Leger v. Rice

15 F. Cas. 246, 4 Chi. Leg. News 7, 28 Leg. Int. 309, 8 Phila. 167, 1871 U.S. App. LEXIS 1723

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: September 28, 1871
• Status: Published

Opinion

CADWALADER, District Judge.

Constitutional power, and especially legislative power, may be greatly abused, where it is neither usurped nor exceeded. In such a case the only remedy is legislative appeal. Judicial redress cannot be invoked. The constitutionality of the act of the legislature is disputed on the grounds that: (1) It is a violation of the constitutional amendment of 1864, which prohibits the enactment of a law containing more than one subject, and requires that that subject be clearly expressed in the title. (2) It violates the provisions of the constitution of the United States prohibiting state legislation impairing the obligation of contracts, and the provision of the constitution of the state in nearly the same words. The provision for what was to have been done if Washington Square had been selected by a majority of votes for the location of the buildings, was, in effect, a delegation of legislative power.

First. On the first point it suffices to observe, that the subject was a compound one involving alternatives mutually dependent or consequential. The title specifies all the purposes of the act except one, which is directly consequential. If such a law is unconstitutional, the question is not so clear that it should be decided by a single judge at an interlocutory hearing.

Second. The argument under the second head is that Penn Square having been dedicated by Mr. Penn, the former proprietary, to general public use, the legislature could not constitutionally modify the grant. The proprietary certainly could not have resumed, abrogated, or modified it Under the frame of government of 1701 all powers of legislation were vested in the provincial assembly. That body could, I think, have modified the beneficial use by such an act as that in question. The argument is, that under the constitution the legislature of the state could not do so. I am of a different opinion. The dedication to public use did not preclude such legislation. Whatever may have been decided in one or two other states, neither the decisions of the supreme court of the United States, nor those of the supreme court of Pennsylvania support the argument.

Third. As the contingency of the selection of Washington Square did not become absolute, the argument that it was inseparably connected with the legislative provisions which took effect is a very refined one, perhaps too refined. I am, however, of the opinion that the question of the allotment of Penn Square to the purposes contingently specified in the act was not unconstitutionally left to a local vote.