

Without further elaboration of the general propositions assumed by the counsel for the appellants, we now address ourselves to the specific objections alleged in argument against the power of the General Assembly to pass the section of the act of 1855 complained of. The main argument of the appellants is based upon the assumption that the first and second clauses of the 8th article of the State Constitution contain restrictions upon the taxing power of the Genei’al Assembly, and that by implication, if not expressly, all these restrictions are applicable to and control the taxing power of the county authorities. The sections referred to are in these words :

“1st. The General Assembly shall devise and adopt a system of revenue, having regard to an equal and uniform mode of taxation, to be general throxxghout the State.”

“2nd. Ho other or greater amount of tax or revenue shall at any time be levied than may be required for the necessary expense of government.”

The fourth section of the same article, which contain* the only special delegation of power to the counties to tax, is in these words :

“ The General Assembly shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes, respectively, and all property shall be taxed upon the principles established in regard to State taxation.”

How, without undertaking to decide, or even to intimate an opinion, whether the second clause, above referred to, does indeed impose a peremptory restriction, and such an one as can be practically enforced by the judiciary against the general taxing power delegated to the General Assembly, we may, for the sake of argument, admit that it is a restriction and constitutes one of the principles applicable to the taxing power of the counties, as referred to in the 4th clause of the 8th. article. That article may then be road thus:

“ The General Assembly shall have power to authorize the several counties and incorporated towns of this State to impose taxes for county and corporation purposes respectively ; and all property shall be taxed according to an equal and uniform mode of taxation, to be general throughout the county; and no other or greater amount of revenue shall at any time be levied than may be required for necessary county purposes.”

This exposition and interpretation of the fourth clause places the matter in the very strongest light contended for on the part of the appellants, and accords to them all the legitimate fruits of their argument upon this objection. It will readily be perceived, then, that the whole argument is narrowed down to the simple enquiry whether or not the act complained against, to wit: the subscription for shares of stock in the Georgia and Pensacola Railroad Company by the Board of County Commissioners of Leon county is legitimately a county purpose, within the meaning of the said 4th clause of the 8th article of the Constitution. We think that it is, and, in order to demonstrate the correctness of this-conclusion, it may be proper .to note .the difference existing between the ordinary expenses of the State and county organizations. While the ordinary expenses of the former are mainly induced by the necessary support of the officers required to conduct the business appertaining to the three great departments of the .government respectively, that of the latter is confined almost exclusively to the improvement of the social condition 'of the citizens, there being no salaried officers to support. The Constitution does not attempt to give a definition to the term “county purpose,” and to obtain a correct interpretation of that phrase we must look to the contémporaneous legislation upon that subject and the uniform 'action of the county courts under the territorial government. By •this referenced will be abundantly demonstrated, that at that -day county purposes were taken to embrace principally the erection and repair of court houses and jails, the opening and maintaining public thoroughfares within the limits of their respective counties, by opening roads, building bridges and causeways, and keeping the same in repair, licensing and regulating ferries and toll-bridges, &c.

It is thus seen, that the entire subject of highways was at the time of the constitution, an object peculiarly within the jurisdiction of the county authorities, and we are hence warranted in the assumption that it was so understood by the Convention whe'n they used the phrase, “ county purposes.” But we do not understand the appellants to differ from us in this interpretation, when applied to ordinary roads and bridges through a county—the objection is, only when it is sought to apply it to a “ HcoilroaW’ Upon what sound principle this particular species of thorough fare is to be withdrawn from the interpretation of the phrase before referred, we are at a loss to perceive. Surely it will not be seriously contended that while the County authorities are permitted in the erection of their court houses and jails, to avail themselves of the improvements in architecture brought about by the advancement so rapidly goingon. in the arts and sciences, they shall be precluded from availing themselves of the benefits resulting from the most magnificent discovery of the age. With almost as good reason might it be insisted, that they should confine their citizens to treading the tortuous windings of the Indian’s “ trail” or to the little less primitive thoroughfare of the Pioneer’s orts, to-discover, if we might, the great desideratum,, truth •, and, after the most laborious investigation, we are constrained to pronounce the particular section of the act in question, to be perfectly compatible with the provisions of the Com stitution, and therefore valid. If we should have erred in. this conclusion, it will present an extraordinary instance-of a most singular fatality attending'the adjudication of a. great constitutional question; for,it maybe noted as a. pregnant fact, that as often as the questions involved in. this case have arisen for adjudication, they have received, hut one determination, and that in accordance w-ith the conclusion arrived at in this case. The courts of Virginia, Massachusetts, Connecticut, Pennsylvania, Ohio, Kentucky, Tennessee, Mississippi and Louisiana all hold the-same uniform language upon this subject; and if there he .a single adjudication in opposition to our conclusion, as announced in this case, we have failed to have it brought to our notice. In the face of such an overwhelming and.' imposing array of authority, it would indeed have been most extraordinary* even if our own reasoning had tended. to conduct us to an opposite conclusion, not to have raised .in our minds a serious doubt as to the correctness of that rea .soning; and we áre taught by the lessons hereinbefore inculcated in regard to the appropriate function of the judiciary, that whenevei’, in the examination of a great constitutional question involving the exercise of powers by a co-ordinate branch of the government, 'a rational doubt arises as to the validity of any particular act of that department, a proper and respectful regard and deference for the same would dictate an affirmation of the act. In the beautiful and forcible language of an eminent jurist, before referred to, “If a court, in such a case, were to annul the law while entertaining doubts upon '.the subject, it would present the absurdity of one depax’tment of the government overturning in doubt what another had established in settled conviction, and to make the dubious constructions of the judiciary outweigh the fixed conclusions. of the General Assembly.”

In order, however, to break the force and weaken the authority of the decided cases, it. was suggested at bar that those cases were adjudicated under constitutions essentially differing from ours ; that the restrictions upon the legislative power to be found in our Constitution are more stringent than those imposed by any of the, Constitutions -of the several States where those adjudications have been, made, and that, therefore, they ought not to be-considered as authority in this case.

"We have carefully examined the several State constitutions alluded to, and have not found that difference to exist, which is contended for. In the majority of them, we find the restraints upon the legislative department equally stringent, with those imposed by our own ; and in several of them, they are even more stringent.

Let the decree of the Chancellor he affirmed with costa.

BALTZELL, C. .L,

delivered the following dissenting opinion:

Differing with the majority of the court in their views expressed in this case, I proceed to give the reasons that operate with me for holding the adverse opinion. The county of Leon has imposed a tax to pay a subscription of stock to this company, which is complained of as unconstitutional. By express provision of the Constitution, the principles established in regard to State taxation are made to apply to the counties when imposing [taxes. Art. 8, sec, 4, Cons.

Those principles are declared to be “ equality and uniformity in the mode of taxation.”—Sec. 1. 2ndly, “ That no other or greater amount of tax or revenue shall at any time be levied than may be required for the necessary expenses of government.”•—Sec. 2. 3dly, “ETo money shall be drawn from the treasury but in consequence of an ap. propriation by law, and a regular statement of the receipts and expenditures of all public monies shall be published and promulgated annually with the laws of the General Assembly.*—Sect. 3, 4thly, “The General Assembly shall not pledge the faith and credit of the State to raise funds in aid of any corporation whatever.”—Act 13, sec. 13. 5thly, “Private property shall not be taken or applied to public use unless just compensation be made therefor.”—Art. 1, sec. 14. 6th. “ The General Assembly shall have power to authorize the counties and incorporated towns of this State to impose taxes for county and corporation purposes respectively, and all property shall be taxed upon the principles established in regard to State taxation.”—Art. 8, sec. 4.

These obviously provide a system and mode of action for the government, and regulation as well of the Legisla ture as of cities and counties. They impose upon them a duty of imperious and important character. They are> in the first place, before imposing a tax, to ascertain the “pecessary expenses ” to which the State, city or county may be subjeet, so as not to levy u any other or greater amount than may be required.” When collected, the money is not to be withdrawn from the treasury except by appropriation; and, as a still farther security, they are all to publish a statement of their receipts and expenditures.

It is not required of me, I trust, to define the terms necessary expenses. They are clearly restrictive to an authority confided. They are terms of art, phrases well known in law in their application to trustees (the relation and capacity which the Legislature and these city and county officers hold to the people) as well as to executors, guardians and other officers. And their familiar use is in strict accordance with their legal acceptation. No one confined to necessary expenses regards himself at liberty to expend as largely as.he would if relieved from such restraint.

Passing by the general question of the right of a county to construct a railroad, to be discussed hereaftlS^he question arises whether the construction of this railroad is a necessary expense of the county of Leon ? If it be so, then the law is in strange conflict with itself. It leaves to the option of a majority of the citizens to say whether the expenses shall be encountered—not that they are necessary. Now, this very option and choice is irreconcilable with the idea of necessary expense. If it was a fair expense, a necessary expense of the county, there was no option about the matter, and the Legislature should have directed peremptorily the discharge of the duty, and, indeed, without a special law, the county authorities should have provided foy it under the general authority confided to them. If a necessary expense, there was no permission required, no sanction needed. Can a trustee refuse to meet a necessary expense of the trust confided to him; an executor of his estate; a guardian or parent a necessary expense of his ward or child ? Is it at the option of any of these to refuse to meet a necessary expense, to provide for or reject it at jfieasure? It may be requisite, in case of unnecessary expenses, to ask such permission. In case of necessary-expenses there is none, and courts invariably compel their allowance and payment.

A still more definite enquiry is presented on this point.

By referring to the original charter of this Company passed in 1853, we find that they have authority to construct a road “ from the city of Pensacola or any other point or points on the waters of the Pensacola Bay in Florida, and running thence in an easterly direction to the western or southern boundary line of the State of Georgia.” By an amended charter in 1855, they have “ power to build an extension of their road to a junction with the Florida, Atlantic & Gulf Central Railroad, at or in the vicinity of Alligator, Columbia County,, and in case of their failure to construct their road to Alligator by the time the Pensacola and Georgia Railroad constructs its to that point, then to a junction East of Alligator, or to the Florida Railroad on the most practicable route to Jacksonville on the St. John’s river with an extension from a suitable point in Columbia County in a southern or southeasterly direction, to a suitable point of junction with a road which may be built from Amelia Island, on the Atlantic to the waters of Tampa Bay in South Florida. Also an extension to Crooked Riv tions confining the Legislature in this very respect, then indeed, the authority is inapplicable. It is lamentable to observe the slight influence of words to abridge power or to restrain and prevent its doubtful exercise. Let there be line upon line and precept upon precept, yet some means of evasion will be devised, and this tendency prevails in direct ratio and proportion to the interests -involved. Not so, however, with a grant of power, which, though ever so vague and indefinite, yet from its inherent propensity of aggrandizement, never tails to discover the most plausible and authoritative pretexts and excuses for any desired extension.

The power of the judiciary to disregard an unconstitutional law is declared in the opinion of the majority to be aggressive, as having been used for mischievous purposes. It is even . characterized asa deadly weapon. The authority for so grave an assertion, so serious a charge, is not given. I am confident none exists. I am not aware that any one even in the heat of party excitement has ever before carried his views to such an extreme. What court has committed this grave offence? Certainly not the Supreme Court of this State, that has exerted this power hut on one occasion, as far as I recollect. Is it the Supremo Court of the United States that has had greater occasion to bring-itself within the reach of the charge than any other ?

But is there the slightest pretext or color for any such notion ? If the idea of aggression was ever entertained in-the wildest dream of any judge, a simple survey of his.position would effectually extinguish such sentiment. • A Court makes no law, controls no means, no monied resources, has no patronage, (in this state does not appoint its own clerks.) The disposition of all these is by the oth. or departments of government. It cannot initiate action in the slightest case ; like an arbitrator it acts only as questions are brought before it, and grants or refuses only on such application. Sometimes the legislature or executive obtains its aid to enforce a law, or punish for disobedience to one.

At other times the citizen claims its interposition, insisting that legislative or Executive action is to bis injury and that the supreme law of the land, the Constitution, is his shield, and constitutes a protection to him. In such case, the Court performs the simple office of deciding which is superior, and when an act of the legislature or the executive is in conflict with the Constitution, it announces the fact and gives efficacy to the supreme law. It is then perfectly clear that the action of the Court cannot be aggressive except where it fails' to interpose for the protection of the citizen against an unconstitutional invasion of bis rights. In such event the court makes itself au accessary by the aid rendered, and to this extent will its action be aggressive. The present case will be an apt illus-t:ation if we are right in1 our views as to the unconstitutionality of the law.

How this action can be justly characterized as a deadly weapon is beyond my powers of conception. If there be serious and fatal consequences attendant upon the exercise of such power by the judiciary, they will arise from the imbecility or want of independence and integrity of its members in the discharge of the important functions confided to them. They can never attach to a faithful and conscientious and independent discharge of judicial duty, for if liberty is to be crushed and-freedom to find its grave, an honest and undaunted judiciary will bo found unflinchingly maintaining its post in defence of the Constitution, and perishing only amid its ruins. The deadly weapon will then be found in the hands of its foes, and the fatal wound inflicted by its enemies—tbe enemies of constitutional liberty and free government.

The importance of a proper exercise and discharge of this duty is illustrated in the impressive language of the sages and patriots of the Revolution, the fathers of the Constitution of the United States, and by eminent jurists and statesmen.

The late Daniel Webster in a debate in the Convention of Massachusetts, thus happily and forcibly expressed himself: “ Ho conviction is deeper on my mind than that the maintenance of the judicial power is essential and indispensable to tbe very being of this government. The Constitution without it would be no Constitution, the Government no Government. I am deeply sensible, too, and I thinlc every man must be, whoso eyes have been opened to what has passed around him for the last twenty years, that the ndicial power is the protecting power of the whole Government. Its position is on the outer wall.”

The great Patrick Henry, than whom no one was more jealous of power, and who opposed with all his might the Constitution of the United States on account of the large power grants in it, thus expressed himself in the Virginia Convention : “The honorable gentleman did our judiciary honor in saying they had firmness enough to counteract the Legislature in some cases. Ves sir, our judges opposed the acts of the Legislature. Wo have this landmark to guide us. They had the fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary so well constituted and so inde pendent of the other branches as our State judiciary^ Where are your landmarks in this government? I will be bold enough to say that you cannot find antr. I take it as the highest encomium on this country that the acts of the Legislature, if unconstitutional, are liable to be opposed by the judiciary.”

Chancellor Kent says, “there can be no security for the minority in a free government, except through the judicial department. In free governments, the independence of the judiciary becomes far more important to the security of the rights of the citizens than in a monarchy, since it is the only barrier against the oppression of a dominant faction, armed for the moment with power, and abusing the influence acquired under accidental excitement to overthrow the institutions and liberties of the people.” 1 Kent. Com.

Mr. Madison, justly styled the father of the Constitution of the United States, speaking as to the position of the judiciary and the necessity for strengthening it, says : “Experience in all the States had. shown a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitution, and suggested the necessity of giving every defensive authority to other departments consistent with republican principles.” Debates in Convention, p. 1163.

Governeur Morris said, “he concurred in thinking the -public liberty in greater danger from legislative usurpations than from any other source.” P. 1165.

“As the Constitution is the supreme law of the land, in a conflict between the law3 either of Congress or the States, it becomes the duty of the judiciary to follow that only which is of paramount obligation. This resulta from the very theory of a republican constitution of government; for otherwise the acts of the legislature and execu tive would in effect become supreme and uncontrolable, naturally, notwithstanding any prohibitions or limitations in the Constitution, and usurpations of the most unequivocal and dangerous character might be assumed without any remedy within the reach of the citizen. The people would thus be at the mercy of their rulers in the State and national governments, and an omnipotence would practically exist like that claimed for the British Parliament.” 3 Story, 428-9.

Such are the views I have entertained on this subject, derived from these eminent sources. They have governed me to the extent of my limited capacity in their application to the present subject. The maintenance of the Constitution, of the great fundamental principles of free government is, in my view, pre-eminently superior to any mero question of expediency or regard for improvements, however important they may be to the welfare of the State. I might lament a restriction which would bo detrimental to this enterprise, but for such I am not responsible; tlio remedy is in other hands. My duty is to declare the law as it is; and, having a clear conviction in my own mind, free from any doubt, there remains the questionable and imperious duty to announce it. I find no necessary expenso of the county of Leon—no county purpose, which justifies the levy of this tax. The law is, in my opinion, therefore, dalpably unconstitutional.