# Sharpless v. Mayor of Philadelphia > Supreme Court of Pennsylvania · July 6, 1853 · 21 Pa. 147 URL: https://www.frixlaw.com/law-library/cases/3850344 ## Case - **Full name:** Sharpless and Others Versus the Mayor, &C., of Philadelphia - **Court:** Supreme Court of Pennsylvania - **Decided:** July 6, 1853 - **Citations:** 21 Pa. 147 - **Precedential status:** Published - **Opinion:** Concurrence - **Judges:** Black, Knox, Woodward - **Cited by:** 126 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3850344 ## How later opinions describe it (automated extraction) - explaining that legislation is void “only when it violates the constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation on our minds[]” ## Opinion text The right of this Court to declare an Act of the legislature unconstitutional, is unquestionable, and I may safely add, unquestioned. It is equally plain that this right should only be exercised in cases free from doubt or difficulty. The presumption is that the legislature has judged correctly of its own constitutional powers, and the contrary must be clearly demonstrated before a co-ordinate branch of the government can be called upon to interfere between the people and their immediate representatives. The authorities cited by the counsel for the respondents, prove that this rule is recognised by the Courts of several of our sister states, and it is the language uniformly spoken by our own judges. In ascertaining whether there has been this clear usurpation by the law-making power, I agree with the Chief Justice, and Mr. Justice WOODWARD, that the tests to be applied are: 1st, Is the Act in the nature of a legislative power? 2d, Does the constitution expressly, or by necessary implication, forbid the exercise of such a power? The two questions are closely assimilated. If it is not in the nature of a legislative power, the constitution does, by necessary implication, forbid the General Assembly from exercising it. All attempts upon the part of the legislature to exercise the class of powers committed to the care of the judiciary, are clearly unauthorized *Page 186 and unconstitutional. For there is a necessary implication arising from the organization and recognition of the judicial branch of the government, that its authority shall be supreme, and its jurisdiction exclusive, upon subjects committed to its care and upon questions to be determined by its judgment. Hence the legislature cannot lawfully grant a new trial in a case once determined. This Court might, with equal right, declare that a bill which had passed through all the forms of legislation, should again be submitted to a vote of the Senate and House of Representatives, and presented to the executive for his approval or rejection, as for the legislature to say that a verdict of a jury, and the judgment of a Court, should be set aside, in order to give the parties litigant another opportunity to ascertain where right and justice belong. It is unnecessary to multiply instances or words, to prove that the legislature cannot rightfully exercise judicial or executive authority. It is confined to its own sphere of action, separate and distinct from the other departments of the government. Its powers, although limited, are so extensive and varied, that it was not thought consistent with the conciseness and brevity of the constitution to enumerate them in detail. That the creation of a municipal corporation, or the enlargement of its powers subsequent to its origin, is the exercise of a legislative power, is too plain for argument. To what extent can its powers be enlarged, and what additions may be made to the original purposes for which it was created; or in other words, how far may the legislature go in the exercise of a legislative power? I submit that there is no limit to this authority until it is met by the mandate of the constitution, "Thus far, but no farther." I am aware that under this rule acts may be passed which will, in the minds of many persons, be contrary to natural justice, and subversive of the just rights of the people. The remedy is to be found in further constitutional restrictions upon legislation, not in restraints imposed by the judiciary. The limit of the power of the people's representatives, in my judgment, should be written upon the pages of the constitution, rather than remain in the breast of our judges. There is, to my mind, great danger in recognising the existence of a power in the judiciary to annul legislative action, without some fixed rule by which such power is to be measured. Our opinions are so diversified and varied, that what to one mind may seem clearly right and proper, to another will appear to be fraught with imminent danger. If we have not a certain standard by which to test the constitutionality of legislative enactments; if each judge is to be governed by his own convictions of what is right or otherwise, I fear that restraints upon judicial, rather than *Page 187 upon legislative action, will be demanded by a people ever jealous of the accumulation of power in the hands of the few. From whence is derived the power of the judiciary to declare unconstitutional an act of legislation? Is it not because of the supremacy of the organic law, and the sworn duty of judges to maintain it? If this law is not written, who shall declare its existence? I cannot find in the letter of the constitution any prohibition against the enactment of the law in question. To me it is satisfactorily shown by my brethren with whom I agree in this case, that the provision against taking private property for public use, without compensation, cannot, by fair construction, be made to embrace the point at issue. I cannot strengthen the argument by repetition, and shall not attempt it, but will simply add that I concur with them in saying that this is not the exercise of the right of eminent domain, but that of taxation. The right to tax persons and property must necessarily exist in the legislature, and the restraint upon its use is to be found in the accountability of the members thereof to their constituents. In the language of Chief Justice MARSHALL, in McCullough v. Maryland, 4 Wheaton 428 : "The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the government acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their government the right of taxing themselves and their property, and as the exigencies of the government cannot be limited, they prescribe no limit to the exercise of the right, resting confidently on the interest of the legislature, and the influence of the constituents over their representatives to guard them against its abuse." It is said that taxation, when unequal, is unconstitutional, and that although the whole people may lawfully be taxed for a particular purpose, such as constructing a railroad or other improvement, those inhabiting a particular locality cannot be taxed to the exclusion of the remainder. This is in the very teeth of the decision of this Court in Kirby v. Shaw, 7 Harris 258. GIBSON, J., in delivering the opinion of the Court, says: "But it is a postulate of a state constitution, which distinguishes it from the federal, that all the power of the people is delegated by it, except such parts of it as are specifically reserved; and the whole of it is without exception vested in the constitutional dispensers of the people's money. As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the bill of rights, and probably because it was known to be impracticable." And again, "The sum of the matter is that the taxing power must be left to that part of the government which is to exercise it." *Page 188 The argument that the legislation authorizing these subscriptions contravenes the bill of rights, is not sustained. There is in the bill of rights no limitation upon the right of taxation. I am of the opinion, therefore, for the reasons above hinted at, and for others given by the Chief Justice, and Mr. Justice WOODWARD, That the legislature may lawfully authorize municipal corporations to subscribe to the capital stock of railroad companies And that such authority may be given directly to the corporate authorities, or it may be made to depend upon the assent of a majority of the incorporators. That the authority may rightfully extend to the issuing of corporate bonds for the payment of the subscription, the interest and principal of which, if necessary, to be paid by taxes assessed upon the persons and property of the taxable citizens of the corporation, whose faith is pledged for the redemption of the bonds thus issued. As a member of this Court I have nothing to do with the question of expediency. This must be determined, first, by the legislature in granting the power to subscribe; and second, by the people, either by their own votes, or through their selected agents, in availing themselves of the authority thus granted. I am consequently opposed to awarding the injunction prayed for. LEWIS, J., and LOWRIE, J., each delivered a dissenting opinion. *Page 1 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3850344. Public record. Not legal advice.