Attorney-General v. McGuinness. 78 N. J. L. sioners. The latter case was most elaborately argued, and it is worthy of note that it did not occur either to counsel or to the court that the non-participation by the people in the choice of the commissioners constituted an obstacle to the act. In Pamph. L. 1896, p. 339, "An act relating to boroughs and borough commissions," the legislature repealed certain prior borough acts, and declared that every de facto corporation theretofore established under any of these acts and exercising corporate powers should be created a borough by its then present corporate name, and should be governed by certain general laws of the state relating to boroughs, and that the presiding officer and members of the governing body should be the mayor and councilmen of the borough hereby created, and should continue in office until the next succeeding annual borough election. This act was sustained as constitutional by the Supreme Court in Kennedy v. Belmar, 32 Vroom 20. In Pamph. L. 1899, p. 534, "An act relating to certain illegal borough governments, requiring the payment of their debts," the legislature declared that every attempted organization by the inhabitants of any portion of the territory of the state of a borough or borough commission under the provisions of any act since declared unconstitutional or repealed, and which attempted borough organization incurred debts which have not been paid, and which attempted borough organization is not now a de facto or de jure government, is hereby created a borough by its former name, and as such shall be a body corporate and responsible for all contracts, debts, &c., of the attempted borough organization; that the last presiding officer and members of the last governing body and the last clerk residing within the borough limits should be the mayor and councilmen and borough clerk of the borough, to continue in office until the next election, and the said mayor and councilmen should by appointment fill all other offices required by the provisions of the general borough laws until the next annual borough election. Here the legislature, in effect, for the purpose of creating and enforcing a public obligation out of what was at the most a mere 49 Vroom. Attorney-General v. McGuinness. moral obligation, created boroughs where there existed none, either de facto or de jure; in effect appointed the mayor, councilmen and borough clerk by designating those who had last served in those capacities, to continue in office until the next election, and conferred upon the boroughs thus created whatever powers were requisite to enforce the payment of their debts. In Cooper v. Springer, 36 Vroom 594, this court sustained the constitutionality of that act, but only to the extent necessary to require the payment of the debts of the illegal boroughs, holding that this was a limitation of the object of the act as expressed in the title. The decision of the Supreme Court in Gilhooly v. Elizabeth, 37 Vroom 484, is not to the contrary. There the law that was under consideration was held to be a special law, and this, combined with the fact that it regulated municipal affairs by commission, was held to render it unconstitutional. The decision of this court in Township of Bernards v. Allen, 32 Vroom 228, turned upon the delegation by the legislature of the legislative function of taxation to ministerial officers or to another department of the government, and is not an apt precedent upon the question now before us. The same is true of Van Cleve v. Passaic Valley Sewerage Commissioners, 42 Id. 574. The conclusion reached by the foregoing views, which were formulated by Chancellor Pitney, is that the first of the two questions propounded by the court for argument should be answered in the affirmative. 2. Even if it should be deemed that it has not been conclusively demonstrated that the privilege of "home rule" does not inhere in the form of government established under our constitution as a constitutional limitation upon legislative action, our practical response to the first question would be the same, for, if the existence of such a limitation be at all doubtful, the action of the legislative branch of the government will not be declared invalid by the judicial branch. This doctrine, which is now a firmly established rule of judicial policy, arose almost simultaneously with the assumption by the courts of this country of the power to declare void a legislative act that VOL. XLIX. 24 Attorney-General v. McGuinness. 78 N. J. L. violated a constitutional limitation, and was, indeed, one of the safeguards of that unique power that facilitated its final assumption by the courts. Immediate assent, however, was not accorded to the new power that was for the first time asserted-not as is sometimes stated in 1786 by the Supreme Court of Rhode Island in the case of Grevett v. Weeden, nor by the Virginia court in Commonwealth v. Caton in 1782-but by the Supreme Court of New Jersey in 1780 in the case of Holmes v. Walton, an unreported case, cited by Judge Kirkpatrick in State v. Parkhurst, 4 Halst. 427, 444, and said by Mr. Dillon (Dill. Jur. 200), and by Professor Thayer (1 Const. L. 62, note), to be the first decided case holding it to be the constitutional duty of the court to declare void an unconstitutional statute; the exact date of the New Jersey decision having been determined by Dr. Scott of Rutgers College. 2 Am. Ilist. Asso. papers, 1886. As late as 1825, Mr. Justice Gibson, afterwards Pennsylvania's ablest Chief Justice, in a vigorous dissenting opinion, denied such power in toto saving under a constitution that expressly conferred it. Eakin v. Raub, 12 S. & R. 330. "I have changed that opinion," the Chief Justice is reported to have said to counsel in 1815. Norris v. Clymer, 2 Pa. St. 281. Marbury v. Madison, 1 Cranch 138, was decided in 1803, but its reasoning was not in all respects applicable to state courts. As early, however, as 1811, Chief Justice Tilghman, of Pennsylvania, spoke of the doctrine as not only already established, but also as having a well-defined limitation. "For weighty considerations." he said, "it has been assumed as a principle in constitutional construction by the Supreme Court of the United States, by this court and every other court of reputation in the United States that an act of the legislature is not to be declared void unless the violation of the constitution is so manifest as to leave no room for reasonable doubt." Commonwealth v. Smith, 4 Binn. 117. The year following, viz., 1812, Chancellor Waties, of South 49 Vroom. Attorney-General v. McGuinness. Carolina, than whom no judge had more strenuously insisted upon the power of the courts to disregard unconstitutional legislative acts, said: "The validity of a law ought not to be questioned unless it is so obviously repugnant to the constitution that when pointed out by the judges all men of sense and reflection in the community may perceive the repugnancy." Byrne v. Stewart, 3 Des. 466. In Ogden v. Saunders, 12 Wheat. 213, Mr. Justice Washington said that to doubt the invalidity of an act was to sustain it, since its validity must be presumed, "until its violation of the constitution is proved beyond all reasonable doubt," adding that he knew that this "expresses the honest sentiments of each and every member of this bench." Chief Justice Waite, in the Sinking Fund Cases, 99 U. S. 700, says that this presumption "continues until the contrary is shown beyond a rational doubt." In Massachusetts, Chief Justice Shaw (In re Wellington, 16 Pick. 87), stated the rule to be "never to declare a statute void unless the nullity and invalidity of the act are placed in their (the judges') judgment beyond reasonable doubt." In the Dartmouth College Case, 4 Wheat. 518, Chief Justice Marshall said of the United States Supreme Court "that in no doubtful case would it pronounce a legislative act to be contrary to the constitution." These citations, which might be indefinitely extended, show the existence of a well-defined though self-imposed limitation of the judicial function of declaring legislative acts to be void for unconstitutionality, which limitation is for practical purposes stated to be that an act will not be declared void by the courts if its unconstitutionality is in anywise doubtful. The principle underlying this rule will, upon reflection and an examination of its history, be found to inhere in the essentially judicial character of the power the courts have thus assumed. There can indeed be no greater mistake than that of regarding the power exercised by state courts in declaring legislative enactments unconstitutional as something different from and merely engrafted upon their purely judicial functions. For such mistaken conception leads to the radical error Attorney-General v. McGuinness. 78 N. J. L. that, if duly challenged, a legislative act will be sustained only when it is demonstrably constitutional. Such a notion in effect supplements the constitution by requiring the affirmative concurrence of all three departments of the government where that instrument of the organic law requires but two, viz., the legislative and the executive, and thus in effect annexes to the judicial branch a quasi-legislative function akin to that which the constitution itself has annexed to the executive by the veto power. That no such direct participation of the judicial department in what is essentially an incident of the law-making power, viz., the observance of constitutional limitations, was contemplated by the framers of the constitution is conclusively shown by the fact that no such provision was made by the constitution. If such participation, which amounts to a control equal in efficiency to the veto power conferred upon the executive, had been intended to be conferred upon the judiciary, it is incredible that a provision of such magnitude would not have received a like mention. As a matter of common knowledge in ninety-nine cases out of a hundred or even in a larger proportion the laws enacted by the legislature derive their entire validity as constitutional enactments solely from the source where the constitution itself has placed the determination of constitutional observance as an incident of the lawmaking power, viz., with the legislative and executive departments. No way is provided by the constitution, or even remotely suggested, by which the validity of such determinations. may be either anticipated or postponed or held in abeyance until the result of a judicial participation can be heard from. In the vast majority of cases the judicial judgment is never invoked. What actually takes place is, that if in the course of litigation between parties it happens that the issue is affected by a legislative act, the courts decide the question thus arising upon judicial principles as an incident of litigation and not upon quasi-legislative principles as an incident of the law-making or vetoing power. The difference in principle is fundamental and the practical distinction as clear and of the same nature as that which is applied every day in the review of verdicts, where the question is not whether the court finds |