Macon & Augusta Railroad v. Little

McCay, Judge,

concurring.

The validity of the Act of October 13th, 1870, requiring an affidavit to be made that all legal taxes have been paid upon any debt, dated before June, 1865, on which a suit is founded, on pain of the dismissal of the suit, is attacked upon two grounds:

1st. It is said to be in violation of Article I., section 10, paragraph 1, of the Constitution of the United States, prohibiting ex post facto laws and laws impairing the obligation of contracts.

2d. It is said to be invalid because the session of the General Assembly — the session of 1870 — had been in session more than forty days at the date of its passage, without any two-thirds vote of each House prolonging the session, which it is claimed is required by paragraph 3, Article III., section 1, of the Constitution of this State.

The decision of the first point turns, in my judgment, almost entirely upon the meaning of the law. If the necessary construction of it requires that it be understood to enact that if the holder of a debt have, during any particular year since the debt was contracted, or during the entire period since that time, neglected or refused, at the precise time, provided by law for so doing, to give in and pay the legal taxes due thereon, the suit shall be dismissed, then I think *391the argument is strong with the plaintiff in error. But we have held that, construing the Act by its title, by the nature of its provisions, and, above all, by that well settled rule which makes it the duty of Courts, in declaring upon the validity of an Act of the General Assembly, so to construe it, if possible, as to make it conform to the Constitution, it has no such meaning as is contended for. That it is prospective only in its operation; that it denies the use of the Courts until the taxes are paid, and not because they have not been paid; that the holder of a debt, not in suit, or of a judgment, may at any time pay the legal taxes due, and commence his suit, or levy his fi. fa.; that if his suit was pending at the passage of the law, he had six full months, within which, if the taxes were unpaid, to pay them, and make the affidavit required. We have held, also, that in cases where it was impossible he should know whether the taxes were paid or not, he was only required in his affidavit to cover such time as came within his power to know. And after labored argument and mature deliberation, we see no reason to change our opinion upon the proper construction of this Act. The form of the Act is to require every plaintiff in a suit, at the time it is brought, or if pending, at the date of the Act, then, within six months, to make an affidavit that all legal taxes due on the debt have been duly and regularly paid, on pain, not of losing the debt, but simply of the dismissal of that suit. The terms of this law can be complied with by any one, who, at the time the affidavit is filed, can truly make the oath, and even if his suit be dismissed, if at any time thereafter he can truly make the oath, he can commence again.

The title of the Act, so far as it pertains to this part of the law, declares it to be an Act to deny the aid of the Courts to a certain class of contracts, not because, but until the legal taxes due thereon have been paid. And the body of the Act permits the party to go into Court with his suit, or if in, to go on with it whenever he is ready to swear that the taxes *392have been duly and regularly paid. As to pending suits, it is true a time is limited; but each suitor has full six months within which to qualify himself to make the affidavit, by paying to the public the debt he owes for taxes upon the contract he is seeking to enforce. The words used in the Act are, “duly and regularly paid.” In another place, “duly paid for each year,” and again, “regularly given in for taxes and the taxes paid;” and again, section 5, “duly paid.”

It is said no man can truthfully take the oath required, unless he have given in and paid the taxes at the precise time, and in the precise manner provided by law, and not if he have given and paid them at some other time and manner permitted by law. Under this view no man can say he has duly paid his tax for any year, if he has waited until a fi. fa. has issued against him, or if he has failed to give in, and has been double taxed as a defaulter, and duly paid that; or if he has waited till after January, as thousands do every year, and paid the tax of 1868 in 1869. In either of these cases, there is a deviation from the ordinary mode of giving in or paying.

The ordinary time for giving in is by the 1st of July, (Code, 830,) but any one may give in to the Clerk at any time after this before the digest is made up, which is by the 1st of August: Code, 840, 845. So as to paying, the ordinary time is by the 1st of October: Code, 830. But how many persons in all the counties, good law-abiding men, too, fail to pay by that time? Indeed, a long experience as a county officer, informs me that but few persons pay before the 1st of October. Now, it seems to me, there is not a man in the State who, if he had given in to the Clerk, or had paid his tax, say for 1868, by the 1st of November, or any time in 1868, or even in 1869 or 1870, would not feel free to swear that he had regularly given in and paid his tax.

To give the Act the construction contended for, would be a species of word construction and hypercriticism, almost unheard of in modern times. It would be straining the lan*393guage of the law in order to make it have an unconstitutional meaning, when directly the opposite is the settled rule for the construction of laws. I will not say such a meaning cannot be given to it, but I will say that such a meaning is not a fair construction according to the established rules for construing statutes. Anything may fairly be said to be duly and regularly done, which is done as permitted by law. A man is duly elected to an office, if he receive a majority of the votes at an election had at the legal time by proper officers, though there may be great irregularities- in the manner of holding the election.

Had the Legislature intended the meaning insisted on they would have used the imperfect were duly paid,” and not the perfect “ have been,” which, whilst it expresses as past time, also conveys an allusion to the present. A marriage is good, though there be no license, as provided by law, and parties so married are duly and regularly married, even though this important provision of law is not complied with. If a man has paid all his debts, even after they are due, or in something less than money, or even at a discount, by consent of the creditor, is it an improper use of language for him to say that his debts have been duly and regularly paid? Is the man who is entitled to a deed on the due payment of a note, not entitled to it if he pay the note after it is due, or if he tender the money after it is due? Is it not the uniform construction of the Courts that (in cases where the parties may, by the use of proper words, make time the essence of a contract,) the use of the word duly, does not do it? That may be very fairly said to be done duly and regularly, if done as the law points out, or if not, as the law permits. Our Code, section 866, permits any tax-payer to give in and pay taxes he owes to the State for past years. And specially makes it the duty of the receivers and collectors to receive and collect such over due taxes. I conclude, then, that it is a fair and reasonable construction of these words, to say that they mean “fully” all that is due, “completely,” so that the *394account between the State and the party is, in a substantial sense, duly and regularly settled. Any other construction would make the Act different from the title, would make it ex post facto, and would be contrary to the well settled rule that the Legislature is not to be presumed to have intended to pass a void law, and that other rule, equally well settled, that the most free construction of an Act may, and ought to be resorted to rather than to admit such a sense as will make the law unconstitutional. These are familiar rules and are supported by abundance of authority.

I am, therefore, driven to the conclusion that this Act is prospective only. That it imposes no penalty for any past act, and is not, therefore, ex post facto. Very nearly the same line of thought is conclusive, also, upon the other objection to this law, to-wit: that it imposes new conditions upon the contract, and denies the remedy except upon terms that did not exist at the date of the contract, and therefore impairs its obligation.

It must be remembered that this Act imposes no tax. It only requires the payment of such taxes as are legally due by laws passed in the ordinary course of legislation. For twenty years we have taxed all property ad valorem, and debts being property, have always, since the ad valorem system was adopted, been taxed as other property. The taxes required by this Act to be paid are the taxes due the State — due last year, due year before last, and perhaps for other years before that. They are due now just as much as they were then. The fact that the tax payer failed to return a note to the Tax Receiver, or that he has allowed his tax for any one or more years to go unpaid, does not clear him of the liability.

It is notorious, that this class of property — debts, notes, bonds, judgments, etc., are most shamefully hidden from the Tax Collector. They are easily hidden. It is notorious, also, that debts contracted before June, 1865, have been specially concealed. Various expedients have been tried by the Legislature to force notes, debts, bonds, judgments, etc., to *395bear their share of the public burdens. The oath of the tax payer is appealed to — he is required to give in his taxable property. If he fails to do this, and it can be found, it is double taxed. But many persons have been in the habit of risking double tax rather than reveal their secret property. To meet this, the officers are required to find out all they can, then double tax it — next year double that, and so on, doubling each year, until the tax payer is compelled to show his hand.

If these taxes, which in many instances have been thus accumulating for years, are really due — and nobody can doubt this — can it be said that the State can use no remedy to enforce the payment of them except such as existed at the time the tax first became due? Surely not. The State, finding all other remedies inadequate, and knowing that to a very large extent these debts are and will be in suit, says to the owners of them : You owe taxes to the State on these very debts you are putting the country to the expense and trouble to enforce; pay these taxes or you shall not go on! Had the holders of these debts come up to the rightful demands of the State — had they, on the passage of this law, sought the Tax Collector and Receiver, given in their debts as property for taxation, making a clean breast of it for the past, the State would have reaped the benefit. But they have chosen to do otherwise; they grow indignant at this imposition, and determine to litigate to the bitter end their constitutional right to refuse to bear their share of the public burdens, and yet claim, with great gravity, the public protection. They refuse to pay the tax, or it they have already paid it they stand upon their dignity, or their rights, and refuse to make the affidavit, and come before this Court asking us to remove this obstacle which the Legislature has thus placed in their way. Our.reply is, the obstacle is one of your own making, and it is not in our power to remove it. The Act is a legitimate exercise of the power of the State to force its defaulters to pay to it their tax. That the remedy the State has chosen *396falls upon the contract, that incidentally it works delay to you in the collection of your debt, is not the fault of the law, but is caused by your own willful, persistent refusal to pay to the public its just demands against this very debt. If the taxes have, in some instances, got so large that you would rather loose the debt than pay them, it is only the stronger reason why you should not go on, since the debt belongs to the State. And in such cases remember the tax is still due whether you go on or not. You have only exposed yourself to the public authorities, and this very exposure is notice to the Tax Receiver and Collector that you are behind with the State, and ought to be inquired after.

I hold, therefore, that this Act impairs no obligation of a contract. It clearly does not affect its terms, and if, as I have undertaken to show, the Act is a legitimate exercise of the powers of the State to enforce the payment of its taxes, the fact that it effects the remedy js no objection to it.

Judge Swayne, in Von Hoffman vs. City of Quincy, 4 Wall, 553, where he announces the proposition that any law which lessens the value of a contract may be said to impair the obligation, immediately adds, “but this is to be understood of laws which do so directly, and not when the injury is incidental.” And he gives the case of an abolition of imprisonment for debt as an instance of what he means. Here the debt may be seriously lessened in value. Imprisonment may have been, and, indeed, often was, the only effectual remedy in the power of the creditor, and the abolition must, of necessity, seriously lessen the value of the debt. And yet Judge Swayne, in the very next breath after announcing the rule and the qualification, gives the abolition of imprisonment for debt as one of the instances of State legislation not in violation of the Constitution.

The true rule, as I understand it, as gathered from a careful study of all the cases decided by the Supreme Court, is, 1st. The State cannot, by legislation, affect the terms of the contract, in the slightest particular. In respect to the actual *397agreement of the parties, that is unalterable by legislation. It is not, so far as this is concerned, a question of degree; the power to affect at all is denied. But, as the remedies are, of necessity, matter largely in the discretion of a State, the rule as to them must, necessarily, stand on a different footing, since any alteration of the remedy may, to some extent, affect the rights of the parties at the date of the contract.

In legislating, therefore, upon the remedy, which all the decisions acknowledge to be within the legislative power, the alteration of the law must not be of such a character as 'does indirectly what may not be done directly. To say that, in altering the remedy, nothing can be done which lessens the value of the debt, is to deny the power over the remedy altogether. In this respect, therefore, the question is one of degree, and the rule is, that the legislation is void if it does not leave to the creditor a substantial remedy. It is true this is not a very definite rule, since it leaves every case to the conscience of the Court. But it is the only rule compatible with the acknowledged right of a State to modify its remedies at discretion.

In the case at bar, it was notorious, as I have said, that the State was defrauded of its taxes upon this class of property. It was easy to hide, and it was largely hidden from the Tax Receiver and Tax Collector. Various remedies were tried and failed. At length, in view of the fact, that when the aid of the Courts was sought to enforce a debt, there was, of necessity, an exposure of the property to the public eye, the remedy of this Act was adopted. The law is a good one. It is no hardship on an honest man. It merely says to him, as the United States says in the Stamp Act, pay your tax, or you shall not go on with your suit. Even if it imposed a new tax, which it does not, in what would it differ from the United States Internal Revenue Act of 1862? That Act required a fifty cent stamp on every process, and the Courts of all the States, as well as the Courts of the United States, were required to refuse to admit papers, and some of them *398made before the date of the Act, in evidence, until they were stamped according to the Act. Except for the perverse determination of the holders of these claims not to obey the law and pay to the State the taxes due on these very debts, this Act would have secured to the State a handsome revenue.

My own opinion is, that this Act ought to be extended to all debts, and the money-lender and note-shaver be brought to bear his share of the public burdens, and this is the more proper, since it is by the right to sue, and the fear of its exercise, that his debts are of value to him.

The question of the legality of the session of the Legislature of 1870, after forty days from its commencement, is of the utmost importance. It so happens that during that session and after the forty days, an Act was passed changing the time fixed in the Constitution for the general election, as well as an Act changing the time fixed in the Constitution for the annual meeting of the General Assembly. Both of these Acts, though expressly authorized by the Constitution, are void, if the Acts of that session passed after forty days are void. The present Legislature was elected under one of these laws, and held its session of 1871 under the other. Thus elected and thus meeting, the present Legislature passed an Act authorizing a special election to be held for Governor, to fill the unexpired time of Governor Bullock, and Governor Smith is now, by virtue of his election under that law, the Governor of the State. • Without this action Mr. Conley would, under the Constitution, perform the duties of that office until the regular election for Governor. Governor Smith, thus elected, has appointed a majority of the Judges of this Court. It may also be stated as another fact, that the session of 1870, after the forty days, changed the time of the meeting of the Supreme Court, and this Court, since its session in January, 1871, has met and is now in session under and by virtue of that law. If the Legislature, at its session of 1870, was illegally in session after forty days from its commencement, and if its Acts dur*399ing that session are illegal, it would seem to follow that the Acts of the present Legislature stand upon the same footing, as it was elected and has held its meetings at a time different from that fixed by the Constitution. The same line of reasoning applied to the session of 1870, would render invalid the Acts of the present Legislature. The Governor and the Supreme Court fall by the same logic. The result is that every branch of the government, legislative, executive and judicial, is, if the Acts of the session of 1870 are void, illegal and without constitutional authority. So startling a consequence calls for great hesitation. One cannot but suspect some error in a conclusion, the logical results of which are anarchy and confusion. My own mind is well satisfied that the session of 1870 did not need to be prolonged by a two-thirds vote. But my judgment in this case is put upon what I deem stronger and more impregnable ground. It is my conviction that, under the Constitution of the State, the judiciary has no power to pass upon the question of the legality of the Legislature, and that the decision of the body itself, whether made directly as was not done in this instance by a solemn vote of each House, or even indirectly, as if the body continue in session, after the expiration of the forty days, is conclusive whether right or wrong.

The form in which this question is made does not fairly present the real issue. A particular law is attacked on the ground that it is unconstitutional, and this is said to be so because it was passed by the General Assembly at its session in 1870, more than forty days after the commencement of the session, the same not having been prolonged by a two-thirds vote. This is not a question of the constitutionality of a law, but of the legality of the Legislature. The question is not whether the law is within the scope of legislative power— whether its provisions contravene any constitutional guarantee, or violate any constitutional prohibition. The question is not whether the Legislature, in passing it, conformed to the requirements of the Constitution as to the mode and *400manner of passing laws, whether the title and the body of the Act conform to each other, nor whether there be two subjects matter in the same bill ; but the point insisted upon is that the Legislature, at the date of its passage, was illegally in session — that it was no Legislature — that it had no power to pass laws, and that not only this but all its other Acts, passed after the expiration of forty days, are void.

I have been thus particular in stating the question because I think much of the apparent strength of the argument of those who attack this law is derived from the notion that they are assailing the constitutionality of a law, when, in truth, they are assailing the legality of the Legislature which enacted it.

It is not only the right but the solemn duty of the Courts to pass upon the constitutionality of laws. But the constitutionality of a law and the legality of the Legislature which passed it are wholly different things. Over the former, the judiciary has jurisdiction; over the latter, in my judgment, it has not. Very serious question has been made whether Courts, in their inquiries into the constitutionality of laws, are not confined to an examination of the law itself, as it appears on the statute books. It has been contended by learned Judges that while Courts may inquire if the provisions of a law are contrary to the Constitution, and, (still keeping to the Act as it appears upon its face,) whether the body of it conforms to the title, and whether there be more than one subject matter, etc., that this exhausts their authority. They cannot go behind the Act itself, examine the journals of the two houses, or learn from other sources whether the Legislature conformed, in its passage, to the constitutional requirements as to the mode and manner in which bills shall be introduced, read and voted upon.

And this limitation upon the power of the judiciary would seem entirely consistent with section 32 of our bill of rights, which provides, “that legislative Acts, in violation of this Constitution, are void, and the judiciary shall so declare *401them.” There is an obvious distinction between a legislative Act” and the mode in which that Act has been introduced, read and voted upon. But, though, as I have said, this distinction has been drawn, I am inclined to think the weight of authority is in favor of the right of the Courts to go, at least, to the journals and inquire if they show the proper and constitutional proceedings to have been had on the passage of the law.

But the cases are uniform that the journals are conclusive; that, however untrue, in fact, the journals may be, they are to be taken for true, and nothing will be heard in contradiction of them; and this upon principles of public policy, and respect of one branch of the government for the other, as well as upon the further principle that even Courts, in the search after truth, recognize finalities behind which they will refuse to look. But, as I have said, the question made in this case is not really upon the constitutionality of the law, as to its provisions, or its title, or even as to the mode in which it was introduced, read and voted upon, but upon the constitutionality of the Legislature itself — upon its authority 'to pass any Acts. Being, as it is claimed, in session contrary to the Constitution, it was not, at the time, a legislative body at all, but a mere mob, incapable of making laws of any kind.

Is it competent for the Courts to decide upon the legality of a session of the Legislature? I think not. It was admitted by the two able gentlemen who, with such ability, argued this case against the validity of this law, that there are some questions upon which the decision of the Legislature is conclusive; so that, even if it decides wrong, no other tribunal can re-examine them. The Constitution expressly says that each House shall be the judge of the election and qualification of its own members. It was, in the argument by Mr. Stephens, admitted that, for a wrong judgment in such a case, there is no remedy, and such is, without doubt, the universal opinion. And yet the Constitution does, not *402say each House shall be the exclusive judge, even of the election and qualification of its members. Upon the principles asserted in the general argument, to-wit: that the Courts must inquire into the truth and judge for themselves, however it may be, that other branches of the government must also judge for themselves, it seems to me that if a case arise where a law is attacked, on the ground that it was passed by the votes of members of one or the other House, who were not legally elected, that the inquiry cannot be declined, since, as I have remarked, the power given to each House over the subject is not, in terms, exclusive. The truth is, the object of this constitutional provision was not so much to confer this power, and to confer it exclusively against the Courts and against the executive, as to confer ¡it upon each House, to the exclusion of the other. It needed no provision to protect the Legislature against the scrutiny of the Courts on this subject. It must, in the nature of things, be in the power of a legislative body to declare, and declare conclusively, who compose it, and whether it is properly organized and in session according to the Constitution and laws. Such questions enter into its very existence, and must be decided before it proceeds to business, and to make them the subject of review before the Courts, is not only to make all legislation uncertain and inconclusive, but to exalt the Courts to supreme power in the State.

But it is said that this Court is bound by its oath of office to see to it that the plain letter of the’ Constitution is not violated, and that no Act can have the force of law if it be the product of a Legislature in session in violation of the Constitution. It has been asked if a Legislature, five years hence, when the first two sessions will, without question, have been held, should hold a session and pass laws, more than forty days after its commencement, without a constitutional prolongation, would such laws bind the Courts? In reply, it might be said, this is not such a question. In this case there was a hot dispute over the matter; men honestly dif*403fered as to the truth of the case, and the decision was made. It has, too, been acted upon for two years by the people, by the executive, and by this Court, until it has become a fait accompli; until it has entered as such into the whole organization of the State, in its legislative, executive and judicial departments, so that to disturb it is to inaugurate anarchy. But a question is not an argument. To suppose that a grant of power will be abused; that a wise and salutary rule, adopted for sound reasons of public policy, will be wickedly and recklessly perverted by the General Assembly of the people, is no argument against the existence of the grant. It may be a good reason for refusing to give it, but to argue that because it may be abused it does not exist, is very weak logic. Suppose this Court were to give a judgment plainly wrong, would it not be nevertheless binding upon the parties? Nothing is better settled, as a rule of law, than that the judgment of a Court of competent jurisdiction is conclusive, no matter whether it be right or wrong. Not a term of this Court passes in which we do not hold that such a judgment cannot be inquired into. It may be a wrong judgment, founded on mistake of law or fact, yet, the rule is uniform that it is to be treated as true and right. Whether it be so in fact or not, the Court refuses to inquire.

Is this a bad rule ? Is this the sanction of illegality and wrong ? Or, is it any reply to this rule to say that under it decisions may be made and be final, of gross and outrageous illegality ? Does it at all follow that if it be admitted, that the decision of such questions by the Legislature is conclusive upon the Courts, they will be decided wrong ? Are not the members of that body under oath, and is it to be presumed that they will disregard that oath? Is the Constitution less safe in their hands than in the hands of the judiciary? Is a provision of the Constitution, evidently intended, not as a limit upon the legislative power over the citizen, or as a rule to be observed in the passage of laws, but a provision to secure a diligent attention to business and *404to spare the public purse, more apt to be obeyed under a power in the Courts to enforce it, than under the power of the ballot to punish its infraction ?

In every government, power must be trusted somewhere. There must always, upon every matter, be a final arbiter from whom there is no appeal, except to the people or to arms. This Court treats as final the final judgment of even a Justice of the Peace upon a matter within his jurisdiction, no matter how wrong it may be. It will not hold it to be right; it simply refuses to enter upon an inquiry on the subject.

The truth is, this world is full of ultimata, and human life and human society would be a curse without them. There are ultimata in philosophy, morals and politics. The profoundest philosopher must assume the existence of matter, though he can know nothing of it but that it has certain qualities. We all live upon land wrested by wrong from the Indians; our whole social and political polity, until the late war, was based upon what nobody ever undertook to defend, the African slave trade. And there are but very few of us who can trace our title to anything very far ere we find the channel through which it has come sadly befouled with fraud and crime.

But it is in politics that ultimata are found most necessary for the public good. There is hardly a government in the world that can show a regular chain of title to its powers. Illegitimacy is written in deep imprints upon almost all of them, and the wandering Bourbons, who for nearly a century have been asserting the rights of legitimacy and regularity, have become a type of folly and imbecility.. Lord Summers’ call of the Parliament of 1688, irregular and illegal as it was, dethroned the Stuarts and established English liberty, and the history of English law and of English liberty is full of just such irregularities, which having entered as an element into the very texture of the government, have become ultimata, which are treated as legal, whether they be in fact so or not. If the irregularity be great, we call it a revolu*405tion, and accepting the result shut our eyes to the past. But if closely looked to, every successful illegality is a revolution. The necessities of State require it to be treated as a finality. And the history of the last ten years, with its present results, only shows us that even in governments with a written constitution, also a necessity, ultimata are also a State necessity. What constitutitional lawyer would have deduced from the nature of our government, and the provisions of our Constitution, the possibility of the history of the last twelve years; the coercion of States by Federal arms, the abolition of slavery by Federal power, and the establishment of the present governments in the so-called rebel States by Federal legislation. Yet nine-tenths of the American people are today accepting thesé results as finalities. And the Supreme Court of the United States have lately, by a solemn judgment, declared them ultimata — the work of the political department of the government, in its judgment upon an anomalous and exceptional state of public affairs, over which the judiciary has no jurisdiction. Stare decisis is an accepted and valuable rule for the regulation of Courts, even in ordinary matters, but when its application becomes necessary to prevent anarchy in the government itself, it is doubly important.

Let it then for the sake of the argument be admitted that the two Houses decided the question of their right to sit without a two-thirds vote of prolongation wrongly, it does not by any means follow that the laws passed at the subsequent sessions are void. The decision was by a tribunal compepetent to decide it, and having exclusive jurisdiction over the question, and if even this be not so the decision has, by the course of events, become so blended with the very organization of the State, that it stands as an ultimatum, not subject to inquiry. But there is a less abstract view of this subject which, as it seems to me, is equally conclusive. As I have said, the question made is not so much the constitutionality of the Act under review as the legality of the Legislature *406that passed it. By assuming jurisdiction over this question this Court assumes a power of control over the Legislative department of the government that, most certainly, it cannot exercise directly. Very clearly, no writ of quo warranto or injunction would lie before any Court, either to test the legality of the Legislature, or the right of the Governor to perform the executive functions. Were there two persons claiming to be Governor, perhaps the Courts might decide, not which was the rightful officer, but which was recognized as such by the General Assembly, and if there were two bodies, each claiming to be the Legislature, the Courts, whilst, during the contest, they must and would be powerless, might, after the contest was over, recognize that as the true one which was practically successful with the people. But, by no direct action, can the Courts try the legality of the Legislature. If they cannot do this directly, by a proceeding for the purpose, can they do so indirectly, by deciding upon the validity of the Acts it may pass, on the ground that the body passing them was not a legal body? To set up the judiciary as an arbiter of the legality of the Legislature, a co-ordinate department of the government; to make it the oracle to which contending revolutionists shall come for judgment as to who is right, is to enthrone it as the supreme power in the State, and to confer upon it a jurisdiction dangerous to its own existence, and never contemplated by the fundamental law. To decide when a law conforms to the Constitution is one thing, to decide, who are the law makers is another. To do the one, the people have expressly granted to the Courts; to do the other, there is not only no grant, but the claim of such a right is a claim foreign to the nature of the judicial office, dangerous to the independence of the legislative and executive departments, and contrary to the first principles of a government of the people.

Necessarily, the Courts must decide what is the law — what is the legal will of the law-making power. But if they have the right to go behind this, and to inquire whether the law*407making power is itself legal, they become, in effect, the supreme power in the State. A case may be supposed of a body — a mere public meeting — undertaking to pass laws, and it is asked if the Courts, when the acts of such a body are pleaded as law, must not inquire into the rightfulness of the claim of the body to be a law-making power. In such a case, the inquiry by the Courts would be, not the rightfulness of the authority not its conformity to any written code of constitutional law, but whether it was in fact the legislative department of the government, recognized as, such, by the people, or by whatever final arbiter has power to enforce its edicts. In other words, Courts do not make governments, or decide upon their validity. If they cannot recognize as rightful, the law-making power, which is, in fact, supreme, they must get out of the way, and not attempt, by their feeble arm, to stay the tide of revolution. Luther vs. Borden, 7 Howard, 1.

But there is another ground, which, though it assumes the right of the Courts to pass upon the legality of the Legislature directly, is fatal to the position taken against this law. It is a settled rule, that even where Courts have power to inquire into the right of an officer to perform official acts, they will not do so collaterally. They will freely investigate the legality of any particular act, but they will never, in so doing, inquire into the right of the officer to act, as such, at all. The rule is uniform, that the acts of an officer, otherwise legal, cannot be attacked on the ground of any illegality in his appointment, or on the ground that though he is an officer in fact, he is not so according to law.

Is not the General Assembly, actually in session, entitled from the Courts to at least the same measure of consideration as they grant to a constable or a Justice of the Peace ? Will the Courts, in inquiring into the validity of the acts of even such humble officers as these refuse to declare them illegal, because of a defect in the legal title of the officer to his position, and yet determine an Act of the Legislature invalid *408because of a defect in its title to perform legislative functions? There is one thought more which occurs to me as a conclusive reply to the claim of this Court’s jurisdiction over this question. As I have said, it so happens that the regularity and legality of the whole of the legislative, executive and judicial departments of the government, as they at present exist, depend upon the validity of the Acts of the session of 1870 after the forty days. I have, as I think, clearly shown that those Acts are valid, and that the government, as it now exists, stands upon impregnable ground in any view of the ease the Court is authorized to take. Rut assuming the contrary — assuming that the Acts of the session of 1870 were void, because the Legislature was sitting at a time prohibited by the Constitution, precisely the same objection lies to the legality of this Court. It is also sitting at a time not authorized by law, if those Acts be void. It is held, also, by men appointed and confirmed by a Governor and a Senate, elected and meeting at a time not authorized by the Constitution, and in the very same breath with which it should declare the Acts of the session of 1870 invalid and void, it would declare itself illegal. It would, upon the very same principles, be no Court, and be thus without power to pass authoritatively upon the question.

For these reasons I am of the opinion, that the Acts of the session of 1870 are not void, even though the Legislature may have decided wrongly, when it declared the session of that year not to need a two-thirds vote of prolongation; that the roles of law, the nature of the question, and the necessary balance of power among the different departments of the government, deprive the Courts of jurisdiction over the subject. If these principles be correct, it is wholly immaterial for the purposes of this case, whether the session of 1870 was a session after the second or not. That it was the intent of the framers of the Constitution to allow two sessions after the Constitution should go into operation, as the supreme law, independent of military interference, seems unquestionable j *409and it is an undoubted fact that the session held after July, 1870, was not the third session after this military interference ceased. It would seem to follow, almost inevitably, that the session of 1870 did not need to be prolonged by a two-thirds vote. My brother Montgomery puts his judgment mainly upon this ground, not that he doubts the soundness of the positions I have taken, but because he is thoroughly satisfied of the soundness of that view of the case, and the great pressure of labor on this Court renders it inconvenient for both of us to discuss the whole subject. I may make the same remark for myself. I am satisfied with my brother Montgomery’s view of the matter. But I prefer to put my judgment, in the view I have taken, leaving the discussion of the other view to his discretion.