Wynehamer v People.pdf - The University of Texas at Austin

ALBANY, MAECH, 1856. 429Wynehamer against The People.where all its powers are concentrated in the hands of thepeople at large, or of one or more of its members.It follows that if a society or people, wishing to forman organized government, should simply create the threeessential departments, vesting the whole executive powerin one, the legislative in another, and the judicial in a third,as the three departments combined would possess all thepowers which belong to the people in their collectivecapacity, the legislative department could make any lawwhich the people themselves could have made, arbitrary a*otherwise; unless, under such a distribution of the governmental powers, some authority is vested in the judiciary, topass upon the propriety or justice of the laws.But it is evident that this is a legislative and not a judicialpower. It is necessarily to be exercised, in the first instanceat least, when the law is passed, and obviously constitutesthe most essential portion of the duty of the legislatureitself. To suppose the same power vested in the judiciary,tends to confound the distinction between the two departments.Besides, when exercised by the latter, it becomesa supervisory and appellate power, and thus virtually subversiveof all legislation. It is clear, therefore, in my judgment,that in a perfectly natural and simple distribution ofthe governmental powers, it is not within the province ofthe judiciary to pronounce any act of the legislature void.It may, however, acquire this right through an artificialdistribution of those powers, by means of the organic law.Let us look, then, at our state constitution. Section 1,art. 3, declares that " The legislative power of this stateshall be vested in a senate and assembly." This means, ofcourse, the whole legislative power. The words are generaland unlimited; nothing is reserved. It was decided by thiscourt, in the case of Barto v. Himrod (4 Seld., 4S3), thatthe people had parted with all their power of legislation,except in the single case provided for in art. 7, § 12.