The opinion
In its last analysis, the gist of the petition for rehearing is an appeal to this Court to strike down the legislative act here involved because it constitutes a departure from wise public policy. It is contended that the counties and municipalities and special taxing districts, aided by the Legislatures, have of recent years been entirely too extravagant in this matter of creating bonded indebtedness and additional tax burdens, and that it is high time for the courts to call a halt, and that this is a case where the checking up process should begin. Even if the first contention be correct, the second invites the courts to enter the sphere of political action, wherein the wisdom and policy of laws may properly be considered as the basis for their amendment or repeal. The courts are vested with no such power. It is only when a statute plainly conflicts with constitutional provision or provisions that the courts are authorized to strike it down. Even this authority of the *Page 686
courts was looked upon with great jealousy and distrust by many of our early leaders, including Jefferson himself. Notwithstanding the fact that it was inevitably necessary under our system of government, whereby the Constitution is expressly made the supreme and paramount law and all judges are required to take oath to support it, that the courts should exercise this power, it was for many years assailed as a usurpation of authority on the part of the courts. But as the years rolled by, and the conscientious and restrained, yet faithful and fearless, exercise of this power on the part of the courts has brought home to the minds and hearts of our people the deep-seated conviction that thus and thus only, could the integrity of the Constitution and its priceless principles of government be preserved, it came to be seen that what some of our early statesmen had feared would be a menace to popular government has proven to be the balance-wheel of the republic and its greatest preservative and stabilizing influence. And this has come about because the courts have been careful to keep within their proper sphere, scrupulously declining to invade the domain of the legislative or executive departments and refraining from nullifying their acts except in those instances where they were plainly and clearly in conflict with constitutional provisions. This commendable judicial self-restraint was evidenced by early rulings to the effect that the courts would not in any case pass upon the constitutionality of an act of the legislative department unless it was absolutely essential to the decision of the law of the particular case, and, where necessary so to pass upon it, would not declare such an act unconstitutional unless the asserted conflict with the Constitution was clearly shown beyond reasonable doubt. And in connection with this traditional determination of the courts not to overstep the proper boundaries of the judicial department and *Page 687
enter upon a career of self-aggrandizement by unauthorized extension of their jurisdiction, it is significant that the first act of Congress which was declared unconstitutional by the Supreme Court of the United States was one which attempted to enlarge the jurisdiction of the court beyond the bounds fixed by the Constitution. Marbury v. Madison (U. S)., 1 Cranch, 137 . It was also early laid down by the courts as a fundamental principle that the judicial department would not nullify legislative acts merely on grounds of the policy or wisdom of such acts, no matter how unwise or impolitic they might be, so long as there was no plain violation of the Constitution; that to do otherwise would constitute an unwarranted judicial invasion of the legislative power. And yet the courts are frequently appealed to, to make strained and far-fetched constitutional constructions in order to get rid of statutes which are deemed unwise, unfair, or undesirable, and in many cases properly so, but which are not in fact unconstitutional. Whereas there was at first a tendency to criticize the courts for going so far as to declare legislative acts unconstitutional, no matter how plainly shown, there is now a tendency to criticize the courts for not going so far as to exercise a sort of supervisory veto power over alleged unwise, though not unconstitutional, legislation. See Amos v. Gunn, 84 Fla., p. 353. However complimentary the implications of this situation may be to the courts, as evidencing a growing faith and confidence in the judiciary on the part of the bar and the people, the courts must nevertheless resist all blandishments which would tempt them even temporarily to encroach upon the domain, functions and powers of the legislative or the executive departments of the government. It is the function of the judiciary, not to make the law, but to declare what the law is; though in doing so the construction itself becomes as it were a part of the law. This *Page 688
they should continue to do as fearlessly and as faithfully as in the past. But if the moral force and power — the confidence of bar and people — which is the greatest power of the judiciary (numerically and politically the weakest of the departments of government) — if this is to continue, so that the beneficent and necessary work of the courts may go on, the courts must, in the future as in the past, keep within the proper boundaries of the judicial department, and not seek to meddle with matters which the Constitution has placed exclusively in the hands of the other departments. The courts will find plenty to do, plenty of opportunity for the highest service, plenty of opportunity to exercise the highest courage and finest ability and integrity that God has given them the power to exercise, if they measure up to the opportunity for service to State, Nation and citizenry which is afforded within the proper confines of their own important department of the government. The Constitution of the fathers must continue to be the pole star which guides their way, not only as regards their decisions on the acts of other departments, but also as regards the proper limits of their own sphere of action. Thus, and thus only, will our admirable system of constitutional checks and safeguards, and our Constitution itself, be preserved.
In a case involving assessments of abutting property for street improvements, Guest v. Brooklyn, 69 N.Y. 506 , there is a strong passage which has some bearing here. It was there said:
"MARSHALL, C. J., in McCulloch v. State of Maryland ( 4 Wheat. 428 ), said: 'The only security against the abuse of this power (the taxing power) is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation.' This is true to a degree as it respects general taxation, *Page 689
when all are equally affected, but it has no beneficial application in preventing local taxation for public improvements. The majority of the constituents would generally approve, certainly not dissent from taxing the small minority.
"The few are powerless against the legislative encroachments of the many. The 'constituents,' under this system, are attacked in detail, a few only selected at a time, and they have no power to enforce accountability, or to punish for a violation of duty on the part of the representative. The majority are never backward in consenting to, and even demanding, improvements which they may enjoy without expense to themselves. The inevitable consequence is to induce improvements in advance of public necessity, to cause extravagant expenditures, fraudulent practices, and ruinous taxation. The system operates unequally and unjustly, and leads to oppression and confiscation. It is difficult to discover in it a single redeeming feature which ought to commend it to public favor. I make these observations to enable me to say more impressively, that the effective remedy is not with the judiciary. Whatever our individual views may be of the policy, we are obliged to maintain established rules of law, and to restrain our own power within prescribed limits, as well as to enforce restrictions upon other departments of government. We should regard a departure by the courts from rules of law wisely established for the protection of all, to meet the equities of a particular case or class of cases, as a far greater evil than that sought to be remedied. Courts can confine the legislature within constitutional authority; and, when the questions are legitimately up, can and do exact a strict compliance with all the requirements of law leading to a forcible taking of the property of the citizen, but beyond this they have no discretion, and are themselves *Page 690
bound to observe and enforce legislative provisions, whether they approve them or not. The only effective remedy is with the legislative department of the government, and it may possibly have been before applied but for the existence of other more engrossing abuses affecting the whole people; but among the manifold evils complained of in municipal administration, there is no one, in my judgment, calling more loudly for reform than this arbitrary system of local assessments."
Perhaps this Court has, in the Getzen case, gone as far as constitutional principles will permit in outlining the limitations upon the taxing power in cases of the kind now before us. But, as already pointed out, under the principles enunciated in the Getzen case, the decree of the court below validating bonds, must stand affirmed.
The petition for rehearing must be denied.
TERRELL, STRUM AND BUFORD, J. J. concur.
ELLIS, C. J., AND WHITFIELD, J., dissent.