It is well settled that the validity of an exercise of legislative power is presumed, and must be sustained by the court unless it can be clearly shown to be in conflict with the constitution. The principle is thus well stated: "But it is to be borne in mind, that in determining the question whether a statute is within the legitimate sphere of legislative action, it is the duty of courts to made all reasonable presumptions in favor of its validity. It is not to be supposed that the law-making power has transcended its authority, or committed, under the form of law, a violation of individual rights. When an act has been passed with all the requi sites necessary to give it the force of a bind ing statute, it must be regarded as valid, unless it can be shown to be in con flict with the constitution. It is therefore incumbent on those who deny the validity of a statute, to show that it is a plain and palpable violation of constitutional right." Talbot v. Hudson, 16 Gray (Mass.) 417. It is a well-settled principle of American con stitutional law that the legislative power of the state is unlimited except by constitu tional prohibition, while that of the Federal congress, though equally unlimited within the scope of its granted powers, is limited to the exercise of these powers. "The distinc tion between the United States constitution and our state constitution is, that the former confers upon congress certain specified pow ers only, while the latter confers on the legislature all legislative power. In the one case the powers specifically granted can only be exercised. In the other, all legislative powers not prohibited may be exercised." Church, C. J., ha People v. Flagg, 46 N. Y. 401, 404.
"With as full respect for the authority of former decisions as belongs, from teach ing and habit, to judges trained in the com mon-law system of jurisprudence, we think that there may be questions touching the powers of legislative bodies, which can never be finally closed by the decisions of a court, and that the one that we have here con sidered is of this character." Piqua Branch of State Bank of Ohio v. Knoop, 16 Ho (U. S.) 369, 14 L. Ed. 977.
Among the administrative rules laid down by Judge Cooley and quoted with great ap proval by Professor Thayer, is this: "When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights can not be built up under it ; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was • made. And what is true of an act void in toto is true also as to any part' of an act which is found to be unconstitutional, and which, conse quently, is to be regarded as having never, at any time, been possessed of any legal force." Cooley, Const. Lim. 188 and cases cited; 1 Thayer, Cas. Const. L. 175. Other authorities, however, have taken a differ ent view, and the expression that a law is declared by the courts to be unconstitu tional and void has been characterized as a common misapprehension as to the effect of a judicial decision upon the constitu tionality of a law. It is said that what the
court really does in such a case is to ignore the statute and decide the case in hand as if it did not exist; Shephard v. Wheeling, 30 W. Va. 479, 4 S. E. 635; the question is simply whether the act furnishes the rule to govern the particular case, and the general abstract question of the constitutionality of an act cannot be directly presented ; Foster v. Com'rs of Wood County, 9 Ohio St. 543 ; "The act is not stricken from the statute book, and it is not superseded, revoked, or annulled. If the courts afterwards change their minds, as did the supreme court of the United States in the legal tender cases, the statute is just al effective as if it had never keen pronounced unconstitutional." 31 Am.
Reg. N. S. 448. It was an early custom for the legislature to repeal laws which had been held to be unconstitutional; 19 Am. L. Rev. 188. It is nevertheless true that the practice of the government seems to ha,ve settled down to the view expressed by Judge Cooley as it is customary where serious doubt is expressed regarding the constitu tionality of a law, to have presented to a court a test case and when a decision has been rendered by the court of last resort adverse to the statute, it is acquiesced in by the other departments of the government. Familiar instances of this were the decisions adverse to the federal income tax law and the Pennsylvania alien tax law, each of which were held to be unconstitutional and thereupon no further' attempt was made to enforce them.
It is not within the legislative power to declare that, things done and created under and by virtue of unconstitutional acts of assembly shall, nevertheless, continue to be and remain to be recognized and regarded as legal ; Bartlett v. State, 73 Ohio St. 54, 75 N. E. 939. Accordingly, where the court of last resort finally determines a tax to be in valid, the legislature cannot thereafter vali date it and make it collectible; Chicago & E. I. R. Co. v. People, 219 Ill. 408, 76 N. E. 571; and where proceedings before a certain judge had been adjudged void, the legisla ture had no power subsequently to confirm the proceedings ; Denny v. Mattoon, 2 Allen (Mass.) 361, 79 Am. Dec. 784.
It is a familiar .principle that one legis lature cannot limit or control the legislative actions of its successors and needs no cita tion to support it ; Brick Presbyterian Church Corp. v. City of New York, 5 Cow. (N. Y.) 538. In a late case this principle was reiterated and it was said to be neces sary that each successive body should be left untrammelled except by the restraints of the fundamental law; Buffalo E. S. R. Co. v. R. Co., 111 N. Y. 132, 19 N. E. 63, 2 L. R. A. 284 ; N. Y., L. E. & W. R. Co. v. Pennsyl vania, 153 U. S. 628, 14 Sup. Ct. 952, 38 L. Ed. 846.