Dissenting Opinion.
Mitchell, J.The important question for consideration arises out of the proposition that local self-government, as applied to the regulation of municipal affairs, under the Constitution of the State of Indiana, is an inherent right of the people, “ older than any American Constitution,” not conferred upon them by the Legislature; that it is an “ insep*412arable incident ” to republican government, and entirely beyond legislative interference.
It is affirmed that the enactments involved in the present case, and in some other cases before the court, while not in contravention of any express constitutional provision, violate these fundamental maxims of government, and that it is hence the duty of the court to declare them void and arrest their execution. This is the breadth and proportion of the question.
The rule under which the General Assembly and the courts of this State have heretofore proceeded in the enactment and interpretation of statutes is, that the "authority of the Legislature is supreme, and subject to no limitations except such as are imposed by the Constitution of the State, the Constitution of the United States, and the laws and treaties made under it.
This rule of interpretation is firmly imbedded in the jurisprudence of all the States, and has become part of the American system. Often as the effort has been made to erect some other standard, the courts have declared that, until some express provision of the Constitution could be pointed out which the Legislature, in the enactment of a law, had disregarded, judicial interference could not be successfully invoked. Beauchamp v. State, 6 Blackf. 299 ; Lafayette, etc., R. R. Co. v. Geiger, 34 Ind. 185; Campbell v. Dwiggins, 83 Ind. 473; Hedderich v. State, 101 Ind. 564.
Public statutes are not to be regarded as common enemies, whose speedy extermination is specially committed to the courts. The power to declare a statute void is one of the highest possessed by any judicial tribunal in the world, and ■everywhere the authorities say this power is only to be exercised with the utmost care, and after all doubts as to the ■constitutionality of the law have been dispersed. Robinson v. Schenck, 102 Ind. 307.
The Constitution has erected no standard by which to determine what constitutes local self-government, or what are natural and inherent rights, as those terms relate to mu*413nicipal government. These are questions of political, and, therefore, of exclusively legislative concern, with which other departments can not interfere without invading the legislative domain.
Disputes over theories of local self-government began with the organization of civil society, and they will doubtless continue until human government ends. Publicists and doctrinaires, whose writings are appealed to, are not agreed concerning the natural and inherent rights of men, as related to government, nor is it best they should agree. Our State Constitution was adopted by the people, as a well matured scheme of practical, progressive government, and its written limitations may be readily comprehended by intelligent men who are called to engage in framing legislation adapted to the growing needs of every portion of the State. Progress is at an end, however, if legislation must waP until the courts set bounds to the shoreless sea of local self-government, or until the judiciary ascertains and declares what are the “inseparable incidents ’’ to written Constitutions under our republican system.
The debate on those subjects must be left free, open and unfettered, and it must be left, as all the authorities say, exclusively with the people and their chosen representatives. The judiciary can not debate. Courts give judgment, which means that discussion is ended. Hence the rule that the authority of the Legislature in the enactment of laws is supreme, and subject to no restrictions, save only such as are found written in the organic law. Plence the further rule that courts can not interfere to set aside an act of the Legislature, on the ground that it is opposed to a spirit that is supposed to pervade or underlie the Constitution, or that it contravenes the natural rights of society or the general principles of local self-government. Although the Constitution is to be regarded as having been framed and adopted with all these principles in view, until they have been declared in *414terms in that instrument they do not become subjects for judicial interpretation.
Speaking of limitations upon legislative authority, Judge Cooley, the value of whose opinions will not be questioned, has well said : “ Some of these are prescribed by Constitutions, but others spring from the very nature of free government. The latter must depend for their enforcement upon legislative wisdom, discretion, and conscience. * * * Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the Constitution imposes ; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.” Cooley Const. Lim. (5th ed.) 153 ; Walker v. City of Cincinnati, 21 Ohio St. 14; State v. McCann, 21 Ohio St. 198; Adams v. Howe, 14 Mass. 340 (7 Am. Dec. 216). Very many judicial decisions support this view, and there are none to the contrary.
The same learned author lays it down as an established rule, that courts can not declare a statute unconstitutional because it is supposed to violate the natural, social or political rights of the citizen, unless it can be shown that the legislation is inhibited by the Constitution, and he asserts that, while some expressions may be found in the opinions of judges which have been understood to intimate a different doctrine, these expressions were used merely by way of illustration or argument, rather than as laying down a rule by which courts could apply limitations to legislative action. Cooley Const. Lim. 197-201. These principles have found expression in the decisions of every court, and in every textbook where the subject has been considered. Thus, in Beebe v. State, 6 Ind. 501, 528, this court, speaking by Stuart, J., said: “Such is the imperfection of the best human institutions, that mould them as we may, a large discretion must at last be reposed somewhere. The best, and in many cases the only security, is in the wisdom and integrity of public *415servants, and their identity with the people. Government can not be administered without committing powers in trust and confidence.” Said Rogers, J., in Commonwealth v. McCloskey, 2 Rawle, 369 : “ If the Legislature should pass a law in plain, unequivocal, and explicit terms, within the general scope of their constitutional power, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice. * * * This would necessarily lead to collisions between the legislative and judicial departments, dangerous to the well-being of society.”
The legislature must be the sole judge of whether or not an act is in violation of the principles of local self-government, unless those principles are defined in terms in the Constitution, and it must be assumed, in the absence of constitutional definition, that these principles are as well understood by the Legislature as by the courts. If an act is in violation of the Constitution, the courts should, when clearly convinced that it is so, unhesitatingly declare it void, but as was said in Sharpless v. Mayor, etc., 21 Pa. St. 147: “We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which itis the object of a free government to protect.” This the court declined to do, and declared that until it appeared that the act was in violation of some provision of the Constitution, it was not a subject for judicial cognizance. This must, in the nature of the case, be the only true and safe rule by which courts can be guided. If, over and beyond the express limitations imposed by the Constitution, the theories of local self-government, as the courts may interpret them, are to operate as limitations upon the Legislature, confusion and uncertainty must inevitably result. Nor is the problem solved by assuming that the science of municipal government had attained such a degree of perfection when the Constitution was adopted as that all inquiry concerning the principles of local *416self-government must be referred to the methods which prevailed at that period. As was said in Ohio v. Covington, 29 Ohio St. 102 : “ By such interpretation of the Constitution,, the body of the laws in force at the time of its adoption would have become as permanent and unchangeable as the Constitution itself.”
The inquiry may be pertinently made, how are the boards of health, police, fire and other departments of municipal government, in the cities affected by the legislation here denounced, to be organized or constituted in the future ? Are these cities to be turned back, by the judgment of the court, forty years to the methods that prevailed at that time ? Who shall say how these indispensable departments of city government are to be organized and their members chosen, so as to conform to the principles of local self-government. Must the cities, the courts or the Legislature determine ?
It is impossible to discuss the subject of the power of the Legislature over municipal corporations without repeating much that has already been said by courts. The agglomeration of population into great cities, and the commercial and manufacturing interests that ensue, have produced the necessity for legislation such.as that here involved in almost-every State in the Union. The validity of such legislation has often been questioned before • it is not a subject new to the courts of the country, and it is believed that an unbroken, line of decisions can be presented which uniformly sustain the formation of boards for the control of the local affairs of' cities which affect the health, safety, and convenience of persons, and the protection of life and property within the mu-. nicipalities. The decisions which are relied on as holding a contrary view, were, it is submitted, in every instance controlled by express constitutional provisions, and present no exception to the current of authorities, which is overwhelming and without conflict, as can readily be shown, in support of the view here taken.
Municipal corporations are bodies politic and corporate,. *417created by the Legislature as governmental agencies of the State, and they can only exercise such power as they derive from the source of their creation. Such powers as they exercise are at all times subject to legislative control, and in the absence of constitutional prohibition their powers may be enlarged or diminished, or withdrawn altogether, and their property devoted to other uses, as the Legislature may determine. Rogers v. Burlington, 3 Wall. 654; Commissioners v. Lucas, 93 U. S. 108; Hamlin v. Meadville, 6 Neb. 227; Touchard v. Touchard, 5 Cal. 306; Mather v. City of Ottawa, 114 Ill. 659.
The relations which municipal authorities sustain to the State are definitely fixed and were accurately expressed at a very early period in the history of this State.
In Sloan v. State, 8 Blackf. 361 (364), this court declared that “ Public or municipal corporations are established for the local government of towns or particular districts. The special powers conferred upon them are not vested rights as against the State, but being wholly political exist only during the will of the General Legislature, otherwise there would be numberless petty governments existing within the State and forming a part of it, but independent of the control of the sovereign power. Such powers may at any time be repealed or abrogated by the Legislature, either by a general law operating upon the whole State, or by a special act altering the powers of the corporation.”
This was the law as settled by the j udicial department of the government when the present Constitution was adopted, and it must be presumed that if it had been deemed wise to impose restrictions on the Legislature, so as to secure municipal corporations against legislative interference, it would have been done by some direct method. Judge Cooley expresses the controlling idea when he says: “ It is also a maxim of republican government that local concerns shall be managed in the local districts, which shall choose their own *418administrative and police officers, and establish for themselves police regulations; but this maxim is subject to such exceptions as the legislative power of the State shall see fit to make; and when made, it must be presumed that the public interest, convenience, and protection are subserved thereby. The State may interfere to establish new'regulations against the will of the local constituency.’* The conclusion laid down by this eminent judge is, that the maxims which have prevailed in the government, address themselves to the wisdom of the Legislature, and that their supposed violation by that body affords no warrant for judicial interference. Cooley Const. Lim. (5th ed.) 203, 204, 205.
The Legislature represents the public at large, and has complete and paramount authority over all the public highways and over all property devoted to public uses in the State. Streets, sewers and public drains exist only by authority of the State and in pursuance of public law. They are provided for the use of the public, and can only be compulsorily opened or improved by the power of the State. They are as much under State regulation as are z-ivers, railroads, canals or other public roads laid out or improved by the authority of the State. O’Connor v. Pittsburgh, 18 Pa. St. 187; Stormfeltz v. Manor T. P. Co., 13 Pa. St. 555 : Com. v. Plaisted, 2 Lawyers' Rep. Ann. 142, and note.
The error which lies at the root of the argument by which the unconstitutionality of the acts here in question is attempted to be maintained, springs out of the fallacious assumption that the people of a city or town have any interest or inherent right whatever to municipal government, while every atom and vestige-of right in those respects, under our system, ai’e such, and only such, as the Legislature confers. Upon this baseless assumption, which oblitez’ates and confounds all distinctions between municipal regulation, a creature of legislation, and county and township government which existed before Legislatures were, and which is, and always was, common to every community in the State, the *419whole fabric of argument adverse to the constitutionality of these acts is builded.
It is common learning, said Mr. Justice Field, in Meriwether v. Garrett, 102 U. S. 472, “ found in all adjudications on the subject of municipal bodies, and repeated by text-writers,” that “ municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the Legislatures may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure.” In the case cited it was held that the power delegated to a city by the State might be withdrawn, and that when withdrawn, the public buildings, streets, squares, parks, fire engines, and all other property held by the city for public uses, passed under the immediate control of the State. The same high tribunal, speaking of the relations which municipal corporations sustained to the States, said, in United States v. Railroad Co., 17 Wall. 322, 329 : “ It is one of its creatures, made for a specific purpose. * * * The State may withdraw these local powers of government at pleasure, and may, through its Legislature or the appointed channels, govern the local territory as it governs the State at large.” See, also, Mobile v. Watson, 116 U. S. 289. In Philadelphia v. Fox, 64 Pa. St. 169, a ease altogether parallel in principle with the present, after declaring that a city was merely an agency having no vested rights in the powers conferred upon it, and, therefore, fully subject to the control of the Legislature, Sharswood, J., said that the sovereign might continue the corporate existence of the city, “ and yet assume or resume the appointment of all its officers and agents into its own hands; for the power which can create and destroy can modify and change.” “No one,” continued the learned judge, “I think can doubt that it was entirely competent for that authority to vest the entire management and control of all municipal affairs in just such a body as that constituted by this act. If they could do the greater, they can do the less.” See, also, People v. Flagg, *42046 N. Y. 401. In People v. Mahaney, 13 Mich. 481, wherein-the power of the Legislature to create a police board/to be filled by appointment by the Governor, was sustained, it was-declared by Cooley, J., that legislation in violation of sound political principles, but which does not infringe the Constitution, can not be declared void.
In People v. Draper, 15 N. Y. 532, this whole subject received most careful consideration in construing a provision of the Constitution of the State of New York, which declared that “All officers whose offices may hereafter be created by law shall be elected by the people or appointed as the Legislature may direct.” It was held that the Legislature was at liberty to provide for the election or appointment, in any manner it deemed suitable, of all officers, local or general, whose offices were created by law, the mode of whose election or appointment was not prescribed by the Constitution. In upholding an act of the Legislature establishing a metropolitan board of police in certain counties, embracing the-cities of New York and Brooklyn, Chief Justice Deoto said :: “As a political society, the State has an interest in the repression of disorder, and the maintenance of peace and security in every locality within its limits. * * It is within the discretion of the Legislature to apply such legislation as, in its-judgment, the exigency of the case may require; and it is the-sole judge of the existence of such causes. It has been said that a tendency may be discovered in the Constitution, toward local administration. * * This I believe to be true. * * * It may be the duty of the Legislature to follow out or advance such a line of policy, but the business of the courts is with the text of the fundamental law as they find it. They have no political maxims and no line of policy to further or to advance. Their duty is the humble one of construing the Constitution by the language it contains.” See, also, People v. Shepard, 36 N. Y. 285.
It is sufficient to say in respect to the case of People v. Albertson, 55 N. Y. 50, which is claimed as lending support to-*421a conclusion adverse to the constitutionality of the legislation here involved, that the decision of the case rests explicitly on the construction of section 2 of article 10 of the Constitution of New York, which declares that “All city, town, and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns or villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.”
A provision in the Constitution of the State of Michigan, which controlled the judgment of the court in People v. Hurlbut, 24 Mich. 44, the case chiefly relied upon to support the conclusion that the acts here in question are invalid, while not strictly identical in phraseology with that above set out, was construed to be identical in meaning with it. In these cases, in which it appears that local self-government was expressly guaranteed to municipal corporations in the organic law of the State, occur the forcible arguments and apt illustrations upon which the judgments of the courts rest. Accordingly, Judge Cooley could well declare, as he did: “ It is a fundamental principle in this State, recognized and perpetuated by express provisions of the Constitution, that the people of every hamlet, town, and city of the State, are entitled to the benefits of local self-government.” People v. Common Council of Detroit, 28 Mich. 228.
That eminent jurist was not chasing the shadowy phantom of a “ latent spirit,” or of the “ inalienable right of local self-government.” He rested his judgment, where all courts have rested theirs, on the solid rock of an express provision of the Constitution he was expounding, in the light of the great principles to which he referred by way of illustration and argument.
No such declaration can be made with respect to the Constitution of Indiana, without first interpolating something into it which those who framed it omitted.
A board of health and a board of police commissioners for *422the city of Cincinnati were created by the Legislature of the State of Ohio in 1876. The members thereof were appointed by the Governor, in pursuance of authority conferred in the law. It was contended, in a case involving the constitutionality of the act, that because the officers composing similar boards were elective, by the electors of the several cities in the State of Ohio, at the time of the adoption of the Constitution, the act authorizing the Governor to appoint was in violation of the principles of local self-government. On the subject of the power of the Legislature to pass such a law the court says: “ Rules and regulations for local municipal government of cities and villages are subjects of and are as clearly within the scope of legislation as are those which concern the State at large. Cities and villages are agencies of the State government. Their organization and government are under the control of the State, and every law which affects them must emanate from the General Assembly, where the legislative power of the State is vested.” Ohio v. Covington, 29 Ohio St. 102. Diamond v. Cain, 21 La. Ann. 309 ; Police Commissioners v. City of Louisville, 3 Bush, 597; State v. St. Louis County Court, 34 Mo. 546.
The Supreme Court of the State of Kansas, speaking of the constitutionality of an act establishing a board of metropolitan police, used the following language: “ In effect, it is said to be opposed to the fundamental theory of self-government, and denies to the people of the district the right to select their own officers from among their own number. Whatever may be said regarding the policy of placing the police administration of cities in a board of police commissioners who are chosen by State officers rather than through the electors of the cities, there can be no doubt that the Legislature has the power to do so.” State v. Hunter, 38 Kan. 578. In like manner, the supreme judicial court of Massachusetts, in vindicating the constitutionality of a statute of that State from all the objections urged against the one here involved, said “ We find no provision of the Con*423stitution with which it conflicts, and we can not declare an act of the Legislature invalid because it abridges the exercise of the privileges of local self-government in a particular in regard to which such privilege is not guaranteed by any provision of the Constitution.” Commonwealth v. Plaisted, 19 N. E. Rep. 224. An act creating a board of fire and police commissioners was created by the Legislature of the State of Nebraska. The Governor was requested to appoint the members of the board from different political parties, as was the fact in most of the cases already cited. Remarking upon the contention that the act was opposed to the principles of local self-government, the court said : “ It is, no doubt, the general spirit of our Constitution and institutions, and in accord with the habits and traditions of our people, that the inhabitants of every subdivision of the State shall have an equal share and responsibility in public affairs, so far as the same shall have been found conducive to the public safety, the preservation of the public peace, and the conservation of the public morals, and in every ease of doubt in construing a statute, where such construction might turn upon the recognition and fostering of such spirit, no court would be blind to its duty in that behalf. And yet it is the boast of the American people in every State that they live under a written Constitution and do not look for a guaranty of their rights or liberty to any intangible code of traditions, or the opinions or constructions of any man or set of men:” State v. Seavey, 22 Neb. 454 (467).
In Mayor, etc., v. State, 15 Md. 376, after an elaborate and most learned opinion, the court gave judgment establishing the following propositions, which are involved in the present case:
1. “The power of appointment to office is not, under our system of checks and balances in the distribution of powers, where the people are the source and fountain of government, a function intrinsically executive, in the sense that *424it is inherent in, and necessarily belongs to, the executive department.” ' -stj
2. “ Our form of government in its various changes has never recognized the power of appointment to office as an executive prerogative; the Constitution so far from treating it as an inherent executive power indicates that it belongs where the people choose to place it.”
3. “ The city of Baltimore and the counties are mere instruments of government appointed to aid in the administration of public affairs, and are parts of the State; as public corporations they are to be governed according to the laws of the land, and are subject to the control of the Legislature. The provision in the police law, which transfers to the commissioners, for the purposes of the new police, the use of the city property is constitutional and valid.”
It was also held in .the case last cited, as it was in all the others where the question was raised, that the requirement that the boards should be selected from the leading political organizations was merely directory, and did not affect the validity of the law.
The length to which this opinion has grown forbids a particular application of the authorities which support the proposition that the control of streets, the sewerage and water supply, the fire and police departments, in a populous city, are all subjects of public concern to the State, and therefore subject to legislative control. These subjects all relate to the public convenience, the public health and safety, and to the protection of persons and property.
An examination of the numerous authorities in which not only the general subject examined in this opinion, but every feature of the opposition to the enactments in question, has received the careful consideration of the courts of last resort, both State and National, and which have by their deliberate judgments again and again vindicated the constitutionality of legislation like that here assailed, leaves no room for doubt *425concerning the validity of these statutes. State v. Smith, 44 Ohio St. 348.
Filed April 24, 1889.In this last case, it is tersely and accurately said that the distinctions sought to be made in some cases, in matters pertaining to the public and proprietary character of municipal ■corporations, are illusive and without foundation. 1 Dill. Munic. Corp., section 67; People v. Draper, supra; Darlington v. Mayor, 31 N. Y. 164 (193); State v. Seymour, 35 N. J. L. 47; State v. Valle, 41 Mo. 29 ; Daley v. City of St. Paul, 7 Minn. 390.
This legislation, it hardly needs be said, is to be construed with reference to the Constitution of Indiana as it is. It is the deliberate judgment of the writer, that, without in effect interpolating into our Constitution a provision similar to that ■contained in the Constitutions of the States of New York and Michigan, and also that which controlled the judgment in State v. Kennon, 7 Ohio St. 546, there can be no judicial authority found anywhere to support a conclusion adverse to any of the statutes the validity of which is in question.
Regretting the diversity of opinion which has resulted, the foregoing are the grounds upon which my dissent in this and .the other similar cases is based.