MOOHE’S RUEAIj new-yoekee: an agricultueal and family jouenal. 
shown, this body was altogether incorape-! 
tent to make such a transfer. In delivering 
the judgment of tlic court of errors and 
appeals of the State of Delaware, in a case 
in all respects like the present, Chief Jus¬ 
tice Booth remarked, “ The absurd specta¬ 
cle of a governor referring it to a popular 
vote whether a criminal, convicted of a cap¬ 
ital offence, should be pardoned or executed, 
would be the subject of general ridicule; 
and were a court of justice, instead of de¬ 
ciding a case for themselves, to direct the 
prothonotarj' to enter judgment for the 
plaintiff or defendant, according to the pop¬ 
ular vote of a county, the community would 
be disgusted witJi the folly, injustice, and 
iniquity of the proceedings.” | 
And yet these branches of the govern-1 
ment derived their authority from the same I 
instrument which confers the power of leg¬ 
islation upon the General Assembly, and j 
are not more strongly restrained by its 
terms than is the latter body from devolv¬ 
ing their duties and responsibilities upon 
others. But neither of these departments 
can absolve itself of the task appropriate to 
it, by substituting others not called to its 
discliarge by the constitution. None of 
them can legcdiy invite the people to exer¬ 
cise a function which the constitution makes 
the peculiar business of selected bodies of 
persons, and therefore, in effect, denies to 
every other person, Nor can they call to 
their aid the mass of the community, except 
in ih modes preicribed by the fundamental 
law. To permit either of these courses, 
would be to loosen tlie hold of society from 
its greatest safety, by removing all account¬ 
ability, and thus subjecting the minority to 
the unrestrained decisions of irresponsible 
and fluctuating m.ajorities. In the present 
instance, the good proposed by the act of 
Assembly may blind th • unreflecting to 
tlie ultimate consequences of the false prin¬ 
ciple upon v/hich it proceeds; but the most 
indifferent and unobservant cannot but be, 
startled by the reflection, that it is* a prin¬ 
ciple capable of universal operation in the 
bu^ness of legislation, and may be in the 
end employed to procure the establishment 
of laws which a responsible legislatuic 
would not dare to enact For an Assem¬ 
bly of two branches designed to hold eacli 
other in check, the smidler body being 
composed of members of an age greater 
than that required to give the right of 
suffrage, and the proceedings of both subject 
to the veto of an executive officer of still 
more matured years than the senator, \yill 
be substituted a,mass of voters of every 
variety of mental cjmacity and training, 
many of whom may^ave barely attained 
the, Icgid age of twenty-one years, from 
whose decision no appeal lies but to them¬ 
selves, and whose action is subject to no 
veto. 
Before the adoption of the constitution of 
1790, great danger of inconvenience and 
injury was found to proceed from the exer¬ 
cise of the legislative function by a single 
House of Representatives. This was reme¬ 
died by the erection of two co-ordinate 
houses, in imitation of the British Parlia¬ 
ment and of Congress under the Federal 
Constitution. This example has, I believe, 
been followed by every state of tluj confed¬ 
eracy ; thus giving the univereal fissent to a 
system which long experience has tested as 
necessary to prevent rash, inconsiderate, 
and unjust legislation. But if the two 
houses can divest themselves of their office 
of law-makers, and devolve it upon the 
bod^ of the people, what security have we 
against the passage of laws, perhaps well 
meant, but liable to be glaringly wrong, be¬ 
cause inconsiderately adopted? and what 
check is left us upon hasty and ill-advised 
zeal, open to be influenced and misguided 
by interested, cunning, or blind fanaticism ? 
If the practice be sanctioned, there may 
follow a ti-ain of experiments which, un¬ 
arrested at some point of their progress, 
must end in the final overthrow of the con¬ 
stitution. Every case of doubtful propriety 
will be referred to the result of a ballot, and j 
Acts of Assembly, subject to the popular 
vote, will be yielded to unthinking clamor 
or partisan importunity, by faithless legisla¬ 
tors anxious to escape the responsibility of 
their position. 
It is insisted, however, that the legislator, 
when contemplating important changes in 
the existing law, has not only a right to 
consult the opinions and washes of the con¬ 
stituent, but ought to do so; inasmuch us in 
a country of free institutions the only 
security for the stability of the law is, that 
it rests in the approbation of those who are 
the subjects of it This is not denied, and, 
in truth, in the practical working of our 
system, such is always the case. But the 
pnblic opinion, when ascertained, must be 
adopted by the legislature in the form of 
a statue before it can have the force of a 
law; for I repeat, to give to legislative 
action this efect, it must be by an ex¬ 
pression of the legislative will alone. 
But it is urged that this species of legis¬ 
lation, if it can with propriety be so called, 
h^ been legitimated by the habitude of 
years, obtaining without complaint or 
objection; and, in proof of this, our attention 
has been called to several instances in 
which the action of the General Assembly 
is thought to bear a near resemblance to 
that which forms the subject of our enquiry. 
Were this so, it might make us further 
pause and hcsiUvte to arrive at a conclusion, 
adverse to the validity of the action im- 
j)cached in this case; but it would not justify 
us in declining to give expression to the 
conclusion, if it clearly appears that the 
legislature has transcended its legitimate 
j authority. A bad precedent suffered to 
pass sub silentio, cannot be set up to justify 
the continuance of an abuse in which it 
originated; and this is especially true where 
the question is of the constitutional exertion 
of a delegated power. . 
A different rule would expose the funda¬ 
mental laws of the state to continual danger 
of subversion from a succession of encroach¬ 
ments, which, in the beginning, did not 
attract the public attention or invite its in¬ 
vestigation—a consequence too momentous 
to be hazarded by unreasonable deference 
to tolerated mistakes. In questions of 
mere property, an inveterate error, which, 
by repetition, has at ained to the digniiy of 
a rule, may be tolerated: because an attempt 
to correct it would generally be productive 
of more mischief than will be worked by its 
continuance. But such an argument can 
have no place where the error committed 
touches, with the linger of corroding wrong, 
the political .organization of a state and 
threatens its existence. In such a case, the 
duty of preserving the constitution intact is 
paramount to every other, and, irrespective 
of veteran abuses so impeYatively calls for 
the eradication of the canker, that the judici¬ 
ary, which should shrink from applying the 
appropriate corrective, would be justly 
charged with a gross dereliction of duty. 
But I apprehend, that, with perhaps the 
exception of a single class of instances of 
very modern origin, no such stumbling- 
block lies in the path of the present investiga¬ 
tion. Even a cursory glance at the statutes 
cited will suffice to show that, in principle 
as in feature, they are totally unlike the 
act of 1846. And, first, the Counsel for 
the Commonwealth have pointed to a 
supposed analogy existing in the case of 
municipal corporations even clothed with the 
power of making by-laws for the conduct of 
Us concerns and the government of its 
members. It is argued that this is legisla¬ 
tion by virtue of an authority delegated by 
the legislative power—a right which has 
not only passed unquestioned, but received 
the express approval of this court in the case 
of The Commonwealth v. Duquet, 2 Yeates, 
493; where it was decided that an act of 
Assembly, empowering the corporation of 
Philadelphia to pass ordinances to prevent 
persons fiom erecting wooden buildings 
within certain districts of the city, was con¬ 
stitutional. But the position assumed by 
the Communwealtli is based upon an entire 
misapprehension of the nature of the right 
to make ordinances—a right which is said 
to be necessarily incident to every corpora¬ 
tion aggregate. By-laws, whether enacted 
in pursuance of express authority given by 
charter or without it, are no more than a 
species of contract between the individual 
members; and, in the case of municipal 
corporations, may be extended to a stranger 
who comes voluntarily within the jurisdic¬ 
tion, upon the principle that his coming is 
equivalent to an assent to be bound by the 
local law of the place. “Rules,” says Mr. 
Kyd, in his treatise on corporations, ‘'which 
arc to direct the general conduct, must be 
established by a majority of the wills of the 
whole community, or by the resolutions of 
a select body, to whom the whole commu¬ 
nity have delegated the legislative authority. 
These general rules, when applied to all the 
inhabitants of a country, united in an inde¬ 
pendent government, are called laws; when 
applied to subordinate communities, they 
are called private ordinances, or by-laws. 
All by-laws have their obligation from the 
consent, either express or implied, of the 
parties who are to be bound by them; and 
therefore every member of a corporation is 
bound by the by-laws of the coporation 
without express notice of them; nor is it an 
objection to his being bound by every par¬ 
ticular by-law that he was not a member at 
the time it was made.” In the case of the 
city of London v. Wood, 2 Mod. 686, cited 
by the Commonwealth, Lord Ch. J. Holt 
remarked that a city is to be considered “as 
a great community that have a legislative 
form intrusted to them for their better 
government, and can make laws to bind the 
property of those that live within that pre¬ 
cinct, and also of all strangers whatsoever 
that come within the limits of their juris¬ 
diction ; and it was necessary and convenient 
that they should have such power for the 
support of their government, &c. For the 
supreme juiisdiction cannot have leisure to 
inspect into the small matters, that concern 
the whole order and regulation of matters 
within that society or community, as they 
that are members of it shall.” But it is 
evident this eminent judge had in contem¬ 
plation that which is the foundation of the 
right to make binding by-laws or ordinan¬ 
ces ; namely, the consent of the parties to 
be affected by them. It is on the ground 
of consent, too, that the minority is bound 
by the expressed will of the majority. 
But how, when, or where have the mi¬ 
nority of the people of Alleghany county 
agreed to be governed by the will of a 
majority of their fellows, except in the mode 
pointed out by the Constitution of the State 
of which they are members? They have 
agreed they will be subject to the resolu¬ 
tions of “ selected bodies of men to whom 
the community has delegated the legisla¬ 
tive authority,” when their decrees assume 
the character of laws, because endowed 
with the principle of action which only 
those selected bodies can confer. But there 
is no assent beyond this, and, therefore, 
the su])posed analogy between the case of 
corporations exercising ihe right of enacting 
by-laws, and a delegation of authority to 
make rules for the government of the peo¬ 
ple of the State, or any portion of them, 
altogether faik 
The act of 1836, and its supplements, 
which established the system of common 
schools, is also pointed to as an instance of 
[ legislation by means of the popular vote. 
In respect to public education, an injunction 
was laid on the General Assembly by art 
7 sec. 1 of the Constitution of 1790, and 
repeated by the amended Constitution, to 
“provide by law for the establishment of 
schools throughout the State, in such man¬ 
ner that the poor shall be taught gratis.” 
This duty was v'ery imperfectly discharged 
until the p.ossage of the act of 1830. It 
erected every borough, ward, and township 
in the Commonwealth, out of the bounds of 
the city and incorporated districts of the 
County of Philadelphia, into a school dis¬ 
trict; and, in connection with subsequent 
statutes, points out very minutely and specifi¬ 
cally, the mode in which the system it pro¬ 
vides should be carried into effect. School 
directors are to be elected in each district, 
and to be organized" for the transsiction of 
business, by choosing a President, Secretary, 
and Treasurer; and they are charged with 
the business of conducting the details of 
the system. Of the public moneys, a school 
fund was set apart; which, from time to 
time has been increased, to be distributed 
among the accepting school districts. The 
13th section directs that an .-ketion shall 
be held, at stated periods, within each 
school district, at which, the question of 
establishing common schools, shall be deci¬ 
ded by the qualified voters of the districts. 
If a majority of the ballots deposited shall 
contain the word “ schools,” the school 
directors are to proceed to establish schools 
agreeably to the provisions of the act; but 
if a majority shall contain the words “no 
schools,” the system is not to go into opera¬ 
tion within the particular district for a 
limited period. The act further provides 
for the holding of elections within such 
districts as may theretofore have accepted 
the system, and directs that should a majority 
cast their ballots against its further continu¬ 
ance, it shall be svuspended until » majority 
of the inhabitants, by thcii votes, otherwise 
decide. It is insisted that the power thus 
conceded to the people of the districts, to 
accept or reject the system of common 
schools, is of the same nature and character 
as that conferred by the act of 1846; and 
that this power has not only been beneficial¬ 
ly exercised, without complaint or question; 
but that its legitimacy has been recognized 
and sanctioned by the people themselves, 
acting in their sovereign capacity. In proof 
of this we are referred to the schedule ap¬ 
pended to the amended Constitution, adopt¬ 
ed by a vote of the people in 1838, which 
declares that “ all laws of this Commor.- 
wealth in force at the time when the said 
alterations and amendments in the said 
Constitution shall take effect, and not incon¬ 
sistent therewith,” “shall continue as if said 
alterations had not been made.” 
If, indeed, that portion of the school 
law I have particularly noticed, were in 
j contravention of the Constitution, the argu- 
I ment, so far as it is based upon any sup- 
' posed action of the convention which 
I framed it, or of the people in adopting it, 
would be shorn of its strength in the saving 
clause, “ not inconsistent therewith.” But 
it is unnecessary to combat the argument 
on this ground, for no suCh inconsistency 
exists. The several acts of Assembly con¬ 
stituting the common school system, came 
from the General Assembly complete and 
perfect laws, drawing the principle of life 
from the creative power of the Legislature, 
and looking to no other authority to invest 
them with the compulsive power of a rule, 
A short examination of their scope, intent, 
and mode of operation, will make this mani¬ 
fest, and prove that, unlike the act of 1846, 
they do not make the repeal of former laws, 
and the creation of new substantial ones, to 
depend upon the fiat of a popular vote. 
Under their provisions, each school district, 
upon the election of school directors, be¬ 
comes quasi, a corporation, entitled, for 
school purposes, to receive a share of the 
public donation from the Treasury of the 
Commonwealth, upon the condition that 
the iuhabitonts shall agree to levy a tax for 
the support of the schools within the bounds 
of the district It is true, that the citizens 
are called to decide, by their votes, whether 
common schools shall be established within 
their precincts. But for what purpose? 
Not to determine whether the acts of the 
Assembly shall become laws. The object 
of the vote is declared by the 4th section of 
the act of 1836, which provides, that “the 
school directors of every school district, 
which has adopted the common school 
system, or which may hereafter adopt the 
same, shall annually, on or before the first 
Monday of May, authorize to be levied such 
an amount of tax in said district as they 
may think necessary for school purposes; 
not less than equal to, nor more than treble 
the amount which the district is entitled to 
receive out of the annual State appropria¬ 
tion.” The succeeding sections, in con¬ 
nection with the act of 12th April, 1838, 
point out the manner in which the tax is to 
be assessed, collected and applied. An in¬ 
spection of the Statute will show that a 
vote accepting the system devised, amounts 
to nothing more than a declaration of wil¬ 
lingness to contribute an amount of money, 
by way of tax, equal to the public dona¬ 
tion ; and that a negative vote is but a re¬ 
fusal of the public money upon the condi¬ 
tion proposed. The proposition which the 
statutes make to the people of each of the 
school districts, is, there shall be paid to 
you a certain portion of the public treas¬ 
ure, for the establishment and support of 
schools, under the system devised by the 
legislature ; provided you will agree to au¬ 
thorize your school directors to levy upon 
your property a tax bearing a certain pro¬ 
portion to the amount of the donation; and 
in the /“vent of your so agreeing, the school 
directors are hereby authorized and re¬ 
quired to levy and collect the tax. It may 
however, be objected that an agreement to 
levy a tax, by vote or otherwise, is in itself 
an exercise of the legislative power. But 
here an obvious distinction is to be observ¬ 
ed. A law designating the persons, or 
bodies of persons, by \vhom the tax may 
be imposed, and the mode in which it shall 
be collected and distributed, requires the 
authority of the constitutional law-maker, 
for it is a rule-of action prescribed. But 
the act of the designated persons or bodies, 
depends for its aulliority, altogether upon 
the law commanding or permitting it. Of 
the illustrations furnished by our statute 
book of this distinction, may be mentioned, 
the laws empowering county commissioners 
and supervisors of townships to assess and 
levy taxes for County and township purpo¬ 
ses respectively. In these cases, delibera¬ 
tion, judgment and discretion are to be em¬ 
ployed, .‘ind there are many points to be 
determined; but the right to’ determine is 
derived from the statute. But this is a 
very different right from that sought to be 
drawn from a concession of power to enact 
a penal statute, under which the citizens 
may be indicted and punished. In respect 
to the vote to be taken, which, as I have 
said, is in effect but to agree or disagree to 
the proposed tax,’ the school districts may 
be assimilated to an aggregate corporation 
which may levy a tax upon its members to 
meot corporate exigencies ; but this must 
be by virtue of the charter or act of incor¬ 
poration. The dissimilarity between such 
an expression of assent and that which has 
brought the plaintiff in error into the posi¬ 
tion of a criminal, is so obvious that it is 
unnecessary further to elaborate the argu¬ 
ment upon this point. 
But it is further urged that the act of 
Assembly in question is to be jegarded, not 
as an act delegating the power of legisla¬ 
tion, but as a conditional statute, t,o take 
effect or to be void upon the happening of 
a contingency pointed out in the act itself. 
That the legislature may enact laws to take 
effect or expire at some future time, or upon 
a future event, is not to be denied. Our 
■attention has been called to an instance of 
this kind, which, as it is supposed proves 
the simply conditional character of the act 
of 1846. It is found in the legislation of 
Congress prohibiting the introduction of 
British and French goods into the United 
States; unless these nations would respect¬ 
fully modify their edicts interfering with 
neutral commerce. The first of these acts 
was passed in March, 1809, and was limit¬ 
ed to expire on the last day of the then 
next session of Congress. On the 1st of 
May 1810, Congress passed another act 
declaring that if either Great Britain or 
France should repeal or modify her edicts 
so that they should cease to violate the 
neutral commerce of the United States, 
the President should proclaim the fact; and 
in the event of the other nation not follow¬ 
ing the example, in three months thereaf¬ 
ter, the interdictory sections of tlie act of 
1809 should be revived in full force, or 
against the refusing nation, and that as 
to the revoking nation ; the restrictions 
imposed by the act of 1810 should cease 
from the date of the proclamation. In the 
case of The Aurora v. The United States, 
7, Cranch, 382, the right of Congress to 
enact this law was called in question; but 
the Supreme Court of the United States 
held that Congress might extend and re-, 
vive the act of 1809 conditionally; upon 
the occurrence of subsequent events, to be 
ascertained by the President’s proclama¬ 
tion. It is plain that the revival or continT. 
ued suspension of the act of 1809 was not 
made to depend upon the proclamation, but 
upon independent facts, of which the proc^ 
lamation vvas evidence; after which the 
statute operated proqyria vigors. 
In commenting upon these enactments. 
Chief-Justice Booth, in the opinion already 
adverted to, observes—“Had the Presi¬ 
dent been empowered to repeal existing 
laws, and create a new law by the exercise 
of his will, and to announce his decision by 
a proclamation, as the people of New Cas¬ 
tle county were empowered to do by the 
legislature of this State, and to have their 
decision announced by the returns of an 
election, there would be an analogy be¬ 
tween the two cases. Were it possible to 
suppose such an absurdity on the part of 
Congress, their act would have been de¬ 
clared void, which thus undertook to trans¬ 
fer the legislative power exclusively to the 
President, and so to abrogate the Constitu¬ 
tion.” These remarks are applicable to 
our own Act of Assembly, and to them 
may be added a notice of another and vi¬ 
tal distinction between it and the legislation 
of Congress. In the latter instance,the pow¬ 
er which created the law was exerted by the 
Federal Legislature, looking to no external 
aid; but the production of our Senate and 
House of Representatives came forth maim¬ 
ed, impotent, and fiinctionless, until vivified 
by the popular breath. In the one case 
the decree is, this statute shall take efl’ect 
in action, or its operation be suspended 
upon the occurrence of a particular event; 
in the other, this act shall be inoperative, 
unless otherwise willed by the People. 
In the first Ciise, the law remains quies¬ 
cent until the happening of the appropriate 
event stirs it into motion; in the last, the so 
called law was without the power of mo¬ 
tion, of itself, when it left the hands of the 
law-makers. And this is the distinction 
between a conditional law, properly sq de¬ 
nominated, and an act of the law making 
power seeking to transfer its functions to 
another. The one leaves nothing to be done 
to perfect the rule of action; the other but 
moulds the clay into shape, leaving the 
third person the task of breathing into its 
mimic frame the energy of life. What is 
this more or better than simply preparing 
the project of a law to be submitted for the 
sanction of a distinct and independent tri¬ 
bunal, whose will is to determine its future 
existence or continued nonenity ? 
Another supposed parallel to the act of 
1846 is thought by the counsel of the 
Commonwealth to be found in the Act of 
14th April; 1835, which submitle 1 to the 
citizens of the State the question whether 
a convention should be holden to propose 
and submit fdr their ratification or rejectior, 
a new State Constitution. But very little 
reflection will satisfy the enquher that no 
such parallel exists. The question pro¬ 
pounded for solution by the popular vote, 
did not pertain to the ordinary business of 
legislation, but referred itself directly to 
the eminent dominion, which, as has been 
seen, resides only in the people, who are 
alone competent to decide upon any pro¬ 
posed modification of the fundamental law. 
The Constitution of 1790 pointed out no 
particular mode by which an alteration of 
its provisidiis might be eftected ; and it 
was, therefore, convenient that tlfe legisla¬ 
tive body should indicate the manner in 
which the popular will might be manifest¬ 
ed in respect to a subject which only the 
popular will was competent to deal witln 
An Act of Assembly was not essential to 
this purpose, but simply convenient Tho' 
enacted with all the forms of law, it was 
not, in truth, a law; for it contained noth¬ 
ing binding or obligatory on the people, 
who were at liberty to obey or disobey it, 
as they saw proper. They might have 
moved without such an act; and its enact¬ 
ment to regulate and direct the movement, 
certainly added nothing to its efficiency, 
other than as furnishing a means for ascer¬ 
taining with certainty the public decision- 
The existence of the legislative resolutions, 
neither added to nor detracted from the 
force of the decision when made, nor did 
the resolutions, as a legislative act, derive 
any superior sanction from the decision.— 
One depended in no degree upon the other, 
but each was in itself, perfect within its 
proper sphere. The Legislature was pow¬ 
erless to alter the Constitution, but it pos¬ 
sessed the right to invite the people to ex¬ 
press their wishes on the subject. Tho 
people were unequal to an ordinary act of 
legislation, but they might, if they would, 
change the frame of tlieir Government. 
They did change it in some of its features, 
but this was done of their own absolute 
and inalienable power, and not by virtue of 
authoiity delegated to them by the Legis¬ 
lature; for the act of 29th March, 1836, 
providing for the call of a convention was 
but the rchicle to carry the public wish in¬ 
to effect. There is, in fact, not tho slight¬ 
est resemblance between tlie initiatory leg¬ 
islative step which resulted in a change of 
the Constitution, and that by which they 
called the people into legislative council 
Indeed, so entirely dissimilar are the two 
cases, it is strange a likened should have 
been imagined. 
With a single exception, to be presently 
noticed, what has been said disposes of all 
that was urged upon tho part of the Com¬ 
monwealth, Jis tending to support the va¬ 
lidity of the act of 1846. But since the 
argument of the ciwe, it has been suggest¬ 
ed, tliat instances of valid delegation of 
legislative authority are to be found in our 
statutes, made by Congress, from time to 
time, erecting portions of the public domain 
into territories, and organizing them for tho 
purposes of Government, by authorizing 
the appointment and election of executive, 
judicial and legislative officers, and confer- 
