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a militia law, or on any other subject involving questions of policy, and where the legislature is to act upon its own judgment of what is proper, just and expedient. It is easy in any of these cases for an individual to charge the legislature with having acted improperly and from wrong motives; and if the courts can enter upon a consideration of such questions, they may easily draw within their juris. diction the whole legislative power of the State, and set aside the laws from their own views of the facts, when they find themselves differing with the legislature as to what is proper, just and politic. One coördinate department of the government would thus be made subordinate to another, which would exercise a supervisory power, limited only by its own discretion.

II. If the act extending the bounds of the city was passed by the legislature from proper and correct motives, and from proper regard to the growth and wants of the city, then it is plain that the courts cannot disregard or limit it. The petitioner seems to concede this by his petition, but he attacks the law on the ground that it "was passed for the sole purpose, by bringing said lands within said city, to subject the same to the burdens of the taxation of said city.” In other words, the law is assailed by assailing the motives of those who passed it.

We deny the authority of any court to enter upon such a question. No court has a right to assume that the legislative motives have been other than proper and patriotic. “The courts cannot impute to the legislature any other than public motives for their acts."— People v. Draper, 15 N. Y. 545, per DENIO Ch. J.

• We are not made judges of the motives of the legislature, and the court will not usurp the inquisitorial office of inquiring into the bona fides of that body in discharging its duties.”—S. C. page 555, per SHANKLAND, J.

" If this may be done, we may also inquire by what


motives the Executive is induced to approve a bill or with. hold his approval, and in case of withholding it corruptly, by our mandate compel its approval. To institute the proposed inquiry would be a direct attack upon the independence of the legislature, and a usurpation of power subversive of the constitution."—Wright v. Defrees, 8 Ind. 302.

The following cases are to the same effect : Baltimore v. State, 15 Md. 376; People v. Lawrence, 36 Barb. 193; People v. N. Y. Central R. R. Co., 34 Barb. 137; McCulloch. v. State, 11 Ind. 431.

III. No judicial decisions which have ever been made will sanction the granting of relief to the petitioner, except certain cases in Kentucky and Iowa.—Covington v. Southgate, 15 B. Monroe, 491; Morford v. Weger, 8 Iowa, 82.

These cases are unquestionably in point, and in them the courts have assumed to enter upon inquiries of fact, in order to determine whether the bounds of a city ought to have been extended so as to include certain lands, and if their judgment decided the question in the negative, they have restrained the collection of city taxes from such lands on the ground that the legislature must have included them from improper motives. Of these cases we say:

1. They have no basis in principle, but they lead neces. sarily to a usurpation by the courts of discretionary legis

lative power.

2. Ivasmuch as they undertake to declare that a part of the lands in a city shall not be subject to city taxes, they prevent that uniformity of apportionment which is abso. lutely essential in every taxing district, and they are directly opposed to those cases in which it has been held that even the legislature cannot establish different rules of liability for the taxation of property within the same municipal corporation.—See Knowlton v. Supervisors, &c., 9 Wisconsin, 419.


3. The courts, in those cases, have departed from well settled landmarks, and have gone into inquiries where all is necessarily vague, conjectural, and uncertain, and in substance have exercised an appellate supervisory power over the legislature, upon a view, not of the law, but of the facts. They have assumed to say that the facts did not warrant the legislative action upon a subject clearly within its discretion ; and in effect they have decided that the courts, and not the legislature, may determine when the public needs demand the extension of city limits. With great respect for those courts, we are forced to conclude, that either they have mistaken the true boundary between legislative and judicial power, or, if they have not, then that the power to grant and amend city charters should rest exclusively with the courts, and petitions for that purpose should be addressed to them rather than to the legislature.

IV. When the legislature clearly oversteps the bounds of their constitutional authority, and the conflict between their act and the constitution is beyond reasonable doubt, a court may declare the act unconstitutional and void. Here is safe ground for the courts to stand upon, and in such a case their duty is plain. But unless the conflict is clear, the duty is equally plain to enforce the law.-Sill v. Covering, 15 N. Y. 531; Sears v. Cottrell, 5 Mich. 251,

The courts are the guardians of the constitution, but they are not the guardians of the legislative conscience, discretion or judgment. They annul unconstitutional laws by enforcing the higher and paramount law which the Legislature has disregarded. But except so far as the will of the people is declared in that higher and paramount law, the complete law-making power of the State is vested in the legislature, and its will, when expressed in due form, is as much binding upon the courts as upon private citizens. The people have not attempted by their consti


tution to limit the legislative authority in respect to the bounds which shall circumscribe their municipal incorpora. tions. If the people have set no limit the courts can set none. And it is respectfully submitted that in undertaking to do so the courts venture upon ground which is doubly dangerous :

1. Because it is setting the courts over the legislature in a matter of mere legislative discretion.

2. Because in doing so they are compelled to charge the legislature with improper and discreditable motives. And thus they necessarily invite collision and unseemly conflict with a coördinate department of the government.

I have given to this case this somewhat extended examination, from the fact that it was a test case, involving questions the decision of which will be the governing rule in all future legislative action in the State. And with the submission of these views, I would ask that the judgment of the court below be affirmed.


The city of Omaha was incorporated in 1857. By the act of incorporation more than three thousand acres were included within its limits. The charter has been amended at almost every session of the legislature since; some times the boundaries of the city have been extended, and sometimes contracted.

At the last session of the territorial legislature, the last amendment was made. Before that amendatory act was passed, the city limits on the north were, a mile beyond lands laid off into lots. On the other side, the distance

great, but it was very considerable. This legislation has been very mischievous ; lands includ. ed within the limits of an incorporated city are not subject to entry under the preëmption law of 1841.— Root v.

was not so


Shields, Mr. Justice Miller's Decisions, 334. Until 1859, title in fee could be acquired to any portion of the public land in Nebraska, except under that law. A great many shifts were resorted to, to avoid its stringent provisions. The exclusion of lands within a city from its privileges was disregarded by parties and by the land department of the government. Consequently numerous and most serious litigations have sprung up.. Besides that, a speculative character has been given to these lands, because, within the city limits they have been held at very high prices. They have not generally been cultivated as farms — the only purpose to which they could be applied, for many years. These remarks are true of many other cities in Nebraska.

The last legislative act amends the charter of the city only in its first section, which defines the boundaries of the corporation. By it, the boundaries are extended beyond the former lines, on the north, half a mile, on the west, a mile, and on the south, from a half a mile to a mile. area of over twenty-five hundred acres is thus added to the former very extended city jurisdiction.

An explanation of this very extraordinary measure may be found in the fact perhaps, that at the same session of the legislature, the city was authorized to aid the building of the bridge over the Missouri by the Union Pacific railroad, to the extent of $100,000, and has contracted other large debts, in securing the valuable railroad connections, which have lately stimulated its growth to a city of the first class.

It is charged in the petition in this cause, that the amend. ment was made in order to lighten from the shoulders of people living within the city proper, the burden of the taxation which will be necessary to pay these debts and the interest on them, by dividing it with those who live or own land beyond the former corporate limits. And the charge seems to be justified, because admitted by the demurrer.

This action was brought to restrain by injunction, the



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