Page:Federal Reporter, 1st Series, Volume 8.djvu/309

SMITH V. CITY or FONDl DU LAC. 295' �seems to have been identical with tho act of March 21, 1871< in tiie respects to which the comments of iBounsel for the city of Tond du Lac iiave alluded; that is, the act did not fix a limit upon the amount of subseription otherwise than (as in the act no\v: tefore us) io author- ize such subseription as the yoters approved "vyhen passing upon a written proposition of the Company containing a statement of the amount of money or bonds desired, and the ternas, conditions, and considerations upon which the satae would be required to be paid. The report of the case in 45 Wis. does not shOW that the constitu- tional question now before us was there raised or distinctly passed upon. But it is nevertheless a fact of some significance that the opinion in Sound v. Wis. Cent. R. Co. was written by the same jus- tice who wrote the opinion in Poster v. Kenosha. If the statute cited in Bound y. Wis. Cent. R. Co. had been deemed by him or by the learned court of which he was a member to be obnoxious to the con;- stitutional provision in question upon the grounds stated in the latter case, it is not probable that he or the court would have overlooked that point, whether raised by oounsel or not, or would have withheld an expression of ah opinion to that effect. �I do not, therefore, feel obliged, by anything in the decisions of the state court, to adjudge that the legislature, in the act of 1871, exer- cised powers forbidden by the constitution of Wisconsin. In consid- ering this question I have not forgotten what was said by the supreme court of the United States, when required, in Fletcher v. Peck, 6 Cranch, 128, to determine whether the legislature of Georgia had, in a particular enactment, violated th« constitution of that state. The court there said, speaking by Chief Justice Marshall, that — �" The question whether a law be void for its repugnancy to the constitution is, at all times, a question of much delieacy, which ought seldom, if ever, to he decided in the aflSrmative in a doubtful case." �The more-recent decisions of the same court justify me, I think, in saying that a federal court, when determining the rights of parties under a state law, will never, in a doubtful case, adjudge such law to be in conflict with the state constitution, unless s.ustained in sO doing by some distinct adjudication of the highest court of the state. �In this spirit were the declarations of the supreme court of this state in Att'y Gen. v. Eau Claire, 37 Wis. 400, when it said : �"We owe great deference to the legislative authority. It is our duty to give effect to all its enactments, according to its intention, so far as we have con- Btitutional right and power. And to that end it behooves us, as far as we are able, to place such construction on statutes as will reconcile them to the con- ��� �