Page:Popular Science Monthly Volume 50.djvu/639

Rh authorized by Congress, without any challenge before the proper courts of their constitutionality? The answer is to be found in the legal fact that "the question of the constitutionality of a law can never be presented and determined abstractly. It must always be raised by somebody whose person or property is affected by the execution of the statute the validity of which he impugns. Until the opportunity for raising and the individual who can raise the question of constitutionality present themselves, there can be no presumption from the existence of such legislation upon the statutebook."

In Maine, a law which for more than half a century—almost as long as the State has existed—had been enforced, and reproduced in each revision of the statutes, was declared unconstitutional so soon as challenged; the chief justice meeting the reason for such acquiescence by saying that "the judicial opinion and the public sense were not so much awakened to the principle underlying this then as now." (Brief of Smith and Clarke, averring the unconstitutionality of the tariff act of 1800.)

The nature, definition, and limitations of the service for public purposes, which a free representative government can render or perform by the expenditure of moneys raised by taxation having been once ascertained and enunciated by the supreme judicial authority of the State (as would seem to have been done in the United States), the instant, thereafter, that taxation essays to become anything but taxation—i. e., for an unquestionable public purpose; the instant that it is made an instrumentality for effecting any results other than such as are directly necessary or beneficial to the whole public, that instant it becomes inequitable and antagonistic to the very idea of a just government; and the citizen whose person or property is thereby affected has at least a moral right to demand protection and redress.