Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE 8CM00L By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 6775.Z95C69 A practical treatise on the law of munic 3 1924 020 025 395 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020025395 PRACTICAL TREATISE ON THE TuJs^^W OF-' MUNICIPAL BONDS. VOL. I. WILLIAM N. ^)LEK. COUNSELLOR A-^AW. NEW YOKE CITY: PUBLISHED BY THE AUTHOR 1873. Bntered, according to Act of Congress, in the year 1872, by WILLIAM N. COLER, in the Office of the Librarian of Congress at Washington. PREFACE. WITH the progress of civilization, the Municipal Bond has grown to be a security of great impor- tance. Substantially new to the Common Law, it is a creature called into existence by the enterprise, courage, and "wisdom of the American people. It is the offspring of the same heroic principle that has within a century enlarged the borders of our civilization with a rapidity unknown to history, and conferred upon our "people every public blessing which the genius of an enlightened age has produced. As a means to the enjoyment of these blessings, it has become a necessary incident of American civilization. Like every instrument of good, in the hands of designing men, it has been used to effect evil ; but when the grand results which it has so materially aided in securing are considered, the injuries that have been endured become too insignificant to be entitled to the slightest weight. It has taken its place as one of the leading instrumentalities of our system of local government, and as^ such is des- tined, beyond perad venture, to endure as long as credit is necessary to the development of our resources or the con- summation of public improvements. The Municipal Bond is chiefly useful as a practical Xll PEEFACB. means by which the payor may obtain credit. In this consists its essential value to the locality that is pledged to its payment. The credit being secured, and by means of the credit the public work in aid of which it was issued being completed, the enhancement of values makes good the outlay, and the people of the locality own the desired work as so much unincumbered profit. The manifest importance of the law of Municipal Bonds is too well recognized to require comment. It is a sub- ject in which the inhabitants of every section of the United States are interested as well as large numbers of foreign capitalists who will at no distant period come to consider the class of obligations to which it relates the safest and best in the American market. The plan of the present volumes has been adopted after careful examination, and, while open to criticism in some respects, is thought to possess marked advantages. The object has been to present a treatise that would be practi- cally valuable to the banker as well as the lawyer — a book that, while not strictly a manual, would so far par- take of the nature of such a work as to afford a ready understanding no less of the law generally, than of the constructions and precedents that govern every locality. To effect this, the ai'rangement by States seemed to be the most natural, and at the same time to ensure convenience and completeness. It will be found that there is a neces- sary repetiticwi of principles, and a similarity between many of the opinions ; but the presentation of all that appear was thought to be necessary to carry out the pur- P E B F A C E . XllI pose of the work, it being deemed especially desirable to make each State as nearly complete in itself as possible. , In every instance the constitutional provisions and latest judicial constructions will be found, and under some of the States discussions of certain leading questions. Thus the exact rule of the State appears, while the index has the effect of consolidating the whole and disclosing every treatment of any point. The plan effects, it is thought, the object aimed at, making the book both a practical manual and an exhaustive treatise. The author takes this occasion to acknowledge the ser- vices of H. Tompkins, Esq., Attorney and Counsellor-at- Law, whose able and intelligent assistance has materially lessened the labors of compilation and research. Mr. Tompkins' complete familiarity with the subject, and especially with the latest adjudications affecting it, have tended to greatly enhance the value of the work by en- suring the presentation of numerous principles which, alt'heugh resting- upon both reason and authority, are not generally understood. The author feels it to be due to so industrious and capable an assistant to thus publicly acknowledge the value of his efforts. W. N. COLER. New Yoek City, November, 1872. CONTENTS. CHAPTEK I. The Law of MuinciPAii Bonds, .... CE[APTEE IL The Status op the Payob, .... CHAPTER III. CONCEENINO PlTBLIC PUEPOSE AS ATJTHoAlZING TAXATION, PASI 17 24 34 Alabama, CHAPTER IV. 46 Aee:ansas, CHAPTER V. 85 Caufoenia, CHAPTER VI. 94 COMJECTICUT, . CHAPTER VII. 164 Delawaee, CHAPTER VIII. 195 Floeida, CHAPTER IX. 225 Geoegia, CHAPTER X. 252 XVI Illinois, iNDIAIfA, Iowa, . Kansas, Kentucky, CONTENTS. CHAPTER XL CHAPTER Xn. • • • CHAPTER Xm. CHAPTER XIV. CHAPTER XV. 271 311 362 407 . 459 TABLE OF CASES REPOETED. If. B. When the volume is not indicated, the reference is to the first.- FASB Antoni v. Wright, 2d 430 Augusta, Augusta-Bank v 34 Augusta Bank v. Augusta 34 Bank of Missouri, State of Missouri, v., 2d 157 Board of Knox Co. v. Aspinwall, 2d 140 Board of Supervisors of Butler County, California, Eobinson, v., 2d... 425 Buchanan County Court, The St. Joseph and Denver E. E. Co. v., 2d. 127 Burlington, Eogers v 356 Cass V. Dillon, 2d 220 City Council of Macon, Winn© 253 City of Aurora v. West, 9 Ind 314 City of Aurora v. West, 22 Ind 843 City of Bridgeport v. Housatonic E. E. Co....: 166 City of Cincinnati, Walker, v., 2d 244 City of New London, Society for Savings v 182 City of San Antonio v. Jones, 2d 368 City of Wilmington, Hough v 205 Clarke's. City of Eochester, 2d 195 Commissioners of Hancock County, The State ex rel. Treadwell v., 2d. 240 Commissioners of Leon County, Gotten « 228 Commissioners of Newberne, Taylor v., 2d 178 Common Council and City of Stockton, Stockton and Visalia E. E. Co. « 124 Commonwealth ex rel. Armstrong v. Perkins et al. Commissioners of ' Alleghany County, 2d 341 Commonwealth ex rel. Eeinboth v. The Councils of Pittsburg, 2d 335 Coon et al., People v 95 Cotten V. Commissioners of Leon County 228 Coulson V. The City of Portland, 2d 262 County Judge of Shelby County v. Shelby E. E ,, 465 Crump, Goddinw., 2d 392 Davidson County, Louisville and Nashville E. E- Co. v., 2d..; 352 Dennis, Shaw v , 294 Dent, Talbot?) 459 DiUon, Cass «., 2d 220 Essex Company, Hazen v., 2d 45 Evansville, The Evansville, &c., E.E. Co. v 340 Ex parte Holman et al. 386 Foster, Eice v 209 Geiger, The L. M. and B. E. E. Co. et al. v 325 Gibbons v. Mobile and Great Northern E. E. Co 72 xi Xll TABLE OF CASES EEPOttTKD. PAQS Gleason, Mills v., 2d 400 Goddin v. Crump, 2d 392 Goshen, The State, &c.,v., 2d 218 Hazen v. Essex Company, 2d : 45 Holman et al., Ex parte 886 Hough V. City of Wilmington 205 Hou^atonic R. E. Co., City of Bridgeport v 166 Inferior Court of Dougherty County, Powers v 258 Jones, City of San Antonio v 368 Louisville and Nashville E. E. Co. v. Davidson County, 2d 352 Lumbard v. Stearns, 2d 43 Mayor, &c., of Camden, M. O. and E. E. E. Co. v 91 Mayor, &c., of Philadelphia, Sharpless and Others v 288 Miller, The Board of Commissioners of Leavenwortli v 418 Mills V. Gleason, 2d 400 Mobile and Great Northern E. E. Co., Gibbons v 27 M. O. and E. E. E. Co. v. Mayor, &c., of Camden 91 Parker et al. v. Scoggin etal., 2d 29 Perkins et al. Commissioners of Alleghany County, Commonwealth ex rel. Armstrong v., 2d 341 'People V. Coon et al. 95 Peoples. Supervisors of San Francisco 106 Powers V. Inferior Court of Dougherty County 258 Eice V. Foster 209 Eogers ■». Burlington 356 Eobinson v. Board of Supervisors of Butler County, California, 2d.... 425 Scoggin et al., Parker et al. v., 2d 29 Sharpless and Others v. Mayor, &c., of Philadelphia 288 Shaw V. Dennis 29 Shelby E. E., County Judge of Shelby County v 465 Smead, The State, &c., »., 2d 216 Smith, The Chicago, Danville, and Vincennes E. E. Co. v 303 Society for Savings t). City of New London 182 State of Missouri v. Bank of Missouri, 2d , 157 Steams, Lumbard v., 2d .' 43 Stien V. The Mayor, Aldermen, &c., of Mobile 52 Stewart D. Supervisors of Polk County 364 Stockton and Visalia E. E. Co. v. Common Council of the City of Stockton 124" Supervisors of Polk County, Stewart v 364 Supervisors of San Francisco, People * 106 Swan V. Williams, 2d 55 Talbot V. Dent -. 459 Taylor ■». Commissioners of Newberne, 2d 178 The Board of Commissioners of Leavenworth v. Miller 418 The Chicago, Danville, and Vincennes E. E. Co. v. Smith 303 The City of Portland, Coulson ?;., 2d 262 The City of Eochester, Clarke »., 2d 195 The Councils of Pittsburg, The Commonwealth et al. Eeinboth v 335 The Evansville, &c., E. E. Co. v. Evansville 340 The Floyd Acceptance, 2d 147 The L. M. and B. E. R.Go.etal. v. Geiger 325 The Mayor, Aldermen, &c., of Mobile, Stien v 52 The Mayor and Aldermen of Wetumpka v. Winter 65 The St. Joseph and Denver City E. E. Co. v. Buchanan County Court, 2d 127 The Parish of Ouachita, Vicksburg, Shreveport, and Texas E. E. Co. v., 2d 21 TABLE OF CASES REPORTED. Xlll PAOB The State, &c., v. Goshen, 2d 218 The State, &c., v. Smead, 2d 216 The State ex rel. Treadwell v. Commissioners of Hancock County, 2d. 240 The State of Ohio ex rel. Garrett v. Van Home, 2d 236 Van Home, The State of Ohio ex ret. Garrett v., 2d 236 Vicksburg, Shreveport, and Texas R. R. Co. v. The Parish of Oua- chita, 2d 21 Walker v. City of Cincinnati 244 West, City of Aurora v., 9 Ind 314 West, City of Aurora v., 22 Ind 343 Williams, Swan v., 2d 55 Winn V. City Council of Macon 253 Winter, The Mayor and Aldermen of Wetumpka v ■. 65 Wright, Antoni v 430 THE LAW OS MUNICIPAL BONDS. CHAPTEE I. THE LAW OF MUNICIPAL BONDS. The advantage and demand for the use of commercial paper, in transacting the commercial business of the world, has made the Law-Merchant a fixed rule deter- mining the liabilities and rights, of each and all parties, under and by virtue of known precedents. These have been handed down to us through ages wherein wisdom, experience, and learning, have passed them into custom and maxims, and they have become as organic law, be- cause of their adaptation, to the spirit and genius of commercial business and the paramount necessity for their observance by all classes. And with the advance and increase of commercial intercourse, many of the States have passed laws making warehouse and shipping receipts, subject to the Law- Merchant; while with the progress of science and the demand for rapid transit, we have a large amount of Municipal Bonds issued in aid of public improvements, representing a very considerable portion of our money value in this form of securities. These bonds pass by delivery. The rights of the re- spective parties and the legal rights are adjudicated, on the same principle as commercial paper under the Law- 2 ir 18 THE LAW OP MTTNICIPAL BONDS. Mea-cliaiit, differing only, as to the right, to sign, seal, and issue ; the payor, being, the right of taxation. The right of the sovereign, to subject the property within a certain territorial district, to an assessment, that will protect and discharge the obligation, for which the bond was given, in accordance, with the terms of the contract between the parties. This applies, to wherever legislative power may reside. And, as the right of eminent domain, belongs to the sovereign power, as well as the right of taxation, it may be called the right of eminent domain exercised over a territorial division, to the extent of the assessment. The law of commercial paper, will apply to Municipal Bonds, to the extent of the bona fides of the holder, for value, the consideration, and issue. And as the payor is part of the political division of a State, and represented by the oflBcials, without any personal interest, questions arise as to the authority, of such officials to create the obliga- tion, and make it a valid one. It is valid, if there was authority to issue, and void, if issued without authority, the authority being the sovereign power, whether dele- gated or reserved, wherein, the requirements for the pro- tection of all are observed, within the objects, for which municipalities are created. Much discussion has taken place, touching, the dis- tinction, between eminent domain, and the right of taxa- tion. These rights, with which every Government, is necessarily invested, rest upon the same foundation, and are, in many respects alike, while in others they are very clearly distinguishable. They are both rights which the people collectively, either expressly or im- pliedly, retain over the property of individuals, to take as much as may be necessary, to enable Government to accomplish its lawful purposes. And the remarks of Chief-Justice Makshall in Providence Bank v. Bill- ings, 4 Peters E., 514, are equally applicable to both, THE LAW OF MUNICIPAL BONDS. 19 wlien he says: "The .power of legislation, and conse- quently of taxation, operates upon all the persons and property, belonging to the body politic. This is an ori- ginal principle which has its foundation in society itself. It is grajQted by all for the benefit of all. It resides in the Government as part of itself, and need not be reserved when property, of any description, or the right to use it, in any ■ manner, is granted to individuals or corporations." Yet neither can be classed among the independent powers of government, or included in its objects or ends. No Govern- ment was ever created for the purpose of taking, taxing, or otherwise interfering with the private property of its citizens or subjects. Especially is this true of the Gov- ernment of the United States. It was created not to im- pose burdens of any nature ; but charged with the accom- plishment of great objects, necessary to the safety and prosperity of the people, these rights exist merely as inci- dents to those objects, and as indispensable means to the attainment of those ends. They can only be called into being to attend the independent powers, and can never be exercised without an existing necessity. If, therefore, property is taken, or a tax levied, without the existence of some legal and clearly defined purpose, there can be no doubt it would involve an usurpation of authority, which would render either illegal. These rights, are alike in another particular. While in each private property is taken ; in each, compensation is made. But here, the parallel ends ; the indispensable condition fixed by the Constitution to the exercise of the right of eminent domain, is that the compensation be made in money ; while the compensation secured to the individual for property taken by taxation, consists in the protection which the Government afibrds to his interests, . and the increased value of his property, arising from the 20 THE LAW OF MUNICIPAL " BONDS. use to which the Government appliies the money raised by the tax. The distinctions and the reasons for them, in the ex- ercise of these two rights, is thus clearly and forcibly stated by Judge Rtjggles, in -delivering the opipion of the New York Court of Appeals in the case of Tlie People V. Mayor, &g., of Broohlyn, 4 Comstock, 423 : " Taxation exacts money, or services from individuals, as and for their respective shares of contribution to any public burthen." Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation is there- fore to be made in the latter case, because the Govern- ment is a debtor for the property so taken ; but not in the former, because the payment of taxes is a duty and creates no obligation to repay, otherwise, than in the proper application of the tax. Taxation operates upon a community, or upon a class of persons in a community, and by some rule of appor- tionment. The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals. * Yet in both instances the party must part with his property to the amount exacted, whether it be by the ex- ercise of eminent domain , or the right of taxation. His duty is as clear as that of the Government. The Govern- ment must be sustained with its objects fostered, to the extent of the powers and rights as, defined Tsy law. In the examination of the law of Municipal Bonds, the rights and powers of the payor will form the chief part of our inquiry. Municipal corporations derive all their authority from THE LAW OF MUNICIPAL BONDS. 21 tlie State, their sovereign. And all power is vested in the State, that is not reserved to the people of the respec- tive political divisions by the organic law, or by inherent right. The rights of municipalities being defined by the law, all are presumed to know, the same, and to act un- derstandingly. To the people, in their sovereign capacity, belong the rights of eminent domain and taxation ; they may dele- gate these rights to their sovereign, the State, or they may be reserved to be enforced through the law-making power, or, may be qualified and limited by provision in the Constitution, or, may remain by the provisions of the Constitution with the people, of the respective political divisions, to be exercised in their sovereign capacity. The State may make, form, and amend the political divisions of counties, towns, and cities at pleasure, if there is no prohibition in the Constitution. This only depends on the necessity and the wisdom of the law-making power. The object of such division, in our Government, is ap- parent from its mission, to create a medium through which the State, may act directly, as near as may be, to the people, in carrying out the objects of govern- ment. They become a Jaody politic, by their division and power. They have a legal status to be known by name and seal. They may contract and be contracted with, for all just purposes, and objects of governments. They may sue and be sued, and answer before the courts, and are made liable in all the rights, that belong to the pro- gressive history, of perpetuating the demands of society. They may hold and dispose of property, and incur lia- bilities, to bind and hold the tax-paying power, if within the scope of the objects of governments. It is from this doctrine, that Municipal Bonds have 22 THE LAW OF MUNICIPAL BONDS. been issued, and obtained importance as a security in the representation of capital upon whicb money has been raised to build school-houses, colleges, bridges, ro^ds, and other public improvements. The right of eminent domain and taxation, belonging to the State, it has unlimited power, to aid in works of public improvement, or advance the interests of education and science, either by donation, or, a loan of credit. The restriction is only had by the voice of the people in their sovereign capacity, as expressed in the Constitution and by legislative authority. The State being divided into municipal divisions, those divisions become the agencies to carry out the objects of governpaents ; and in exercising that power they have all the rights of the State to exercise the powers of emi- nent domain and taxation, subject only to the restrictions in the Constitution and laws of the State. This doctrine obtains with the distinctions between the English and American municipal law, which will form a part of our treatise. While a sovereign in dispensing its powers, it may hold all, in its own discretion, and wield them as of one mind, but, in that exercise there is no liability of the pop- ulace, or, of municipalities, in performing the functions of government. There could be no question as to what is right or wrong, neither could there be any liability as to their acts as a body politic, or as municipalities, except as they may be imposed by grant or decree ; and from that power they may be made liable in an action either criminal, or civil, or in equity. This will appear by the definition of municipal law given by the English and American writers. Sir Wil- liam BLACKSTOifE says, it is " A rule of civil conduct prescribed by the supreme power in a State, commanding what is right and prohibiting what is wrong," THE LAW QF MUNICIPAL BONDS. 23 The modern definition strikes out the latter clause, and leaves it to read : " A rule of civil conduct prescribed by the supreme power in a State." The power, lies with the people, to determine what is right or wrong. Judge CooLEY, in his edition of Blackstone, says : " A municipal law is completely expressed by the first branch of the definition; and the latter branch, commanding what is right and prohibiting what is wrong, must be superfluous, and conveying a wrong idea of municipal law; for if right or wrong are to be referred to the municipal law itself, then what it commands is right, and what it pro- hibits is wrong, and the clause would be insignificant tau- tology." Much of the litigation, as to the validity of Municipal Bonds, has arisen from following precedents drawn from English authority, where the right of eminent domain and taxation are not distinguished, and the power of taxa- tion is reserved to the King and Parliament. Our Govern- ment springs from the people, grasping the spirit and progress of everything that improves or benefits society, and divides its labors and responsibilities by leaving or placing it as near as possible to the responsible and re- cipient parties who must sha^e the objects of its creation. CHAPTER II. THE STATUS OF THE PAYOR TO MUNICIPAL BONDS. In examining the status of tte payor to Municipal Bonds issued in the United States, there are two ques- tions to be considered : 1st. The age in which we live. 2d. The origin of municipalities — their power and liabilities. The result of scientific research, improvement in mechanical arts, the rapid growth of commerce, and the effect of rapid transit, over the globe, are apparent and felt by all. The world is grasped in the hand of progress, and with that progress new duties are imposed upon the people, and the government, and new demands are made to meet the wants of society. The government of the patriarchs, in the primitive pastoral state, with a few families depending on each other for society, would be o*f but little force in the nine- teenth century. The wants and fears of the people in every age have tended to produce the governments, for that period, and the governments have been required to conform to those wants and fears. Taxation in the early formation of society could be arranged by tithes and mites, while the right of eminent domain or questions thereunder were of but little force to occupy the attention or serious thought of mankind. These questions are the growth of the age, in which the people, of the nineteenth century must act, and there is 24 STATUS OF THE PAYOR TO MUNICIPAL BOKDS. 25 probably, no subject that has commanded the talent of the bar, and the erudition of the jurist, to a greater extent, or fills more space in the reports of the courts, than that now under consideration. Precedents in law have had force in all ages, but that force has been changed, with the new demands of society, and gradually have these demands, yielded, to the law- making power, or been incorporated in the common law, as the religion of nations and society, thus, regulating their relative positions and duties towards each other. Usage and custom are readily ad opted, because of their advantage and necessity. They spring from the people, and are demanded and acquiesced in, for the benefit of society. • The rule seems to be, that custom and usage, which have been universally and notoriously prevalent, with the progress of the age, have been adopted or embodied so as to become the law of the land. The piinciple of taxation, we may say, is coexistent with society; but the application, and the mode, and pur- pose, have been adapted with the demands grckwing out of the wants of the people keeping pace with the growth of commerce, and the increase of population. Were the population to remain the same, human transactions the same, the wants, of the people the same, the laws would soon become universal and fixed ; legis- latures need not convene, no new laws need be passed, nor need any^one further consider the wants and fears of society. We would, in a legal sense, have arrived at the millennium in individual responsibility to society and of government. This position will never be attained by the human race. We can readily conceive, however, that there is but one true government, and that, the government which brings to the people, the real enjoyment, by their united eflforts, 26 THE LAW OF MUNICIPAL BONDS. all that nature, science, and art, have produced to satisfy the wants and quiet the fears, of the citizen or subject, so far as the governmental powers may be exercised, — and that must be reflective from the people. We are to bear in mind, also, that there is as much progress in the science of law, as in any other branch of science ; that it keeps pace with the growth of commercial and other interests of society. The demands of each age are apparent from the history of its laws. Each age furnishes features as distinct and different as are the countenances of individuals. The river Nile is the river Nile forever, yet never the same water. A constant change is going on ; and it requires a constant study and exercise of the mind to determine the legal phenomena. Governments of the people are like the camera, reflecting different shades, by means of the rays of light. Utility and adaptation, become the power, giving new questions for the law-making power, the lawyer, and thojurist. It is in this view, that we must consider the law of Municipal Bonds. Their demand and use have grown with the improvement of the age, and they have become in America fixed securities, equalling in amount the se- curities of the nation and all the States combined. And it may be remarked that the period, wherein Mu- nicipal Bonds have been before the courts, will date with the early progress, in the history, of internal improvement throughout the United States, and that the adjudications have kept pace, with the successful development, of the real wealth of the nation. No age has . ever been marked, with an identity so beneficial to education, the improvement in scientific dis- covery, the growth of commerce, the development of ag- ricultural and mineral resources, as that in which the law of Municipal Bonds has taken place in the legal STATUS OP THE PAYOR TO MUNICIPAL BONDS. 27 adjudications ; and no age hag furnished, more equal, ad- vantages, to all in acquiring the means for the support and enjoyment of life. It has been one gradual step in developing mind and matter. The rapid strides made by the decisions of the highest judicial tribunals of the United States, upon the ques- tion of Municipal Bonds, will rank with any age in the progress of a true government for the benefit of the people. This progress will date from the division of the power of the government, where it reflects directly from the people. It was this spirit and necessity that organized society into boroughs and towns and then to cities. Municipalities had their origin in the formation of so- ciety from the necessity of the division of power ; and in all governments except the United States they are de- pendencies, or receive grants and franchises when they partake of the character of a private corporation. In England, municipal corporations are broadly distin- guished from, towns and counties in the United States. There is no uniformity in the powers and duties of Eng- lish municipal corporations. They are not created and established under any general public law, but the powers and duties of jeach municipality depend on its own indi- vidual grant or prescription. Their corporate franchises are held by the Crown, by the tenure of performing the conditions upon which they^have been granted, and are liable to forfeiture for breach of the conditions. They answer certain public purposes, as private corporations do, which have public duties to perform, and in some in- stances exercise political rights ; but they bear much less resemblance to towns and counties in the United States than to private corporations, which are charged with the performance of public duties ; and for this reason the English authorities are but remotely applicable to our law on Municipal Bonds. 28 THE LAW OP MUNICIPAL BOKDS. Towns and counties do not hold their powers under any grant, from the government, or upon any condition ex- press or implied. In fact, they give no assent in their cor- porate capacity, to the laws which impose their public duties or fix their territorial limits. They are created by the legislative authority, with upiform powers and duties, defined and varied from time to time, as the wisdom of the law-making power may deem best. They are part of the legislative power itself, with agents to perform the functions of government ; and in the per- formance of their duties prescribed by law, they have no civil liability. They are in every State of the Union declared to be corporations, and consequently may sue and be sued in reference to all their legal rights and lia- bilities. But declaring them to be corporations does not confer upon them other powers, or subject them to other duties than those which are conferred and imposed either by express provision of some statute, or are implied from the general character and design of such public corpo- rations. They are agencies, to perfect more readily and directly the power that the government should exercise over the territorial limits for which the agencies are created ; and we may att]:ibute the division of such powers to the dif- ficulty in adjusting questions arising under an organiza- tion where the sovereign power is omnipotent, where " the king cannot be sued " — and can commit no error. Our Government is a constitutional government, springing from the people, and the power resting with the people, they having rights which permit them to be heard in court on every question. What is properly termed the English Constitution is certain principles, in the light of which, the government has been organized, and which, according to the most STATtrS OF THE PAYOE TO MUNICIPAL BONDS. 29 liberal view, form an implied restriction upon the om- nipotence of the king, lords, and commons. Yet it is certain that if Parliament were to pass a law clearly- inconsistent with those principles,, no court in- England would venture to declare it void. And if it could not be repealed by force of the popular will, by the same power that made it, it would, unless the people chose to resort to revolution, have to be submitted to as the law of the land. Our Government receives its power directly from the people, being limited and divided in its powers. Executive, legislation and judicial, brings every and all . parties liable before the courts ; every law may be ques- tioned as to its validity, and the agents may be com- pelled to act, or, desist as the rights of the people may be affected. This principle is in consonance with the spirit of the Government.' The agents of municipalities may be compelled to act, in their official capacity, both to issue and deliver to the proper parties, and redeem Municipal Bonds, and enforce the same by the power of taxation, if the law requiring it comes within the authority of the law-making power. To this extent, where the law imposes a duty on municipal officers, they may be compelled to perform that particular duty by mandamus, and that performance will be made complete to the binding of the tax-paying power. This division of the powers of government is made more "perfect again by the well settled law that munici- palities cannot repudiate their obligations. The rule that the king can do no wrong, nor be sued, has lost its force, in the organization and division of public powers' and duties in the United States. The obligations of mii- nicipalites being placed on the same footing as commer- cial paper, any irregularity not material to the obligation 30 THE LAW OF MTJITICIPAL BONDS. will not defeat it. The bona fides wUl only be considered where a defence is made alleging fraud, want of author- ity or knowledge of the holder. The progress made in this direction is : that, while government is a sovereign power, yet it must answer before a proper tribunal, provided for in its own organi- zation. With the question of the bona fides of the holder, the question of the status of the payor has often come before the courts, and the question resolves itself into this : Who should be responsible in, the issue of Municipal Bonds? As they come under the Law-Merchant, we think there can be but one question. What is the notice to the pur- chaser, and the means of knowledge placed in his pos- session ? They are issued by law, and to that extent he is bound to know whereof he acts. But when the law authorizes the issue of bonds, and limits the same to a certain amount, or not to exceed a certain percentage of the taxable property, and that is of a shifting valuation, none but the officials or the agents can know, unless the people or the Legislature have provided some rule of public registration, to be enforced in a legal form, and to be known by certificates under seal. The duty clearly belongs to the Legislature, or the people, who are to re- ceive the benefit of their issue. The presumption is that none but honest men, and those who have ability and knowledge, are to act as agents in so responsible positions. However true or false, this may be in fact, is only for the payor to know. Besides, the purchaser of a bond bearing upon its face ■ the stamp of law, may not have even a voice in the selec- tion of officials, their number being legion, and certainly none to question or remove them. It must be borne in mind, also, that municipalities are STATUS OP THE PAYOR TO MUNICIPAL BONDS. 31 authorized and required to use a seal, wliicli binds the political division of the tax-paying power ; and there should be a sacredness attached to its custody, and use, which would require the people of that political division to watch with an eye of a careful business-man over the acts of their agents, and see that they are both faithful and efficient. , There can be no theory successfully advanced to make the liability of officials of municipalities anything different from that of agents. They must be considered so to the extent of the law and their apparent power. They are appointed by the same power that represents the payor, and controls legislative action. Hence, we submit, the hona fides is with the holder. It is true the whole question may be one of fact, as to what is notice, and whether there is collusion with knowledge, which must be determined under the princi- ples of the Law-Merchant, and-^eeds no treatise in this work. It must be remembered, also, that the security for loans of money, on Municipal Bonds, reach over the entire globe, with the evidence that political divisions are par-' ties to the contract. Their soundness has identified their utility for use with the progress of nati'ons, in keeping pace with the growth of commerce, and rapid transit. This is part of the history of .the present age and the demand of its society. * The liabilities for which a town or county may become obligated is not confined, to an express delegation of au- thority, by legislation. That authority may arise from the existence of the power in the nature of the corpora- tion, the division of the power, and from necessity. The power of the municipalities to contract debt is recognized in the absence of authority conferred by law. They may create debt to care for the poor, the insane, to 32 THE LAW OP MUNICIPAL BONDS. repel invasion, suppress insurrection, or defend the State in time of war, although by statute no power should be given. The first, is an act of humanity, the second, ne- cessity. These are incident to their existence. They are governmental acts for the good of the government, like acts of self-preservation. And the government of the State may in its wisdom by legislative action, authorize them to obligate themselves, to meet the wants of society in their full sense, growing out of the demands and im- provements of the age. The fact that Municipal Bonds are the act of the government and not of individuals, marks the peculiar feature of the status of the payor. The act of the official does not bind him to the payment, but to the act of issu- ing and directing means of payment. The remedy in enforcing his duty would differ from a personal obligation ; and as will be observed in the deci- sions and treatises undejf* each State, as they will appear in this work, the remedy is simply to compel the exer-' cise of the Government over the tax-paying power after the validity of the obligation is established. Hence we may conclude that the status of the payor to Municipal Bonds forms the distinction between the Law-Merchant and the law of Municipal Bonds. In other words, the Law-Merchant will be observed and followed in all questions except the issue and mode of enforcing payment of the municipal 'obligation. And with the necessity, the remedy alike of enforcing the obligation has become an important feature in our jurisprudence. The writ of mandamus was of but little use until the duties and responsibilities of performing the functions of government were divided between the Municipal Cor- poration and its sovereign. The status of the payor fixes the remedy of the payee. The increased use of this writ, it will be observed, has STATUS OF THE PAYOR TO MUKICIPAL LAW. 33 followed the increased demand for tlie issue of Munici- pal Bonds. The writ was formerly the prerogative of the king to compel the performance, by his subordinates, of some public duty. It was known as the " king's writ," that of the sovereign ; but in our Government the sove- reign power being in the people, and the duties being divided, it becomes the remedy to enforce the rights of citizens against corporations having a public duty to per- form. The payee stands in no different position than the payee to commercial paper, except as to the mode of remedy. CHAPTEE III. CONCERNING THE RULE IN RESPECT TO PUBLIC PURPOSE AS AUTHORIZING TAXATION. The progress of our courts in the adjudication of ques- tions relating to public improvements, and the agencies employed in their construction and operation, has been the cause of some distrust as to their correctness and per- manence. That the development of the subject has been unnaturally rapid, and that a retrogression at some not distant period is inevitable, are apprehensions that have manifested themselves both in the expressed opinions of able judges upon the bench and in the writings of numer- ous scholarly legal scientists. But that these apprehen- sions, supported as they are by masterly sophistries, are without foundation, is, we think, becoming more and more obvious. Their effect has been, instead of weaken- ing the recognized tendency of the law, to compel a re- affirmance, in more positive language than had previously been employed, of conclusions that cannot be said to have ever been more than fruitful subjects of dissent, and which remain unshaken, with ■every reason to anticipate that any change that may come to pass will be a move- ment towards still more advanced ground. - In the discussion of these most important questions, the American courts have been governed largely by their own enlightened intelligence ; and while they have not failed to exercise profound industry in their investigations — an industry which is, perhaps, as conspicuous in this as in any branch of our jurisprudence — they have been 84 PTJBLIO PUEPOSE. 35 pressed forward by great public necessities uptil tbey occupy a position only as progressive as the interest of the age and nation demand. Happily, the adjudications are, in the main, harmonious. If not entirely certain, although there have been, as we have stated, some notable deviations from the general current of decisions, there is a uniformity that fixes absolutely certain cardinal ideas and principles of vast utility, in the light of which the future appears almost as clear as the past. The effect of the numerous cases that have been passed upon by the Supreme Court of the United States and the courts of final appeal of nearly all the States, may be said to be an evolution of what are in the nature of special maxims, by means of which very many doubtful points may be solved. And we have, also, as corollaries, not a few definite precedents which may be taken to be fixed rules that admit of no deviation. These maxims and precedents will be found in the opinions published in another part of our volume. And we propose to give in this chapter only a rSsumS of their purport, and the obvious deductions to be drawn from them, as showing what public use or purpose is sufiicient to warrant an exercise of the right to impose taxation, and how that purpose may be ascertained. In order to fully appreciate the truth of the propositions about to be laid down, it is necessary to bear in mind the important fact, that the Legislatures of the several States are possessed of powers at least equal to those of the Parliament of Great Britain, except so far as the same have been granted to the Congress of the United States. Whatever legislative authority is not set down in the Federal Constitution as belonging to the Congress of the United States, is in the State Legislatures, to be ex- ercised according to their pleasure within their respective constitutional limitations. But save where the limita- 36 THE LAW OF MUNICIPAL BONDS. tion exists, the power of the Legislature is absolute. As the exponent of the people, its authority knows no limit other than the people have prescribed. This is true of the State Legislature, but the national Legislature has no authority whatever that it does not derive from the organic law of the nation. These great truths are so definitely settled as to be accepted on all hands as for- ever at rest. 1 Kent, 603 ; Sedg. on Stat, and Const. Law, 150 ; Cooley's Const. Lim., 87, and cases cited. With these principles before us, we proceed to inquire concerning the position of the State judiciary with re- spect to the State legislative power, to determine which will be, to all intents and purposes, to determine the main question before us. The right to tax is essentially political in its character. The Legislature is peculiarly the appropriate power to discriminate and decide what may or may not be a neces- Bary public burden ; and it is only when there can be no well-grounded difference of opinion that the judiciary may properly interfere. If this were not so, the Legis- lature, instead of being the active and progressive element of our governmental systems, would rapidly assume the conservative character of the courts, and, in time, utterly fail to carry out the cardinal objects of its creation. Laws imposing taxes designed for some immediate political pur- pose, would be practically no longer possible. Derange- ments of the most complex nature would inevitably arise, and the "wheels of government" be dangerously clogged, if not permanently impaired. Especially is the action of the law-making power to be respected when the courts have passed upon certain questions, and laws are enacted in the light of unim- peached judicial precedents and constructions. In such cases, only the most pressing necessity can warrant a re- view of the past, and a reversal by the judiciary of what PUBLIC PURPOSE. 37 has been its own deliberate judgment, as well as that of the legislative and executive powers. Audit is as ob- viously clear, that the settled judicial constructions of one State upon a doubtful act, if brought to the notice of the Legislature of another State, which thereupon passes a similar statute, will, in political ethics as well as in sound law, prevent adverse action on the part of the courts of either State. When, too, an act of the Legislature remains in opera- tion without its constitutionality being impugned for any considerable period, the courts will examine it only for the most cogent reasons. Any settled practice will be permitted to remain undisturbed, unless there is no rea- sonable doubt as to its being plainly contrary to the or- ganic law. If there is uncertainty, the act will not be opened under any consideration. If the above are not axiomatic principles; sufficient authority for them will be found in the cases hereinafter cited. And going one step further, we arrive at what we conceive to be the rule as it obtains in the States, and probably within the national jurisdiction as contradis- tinguished from them. Unless there be no reasonable -doubt that the legisla- tive act is essentially private in its nature or effect, the public purpose necessary to the validity of a tax, is any purpose which is sufficiently public in the estimation, of the legislative auiliority to warrant the imposition of the tax. It is not to be understood by this that the mere act of the Legislature settles the fact that the purpose is public, but that, where there may be room for doubt, the ex- pressed legislative will and opinion, especially if it be strengthened by a popular vote, must be held to be con- clusive. This rule is not to be found in terms in all the adjudi- cations and authorities cited, but it is fairly within their 38 THE LAW OF MUNICIPAL BONDS. spirit ; and, when viewed in connection with the facts that have long obtained,, will not appear to be in any sense theoretical. It is the settled law of substantially- all the States, which is becoming more firmly rooted as the requirements of our enlarged and enlarging civiliza- tion grow more apparent. Say the Supreme Court of Pennsylvania in Common- wealth V. Smith, 4 Birney, 123, and which is approved by the Supreme Court of the United States, speaking through Justice Strong (12 Wall., 531) : " It must be remembered that, for weighty reasons, it has been assumed as a principle, in construing Constitu- tions, by the Supreme Court of the United States, by this court, and by every other court of reputation in the United States, that an act of the Legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for reasonable doubt." Said Chief-Justice Black in the celebrated case of Sharpless v. Phila. (21 Penn. St., 160) : " An act that rests in the discretion of the Legislature will be declared void only when it violates the Constitution clearly, palpa- bly, plainly, and in such manner as to leave no doubt or hesitation on our minds." In Oliver v. Washington Mills, 11 Allen, 279, the court of last resort of Massachusetts state the rule in these words : " A tax would not be declared illegal and void as being unreasonable, unless it was plainly and grossly oppressive and unequal, or contrary to common right, nor would it be held to be unproportional unless it violated, clearly and palpably, the rules of proportion which could be properly applicable to the subject-matter of a tax." Say the Supreme Court of Kentucky in Cheney v. Hooser, 9 B. Monroe, 345 : " A tax law must be con- sidered valid, unless it be for the purpose in which the PUBLIC PUEPOSE. 39 community taxed lias palpably no interests, where it is apparent that a burden is imposed for the benefit of others, and where it would be so pronounced at first blush." In Maddox v. Graham, 2 Mit., 56, the lan- guage of the court is equally positive and pointed. But while the discretion of the Legislature, in respect to taxation for general purposes, has been constantly recognized by the courts, in matters involving any ques- tion of policy, the legislative discretion has been treated as almost supreme. (Cooley's Const. Lim., 487, 488, and cases there cited; Stockton, &c. £. B. v. Stockton, 41 Cal., and cases cited, &c., &c.) In Clark Y. (My of Rochester, 24 Barb., 446, affirmed in 28 N. Y., 605, it is held in substance that the Legis- lature is the exclusive judge in respect to what works are for the public benefit, and as to the expediency of constructing such works. In the case of the Stockton and Visalia JR. H. Co. v. Stockton, decided by the Supreme Court of California in 1871, after a most careful and intelligent review of the authorities, Judge Wallace says : " Other like authorities might be cited upon this point ; but we think that without them it is plain enough that when the Legislature has determined a given purpose to be a public purpose, we must so consider it, unless we can see at first blush tliat it is not possible that it could be such." It is unnecessary to continue to cite authorities, a ref- erence to almost any one of which will disclose the abundant weight of reason and precedent that support our view. The foregoing quotations aptly illustrate the accepted doctrine that has prevailed without material va- riation since the foundation of our Government. The rule we deduce is fairly in accord with tlie judicial deter- minations of probably every State in the Union, and may 40 THE LAW OF MUNICIPAL BONDS. be SO treated as a practical means of ascertaining the validity of the securities of either the State or its muni- cipal divisions, so far as the nature of the purpose in aid of which the securities may be issued is important. The rule as established by the courts has been applied in' a large number of well-considered cases, which have gone far to settle the character of the principal improve- ments that have occupied the public attention. And in the application, as in the elimination of the rule, while there is no doubt but that the current of authority is substantially uninterrupted, there has been enough re- sistance to fully develop the course of decision and to give exactness and certainty to not a few comprehensive precedents, of which we will consider briefly some of the most important classes. Perhaps the nature of railroad companies has been the subject of more frequent and prolific discussion than that ■ of all other similar corporations combined. It is proba- ble that in the earliest stages of our jurisprudence they were thought by jurists of the most marked ability to be merely private. Chancellor Kent speaks of them as " private corporations, " and several conteinporaneous writers were of the same mind. But much might be stated, were it necessary, to show that the views of the great Chancellor, as well as those of his contemporaries, were not matured opinions. Whether they were or not, they have given way to the more modern rulings, the unanimity of which alone is ample to overcome whatever there may be in the past. The nature of railroad corporations is thus defined by Mr. Justice Cliffokd, in delivering the opinion of the Supreme Court of the United States in the case of Rogers v. Burlington : " Railways, also, as a matter of usage founded on ex- perience, are so far considered by the court as in the nature PUBLIC PUEPOSB, 41 of improved highways, and as indispensable to the pub- lic interest and the successful pursuit even of local busi- ness, that a State Legislature may authorize the towns and counties of a State through which a railway passes to borrow money, issue their bonds, subscribe for the stock of the company, or purchase the same, with a view of aiding those engaged in constructing or com- pleting such a public improvement." " Decisions to that effect have very much increased in number within the last few years, and are constantly in- Creasing, both in the State and Federal courts, until it may be said that the rule laid down pervades the juris- prudence of the United States." Upward of a hundred cases, in the different State and Federal courts, may be cited in support of the learned justice's comprehensive language, while not to exceed a very limited number, of exceptions, can be found to main- tain a contrary doctrine. In the opinions in another part of our volume will be found elaborate discussions of the subject, the perusal of which will evince the strength of the language of our most exalted tribunal. But even if there may be objections based upon refined logic and technicalities, the great facts that support the principle must remain unchanged. So long as railroads conduce to the public convenience and comfort, so long will they be public improvements in the eye of the law, ' in aid of which the right of taxation may be exercised. Even in the States where the courts of last resort have pronounced them private corporations for private pur- poses, the constitutionality of taxation in their aid is practically admitted, and the bonds of municipalities regularly issued to further their construction and opera- tion are as valid as those where the judiciary has never expressed a doubt. 42 THE LAW OP MUNICIPAL BONDS. As a corollary from the adjudications in whicli rail- roads are decided to be public improvements, it follows that all similar works are to be included in the same category. Thus, canals, turnpikes, and other improved highways, lines of stages, lines of steam-boats, harbors, and all other works, the objects of which are to facilitate intercommunication as well as the incidents of such works, are fairly within the rule. This class of improvements will be found to embrace a large proportion of the objects in aid of which the bonds of municipalities have been, or are likely to be, issued; and the law is now so well settled in regard to them that the securities based upon them can only be of doubtful character when there is no doubt that the improvement is not what it purports to be. Says Chief- Justice Black in the Sharpless case {supra) : " Canals, bridges, roads, and other artificial means of passage and transportation from one part of the country to the other, have been made by the sovereign power and at the public expense, in every civilized State of ancient and modern times. ... It being the duty of the State to make such public improvements, if she hap- pen to be unable or unwilling to perform it herself to the full extent desired, she may accept the voluntary assistance of an individual, or a number of individuals associated together and incorporated into a company. The company may be private, but the work they are to do is a public duty ; and along with the public duty there is delegated a sufiicient share of the sovereign power to perform it." The nature of improvements pertaining to education has been frequently discussed by the courts, and conclu- sions have been reached which leave little to be desired. The importance of public instruction, recognized as it is in perhaps every State Constitution, has grown to be • PUBLIC PURPOSE. 43 one of the leading features of all of our political systems ; and there can be no. question but that the municipal divisions enjoy the greatest latitude in respect to it. The essential test appears to be one that may be readily ap- prehended. It is simply that the doors of the school be open to all classes without distinction or. discrimination. If it be purely and unequivocally a public institution, it will authorize taxation in its aid. We think it would scarcely be going too far to pro- nounce education one of the objects of American govern- ment. A strict construction might lead in a different direction, but there are few tribunals that would be likely, in the light of our present era, to dispute a doctrine so near to the safest law, andj at the same time, so wholesome and beneficent. Another class of improvements which have been some- times critically examined, are those which relate to the objects of government. About these there exists, proba- bly, less doubt than those we have above alluded to ; for they seem to be so clearly of a public nature, that the necessities of every citizen compel a recognition of their real character. As has been said in another part of our treatise, it is practically true that all powers of local government not reserved to the State or the United States by organic law , are in the municipalities. Whatever power to regulate their own affairs has not been withheld from them by superior authority, is lodged in them as the agencies nearest to the people, through which the people may most readily act. As a consequence, it follows that the municipality is possessed of an unmistakable right to provide such improvements as may be necessary for the transaction of its affairs. It may do whatever is requisite to fully carry out the objects of its creation ; and to this great end may exercise its discretion in respect to every incident of its past and future. 44 THE LAW OF MtTNICIPAIi BONDS. We need not illustrate a principle that is so nearly axiomatic. Included within it are all the agencies that relate to the various ramifications of government. Any- work that has for its object the preservation of the peace, security, convenience, health, or comfort of the people — any improvement that conduces to the public welfare in any sufficient manner — is within the power of the municipal authority, and to be classed, in its discretion, as an object of government. In Booth V. The Town of Woodbury, (32 Conn., 128,) we find the following : " If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy .... and the determination of the legislative power is con- clusive .... such gifts to unfortunate classes of society as the indigent blind, the deaf and dumb or insane, or grants to particular colleges and schools, or grants of pensions, swords, or other mementos for past services, involving the general good indirectly and in slight de- gree, are frequently made and never questioned." It would serve no good purpose to attempt to give a recapitulation of all the works the character of which has been passed upon by the courts, inasmuch as the grounds of decision are uniformly the same. The rule we have laid down is a sufficient guide by which to determine the character of any purpose. Unless the expressed will of the Legislature be " clearly, palpably, and plainly " a vio- lation of the organic law, unless it be so obviously at variance with the Constitution that the discrepancy appears " at first blush," the courts will refuse to set it aside. The people, the source of all our powers of gov- ernment, demanding the advantages that spring from modern civilization, constantly insisting upon every work that will add to their progress or convenience, will per- PUBLIC PURPOSE. 45 mit no retrogression. They will force the courts forward rather than allow them to remain stationary. And the rules and principles of to-day, which appear to the over- cautious thinker to be liable to modifications by which their validity may be affected, will, within a few years, have become " ancient precedents," upon which will be founded the authority for new reforms.^ 1 In the foregoing we have preferred to confine our discourse chiefly to a mere recital of principles, with such leading citations as pertinently illustrate them. The fullest discussion will be found in the opinions given under the different States, to which attention is directed, and especially to the following cases : Talcott Y. Fine Grove, Michigan ; Stockton, ^c. B. B. \. Stockton, Cali- fornia; Stewart v. Supervisors, ^c, Iowa; Chicago, S;c. B. W. v. Smith, Illinois. These, the latest adjudications, contain the most careful and intelligent reviews of the subject of this chapter, and, written as the opinions were, after the most exhaustive argument and examination, are peculiarly valuable and in- structive, and entitled to be considered conclusive. CHAPTEE IV. ALABAMA. The constitutional provisions of the State of Alabama are those which obtain in a large majority of the other members of the Union. Her organic law is embraced in the Constitution of 1868, which, having been framed subsequent to the Rebellion, may, as far at least as the question of internal improvements is concerned, be taken to have been the real organic law, so to speak, at the time of its adoption. It is a fact, which may be one that the conservative mind will deplore, that the Constitutions of the States are not, in the strict philosophical sense of the term, organic laws. They are organic for many prac- tical purposes. They serve as limitations upon the co- ordinate branches of government, materially assisting in preserving the necessary political equilibrium that has always been considered essential to the liberties and safety of the people. They serve as definite guides, for the action of the different powers, and set the metes and bounds in matters of public moment. They are useful and necessary, but do not possess the quality of absolute permanence which is the great cardinal feature of a true Constitution. It, therefore, follows that the constitutional provisions of a State are not to be regarded as more than the most solemn expressions of the will of the people. They are clothed with a consequence and dignity that pertain but remotely to an Act of the Legislature ; and yet the same necessities that transform the statutory enactments, go far 46 ALABAMA. , / 47 towards compelling changes in the provisions by which the latter are restricted. Thus we find that in some of the States, within a period of half a century, the organic law has been remodelled again and again, the last Consti- tution being almost wholly different from the first. And in perhaps every instance the reasons for the changes have appeared to be such as entitled them to the greatest weight. By reference to the proceedings of the Constitutional Conventions of the different States held within the last decade, it will appear that clauses of commanding im- portance have been adopted substantially with a view to their repeal by a subsequent convention. Abuses, which it seemed impossible to correct, or curtail, by the usual legislative proceedings, have been made the subject of constitutional limitations as matters of confessed expe- diency, to be tested as political experiments, and cancelled in due season if found to be productive of evil. No more satisfactory and complete definition of a Constitution of almost any one of the States of the American Union can be found, than that it is a statute passed by the people, without the intervention of the Legislature. It is a law that the people as the people adopt, and which they may modify or repeal at any time. It is very necessary, in a practical light, that the above facts be borne in mind in considering the positions that are occupied by the several States in respect to their con- stitutional restrictions touching the issue of Municipal Bonds. ^ However certain the organic law of to-day, a few years may be sufficient to effect a radical change, such as will appear to be a perfected revolution, which may, in turn, prove but a naked and temporary departure that speedily gives way to still another transformation. But looking upon these instruments as laws passed by the people proper, their nature and effect appear to be readily 48 • THE LAlV OF MUNICIPAL BONDS. apprehended, and no false view is likely to be long ad- hered to. Section 36 of Article IV. of the Constitution of Ala- bama is the leading feature that affects the issue of bonds by municipal corporations, and is as follows : " The General Assembly shall not have power to authorize any mu- nicipal corporation to pass any laws contrary to the general laws of the State, nor to levy a tax on real and personal property to a greater extent than two per centum of the assessed value of such property." The terms of this section are so plain that their viola- tion is scarcely possible, as far as the last provision is concerned ; and the first is clear enough to prevent any probability of misconception. The section as a whole is as specific as it could be made by statute. It is essen- tially close and pointed, and not entirely in harmony with the popular notion of written Constitutions, It is none the less, however, illustrative of the principles above alluded to; and is especially apposite, as showing the natural means by which the abuses of municipal powers may be controlled. As has been remarked in another part of our treatise, a small minority of the jurists of the present century have from time to time stoutly resisted the current of authority, in respect to municipal powers, that has been constantly increasing in volume as time has passed. The judges of some of the Western States particularly, im- bued apparently with that abhorrence of imposition, and respect for personal rights that prevail almost as natural laws within their grand jurisdictions, have been carried BO far by considerations of public welfare, that they seem to have lost sight of the conservative side of their ofiices, and to have " immolated truth, justice, and the law " rather than wrong the people. They seem to have wholly ignored the fact that the people, if injured, have ALABAMA. 49 abundant redress as to the future; and that if in the present they are oppressed by an unequal law, the courts can only, at most, point out the shortest way to a reform. Said Judge Temple, in the case of Stockton, &c. B. R. V. Stockton : " I concur in the order made in this case solely upon the ground that I regard thequestions as settled by the previous decisions of this -court, as well as by the almost unbroken current of authorities in other States. . . . To overturn the almost unbroken line of decisions now, however, would not establish a rule of decision, but would make an exception merely. It would shake the confidence of every one in the stability of judicial deci- sions, and would add nothing to the force of the limita- tions upon legislative power. The people can readily circumscribe this power without doing violence .... to that branch of the Government which should be least in- fluenced by popular pressure." In this quotation is clearly enunciated the doctrine which, in addition to being the only correct one, is that which the people, realizing, perhaps, that the judiciary are powerless in the premises, are very generally accept- ing. This is evinced in the fact that in the framing of the most recent Constitutions, the right of taxation in aid of public improvements is limited with a jealous exact- ness that is unknown to the older instruments ; while the almost universal decisions of the courts, affirming the legislative rule, seem to force the public mind towards the right view. Thus, the State of Illinois attempts to cut off", by constitutional provision, any municipal taxa- tion in furtherance of railroads ; while her highest court, speaking in a ease under the old organic law, asserts in most positive terms its refusal to permit the judiciary to violate precedent, because the public weal demands it, and. reason may differ with authority. 50 THE LAW OF MTTSTICIPAL BONDS. It may be taken as settled law that there is no means of avoiding a legislative Act for a purpose deemed by the Legislature to be public, by an appeal to the courts. So long as the power to pass the Act is in the Legislature, it may exercise that power according to its discretion, and the courts as well as the people are compelled to submit. However productive of public or private unhappiness, the only redress is by the appointed means. To cure the evil, the defect in the Constitution must be cured. In this way, and in no other, can it be effectually dealt with. The above section will be found in one form or another in nearly all the late Constitutions. In other States it has given rise to very important questions touching par- ticularly the right of an innocent holder of bonds issued in excess of the prescribed limit, which will appear to be sufficiently discussed in the case of Rogers v. Burlington, given under Iowa. Following long-established usage, the Legislature of Alabama is permitted to create municipal corporations by special Act. Section 1, Article XII., is as follows : " Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All general laws and special Acts passed pursuant to this section may be altered, amended, or repealed." Education is provided for by Section 6, Article XL, in these words : " It shall be the duty of the board to establish throughout the State, in each township, or other school-district -which it may have created, one or more schools, at which all the children of the State, between the ages of five and twenty-one years, may attend free of charge." " It shall be the duty of the General Assembly to provide for the organization of cities and incorporated towns, and to restrict their power of taxation, assessment, and contracting of debt." ALABAMA. 51 The course of decision in Alabama has always been fully in accord with the established doctrines. The cases that have come before her court of final appeal are not numerous, but are in the main carefully and intelligently considered, and in the illustration of some incidental points are of very material importance. Stien V. The Mayor, &c., of Mobile, (24 Ala., 59,) is per- haps the first case which arose in the State that merits attention. In this case the questions of the nature of a railroad, and of the constitutionality of certain Acts au- thorizing taxation in its aid, were in issue, and the court held to the popular view, asserting it with marked dis- tinctness. From the quotation from the opinion which we give below, it will be seen that the dicta of the court is very comprehensive, going far beyond the strict re- quirements of the argument. This case was decided in 1854, and was afSrmed in 1857, in The Mayor, &e., of Wetumplca v. Winter, (29 Ala., 651,) in which the main question was, Whether or not a plank-road was a public improvement such as would authorize the imposition of a tax ? The decision was un- equivocally in the affirmative. We give, also, a quotation from this case, which is thought to be of practical value. Gibbons v. Mobile, &c. R. E. Co., (36 Ala., 410,) decided in 1860, was an affirmance of Stien v. The Mayor, &c., of Mobile, and contains some nice distinctions, to which we have given place hereinafter. A late case in Alabama has been decided, in which the foregoing are reaffirmed. There is no confusion what- ever in the rulings of the State. They are entirely con- sistent and homogeneous, and in consonance with the rule as laid down in the other courts of the Union. 52 the law of municipal bonds. June Term, 1854, Siim V. The Mayor, Aldermen, ^c, of Mobik. Appeal from tlie City Court of Mobile. Tried before the Hon. Alex. McKinstry. Thi? ease was submitted to the deci- sion of the Hon. Alex. McKinstry upon the following agreed statements of facts : The Mayor, Aldermen, and Common Council of the city of Mobile being entitled to certain water privileges, for the benefit of the city of Mobile, in the Waters of Three-Mile Creek, under the Act of December 20, 1820, and other Acts subsequently passed on the same subject, on the twenty-sixth day of December, 1840, granted or leased to said Albert Stien the sole right to supply the said city with water, which con- tract and agreement is hereto attached, as a part of this case. In accordance with this contract, the said Stien erected the works now known as the Mobile water-works. These works are composed as follows : The water is intro- duced into two reservoirs on the banks of the Three-Mile Creek, from a point on said creek, said reservoirs being out- side of the city limits. The water is then brought into the city by means of cast-iron pipes of about eight inches bore, passing along Spring Hill road to a reservoir within the city, about two miles from Mobile River. This latter reservoir is located on a lot belonging to said Stien. By means of said iron pipes, which are buried three or (four ?) feet under ground, the water is conducted into the city, and along the streets ; and by means of small lead pipes the water is carried from the main pipes under ground, into the houses and lots of the citizens who pay to the said Stien stipulated prices therefor annually. The Legislature of Alabama passed an Act, approved the 20th of December, 1851, entitled an Act to authorize the cor- porate authorities of the city of Mobile to levy a special tax for the purpose of aiding the Mobile and Ohio Railroad, which Act, and the Act to which it refers, passed on the 5th of January, 1850, are made parts of this agreement. Under and by virtue of this Act, an election was held according to the provisions thereof, at which the real estate ALABAMA. 63 owTiers, who had paid on their stock over twenty per cent., voted with others in favor of said taxation; but said Stien did not vote at said election ; and has by no act sanc- tioned the law authorizing said taxation. At said election a large majority was found to be in favor of said law ; and the same went into effect according to its provisions, under and by authority of which a tax of two (2) per cent, has been levied on said water-works, valuing the same at $75,000.00, and making a tax of $1,500.00, which they claim and are 'en- forcing by the proceedings directed by said Act. It is agreed, also, that all ordinances of the city of Mobile, and all existing Acts of the Legislature touching the said water-works, may be considered in evidence and before the court, and may be referred to as a part of the record, by either party, before this court or the Supreme Court. The questions for the court are : 1st. Whether said tax law is constitutional, and can be en- forced. 2d. Whether said water-works come within the Act and are taxable under it ; and, 3d. If so, whether Stien, the present proprietor or lessee, is liable for said tax. The contract under which Stien became the lessee of the city water-works above referred to, as being hereto attached as a part of this case, nowhere appears in the record ; but it is substantially stated in the report of the case of Stien v. The Mayor, ^c, of Mobile, 17 Ala., 234. His Honor Judge MoKinstry held " that the said Acts of the Legislature above referred to are constitutional, and may be enforced ; that said water-works come within the provi- sions of the Act, and are taxable under it ; and that Stien, being the owner of the land and of the pipes and privileges attached to said land, and in possession thereof, is liable to pay said tax;" and judgment was accordingly rendered against Stien, as on a special verdict, for the amount of the tax assessed against said water-works. This judgment is now assigned for error. 64 THE LAW OP MUNICIPAL BONDS. Chilton, C. J. — Three questions are presented by the record .for our consideration : 1st. Did Mr. Stien, by the contract of lease, and the Act of Confirmation passed by the Legislature on the 1st of Janu- ary, 1841, secure an exemption from taxation upon his interest in the water- works ? 2d. Are the Acts constitutional under which the tax now sought to be recovered, was levied ? and, if so, 3d. Do the water-works described in the record come within the Act taxing the owners of real estate ? -1. The first of these inquiries came substantially before us at a previous term, between these same parties, and we then held " that the right to tax the property is not restricted nor impaired by the contract, and may lawfully be exercised." We have reviewed the ground upon which that opinion rests and are satisfied with it. Had the parties intended to secure so important an exemp- tion to the appellant, it is highly improbable that they would have omitted to mention it in the contract; and as there is no provision contained in it, by which the right of the city to impose the tax is taken away, we cannot presume an abandon- ment of this right, and the yielding up of a power, on the part of the'city, so essential to its corporate existence as that of taxation for municipal purposes. "We rest this first proposition upon the authority of the case above referred to, (17 Alabama, 234,) and proceed to inquire, 2d. Whether the Acts under which this tax was assessed are constitutional. These Acts may be thus stated. The Legislature having incorporated the Mobile and Ohio Eailroad Company, by an Act passed the 3d of February, 1848, and having invested said company with the usual powers to carry into effect its objects, authorized them to locate, construct, and finally complete, a railway from a suitable point in the city of Mobile, in a western or north- westernly direction to the west line of this State, towards the mouth of the Ohio Eiver, &c. See Act of 1847-8, p. 225. Subsequently, by an Act to amend and explain the pro- ceeding one passed the 5th of January, 1850, it was provided " that, for the purpose of facilitating the construction of the ALABAMA. 55 road, the Mayor, Aldermen, and Common Council of the city of Mobile be, and tli§ same are hereby authorized to levy a special and separate tax upon the real estate lying within the limits of said city, annually, until the sum of three hundred thousand dollars is levied and paid to the said Mobile and Ohio Railroad Company; provided, however, that only twenty-five (25) cents upon every hundred dollars' worth of property shall be collected in any one year. After making provision in the subsequent sections for assessing and collecting said taxes by the city authorities, and for the preservation of the names of the persons paying, with the amounts paid, and for issuing certificates of stock to any person who shall have paid one hundred dollars, &c., the seventh section provides that before the said corporation shall be entitled to levy said tax, an election shall be held in said city, at which none shall be entitled to vote except the owners of freehold estates in said city or tenants under lease of five years and upwards, and guardians who represent estates of wards, and requires the concurrence of three-fifths of the votes taken in favor of the tax as provided by this statute. See Pamph. Acts of 1849-50, pp. 150-2. By a subsequent Act approved the 20th of December, 1851, the third section of the Act 5th January, 1850, is so far modified as to abolish the right to levy $300,000 by taxation, and in lieu thereof, the city is invested, under a like restric- tion of first procuring the concurrence of three-fifths of the owners, &c., of real estate in its favor, of levying a tax of two (2) per cent, per annum on all real estate in the city for five years, authorizing all persons who had previously sub- scribed for stock, and who had paid more than twenty per cent, thereon to said company, to deduct the overplus so paid from the tax to be collected from them. This Act contains other provisions, but they are not material in considering the question before us. The required number of votes having been obtained in favor of the tax, the city was proceeding in its collection under the last named Act, when the appellant, one of the tax payers who voted against the tax, and whose works for. sup- plying the city with water had been assessed, raises the 56 THE LAW OP MUNICIPAL BONDS. question as to the constitutional authority of the Legislature to invest the city with the power to levy it. It is true, as stated by the appellant's counsel, that the Con- stitution of the State does not mention the subject of taxation, except in the eighth section of the sixth Article, which de- clares that, "All lands liable to taxation in this State, shall be taxed in proportion to their value ; " but the power to tax is an incident to sovereignty, and is said to reside in govern- mient as a part of itself. Per Marshall, C. J., in the Provi- dence Bank v. Billings ^ Pittman, 4 Peters, 415. In the formation of the State Government and the distribu- tion of powers pertaining to it in its sovereign capacity, the power to legislate was conferred upon and invested in two distinct branches of the Senate and House of Representatives, together constituting the General Assembly of the State of Alabama. This department of the Government, composed of the representatives of the people, elected by them to reflect their will, and to be influenced by their wishes and amenable to them for an abuse of the trust reposed in them, does not depend for its power upon any specific provision of the Con- stitution pointing out the particular subject matter with ref- erence to which it may legislate. On the contrary, outside of those subjects which are excepted by the Bill of Eights from the general powers of government, the Legislature of the State, as respects all legitimate subjects matter of legislation, is unrestricted, in virtue of its organization, except in so far as it is restrained by the State and Federal Constitutions. The sovereignty of the States resides in the three depart- ments upon which it has been conferred and distributed, the legislative, executive, and judicial. To the first is entrusted the power of making new laws, to correct, repeal, or abrogate old ones; to the second, the exe- cution of these laws ; while to the third, it is reserved to make an application of them to particular facts, to determine differ- ences which arise to punish crimes, to try the validity of stat- utes by the standard of the Constitution, and to protect each department of the Government, and every individual in the community in the enjoyment of their chartered rights. 1 Kent, 450. ALABAMA. 57 Subject to the limitation above referred, the power to levy taxes pertains upon the legislative department of the Govern- ment, which must determine the objects for which, and the manner in which, they must be levied, being responsible to their constituency for the proper exercise 'of that power. 8 How., 82. We agree with the appellant's counsel, that the only legiti- mate object of taxation is the support and maintenance of the Government ; but if by this support and maintenance they mean the expenses incurred by the mere machinery neces- sarily employed in its administration and conduct, we are not agreed in so restricting its sense. "We think the power extends to the employment of all those means and appliances ordinarily adopted, or which may be calculated to develop there sources of the State, and add to the aggregate wealth and prosperity of the citizens ; such, for example, as providing outlets for commerce, opening up chan- nels of intercommunication between diiFerent parts of the State, improving the social, moral, and physical condition of the people by wholesome police regulations, and by a judi- cious system of public instruction ; as also for the protection, security, and perpetuity of our Government and institutions. We would not, however, attempt to point out all the ob- jects, nor prescribe the limits to which the power of taxation extends ; the case before us does not demand this, but merely whether it is competent for the Legislature to delegate to the city authorities of Mobile the power to tax the owners of real estate to aid in the construction of the Mobile and Ohio Railroad. That the power to tax for local purposes may be thus dele- gated to ^municipal corporations, seems to be too well settled • by the practice of our own and our sister States, and by nu- merous judicial decisions, to be considered an open question; nevertheless, its importance has induced us to exa,mine it with care. Perhaps there is not a county in the State whose courts of roads and revenue have not, under the authority of legislative enactments, assessed and levied taxes for the erection of pub- lic buildings, bridges, and other public improvements within their respective limits. So also our statute-books abound 58 THE LAW OF MUNICIPAL BONDS. with enactments conferring upon civil corporations the right of taxation, by means of by-laws; and this delegation of power has been several times, if not expressly, at least incidentally, sanctioned by this court. In Battle v. The Corporation of Mobile, 9 Alabama, 234, the question came up as to the validity of a tax assessed by the city under the Act of the Legislature of 14th of January, 1844, (Acts, p. 176;) and Mr. Justice Goldthwaite, in deliv- ering the opinion, says : " The general question as to the delegation of the taxing-power to civil corporations is not disputed ; and, indeed, has been several times decided by us in other cases." And he cites Intendant of Marion v. CJiund- ler, 6 Ala., 899; Estrabrook v. The State, lb., 653. True, the precise point does not appear to have been discussed in either of these cases, but it underlies the decision in each of them. The several Acts were regarded as valid, and must therefore have been esteemed constitutional. In Talbot v. Dent, 9 B. Monroe, 526, it was held that an Act authorizing the city of Louisville to subscribe for stock in a railroad company, and to pay for the same by taxation, the tax-payers being entitled to certificates of stock, was not in violation of the Constitution. ' In the case of Nichol v. The Mayor of Nashville, 9 Humph. Rep., 252, an Act of the Legislature of the State of Tennes- see, which authorized the corporation of the city of IN'ashville to take stock in the Nashville and Chattanooga Railroad, and to raise money by taxation to pay the subscription therefor, was held constitutional. See also Hope v. Deaderick, 8 Humph., 1. In the Comm.onwealth v. McWlUiams, 11 Penn. Rep. (1 Jones), 61, a similar doctrine was sanctioned; and it was held that an Act authorizing the supervisors of a township to sub- scribe for shares of the capital stock of a turnpike company, at the cost of the inhabitants of the township, was constitu- tional. The case of Parker v. The Commonwealth, 6 Barr, 507, would seem to militate against the view here taken ; but as restricted in the cases of The Commonwealth v. The Judges, ^c, of Lebanon County, 8 Barr, 391, and The Commonwealth v. Fainter, 10 Barr, 214, it is not opposed to the validity of the ALABAMA. 59 tax now the subject of controversy. It is worthy of remark, too, that the congressional precedent of submitting the ques- tion of the retrocession of the county of Alexandria, in the District of Columbia, to the State of Virginia, to the qualified electors of that county, which is relied upon in the last deci- sion above referred to, would seem to conflict with the views taken in the case of Parker v. The Commonwealth. In the one, the vote of the county determined whether they were to re- main a part of the District of Columbia; in the other, whether they would have spirituous liquors retailed. Whether the latter can be regarded a violation of the Consti- tution, is a question not now before us, and consequently we express no opinion on it. The case of Goddin v. Orump, 8 Leigh, 120, is in point. The city of Richmond was authorized by the Legislature of Virginia to borrow money to subscribe for stock in the James River and Kanawha Company, and to levy a tax to meet the payment. The question arose then, as it does in the case he- fore us, whether the improvement of the James and Kana- wha rivers was to be regarded, with reference to that city, as a local purpose by reason of the connection of those streams with its commerce and prosperity. It was held that it was; and the court sustained the law which authorized the tax. So, also, in Maryland, in the case of Burgess v. Pue, 2 Gill's R., 19, the question came up as to the right to recover a school-tax which had been voted by the taxable inhabitants of a school district. It was objected that the act making pro- vision for public instruction in primary schools throughout the State was void, as being opposed to the Constitution, by reason of making its validity and operation in any county depend upon the votes of a majority of the voters of such county. The same arguments were urged in opposition to the law which are now insisted on ; but the court held it no invasion of the Constitution. "We have been favored with a paper containing the deci- sion of the Supreme Court of Louisiana, in the case of the Police Jury, Right Bank of Parish of Orleans v. The Succession of McDonough, decided in June, 1853, a case which, in all its 60 THE LAW OF MTINICIPAL BONDS. leading features, is similar to tlie one before us, except that there a majority, instead of three-fifths (|), of the tax-payers could authorize the leyying of the tax. The court, after a review of the principal authorities, sustained the tax. The reasoning of the court, in response to the objections to the law taken by the counsel, are so apposite to the case before us, that we deem it proper to quote a portion of the opinion. " It is said," says Slidell, C. J., delivering the opinion of the court, " that, although the police jury might subscribe for stock for itself, it could not subscribe for stock for any one of the inhabitants in their individual capacities ; that the in- tent and effect of the law is to force individuals to take and pay for stock in a railroad whether they wish to or not, — whether they think the enterprise likely to be beneficial or not ; and that such a proceeding is mere spoliation for the benefit of a private corporation." This reasoning and these assertions misinterpret the pur- pose of the law, and involve a doctrine subversive of all tax- ation. The purpose of the law was to enable political cor- porations to aid by taxation the completion of public im- provements, which it was supposed by the Legislature would redound to their local advantage. The burden imposed was a tax, with regard to which each citizen has not a right to decide authoritatively for himself alone whether the tax is for a useful purpose, and -will redound to his individual advantage. If each citizen can be permitted to complain that his tax has been increased without his individual assent, and for a purpose which he individually disapproves, all government would be at an end. The will of a legal majority is not tyranny. It is the good of the community to which we belong which warrants a tax affecting our property. Of this public good, the Legislature, in taxation for general purposes, and the duly constituted local authorities, acting under the express will of the Legislature in a local sphere and for local pur- poses, are the judges. The argument for the defendants con- founds two distinct powers — the power of taxation and the power of taking private property for public use. In the latter case, previous compensation must be made; in the ALABAMA. 61 former, though in taking a man's money for taxation you do take his property, the compensation is considered as simulta- neously in the benefit which as a citizen he enjoys, in common with his fellow-citizens, in the public welfare and the public prosperity, to the advancement of which the money is to be applied. Such is the theory of taxation. It may be abused, but its exercise cannot be judicially restrained, so long as it is refer- able to the taxing powers, citing Thomas v. Leland, 24 Wend., 69; 4 Peters, 563. In the case before us, the Legislature doubtless deemed that the benefits to accrue to the city, would constitute a just compensation to those who contributed to build this road ; but as the tax-payers themselves who reside in the city are presumed to be more familiar with the prop'osed enterprise, and better able to judge of its probable results, as respects their interests, as a matter of caution and security to them, and as a safeguard to the minority, three-fifths of them are required to concur. We do not consider this as a delegation of the power of legislation to the people ; but it is a privilege conferred upon a municipal corporation, to be exercised conditionally — that is, in the event the requisite number of persons shall vote in favor of it. We see no difference, in principle, between allowing to a corporation to levy the tax, provided three-fifths of the taxable inhabitants shall vote in favor of it, and making the exercise of the power to depend upon any other feasible condition, such, for example, as requiring three-fifths of the aldermen and Conimon Council to concur in levying it. We do not think that the cases of Thome v. Oramer etal, 15 Barb., Sup. Ct. E. 112, and Bradley v. Baxter, lb., 122, opposed to this view. In these cases the question was not that the Legislature pos- sessed the power to invest a public corporation with authority to levy a tax upon condition that a certain number of the subjects of the tax should assent to its being assessed, but whether it was competent for the Legislature to evade the responsibility of passing a law, by merely proposing it, and declaring " the electors shall determine by ballot, at the 62 THE LAW OF MTJNICIPAL BONDS. annual election to be held in l^ovember next, whether this Act shall or shall not become a law." This was a clear dele- gation of legislative power to the people, as respects a general law, and is, we think, clearly distinguishable from the delega- tion of authority to a corporation to do certain things upon the condition of first procuring the concurrence of the local inhabitants whose interest alone is to be affected thereby. It will hardly be denied by any one, that the Legislature may constitutionally invest municipal corporations with the power of raising by taxation the means necessary for their existence and support, by by-laws and ordinances operating upon the inhabitants within their respective local limits. If this power be denied, upon the idea that it is a delegation of the legisla- tive fanctions, by parity of reasoning all authority to make by-laws and ordain police regulations must be denied, and thus no municipal corporation could exist for any beneficial purpose. Such, however, was not the design of the framers of the Constitution. Such corporations possessing similar powers have existed from tlie earliest institution of political sover- eignty, and have obtained in every civilized government. Indeed, history informs us that they contributed largely in laying the foundation of liberty in modern nations. Sir James Mcintosh's History of England, vol. 1, pp. 31, 32; Angell & Ames on Corp., 12. Upon the whole, we see no objection, either as arising out of the Constitution, or even as founded in public policy, to making the exercise of the power here conferred depend upon the express will of the taxable inhabitants. On the contrary, we esteem it a wise precaution, tending to enlist the vigilance of self-interest as a protection against injustice and oppression. The objection taken by the court, in the cases cited from 6 Barr and 15 Barb., that such enactments lacked the essential qualities of " command and prohibition," is, we think, plausible, but not solid. It is certainly not without the pale of State sovereignty to pass conditional laws, to grant franchises, or even to confer discretionary powers, with respect to which it would be absurd to say they possessed the quality of either demand or prohibition. ALABAMA. 63 That the tax-payers are made stockholders, is not a valid objection. They incur no additional liability, and their taxes are lessened in the proportion which the value of the stock bears to the amount which they pay. Nor is it a valid objection that those who have paid over twenty per cent, may have the surplus deducted from the tax to be collected from them. The object was, as far as practi- cable, to equalize the burden, and to place those who had pre- viously subscribed upon an equal footing with those whose taxes should secure them stock. The cases already referred to are sufficient to show that the purpose for which this tax was authorized must be regarded, as respects Mobile, as local. That it extends beyond the city, and even without the limits of the State, is no objection to this view. The question is. Has the city interest in its completion? Are the local in- terests of the inhabitants to be advanced, its real estate to be increased in value, its commerce augmented, its boundaries to be extended, its population increased, and its business generally to be enlarged by the increased facilities of travel and intercommunication which the road will affi)rd? The Legislature of the State and a majority of three-fifths of its taxable inhabitants have answered some or all of these ques- tions in the affirmative, by enacting and enforcing the tax ; and it is not for the court to say that the decision which they have made is an unwise or impolitic one. The removal of the bar in James River above Warwick, although without the city of Richmond, was, nevertheless, a corporate act, as its effect would greatly redound to the in- terest of the city. Qoddin v. Orump, swpra. The aqueduct which furnishes the water for the easement now taxed has its commencement several miles out of the city ; but will any one contend that its erection is not a corporate act? Cer- tainly not. But it is useless to discuss the point further. Every one must concede the advantage which will result to a commercial city from opening up a great thoroughfare for its commerce ; and these advantages will doubtless more than compensate for the expenditure which the city will make towards the prosecution of the work. The certainty of the result, however, is a matter which the 64 THE LAW OF MUNICIPAL BONDS. future alone can develop ; the probabilities of its successful issue can better be determined by those who have decided to bear the burden in anticipation of the future benefit, than by this court. Thus much upon the constitutional question. 3d. But it is argued that Mr. Stien is not to he taxed for these water-works because they cannot be regarded as real estate. This proposition, like those first noticed, is sub- stantially covered by the previous decision of this court in the case of Stien v. The Mayor, ^c, of llobile, 17 Ala., 234. If, however, the question was an open one, we should not hesitate to declare that the easement should be classed as real estate. In the Providence Gas Co. v. Thasher, 2 Ehode Isl. E., 15, it was held that pipes laid in the streets of the city by a gas company, under a grant in their charter, are fixtures, and taxable as real estate. The court said, with respect to the right which the company took under their charter, " We think, when exercised, it is an easement," an incorporeal hereditament like the right of a railroad company to build and occupy their road, or a canal company their canal, under the provisions in their charter. ' ' We are of the opinion that Mr. Stien, being the owner of this franchise for twenty years, and in perpetuity, unless re- deemed by the city after that period, and sole recipient of the profit arising from these works for the term mentioned in his lease, as confirmed by the Act of the Le^slature, should be held responsible for the taxes, having made no provision against his liability in his contract with the city, and securing no exemption in the law which confirms his lease, 13 Penn. R, 322, 11 Iredell, 624. Whether he has not been over- assessed is a question not brought before us, and one on which we express no opinion. Without extending this opinion further by a citation of the various authorities, most of which will be found on the briefs of the counsel, and which we have examined, we conclude that there is no error in the record, and the judgment is con- sequently affirmed. ALABAMA. 65 January Teem, 1857. Mayor and Aldermen of Wetumpica v. Winter. Appeal from the Circuit Court of Montgomery, tried before the Hon. John Gill Shorter. The complaint in this case was in these words : " The Mayor and Aldermen of the city of Wetumpka, plaintiffs, V. John Q. Winter, defendant. " The plaintiffs claim of the defendant the sum of thirty- thousand dollars, for the breach of the condition of a bond made by the defendant heretofore, to wit, on the — day of July, A. D. 1851, payable to the plaintiffs, styling them ' the mayor and aldermen of the city of Wetumpka,' and their suc- cessors in office, in the sum of thirty thousand dollars ; which bond having been destroyed by accident, the said plaintiff's are unable to produce the same ; and which bond was and is subject to a condition thereunder written, whereby, after reciting that whereas the defendant had that day undertaken and agreed to advance for the plaintiffs, by the name of the cit}^ of "Wetumpka, the sum of fifteen thousand dollars, through the Bank of St. Mary's, (it being the amount of stock sub- scribed for by said plaintiffs in the Tallassee branch of the Central Plank-road Company,) in consideration of which the plaintiffs had that day sold to the said defendant the bonds of the said plaintiffs, amounting to fifteen thousand dollars, payable five years after date thereof, the condition of said bond was declared to be such, that if such defendant should not pay, or cause to be paid, the several instalments on the afore- said stock or subscription, as the said plank-road company (meaning the Tallassee branch of the Central Plank-road Company) should require the same to be paid in, the said bond to be void, else to remain in full force. " And the plaintiffs say that, by an Act of the General As- sembly of the State of Alabama, approved February 29,1848, it was enacted as follows : Section 1. ' That the mayor and aldermen of the city*of "Wetumpka be authorized to issue bonds, under the corporate seal of said city ; to be signed by the mayor and treasurer; to be issued in sums of not less than one hundred dollars ; to bear such rate of interest, not exceed- 6 6G THE ^LAW OF MUNICIPAL BOITDS. ing eight per cent, per annum, and to be redeemed at such times, and upon such terms, as shall he expressed in each of said bonds. No bonds shall be issued but upon the entire concurrence of the board of the mayor and aldermen, upon a full attendance of all the members of the board, and when there is no vacancy ; which shall be made manifest only by an entry of the order for issuing being made on the minutes of said board, and being signed by each member thereof; nor shall any contract, amounting to one hundred dollars, made under any of the provisions of this Act, be valid, which is not made under all the restrictions in this section recited.' Sec- tion 2. ' That when said corporation desires to raise money for the purposes hereinafter expressed, the treasurer shall sell said bonds at par value, and the money arising from such sales shall be held and used alone for the purpose of securing the right of way, and constructing a canal around the lower end of the shoals of the Coosa River, commencing at such point above Wetumpka as may be considered most advantageous ; also, in erecting locks, and such other works for machinery, as may be considered necessary for securing, controlling, and disposing of the water-power for the purpose of propelling machinery of any and every description, under such rules and regulations, upon such terms and to such persons, as may- be considered most conducive to the advancement of manu- factories, and most for the prosperity of Wetumpka.' And by an Act of the said General Assembly, approved February 1, 1850, it was enacted that the amount of. bonds, issued under the provisions of the first section of said Act, may be extended to one hundred thousand dollars, and the money arising from the sale of said bonds may be appropriated, under the supervision and direction of the mayor and alder- men of Wetumpka, for any purpose of internal improvement for the benefit of the citizens of Wetumpka. " And the plaintiffs further say, that upon an entire concur- rence of the board of mayor and aldermen, upon a full attend- ance of all the members of said board, and at a time when there is no vacancy in said board, the order was made for issuing said bonds, and entered on the minutes of said board, and signed by each member thereof. No bond was in a less ALABAMA. 67 Biim than one hundred dollars, and the rate of interest did not exceed eight per cent. The said plaintiffs, on , under their corporate seal, and signed hy the mayor and treasurer, made their said bonds, and the treasurer sold and delivered said bonds to said defendant, amounting to fifteen thousand dollars ; and the said defendant agreed therefor to pay the several instalments on the stock, or subscription, of the said plaintiffs to the Tallassee branch of the Central Plank-road Company, amounting to fifteen thousand dollars, as the said plank-road company should require the same to be paid in. The Tallassee branch of the Central Plank-road Company is a work of internal improvement, and judged and intended to be for the benefit of the citizens of Wetumpka; it runs from near the city of Wetumpka, eastwardly, towards Tallassee. " And the plaintiffs say, that the condition of said bond has been broken by the defendant in this : 1. That said defend- ant has not paid, or caused to be paid, the several instal- ments on the said stock, or subscription, nor any part thereof, although the Tallassee branch of the Central Plank-road Company has long since required all the said stock, or sub- scription, of fifteen thousand dollars, to be paid ; of all which defendant had due notice. "2. 'And in this: That the defendant has not paid, or caused to be paid, the said several instalments, amounting to fifteen thousand dollars, or any or either of them, or any part thereof, although the said Tallassee branch of the Central Plank-road Company did require ten per cent, on said stock, or subscription, to be paid in on the first day of July, 1851, and fifteen per cent, on the first day of August, 1851, and other fifteen per cent, on the first day of September, 1851, and other ten per cent, on the first day of October, 1851, and other fifteen per cent, on the first day of April, 1852, and other fifteen per cent, on the first day of May, 1852, and other ten per cent, on the first day of July, 1852, and of all the remainder of said stock, or subscription, not previously paid, amounting to (to wit) ten per cent, on said stock, to be paid in on the first day of August, 1852 ; and afterwards, to wit,' on the day last aforesaid, defendant was required to pay the same at, to wit, the Bank of St. Mary's ; of all which defendant had due notice. 68 THE LAW OF MUNICIPAL BONDS. " 3. And in this : That although the defendant paid the first six instalments, amounting to eighty per cent., he hath not paid, or caused to be paid, an instalment often per cent., amounting to fifteen hundred dollars, which said Tallassee branch of the Central Plank-road Company required to be paid on the fifteenth day of July, 1852 ; nor the instalment of the remainder of said stock of othef ten per cent., amounting to other fifteen hundred dollars, which said branch of said com- pany required to be paid in on the first day of August, 1852, nor either or any part thereof; of all which defendant had due notice. "4. And in this: That said defendant has not paid, or caused to be paid, an instalment of ten per cent, on said stock of fifteen thousand dollars, amounting to fifteen hundred dol- lars, which the said Tallassee branch of said plank-road com- pany, on the fifteenth day of July, 1852, required to be paid ; nor the other instalment of the remainder of said stock not previously paid in, being ten per cent, on the remainder of said stock, amounting to other fifteen hundred dollars, which said branch of said plank-road company, on the first day of August, 1852, required to be paid in, nor any or either, or any part thereof, although required so to do by demand after- Wards, on the first day of August, 1852, at the Bank of St. Mary's aforesaid ; of all which defendant had due notice. " 5. And in this : That said defendant hath not paid, or caused to be paid, the said several instalments, or any or either of them, or any part thereof, although said Tallassee branch of said plank-road company did require ten per cent, of the said stock to be paid on the first day of July, 1851, and fifteen per cent, on said stock to be paid on the first Monday in August, 1851, and another fifteen per cent, on the first Monday in September, 1851, and another instalment of ten per cent, on the first Monday in October, 1851, and aipther instalment often per cent, on the first Monday in November, 1851, and did require fifty per cent, on said stock to be paid by or before the first day of January, 1852, and the further sum of ten per cent, by the first day of February, 1852 ; and on the seventh day of August, 1852, the treasurer of said company was directed to call in the balance of the stock, ALABAMA. G9 except from those stockholders east of the river (meaning the Tallapoosa Eiver) ; and the plaintiffa were n<5t east, but west of the river ; and thereupon the treasurer afterwards, to wit, on the day of August, 1852, did call upon, request, and require the plaintiffs to pay all their stock not before that time paid ; of all which said defendant then and there had notice. • "Yet the said defendant, though often requested, hath not," etc. ' The statutes above referred to may be foimd in the Session Acts of 1848 and 1849-50, on pages 223 and 348. The defendant demurred to the complaint, 1st, "because it shows no right of recovery against him ; " 2d, " because the bonds issued by plaintiffs, the alleged consideration of defendant's bond, were issued by them without any legal authority therefor; " 3d, " because the bonds issued by plain- tiffs are not shown to have been issued by them in accordance with any provision of their charter ; " and, 4th, " because said complaint does not show that any demand was ever made of the Bank of St. Mary's for the instalments of stock to said plank-road company." The court sustained the demurrer, and its ruling in that behalf is the only matter now assigned as error. Stone, J. — If "the money arising from the sale of said bonds [was] appropriated, under the supervision and direc- tion of the mayor and aldermen of "Wetumpka, to purposes of internal improvement, for the benefit of the citizens of "Wetumpka," there cannot be any question of the validity of the bond sued on, so far as the facts are disclosed by this record. The entire inquiry depends on the construction gf the expression " infernal improvements," as found in the Act amending the Act incorporating the city of Wetumpka, ap- proved February 1, 1850. Pamphlet Acts, 348. The phrase " internal improvements," has in our political dialect a variable signification, depending oh the agency by which the work is performed. Internal improvements by the Federal Government comprehend all works of that descrip- tion within the territorial limits of the United States. In- ternal improvements by State authority are, of necessity, 70 THE LAW OF MUNICIPAL BONDS. those improvements wHcli are within the boundaries of the State. It is contended that inasmuch as the powers of municipal corporations are conferred for their well-being, and generally are confined to police and sanitary regulations within the chartered limits of such corporations, the proper construc- tion of these words is, internal^ or within the city of We- tumpka. We cannot assent to the correctness of this argu- ment. The words of a statute, if nothing appear to the con- trary, should be so construed and understood as to give them their popular signification. Favers v. Glass, 22 Ala., 621. No case can be found, it is apprehended, where the improve- ments of the streets, alleys, markets, etc., of a city or town, have been classed as internal improvements. On the other hand, when internal improvements by or under State author- ' ity are spoken of, it is universally understood that works within the State, by which the public are supposed to be benefited, are intended; such as the improvement of the highways and channels of travel and commerce. Again : the history of our State for the last ten years has made every one familiar with the many railroad and plank-road enterprises projected, and in some instances completed, under the supervision of joint-stock companies. This court must judicially know the meaning of this expression. Solomon v. The State, 28 Ala., 83 ; Stqphen v. State, 11 Geo., 225 ; Floyd v. Ricks, 14 Ark., 286. -'We have no hesitation in declaring that the Act in ques- tion was intended, both by the Legislature and city author- ities of "Wetumpka, to authorize, and did authorize, the latter to pledge its credit, and thereby raise means to aid in the construction of some work of the description above indicated, as a means of improving the commerce of that city, and thereby benefiting its citizens. We have recently had occasion to consider the powers of municipal corporations. See Fx parte Burnett, at this term. In that case we held, that the Legislature might confer on a municipal corporation larger powers than would be implied from the general purposes of their creation. We hold that, when the Legislature, in express terms, authorizes cities or ALABAMA. 71 towns to subscribe for stock in an enterprise, sucb as tbat mentioned in the pleadings in this cause, the contract of such city or town, made pursuant to the Act, is binding upon it. The supervision and direction which the Act of February 1, 1850, enjoins on the mayor and aldermen of "Wetumpka, relates expressly to the appropriation of the money arising from the sale of the bonds, and has no reference to the per- formance of the work. Without determining, in this case, whether it was necessary to the sufficiency of the declaration that it should aver the bonds were sold at par, we think that fact is sufficiently averred. The declaration, in effect, states that the mayor and aldermen of "Wetumpka had subscribed for stock in the Tallassee branch of the plank-road. to the amount of fifteen thousand dollars ; and that, in consideration of the bonds of the city for fifteen thousand dollars, the defendant assumed the liability created by said subscription. The bonds were then sold at par. It may be objected that, inasmuch as the subscription to the plank-road would be payable only when, and as fast as, the board of directors might make calls on the stockholders, the defendant in this way obtained the bonds at less than their par value. The answer to this objection is found in the fact, that the calls might be made at once, so far as we are informed ; and this advantage in interest was rather the accident, than a substantive feature, of the contract. "We are satisfied that such contingent advantage did not render the contract usurious or illegal. It results, from what we have said, that the Circuit Court erred in its judgment on the demurrer. Its judgment is therefore reversed, and the cause remanded. 72 the law of municipal bonds. , June Teem, 1860. Gibbons v. Mobile and Great Northern Railroad Co. [Bill in Equity to enjoin collection of tax levied ty muni- cipal corporation in aid of railroad.] Stone, J. — 1. The constitutionality of the legislation under which the city of Mobile has obliged itself to aid the Great Iforthern Railroad is assailed as not being a legitimate exer- cise of the taxing-power, but a taking of private property without just compensation, even if the use for which it is taken be public. This subject has undergone much and earnest discussion in many of the States composing this Union ; and however grave the subject might be regarded, if it were an open question, we feel bound to consider it, in this State, res adjudicata. In coming to this conclusion, we are not unmindful of the opinion, which must obtain some credence, that we run counter to some of the arguments and illustrations found in the case of Sadler v. Langham, 24 Ala., 311. The principle we are discussing, however, was settled and reasserted in this court long before the case of Sadler v. Langham came up ; and on a question involving such momentous results as does this — one in which the public welfare is so deeply concerned — we feel it our duty to adhere to the rule, stare decisis. In the case of Stien v. The Mayor of Mobile, (24 Ala., 591,) a question very like the one we are considering was directly presented. This court reviewed many adjudged cases of sister States, pronounced on the identical question involved in that case and this; and, in a most elaborate opinion, decided, " that the Acts authorizing the city authorities of Mobile to levy a tax on the owners of real estate within the limits of the city, to aid in the construction of the Mobile and Ohio Eailroad, were constitutional;" and that although the only legitimate object of taxation is the support and mainte- nance of the Government, yet this purpose embraces a wider range than the mere machinery in its administration ; that the power authorizes the employment of the necessary appli- ances to augment the aggregate wealth and prosperity of the inhabitants of the city ; and that this may be accomplished ALABAMA. 73 by providing outlets for commerce, opening channels of in- tercommunication with other parts of the State, &c. The Mayor, ^c, of Wetumpka v. Winter, 29 Ala., 661; Pierce on Railways, 108 to 125, and notes ; Eedf.- on Eailways, 533, and notes ; Sharpless v. Mayor, 21 Penn. State E. 147 ; L. ^ N. Railroad v. County Court, 1 Gneed, 637. [2.]' As a reason why we should reinstate the injunction in this cause, it has been pressed on our consideration that the terms of the Act, approved February 8, 1858, (Pamphlet Acts, 166,) were not complied with by the city authorities of Md- . bile. "We deem it unnecessary to institute an inquiry into the subject. Before any aid was extended to the railroad, or determined on by the city, under the Act of 1868, the Act ap- proved November 29,, 1859, was passed, which declared " that the vote of the people of the city of Mobile, taken on the twenty-first day of March, 1859, under an Act of the Leg- islature of Alabama, approved the eighth of February, 1868, entitled ' An Act to authorize the corporate authorities of the city of Mobile to aid in the construction of a railroad upon a vote of its citizens,' shall be suf&cient authority to the cor- porate authorities of the said city of Mobile ; and they are hereby authorized and empowered to aid in the construction of the Mobile and Great Northern Eailroad," &e. So, whether the Act of 1858 was complied with or not, the Act of 1859 conferred on the city authorities ample power to aid said railroad to the extent, and under the terms, prescribed by the last mentioned act. Pamphlet Acts of 1859-60, p. 894. 3. The doctrine is well settled, that to authorize a muni- cipal corporation to take stock in, or aid in the construction of, a railroad outside of the limits of such corporation, there must be an express grant of power. See City Council v. Flank- road Co., 31 Ala., 76; Pierce on Eailroads, 108. The power was expressly conferred in this case. It is contended for ap- pellants in this case, that in making their contract, the city authorities transcended the power conferred on them by the statute, in this, that whereas the statute only authorized them to aid in the construction of the railroad by the issue of city bonds, in an amount not exceeding one million of dollars, 74 THE LAW OF MUNICIPAL, BONDS. j'et tliey have in fact issued their bonds and coupons, and fur- nished them to the railroad, amounting to over two millions of dollars. This argument is more specious than solid. The bonds are for the precise sum of one million of dollars, no more, no less. These bonds mature at various times, extending from one to twenty-five years. The excess over one million of dollars consists in obliga- tions in the shape of coupons to pay interest on the said one million of dollars, until such time or times as the principal of the bonds shall be paid. This, we think, is in strict con- formity with the spirit of the statute, which evidently con- templated that the bonds would be interest-bearing, and therefore marketable. Anything less would not have fur- nished a million of dollars of aid to the railroad. 4. It is further urged in favor of a reversal of the Chan- cellor's decretal order, that by the terms of the contract be- tween the city government and the railroad, no stock is to be issued to the assignee or appointee of the city, for the interest it may pay on the bonds. A full answer to this objection is furnished in the fact that it would be no objection to the con- stitutionality of the contract, if no stock had been reserved for either the principal or interest to be paid by the city. The power to aid the railroad, resting as it does on the taxing functions of the city, and not on theconstitutional. provisions in relation to the taking of private property for public use, no direct pecuniary compensation to the tax-payers is neces- sary to uphold it. See City of Wetumpka v. Winter, and other authorities, supra; Pierce on Railways, 115. 5. It is further objected to the validity of this contract, that while the Acts of the Legislature and the vote of the people authorized aid to the railroad only by bonds, and re- fused aid by taxation, yet the city authorities have gone be- yond this, and aided both by bonds and taxation. The question submitted to the voters of Mobile, in this connection, was, whether they would aid by taxation upon all property subject to taxation, at a rate not exceeding two per centum per annum for five years, or by the issue of city bonds for an amount not exceeding one million of dollars. Pamph. Acts, 1857-8, p. 165. ALABAMA. 75 The aid determined on and rendered in this case was by bonds, not exceeding one million of dollars, and not by taxa- tion, limited in rate to two per centum per annum, and in duration to five years. The fact that a tax was also levied to meet the bonds, does not change the character of the aid fur- nished, nor violate the provisions of the statute. The real point was, whether aid should be rendered by heavy and rapid assessments, or by the longer and graduated process of city bonds, distributing the burden through a series of years. Such bonds, whenever and by whatsoever authority issued, are necessarily an interest-bearing fund. They are also necessarily due at some given time. The accruing interest at the intervals agreed on, and the principal at the maturity of the bonds, must be paid. The bonds being debts of the city, in the absence of a stipu- ;lation or specification to the contrary, import, ex ve termini, a duty resting on the city to meet and liquidate both the in- terest and principal as they severally accrue. The city authorities being empowered by the Legislature to aid the railroad by bonds, were thereby clothed with the im- plied power to provide ways and means to meet the liabilities thus incurred, and thus preserve the credit of the city. In what we have said above, we have considered this ques- tion without any reference to legislative restraints resting on the Mayor, Aldermen, or Common Council of the city of Mobile. The 13th Section of the Act approved 11th of February, 1843, (Pamph. Act, 116,) declares, " That from and after the first day of November, a. d. one thousand eight hundred and forty-three (1843), and after the issuing of the obligations provided by this Act, it shall not be lawful for the corporate authority aforesaid to issue in any assignable form whatsoever any bond, promise to pay, or city orders, or any form whatsoever of promises to pay, transferable from hand to hand, nor to enter into any contract for the payment of the money so contracted to be paid unless specifically provided at the time of making such contract." The present bonds are covered by said 13th Section of the Act of 1843, were issued after the first day of ISTovember, 1848, and after the issuing of the obligations provided by that Act; and it was, therefore, the manifest duty of the city authorities, 76 THE LAW OF MUNICIPAL BONDS. •when they issued these bonds, to provide the means for their payment. If, then, any doubt remained whether the Acts of 1858 and 1859 conferred the authority to provide the means for the pay- ment of these bonds and the coupons, that doubt must be dissipated by the 13th Section of the Act of 1843, which not only confers the right, but enjoins its exercise as an official duty resting on the city authorities. We go beyond the merits of this case, and assert that, in the exercise of a discretion vested in ihe city authorities, as to the plan of providing means for the payment of the inter- est and the principal on the bonds issued for the railroad, we are impressed with the prudence and wise economy which seem to have presided in their deliberations. While it is obvious that the burden has been distributed over a period of about twenty-five years, in such manner as that the assessment shall be Uniform, and at no time oppres- sive, the right is preserved of applying, at the end of each year, the accruing surplus to the extinguishment of the prin- cipal of the bonds ; the surplus for this purpose being each year increased by an amount corresponding with the progres- sive diminution of the annual interest. In this way all the trouble, risk, and expense of an accumulating sinking fund have been avoided. 6. No question in this case has been pressed on our con- sideration with more earnestness than that which arises under the 9th Section of the Act of 1843, Pamph. Acts, 115. Its language is : " That the corporate authorities of the city of Mobile, after the passage of this Act, shall not be permitted to purchase real estate, or borrow money, or create any new debt for purposes of profit or improvement, without a con- currence of the Mayor and Board of Aldermen and Common Council, at their regular meetings, upon a full attendance of air the members of both boards, at a time when there shall be no vacancy in either, and none dissenting to the Act; which facts shall all appear on the minutes of the corpora- tion ; and any contract made in violation of this Act shall be wholly null and void, incapable of being ratified or confirmed except in the manner hereinbefore specified." ALABAMA. 77 For the appellant^, it is contended that the bonds brought to view in the present record are the creation of a new. debt, for purposes of profit and improvement; and, inasmuch as the present contract was entered into without a full attend- ance of both boards at a time when there was no vacancy in either, and none dissenting to the Act, the argument is that the present contract must fall to the ground. The appellees contend, that if Section 9 of the Act of 1843 be not repealed, then the provisions of that section must be con- fined to acts of borrowing money, and the creation of new debts within the powers of the citj' government as they then existed ; and that the section does not reach or control the exercise of powers conferred on the corporation by subse- quent legislation. They contend, further, that the Acts of 1858 and 1859 confer authority to create a debt for a specified purpose ; and that this creation of a new power, without specifying the mode of its exercise, must be understood, so far as repealing the 9th Section of the Act of 1843, as to allow the making of the present contract in the mode and manner pointed out for the performance of acts of municipal legislation and gov- ernment. Tiie Act of January 15, 1844, "to consolidate the several Acts of Incorporation of the city of Mobile, and to alter and amend the same," expressly preserves, and exempts from repeal, the Act of February 11, 1843, Pamph. Acts, 1843-4, p. 19, § 48. The 9th Section of the Act of 1843 is not, then, directly or expressly repealed. We cannot assent to the argument, that the Acts of 1858 and 1859 repeal, or in any manner impair, the 9th Section of the Act of 1843. The Acts of 1858 and 1859 are silent as to the mode and solemnity which shall attend the official act- ings and doings of the city authorities, under their provisions. There is no incompatibility between the Acts of 1858 and 1859 and the 9th Section of the Act of 1843. Both can stand together, and each can be executed without touching on the other. So clearly is this the case, that if Section 9 of the Act of 1843 were re-enacted as an additional section to the Acts of 1858 or 1859, no one would suppose that an 78 THE LAW OF MUNICIPAL BONDS, incongruity would be thereby presented. If, then, tbe build- ing of the railroad, in aid of which this contract was entered into, comes within the category of profit or improvement, as expressed in the 9th Section of the Act of 1843, this contract must fall to the ground ; for it is not pretended that both boards were fall — none absent, and none dissenting. Neither can we assent to the argument in its unqualified terms, that the regulations prescribed in Section 9 of the Act of 1843 must be confined to the powers which the city government was then authorized to ?exercise. Its language is, " after the passage of this Act." Its terms embrace all the contracts for the purchase of real estate, all borrowings of money, and all contracts by which new debts shall be created for purposes of profit or improvement. If the language of the Act of 1843 had been that the city authorities should not borrow money, nor create any new debt, except for the maintenance of the city government, we should unhesitatingly declare that its provisions embraced this case. What, then, we may inquire, was the purpose of the present debt ? Was it profit or improvement, within the meaning of the 9th Section of the Act of 1843 ? We answer this question in the negative, and think the following argu- ment and illustration will demonstrate the correctness of our answer. It is the settled doctrine of this country, that cor- porate powers are of three kinds : express, incidental, and implied powers. This doctrine is asserted in the following decisions of this court: City Council of Montgomery and Wetumpka Plank-Eoad Co., 31 Ala., 83; JSx parte Burnett, 30 Ala., 461 ; Intendant, ^c. v. Fippin, 31 lb., 542, and authorities cited. See, also, Aug. and Ames on Corp., ss. 256-7 ; Grant on Corp. 13, in margin ; Mayor, ^c. v. Winter, 29 Ala., 651. It is also well settled that the right to aid in the construc- tion of a railroal, plank-road, &c., lying without the limits of a municipal corporation, is not within the pale of either im- plied or incidental powers of such municipal corporation, but must be expressly conferred, or it cannot be exercised. See Mayor, ^c. v. Winter, supra ; City Council of Montgomery v. Plank-Road, supra ; Pierce on Railways, 105 ; Redf. on Rail- ways, 533-4, and notes. ALABAMA, 79 N'ow let us suppose that in the grant of powers to the city government of Mobile, the Legislature had empowered that body to borrow money and create debts for purposes of profit or improvement, could such grant of power, without more, have authorized the city authorities to aid in the construction of the Great Northern Railroad, by a loan to that company of a million of the city bonds ? "We apprehend no one would assert such a proposition. The purposes of profit and improvement would be understood as referring to those ordinary purposes of city policy which are implied in the fact that the corporation is municipal, or which are expressed in the general grants of power to such corporations, to provide for the health, peace, good order, and general welfare of the inhabitants. Such grant of power would not be understood as conferring authority to aid in tTie construction of a railroad outside of the city. Another view : The 9th Section of the Act of 1843 is a regulation of the power to borrow money and to create new debts for purposes of profit and improvement. This is a legislative recognition of an existing power in the city gov- ernment ; for the Legislature would not perform the senseless ceremony of regulating the exercise of a power which had no existence. The city authorities then possessed the power which the Legislature attempted, in the 9th Section of the Act of 1843, to regulate. The power they were regulating was the power to borrow money and to create new debts for purposes of profit and improvement. ISTow, if the regulations prescribed in the 9th Section of the Act of 1843 be broad enough to cover the contract entered into between the city and the Great Northern Railroad, it is difficult to resist the conclusion that the city authorities would have been authorized to furnish aid to the railroad without further statutory authority therefor. In other words, the phrase for purposes of profit or im- provement, in an enabling clause, would certainly be as com- prehensive as the same language would be in the restraining or regulating clause. Yet all parties concede that without the Acts of 1858 and 1859 the city authorities would not have had the power to aid the railroad. 80 THE LAW OF MTJiflCIPAL BONDS. The question tlien comes down to this : Power to " borrow money and create new debts for purposes of profit and im- provement " would not have authorized the city government to aid in the construction of the Great K"orthern Railroad ; the regulations prescribed by the 9th Section of the Act of 1843 are, in express terms, limited to acts of borrowing money and creating new debts for purposes of profit and im- provement; therefore the regulations provided by the said 9th Section do not embrace the contract by which the city authorities bound themselves to furnish a million of bonds to the Great IsTorthern Railroad. 7. The 16th Section of the Act of 1843 does not govern this case. Its language is, " After the passage of this Act, it shall not be lawful for the members of the Board of Alder- men and Common Council to make any contract with the cor- porate authorities to do any work or perform a,ny service for the same, nor shall any appropriation be valid that shall be made for this." Pamph. Acts of 1842-3, p. 116. Under the present Act, no member of the Board of Alder- men or Common Council is to do any work or perform any service for the City Council. (8.) The 7th Section of the Act of 1844 (Pamph. Acts of 1843-4, p. 178,) requires the " Mayor, Aldermen, and Common Council of the city of Mobile, severally, to take an oath not to be, during their continuance in office, directly or indirectly engaged in any contract with the corporation, or to sell to or buy from it any estate, interest, or matter whatsoever." An argument adverse to the validity of this contract is based on this section. We deem it unnecessary to inquire whether the present contract is covered by the official oath of the Mayor, Aldermen, and Common Councilman. If it be thus covered, a disregard of this duty may expose the officers to the impu- tation of official error or infidelity. But there is nothing in the section which declares such Act void, or which imposes a penalty for its violation. In such case, if there be nothing more in the transaction, the Act will be valid in law. O'Connell v. Swef.ney, 5 Ala., 467; Ivey v. Nicies, 14 lb., 564; Staples V. Smith, 12 "Wend., 57 ; Foster v. Oxford, ^c. Railway Co., 14 Eng. Law and Eq., 30 C; Lefeuvre v. LanMster, 3 ALABAMA. 81 Ellis and 1 Black, b. 530 ; In re Leefe and Wife, 21 Barb., cb. 39. (9.) Tbe only remaining question wbicb we propose to dis- cuss arises out of tbe fact tbat several members of tbe two boards — tbe Aldermen and Common Council of tbe city of Mobile — were also, at tbe time of tbe contract, stockbolders in tbe Great ISTortbern Eailroad ; being, as it is alleged, botb bargainors and bargainees. It is not pretended tbat any bad faitb was practised by tbe contracting parties ; but tbe argument is, tbat tbis contract sbould be set aside on grounds of public policy. Tbe rule governing contracts between trustees and beneficiaries is in- voked. See Gilmer v. Calloway, and Payne v. Turner, at tbe present term. Tbe appellants also invoke tbe rule wbicb pro- hibits a party from being a judge in bis own cause. See Wilson V. Wilson, at tbe present term, and Dimes v. Grand Junction Canal, 16 Law and Eq., 63, 73. In tbe great case of Sanger v. Great Western Railway Gomipany, before theBritisb House of Lords, (27 Eng. Law andEq., 35,) Ranger, tbe appellant, bad become a very extensive railway contractor witb tbe Company. By tbe terms of tbe contract, many matters were made to depend on tbe decision of tbe engineer appointed by tbe Company. Mr. Brunei was tbe engineer, Tbe bill was filed by Mr. Eanger, alleging an im- proper discbarge by Mr. Brunei of bis powers as a judge, or arbiter in tbe premises, by wbicb tbe complainant alleged be had lost many thousand pounds sterling. He further alleged tbat Mr. Brunei was a stockholder in the Company, and was therefore not indiflferent in the premises; and that he (the complainant) bad not known this fact until recently before tbe bill was exhibited. One question considered was, whether Mr. Brunei was incompetent, by reason of his interest, to adjudicate tbe matters which the contract referred to the de- cision of tbe Company's engineer. Opinions were delivered by Lord-Chancellor Cranworth and Lord Brougham. In delivering his opinion, Lord Cranworth said : " When it is stipulated that certain questions shall be decided by the engineer appointed by the Company, that is, in fact, a stipu- lation tbat they shall be decided by tbe Company. It is 82 THE LAW OP MUNICIPAL BONDS. obvious that there never was any intention of leaving to third persons the decision of questions arising during the progress of the work. The Company reserved the decision for itself; acting, however, as from the nature of things it must act, by an agent, and that agent was for this purpose the engineer. His decisions were, in fact, their decisions. The contract did not hold out, or pretend to hold out, to the appellant that he was to look to the engineer in any other character than as the impersonation of the Company. In fact, the contract treats his acts and their acts, for many purposes, as equivalent, or, rather, identical. I am, therefore, of opinion that the prin- ciple on which the doctrine as to a judge rests, wholly fails in its application to this case. The Company's engineer was not intended to be an impartial judge, but the organ of one of the contracting parties. " The Company stipulated that their engineer for the time being, whosoever he might be, should be the person to decide disputes, pending the progress of the works ; and the appel- lant, by assenting to that stipulation, p'ut it out of his power to object, on the ground of what ha^ been called the 'unin- differency' of the person by whose decision he agreed to be bound. It is to be observed that the person to decide was not a particular individual in whom, notwithstanding his relation to the Company, the contractor might have so much . confidence as to agree to be bound by his award, but any one whom, from time to time, the Company might choose to select as their engineer. M The appellant alleges that he did not know the fact that Mr. Brunei was a shareholder, until more than two years after the works had been begun. But he must have known that the Company had it in their power to appoint another engineer in Mr. Brunei's place, who might hold shares, or that Mr. Brunei himself might purchase shares." Lord Brougham said: "He (Mr. Eanger) might have made an exception in his contract, that Mr. Brunei, the engineer, should not hold shares; but that provision was not made. Had this proviso been made, this absurdity would happen, to which my noble and learned friend has adverted, that al- though not possessed of shares at that time, he might any day ALABAMA. 83 have become possessed of shares — he might have purchased them ; nay, more, he might have inherited them ; they might have come to him by descent; and then he would have been put in this position, that he must either give up what had come to him, or have ceased to be the engineer employed by the Company; for, if he had continued possessed, either by purchase or inheritance, of a single share, according to the rigor of the argument deduced from Dimes v. Grand Junction. CanalCompam/, he must have ceased to act under these cove- nants, and the whole operation of the Company must at once have been convulsed." In the case of Haight and Others v. Day, (1 Johns, ch. 18,) a charter had been granted for a bank, which appointed certain commissioners to receive subscriptions for stock, and em- powered them, that in case an excess of stock should be sub- scribed, to apportion the excess among the several subscribers, as they (the commissioners) should judge discreet and proper. A large excess was subscribed, and the commissioners pro- ceeded to exercise their power of apportionment. A bill was filed to vacate the alleged apportionment, which charged that the commissioners had arbitrarily assigned the shares among themselves, their relations, favorites, &c., and had excluded other equally meritorious subscribers. There was also a charge of bad faith, but this was denied by the answer. Chancellor Kent ruled " that the word ap- portion must mean here, to assign to each subscriber, or give him, such portion as the commissioners deem meet." The charge of corruption and of wanton and unworthy exercise of discretion being repelled by the answer, he dissolved the injunction. A similar decision was made by Chancellor "Walwoeth in a most elaborate opinion pronounced in the case of Walker v. Devereaux, 4 Paige., 229. See, also, Com. v. Byan, 5 Mass., 90 ; Cotton V. Evans, 1 Dev. & Bat., 284; Grotcm, v. Hurlburt, 22 Copn., 178; Conn. ^c. Railroad Company^. Bailey, 24 Verm., 465 ; Z7. States v. Murphg, 16 Peters, 203 ; Crocker v. Crane, 21 Wend., 211; Heydenfeldt v. Tovmes, 27 Ala., 423. "We think that the power conferred on the corporate authorities of the city of Mobile, to aid in the construction 84 THE LAW OF MITNICIPAL BONDS. of the Mobile and Great N^orthern Eailroad, under sucli con- tract with said. Mobile and Great Northern Railroad Com- pany as said city authorities might agree upon, must be con- strued as conferring the authority to make the contract on whoever may be the Mayor, Aldermen, and Common Council of said city at the time the contract is entered into ; and that, in the absence of actual baS faith, the fact that certain mem- bers of the Boards of Aldermen and Common Council are also stockholders in the railroad company, does not, •per se, invalidate the contract. The decree of the Chancellor dis- solving the injunction is affirmed. CHAPTEE V. ARKANSAS. In tliie Constitution of the State of Arkansas, as in that of perhaps every other State, are found sections touching the taking of private property for public pur- poses, precluding the State from lending its credit to any work of internal improvement, and providing for equality of taxation. It was at one time thought that these sec- tions prevented the imposition of such taxes as generally pertain to the issue of municipal obligations in aid of cor- porations having a public duty to perform. ^ But it is likely that in almost every case where the above provi- sions have been urged, they have been made use of chiefly as " make- weights," and not from sincere convic- tions that their effect was that contended for. This ap- pears to have been the impression of the courts ; and, as there was never reason or precedent that could be in- voked to support the obviously naked sophistries relied upon, the questions drifted, as it were, to a position which is not to be misunderstood. If there ever was serious doubt, it has manifested itself in a very uncertain light, and has so rarely come to the surface, that no weight whatever is to be attached to it. In one or two of the adjudications that have run counter to the current of de- cision, an unnatural and purely artificial construction has been adopted; but they have not in any degree affected the settled law. It may be taken to be definitely and permanently fixed, that none of the, provisions of the character above 85 86 THE LAW OF MUNICIPAL BONDS. mentioned preclude the exercise of tlie right of taxation in aid of public improvements by a municipal corpora- tion. The authorities to this effect are numerous and con- clusive. Talcott V. Pine Grove, (see Michigan;) Stewart v. Supervisors of Polk Co., 30 Iowa, 15 ; Aurora v. West, 9 Ind., 74 ; Cass v. Dillon, 2 Ohio, 607 ; Clarice v. Janesville, 10 Wise, 136 ; Bushnell v. Beloit, Ibid., 195 ; Courity Commiss. of Leavenworth Co. v. Miller, (see Kansas.) Another class of provisions, which may be here dis- posed of, are those which relate to the obligations of municipal corporations, issued to give aid and comfort to the Rebellion. Section 25, Article I., of the Constitution of Arkansas, is as fol- lows : — " The action of the Convention of the State of Arkansas, which assembled in the city of Little Rock, on the fourth day of March, 1861, was and is null and void. All the action of the State of Ar- kansas under the authority of said Convention, of its ordinances or its Constitution, whether legislative, executive, judicial, or military, was and is hereby declared null and void ; and no debt or liability of the State of Arkansas incurred by the action of said Convention, or of the General Assembly, or any department of the Government under the authority of either, shall ever be recognized as obligatory ; Pro- vided, That this ordinance shall not be so construed as to affect the fights of private individuals arising undfer contracts between the parties, or to change county boundaries or county seats, or to make invalid the acts of the justices of the peace, or other officers, in their authority to administer oaths or take and certify the acknowledg- ments of deeds of conveyances, or other instruments of writing, or in the solemnization of marriage." While sections similar to the foregoing may be expe- dient as making " assurance doubly sure," it can scarcely be said that they are in any sense necessary to accomplish the purposes for which they have been framed. It re- quires no argument to show that any obligation issued in aid of an unlawful purpose is totally void. And as the nature of the Eebellion was peculiarly a question within AEKANSAS. 87 the perhaps exclusive province of the supreme National tribunal, and as that tribunal has solved the question in such a manner that there is nothing in the premises open to discussion, all action on the part of the States appears to be supererogatory. The taint of rebellion vitiates any and every instrument to which it can be attached as re- bellion. The whole scheme, and every incident that was colored by it, was, in the eyes of the law, a public crime. The supposed statutes of the States of the Confederate States were of no validity whatever where they were en- acted in fu^herance of the means and necessities of the insurrectionary governments ; and all proceedings under them were consequently void. And this is particularly true where the statute authorized the issue of bonds by a political division for objects inimical to the success of the National Government, in the prosecution of the war. All bonds of this nature are wholly null ab initio. They were and are of no legal force whatever, whether in the hands of third parties or not. Constitutional provisions similar to the above, do not, therefore, operate to affect them, as they are devoid of all vitality upon their face. But an important distinction exists in respect to«the Acts of the Legislatures of the insurrectionary States which should be carefully borne in mind. While the governments of these. States were technically "Rebel governments," they were none the less de facto govern- ments, {Thorington v. Smith, 8 Wall., 11 ;) and, as a consequence, many of their Acts were of full legal force. Say the Supreme Court of the United States in Texas v. White, 7 Wall., 733: "It is not necessary to attempt any exact definitions within which the Acts of such a State government must be treated as valid or invalid. It may be said, perhaps with sufficient accuracy, that Acts necessary to peace and good order among citizens, such, for example, as Acts sanctioning and protecting 88 THE LAW OP MUNICIPAL BONDS. marriage and the domestic relations, governing tlie course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar Acts, . . . must be regarded in general as valid when proceeding from an actual though unlawful Government." This necessary doctrine has been followed by the tribunals of many of the States, as well as by the Fed- eral Circuit and District Courts. The opinions appear to be substantially in accord, and are, perhaps, all to the effect that where the purpose of the Act of the insurrec- tionary State government had no direct relation to the Rebellion, and was necessary, it must be held to be valid. There are some cases that may seem to contain a different view, but none of them are authoritative as combating the dictum above quoted. The true rule is that the character of the legislation determines whether it is valid or invalid, and that, in the language of Chief-Justice Chase, "as to everything which belongs to ordinary business, and the common transactions of life," the legis- lative acts of the insurgent State are to be treated as valid {Evam v. Mans, 2 A. L. T., U. S. C. R., 102). It is not difl&cult to draw the line that divides the law- ful from the unlawful legislative Act. Instances may arise that would appear, at first blush, to be embarrassing which, upon a closer examination, will be found to be susceptible of an analysis that will fully disclose their true character. It is only necessary where there is doubt to ascertain the true intent of the Act. The mere fact that it had an incidental bearing that remotely enhanced the operation of the insurgent government, will not in- validate it, unless there was a design to accomplish the wrong. Every Act that tended to preserve public order, to ensure the correct administration of justice, to promote education and other like objects, was an Act that re- AEKANSAS. 89 motely assisted the Confederate armies. But such Acts were not intended to effect an unlawful end, and their true meaning and object must be held to save the un- avoidable defect. Thus such Acts as were devised for the support of the poor and similar dependent classes, would doubtless be sustained, upon the ground of humanity ; although their necessary effect would be to relieve the able-bodied from duties which would have prevented their taking an active part in hostilities. In the case of Fortfill v. German, (2 A. L. T, 103,) it was held by the Supreme Court of Ten- nessee, that renting a house for the use of a Confederate hospital was not unlawful, and would not vitiate 5. con- tract for rent. In this case, which we think is the safest law, the court say : " The distinction is this : Acts giving aid and comfort to rebellion are illegal, and contracts in pursuance and further- ance thereof, void. But where an Act permitted by the laws of war is of such a nature that its performance by some one is demanded by the dictates of humanity, as aclmowledged by civilized nxitions, and a refusal to perform it would be cruelty and inhumanity, there it may lawfully be performed. As both parties, however, are supposed to act upon these principles, and if one party ignored them the other would do the same, the right cause cannot be supposed to be the loser by their recognition." Say the court in another part of the opinion : " "We do n'ot undertake to say that a man may lawfully go so far as to enlist as a surgeon in the rebel service, or volun- tarily, and without the existence of urgent, immediate ne- cessity, provide hospitals for the use of the rebel army ; but we think that wherever, during the late Rebellion, an imme- diate and pressing necessity existed for hospital buildings, or other appliances for the purpose of properly caring for the sick and wounded actually in need of the provisions made for them, any person within the rebel lines might lawfully furnish them." 90 THE LAW OF MUNICIPAL BONDS. The distinction is very readily made. It is obvious that an Act appropriating money to build hospitals would not, per se, be sustained ; while it is quite as clear that, if the necessity of suddenly providing for' a large number of wounded was thrust upon a municipal corpo- ration, an Act to meet the paramount demands of humanity would not be questioned. The application of the maxim " causa proxima non remota spectatur " may be applied without doing violence to its true meaning. As a general rule, however, as above stated, there are few cases where the purpose of the Act is not easily ap- prehended ; and probably but a very limited number, indeed, where the bonds of municipalities have been issued for a doubtful object. They are almost invaria- bly clearly lawful or unlawful, so that the dividing line is too conspicuous to be disguised or misunderstood. Section 46, Article V., is as follows : — It shall be the duty of the General Assembly to make adequate provision for the mainte- nance of paupers throughout the State. The following section is found in nearly all the State Constitutions in some form : Section 47, Article V. — The General Assembly shall not have power to authorize any municipal corporation to pass any laws con- trary to the general laws of the State, or to leyy any tax on real or personal property to a greater extent than two (2) per centum of the assessed value of the same. Section 48, of Article V., provides that the General Assembly shall pass no special Act conferring corporate powers. This section, in connection with the following, clearly precludes the creation of municipal corporations by special act. Section 49, Article V.— The General Assembly shall provide for the organization of cities and incorporated villages by general laws, and restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent the abuse of such power. AEKANSAS. 91 Section 6, Article X., is as follows : — The credit of the State or counties shall never be loaned for any purpose without the consent of the people thereof, expressed through the ballot-box. We give below the opinion of the Supreme Court in the case of the M. 0. & B. R. B. Co. v. Mayor, &c., of Camden, in which it is held that a municipal corporation cannot subscribe to the capital stock of a railroad unless specifically authorized so to do. The ruling is not of material consequence, and, inasmuch as the new consti- tutional provisions are entirely clear, is only of weight as determining cases where the provisions are the same. M. 0. ^ E. E. E. Co. V. 3fayor, ^c, of Camden. Fairchild, J. — The defendants, the Mayor and Aldermen of the city of Camden, are charged in the declaration, pre- ferred by the Mississippi, Ouachita and Eed River Railroad Company, with having subscribed two hundred shares, of one hundred dollars each, to the capital stock of the company, by which they became liable to pay calls or instalments on their subscription ; that the company, pursuant to their charter, and to ordinances and conditions of the subscription, have made various calls for payment upon stock subscriptions ; that the instalments and interest due from the defendants on the calls made upon their subscription amounted, on the first of February, 1858, to eighteen thousand and four hun- dred and twenty-seven dollars, which the defendants had failed to pay. This suit, an action of assumpsit, is brought to enforce the payment of this sum. The case is brought here by the railroad company, to obtain a reversal of the judgment of the Circuit Court that sustained the demurrer by which the declaration was met, in which demurrer various defects of pleading are argued ; but we shall confine our opinion to two of the specified causes of demurrer, one alleging that the subscription of stock was unauthorized by the charter of Camden, and the other, that the subscription is illegal and void. And passing by the form of the first ob- jection, which seems rather to interpose a fact in bar of the suit, than to assign the want of alleging the fact as a fault in 92 THE LAW OP MUNICIPAL BONDS. the declaration, we shall consider the two specifications as raising the proposition, that the stock subscription of Camden to the Mississippi, Ouachita and Eed Eiver Railroad Com- pany is illegal, because the municipal corporation had no power to make such subscription. And this is a conclusion that results from the character of a corporation. A corporation " having been created for a specific purpose, not only can make no contract forbidden by its charter, which is, as it were, the law of its nature, but in general can make no contract which is not necessary, either directly or indi- rectly, to enable it to answer that purpose." Angell and Ames on Corporations, Sec. 256. " A corporation must act within the limits of its delegated authority, and cannot go beyond it." Mayor of Baltimore v. Hughes, 1 Gill and John, 495. " In the State of Tennessee, a corporation is a creature of the legislative department of the Government; it exists solely and alone by virtue of its act of incorporation, and it can exercise no powers but such as are expressly granted to it, and such as are the result of necessary and proper implica^ tion." Nichol v. Mayor of Nashville, 9 Humph., 261 ; also Memphis and St. Francis Plank-road Company v. Beeves, 21 Ark., 305. "We have looked attentively through the charter of Camden, and the amendatory Acts, and can find nothing, and have been referred to an Act that authorizes such a contract as the alleged subscription of stock by the mayor of Camden. The second section of the charter of the plaintiff contains no such authority. For although it declares the company to "be composed of such persons, corporations, states, counties, and cities as may subscribe to stock in said company, and comply " with the provisions of the charter and regulations adopted under it, no authority is thereby given to cities to make other contracts than they could make vidthout the charter. We therefore adopt the language which the Supreme Court of the State of Alabama used in a case much stronger against the City Council of Montgomery than this one is against the corporation of Camden : " Looking into the charter of the city of Montgomery, and its amendment, we find no express authority to enter into the contract declared ; neither is the AEKANSA8. 93 exercise of such power necessary to carry into effect any of the expres^y granted powers ; nor was the exercise of the power under consideration a necessary means of effecting the purpose for which this corporation was created." City Coun- cil of Montgomery v. Montgomery and Wetumpka Plank-road Co., 31 Ala., 83. The law restricting the power of corporations is of such an elementary character, and so generally understood, that this is the first case of which we are informed where such a contract as the one charged in this case has been the subject of decision in an appellate court. A writer, under the date of August, 1857, affirms that no such case has been the subject of judicial examination, and we have not been able to find any since reported. The same writer, treating of the validity of subscriptions to railroad stock by cities and mu- nicipal corporations generally, says that " Their competency, by virtue of their ordinary powers, and without special legis- lative authority to contribute to such enterprises, cannot be sustained." Pierce on Am. Railroad Law, 168. On the other hand, it has been strongly contested that such subscriptions cannot be authorized or confirmed by legislative authority and sanction. The affirmative of this has ' been fully established by a series of able discussions ; but in Godden v. Crump, 8 Leigh, 150 ; Slack v. Marysville and Lexington Hail- road Oompany,~13 B, M., 39; Sharpless v. Mayor of Philadel- phia, 21 Penn. St., 188 ; Moses v. Heading, lb., 203, which we have examined, there were dissenting opinions, and the same is reported of Oriffith v. Ohio and Ind. Railroad Co., 20 Ohio, 622, which we have not seen. 2 Am. Eailroad Cases, 64. Great efforts have been obliged to be made to uphold sub- scriptions of cities to the capital stock of railroads, even when authorized or ratified by legislative authority, and that in many instances supported by a popular vote ; but the parties to this suit seem to be the first to have made a contest upon unauthorized subscriptions of this sort. "We affirm the judgment of the Circuit Court in sustaining the demurrer. CHAPTEE VI. • CALIFOENIA. The following are the provisions, of the Constitution of California, now in force, having reference to the obli- gation of municipalities. There is no restriction over the Legislature, except as to their wisdom and discretion. Section 31, Aeticle IV., Constitution of California. — Corporations may be formed under general laws, but shall not be created by special Act, except for municipal purposes. All general laws and special Acts passed pursuant to this section may be altered from time to time, or repealed. Section 37, Article IV., Constitution of California. — It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, as- sessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuse in assessments and in contracting debts by such municipal corporations. The following two cases. People v. Goon, and People V. Supervisors of San Francisco, will be of interest as to practice, as well as, to the rights of both parties, after a contract has once been made. After the city under the Act of the Legislature of April 22, 1853, had chosen to act, it was bound by its agreement, and a compromise under the Act of 1862, is also held valid. The court by Cukkey, J. remarks that " By the choice of the electors of the city an obligation onerous in its character was assumed for the purpose of prospective benefit. Yet the obligation must be discharged." These two cases with that of Stoclcton, &c. B. B. v. Stockton, will show fully the law of Municipal Bonds as held by the Supreme Court of California. 94 CALIFOENIA. 95 25th California Reports. People v. Coon et al. By the court, Currey, J. The Legislature of this State, hy an Act passed in 1863, authorized the Board of Supervisors of the city and county of San Francisco to take and subscribe one million dollars, in the aggregate, to the capital stock of " Western Eacific Kailroad Company" and "the Central Pacific Railroad Company of California," and to provide for the payment of the same. (Laws of 1863, p. 380.) By this Act, it was made the duty of the Board of Supervisors, to order a special elec- tion for the purpose of submitting -to the electors of the city and county, the proposition for the board to take and sub- scribe four hundred thousand dollars to the capital stock of " The "Western Pacific Railroad Company," and also, the pro- position for the same hoard to take and subscribe six hundred thousand dollars to the capital stock of" The Central Pacific Railroad Company of California." It was provided by this Act, that if a majority of the electors voting, was in favor of the proposition to subscribe for the stock of said com- panies, then it should become the duty of the board to take and ssubscribe, in the name of the city and county of San Francisco, for its use, benefit and advantage, to the capital stock of each of said companies in the amounts specified, and therefor to pledge the faith of the city and county for the payment of the same, in the manner provided in the Act. The Act also provided that the subscription should be made conditioned to be paid in the bonds of the city and county, which should be issued in the sum of one thousand dollars each, from time to time, as the work should pro- gress on the railroad, by a board consisting of the president of the Board of Supervisors, otherwise called the Mayor of the city and county of San Francisco, and the Auditor and Treasurer of said city and county, and styled the " Pacific Railroad Loan Commissioners." The special elec- tion was held, and the result of it was that a majority of the electors was in favor of the proposition submitted. In April, 1864, an Act was passed by the Legislature, by which the same Board of Supervisors was authorized and 96 THE LAW OP MTTNICIPAL BONDS. empowered " to compromise and settle all claims upon the part of the Western Pacific Railroad and the Central Pacific Railroad ior cash or other security, in place of bonds claimed by said companies of said city and county, under an Act to authorize the Board of Supervisors of the city and county of San Francisco, to take and subscribe one million dollars to the capital stock of the Western Pacific Railroad Company and the Central Pacific Railroad Company of California, and to provide for the payment of the same, and other matters re- lating thereto, approved April 22, 1863 ; provided, that the power to make such compromises shall vest in said Board of Supervisors, only after* and in case said Board of Super- visors shall be compelled, by final judgment of the Supreme Court, to execute and deliver the bonds specified in said Act." (Laws, 1863-4, p. 388.) The Board of Supervisors having declined, after request, to take and subscribe to the capital stock of the Central Pacific Railroad Company, an application was made to this court for a peremptory writ of mandamus, to compel said board to proceed to make the subscription and issue the bonds there- for as provided in the Act of 1863. The respective parties to that proceeding, appeared by counsel and argued the ^ues- , tions involved therein, after which this court rendered a judgment granting the writ, which was issued in June, 1864, commanding said Board of Supervisors to take and subscribe in the name of the city and county of San Francisco, for its use, benefit, and advantage, to the capital stock of the Central Pacific Railroad Company of California, to the amount of six hundred thousand dollars, and for the payment of the same to pledge the faith of said city and county in the manner provided in the Act of 1863 ; and also commanding the Board of Supervisors to make an order directing the Board of Commissioners, styled " The Pacific Railroad Loan Commissioners," to issue the bonds of the said city and county to the Central Pacific Railroad Company, upon the conditions as required and specified in and by the provisions of the Act. This writ was served on the Board of Super- visors. Pending the application for a writ of mandamus, the CALIFOENIA. 97 Board of Supemsors, on behalf of the city and county, and the Central Pacific Railroad Company, by its president, were engaged in an effort to effect a compromise of the matter in difference between them, which resulted, after the writ had been issued and served, in an agreement upon the terms therteof ; and to carry the compromise agreed upon into effect, the Board of Supervisors, on "the 20th of June, 1864, duly passed an ordinance entitled, " Providing for issuing bonds to Central Railroad Company." By this ordinance, after re- citing the Act of 1863, and the election under that Act, and the judgment of this court granting the peremptory writ of mandamus, and the Act of 1864, authorizing and empowering the Board of Supervisors to compromise and settle all claims upon the part of the Central Pacific Railroad Company of California, the people of the city aiid county ordained as follows : " Section 1. Four hundred bonds of said city and county, each for one thousand dollars, with interest coupons attached, dated July 1st, A. D. 1864, in all other respects, in form, substance, and execution, such as are required by said Act first above mentioned, shall be forthwith made, executed, and delivered to said Central Pacific Railroad Company of California. " Section 2. The payment of said bonds and coupons shall be provided for, and made in all respects as is pro- vided in said Act of April 22, 1863, and for such payment the full faith and credit of said city and county are hereby pledged. " Section 3. Said bonds and coupons shall be dehvered to said Central Pacific Railroad Company of California, upon the condition that the board of trustees or directors of said company, at a regularly called meeting of the same, shall, by a vote duly recorded, accept said bonds and coupons in full discharge of all obligations on the part of said city and county, to make any subscription to the capital stock of said company, and for all claims, debts, dues, bonds, and coupons whatsoever. Upon the issuing and acceptance of said bonds and coupons, they shall be deemed to have been so received and accepted, in place of the bonds and coupons mentioned 7 98 THE LAW OF MUNICIPA-L BONDS. and provided to be given in the Act of April 22, 1863, before mentioned." This ordinance was duly approved by the Mayor, on the 21st of June, and became a law on that day. Immediately, thereafter, the Central Pacific Railroad Company accepted the propositions contained in said ordinance, in accordance vdth the terms and conditions 'thereof, and signified the same to the Board of Supervisors. But the Mayor, Auditor, and Treasurer, constituting the " Pacific Railroad Loan Commis- sioners," refused to issue the bonds, as provided in said ordi- nance, after demand duly made therefor, on behalf of the Central Pacific Railroad Company. The relator has applied by petition to this court for a per- emptory writ of mandamus, commanding and requiring the respondents to issue to the Central Pacific Railroad Company of California the four hundred bonds specified in said ordi- nance. To the relator's petition, setting forth the facts, in substance as hereinbefore stated, the respondents have de- murred. The grounds of the demurrer are in substance as follows : First. It does not appear in or by said affidavit and peti- tion that the respondents have any legal authority or power to execute or deliver to said Central Pacific Railroad Com- pany the bonds referred to in said petition, or any part thereof. Second. It does not appear in said affidavit and petition that the Bqard of Supervisors of said city and coupty of San Francisco, or any officers of said corporation, had any lawful authority to issue, or cause to be issued, to said Central Pacific Railroad Company, bonds to said amount of four hundred thousand dollars, or any other amount, in the manner or for the causes or considerations alleged in said affidavit and pe- tition. Third. That said ordinance was passed without any lawful authority, and is wholly illegal and void. Fourth. That the Act of^the Legislature of this State, ap- proved April 4, 1864, so far as the same aiithorizes or attempts to authorize the issuing of bonds by the said city CALIPOENIA. 99 and county to the Central Pacific Railroad Company, or the payment by said Board of Supervisors to said company of cash or other securities, is in conflict with the Constitution of this State, and is null and void. The respondents, for answer to the petition, deny that the Board of Supervisors at any time became, or were lawfully bound or obliged, to subscribe six hundred thousand dollars, • or any other sum, to the capital stock of the Central Pacific Railroad Company of California, or to make, execute, or deliver to said company, bonds to any amount whatever; and they also deny that the judgment of this court was a final judgment, compelling them to execute or deliver the bonds specified in the Act of 1863 ; and they further deny that they ever were, or have been, bound by law to execute or deliver to the Central Pacific Railroad Company said four hundred bonds; and they insist that said ordinance is wholly illegal and void, on the ground that neither the Board of Super- visors nor the Legislature had any right or power to make the Central Pacific Railroad Company a donation of four hundred thousand dollars, or any other sum of money belonging to the city and county of San Francisco. The Act of 1863 conferred on the corporate authorities of the city and county of San Francisco certain powers which were not comprehended by the general grant of powers con- tained in the Act consolidating the government of said city and county, passed by 'the Legislature in 1856. By the last section of the Act of 1863, it is declared that this Act shall be in force and take eflfect from and after its passage. ' It provided the mode by which the electors, the corporators of the city and county, might express their will in respect to the privilege granted by the Act to take and subscribe to the capital stock of the railroad companies. The duty to submit the proposition to the electors of the city and county, as to whether or not stock of the railroad companies should be taken and subscribed for the use, benefit, and advantage of San Francisco, was iinposed on the Board of Supervisors, and the electors were provided with the opportunity of expressing their ch oice on the subj ect. The creation of this law 100 THE LAW OF MUNICIPAL BONDS. did not depend on the vote of the electors, and therefore the ob- jection that was interposed to the Act considered in Barto v. Himxod, 4 Selden, 483, is without force as authority touching the Act under examination. {BUmding v. Burr, 13 Cal., 356; The Bank of Rome r. The Village of Borne, 18 K Y., 41 ; Starin v. The Town of Genoa, 23 N. Y., 446 ; Coming v. Greene, 23 Barb., 50; Grant v. Courier, 24 Barb., 242 ;.CforA v. Bo- chester, 24 Barb., 472; Moers v. City of Beading, 21 Penn., 202.) By the choice of the electors of San Francisco, an obliga- tion onerous in its character was assumed, for the purpose of prospective benefits, which it was supposed would accrue to the city and county from the construction of the rail- roads mentioned in the Act; and it has been determined by the judgment of this court that the Board of Super- visors were in duty bound to- take and subscribe, in the name of the city and county of San Francisco, for its use, benefit, and advantage, to the capital stock of the Central Pacific Railroad Company, as required by the provisions of the Act of 1863, and also to proceed to direct the Pacific Railroad Loan Commissioners to issue the bonds of the city and county to the Central Pacific Railroad Company, upon the conditions required and specified, in and by the pro- visions of the same Act. The execution of this judgment has been suspended, if not entirely superseded, by the joint action of the Board of Supervisors of San Francisco on one part, and the Central Pacific Railroad Company on the other, under and in pursuance of the provisions of the Act of April, 1864. But objections are interposed on the part of the re- spondents, to the effect, first, that the corporate authorities of San Francisco were not clothed with power to make the compromise agreed upon ; and second, that the contingency, specified in the proviso of the Act of 1864, and which stands as a condition precedent to the existence of authority in the Board of Supervisors to effect a compromise with the railroad company, has not transpired. It is denied, on behalf of the respondents, that the Act of 1864 conferred upon the Board of Supervisors the authority to compromise and settle the claims which accrued to the CALIFOENIA. 101 Central Pacific Eailroad Company, in the mode and upon tlie terms specified in the ordinance set forth. It is said the claim to be compromised and settled was not a claim on the part of the railroad company for money or bonds, with- out a consideration in return, but was a claim to exchange certificates of stock for bonds; and that to settle such a claim is to* fix the amount of subscription by reducing it if possible. The Act authorizing a compromise provides for the settlement of the claim of the railroad company, for cash or other securities, in place of bonds claimed by the company, of said city and county, under the previous Act. It can hardly be maintained that a settlement of the claim of the railroad, by taking a reduced amount of bonds of the city and county, without some corresponding benefit to the company, would amount to an adjustment of the dififer- enee between the parties by compromise. But be this as it may, the statute is simply a grant of power to the Board of Supervisors to compromise and settle the claim of the com- pany for cash or other security in the place of the bonds to be issued under the first Act, upon the happening of the contingency mentioned in the proviso. No other limitation is placed upon the power, whenever it might arise, than the words of the Act itself import ; that is, that the claim to be compromised and settled should be satisfied by cash or other security, in place of the bonds to which the company might be entitled under the Act authorizing the subscription. It is insisted that the Act of 1864 does not authorize San Francisco to withdraw, her subscription from either of the railroad companies. There is nothing obscure or ambiguous in the language of this Act. It seems to us apparent that the authority granted by the Act was to the Board of Supervisors to compromise and settle the claims of the respective companies, on such terms as in the wisdom of the board would best con- duce to the interests of the city and county of San Francisco, provided such settlement could be made for cash or other security, in the place of the bonds specified in the Act of 1863. It is a fact judicially known to us, that at the time the Act of 1864 was passed, the case of French v. Teschemaker 102 THE LAW OP MTJITICIPAL BONDS. was pending in this court, by which it was sought to over- throw, as unconstitutional, the Act of 1863. And in that case we were advised that the plaintiff was in fact the repre- sentative of a considerable portion of the electors of the city and county of San Francisco, who were opposed to subscrib- ing for stock of the railroad companies, as authorized by the Act of 1863, and by the election held in pursuance of its pro- visions ; and we may well suppose that the Act of 1864 was passed in deference to the opinions of those opposed, and who, we are not prepared to say, were not reasonably opposed to the corporation of the city and county of San Francisco becoming a member of the railroad companies mentioned in the Act of 1863. So that if the object of the Act authorizing a compromise is to be sought for in the light of concurring circumstances, we might justly conclude it was designed to give the city and county of San Francisco the opportunity to sever its reluctant connection with these railroad companies by a compromise and settlement effecting such object. It is claimed, however, that the individual corporators of the city and county acquired rights to the capital stock of the railroad companies as beneficiaries, separate and distinct from the municipal corporation as an entity, of which- they cannot be deprived, otherwise than by a majority vote therefor by the electors of the city and county ; and, as a consequence, it is maintained that the Legislature had no power to pass an Act conferring on the Board of Supervisors the authority to so compromise and settle the claims of the railroad companies as to divest the individual corporators of these vested rights held in trust for them by the corporate authorities. The an- swer to all this is, that the corporation of the city and county is the creature of legislative enactment, and in legal contem- plation is an entity possessing for many purposes the attri- butes of individuality; and in the exercise of its legitimate powers can only act by and through its agents, appointed in the mode prescribed by the law of its creation. The Act of in- corporation may be altered from time to time or repealed, as the Legislature may will it. (Const., Art. 4, Sec. 31.) The powers of the corporation may be enlarged or restricted, and CALIPOENIA. 103 the Legislature may determine by law who, as the representa- tives of the corporation, shall exercise the powers granted. Hence it is that the right of the individual corporators can only he enjoyed in subordination to the power of the Legis- lature over the subject. A contrary doctrine, carried to its ultimate consequences, would require the affirmative consent of each individual corporator to every act done by the corpo- rate authorities atfecting his interests before he could become bound by such act ; the result of which would be to render entirely useless and. nugatory the corporate government of the city and county. The Legislature conferred the authority on the Board of Supervisors to compromise and settle the claims of each of the railroad companies mentioned, for cash or other securi- ties in place of bonds speciiied in the previous Act, provided it should first be determined by the final judgment of this court that the board was bound to execute and deliver such bonds. By this Act the . board was permitted, in case the conditional contingency transpired, to enter into any com- promise and settlement with the Central Pacific Railroad Company coming within the purview of the Act, which, in their judgment, would best subserve the interests of the city and county. The terms of the compromise and settlement have been agreed to upon the hypothesis that, the contingency on which the board was authorized to act has happened ; and the railroad company, as a party to that compromise, has the right to its execution, unless the condition on which the au- thority of the Board of Supervisors depends remains to arise ; and this conducts us to the inquiry as to whether the judg- ment rendered by this court in the case of the Central Pacific Railroad Company of California against the Board of Super- visors of the city and county of San Francisco, decided in June last, is a final judgment, compelling the board to exe- cute and deliver the bonds, is conclusive upon the city and county. "We think it would be going beyond any just rule of law to so hold, for the reason that the Board of Supervisors has not the power, by a construction of the efifect of this j udgment, to assume an authority which depends for its ex- istence upon this precedent condition. 104 THE LAW OF MUNICIPAL BONDS. The judgment referred to determined the obligation resting upon the corporation of San Francisco to take and subscribe to the capital stock of the Central Pacific Railroad Company, to be valid and binding, and the Board of Supervisors was required by this judgment to perform the obligation named, and to make an order directing the Paxjific Railroad Loan Commissioners to issue the bonds to the Central Pacific Rail- road Company upon certain conditions, and in all respeqts to perform and comply with the provisions and requirements of the Act. The judgment requiring the bonds to be issued was final, though the conditions upon which the duty to issue the same could only arise as the exigencies of the enterprise in contemplation might transpire, rendering the performance of this duty imperative. The judgment of the Supreme Court was a final judgment as to the obligations of the Board of Su- pervisors as the corporate authorities of the city and county'; and as the conditions on which the bonds required to be issued by the Act of 1863 might become consummate, this judgment could be enforced in case of refusal to issue and deliver the bonds, and therefore to all intents and purposes it was, from the time it was pronounced, a final judgment compelling the Board of Supervisors to execute and deliver the bonds speci- fied in the Act. It is further objected by the respondents, that the Act of 1864 does not confer on the Board of Supervisors the power to compromise with one of the railroad companies without a compromise with the other also, and that therefore the ordinance referred to was passed without authority, and is void. The first section of the Act of 1863 provided for an elec- tion for the purpose of submitting to the electors " th^ pro- position for the Board of Supervisors to take and subscribe four hundred thousand dollars to the capital stock of the. "Western Pacific Railroad Company," and " a proposition to take and subscribe six hundred thousand dollars to the capital stock of the Central Pacific Railroad Company of California." The elector could not vote for or against taking and sub- scribing to the stock vOf one of the companies only. He could only vote for or against the twofold proposition as a CALIFORNIA. 105 unit. The third section of the same Act authorized the Board of Supervisors, in case the election authorized the suh- scription, to take and suhscribe in the name of the city and county, to the capital stock of the companies respectively, in the proportions prescribed in the first section, and therefore to pledge the faith of the city and county for the payment of the same in the manner provided in the Act. There is noth- ing in the Act requiring" the supervisors to deal v?ith the two companies jointly; nor is it provided that the action of one of the companies should at all he dependent upon or be con- trolled by that of the other. The two companies in their re- lations to each other sustained an individual independence from the passing of the election, and the rights and obliga- tions of each could not be affected by the action or 'conduct of the other. There is no reason why the Act should be con- strued to require a compromise and settlement with one of these companies to be made in connection with a like com- promise and settlement with the other. Such a construction of the Act might be attended with embarrassments that would entirely defeat its execution, however much it might be to the benefit and advantage of the city and county of San Erancisco to adjust and settle the claim of one of such com- panies. A construction that would most probably, if not necessarily, be attended with such consequences, cannot be adopted in consistency with the settled rules of construction of statutes. "We might extend this opinion to the consideration of other questions suggested by counsel, but we deem it unnecessary, as the conclusion to which we have come would not be changed thereby. After a careful examination of the whole case, we are of the opinion that the application should be granted. It is therefore ordered and adjudged that a peremptory writ of mandamus be issued to the respondents, commanding and requiring them to execute and deliver without delay, to the Central Pacific Railroad Company of California, the four hundred bonds of said city and county of San Francisco, de- scribed in the ordinance hereinbefore referred to, with the in- terest coupons attached as in said ordinance provided. 106 THE LAW OP MTTNICIPAL BONDS. April, 1865. — People v. Supervisors of San Francisco. By the court : Rhodes, J. Proceedings were commenced in this court for a mandamus to compel the clerk of the city and county of San Francisco to countersign four hundred of the honds of said city and county, and to compel the Board of Supervisors of said city and county to perform all the duties required on their part for the complete execution and delivery of the bonds to the Central Pacific Railroad Company, according to the provision of the Act of th« Legislature of April 22, 1863, and April 4, 1864, and of the ordinance of said city and county, STumber 582. An answer, in form the answer of the Board of Super- visors, signed by the city and county attorney and the assist- ant counsel, and verified by Frank McCoppin, one of the members of the Board of Supervisors, was filed in this case, and subsequent to the filing of this answer, six of the twelve supervisors comprising the board filed answers to the peti- tion in their proper persons. The counsel for the Board of Supervisors, upon the cause being called for hearing, filed their affidavit, stating that the answers of the six supervisors were filed without the knowl- edge of said counsel, and that they had no intimation thereof until about twenty minutes before the meeting of the court on that day ; and they thereupon moved that those answers be stricken from the files of the court. The counsel for the re- lator objected to the motion. It appears, from the answer of the board, that the board, by resolution, requested the city and county attorney to represent the board and the members thereof in these proceedings, and authorized a committee of the board to employ assistant counsel; and the counsel for the relator do not deny that Messrs. Saunders and Fulton, the counsel who signed the answer of the board, were duly au- thorized to appear for and represent the board in the pend- ing proceedings. The answer of the six supervisors, after the title of the cause, commences substantially in the following form : " For answer to the petition of the above-named plaintiftj . . . one of the supervisors of the city and county of San Francisco, CALIFOEKIA. 107 and, as sueli, one of the defendants herein, for himself says that he is now, and at the time of the commencement of this proceeding was, one of the supervisors of the city and county of San Francisco," etc. ; and they do not purport to be the answer of the whole board or of a majority of the board, nor do the six supervisors pretend to answer for the board in its aggregate capacity. The Board of Supervisors, organized and acting as one body in its corporate capacity is the defendant, and not the individual supervisors who, col • lectively, make up the board ; " for this is not a proceeding against any individual until an attachment issues." (SPENCiSn, J., in People v. Champion, 16 John., 60.) The answer of a su- pervisor or of a, number of supervisors, in his or their uwn name or names, whether as supervisors or otherwise, could with no more propriety be regarded as the answer of the board than could thie answers of a number of citizens in- cluded within the municipality that elected the board. The supervisors constitute the board, and possess the power, and are capable of discharging the functions conferred by law upon the board, only when they are assembled as a body in the manner' prescribed by law. Admitting that the mem- bers of the board may severally answer, suppose that all make default except one, and he, answering, shows that the board was not required to perform the alleged duty, could the writ issue either to the board or to the members who made default ? If it could issue, the board or the members would be required to perform an act, that had been determined in the action, one of the members was not by law required to perform. If it could not issue, it would then appear that the answer of one member, traversing or confessing and avoiding the matters averred in the petition, was a sufficient defence to the whole proceeding, notwithstanding that the other mem- bers admitted every allegation in the petition. If one-half of the members should make default and the other half should show good cause, still greater absurdities, if possible, would be manifest. The answers of the six supervisors, so far as they relate to the matters stated in the petition, amounted to no more than would their default, for they do not deny nor confess and 108 THE LAW OF MUITICIPAL BONDS. avoid any fact alleged in the petition ; but it is attempted, by means of the answers, to raise issues between themselves and the board, or the remaining members of the board, respecting certain facts alleged in the answer of the board. It is diffi- cult to see how such issues could, under any rules of practice, be tried in this action, or how anything would result from the finding of the issues in their favor, as they do not de- mand any affirmative relief against either the board or any of its members. It is said in Tapping on Mandamus (p. 340), that the return to the writ should be made either by those to whom such writ is directed, or who are legally competent to execute it. There can be no question that the board, and not any member or num- ber of members, must execute the writ (if one should be issued) by the performance, in its aggregate capacity, of the duty en- joined. The rules of the Civil Practice Act are as strictly appli- cable to the pleadings in mandamus, as to those in any action, and under .those rules no' one may answer except those who are made, or are by the court admitted as defendants. The remark found in the treatises on mandamus, that if two sepa- rate returns be made by different portions of the same corpo- ration, the court will take that which appears to be made by the majority, and other statements of similar import, do not mean that separate returns may be made by the several mem- bers of one " portion of the same corporation," as of one of the two boards composing the legislative branch of the muni- cipal government, and that the court may ascertain which return had the majority of the members; but in order to have any standing, it must be made as the return of the whole corporation, or at least of a particular portion or branch of it, if the writ is directed to it ; and then, if two returns are made in that capacity, the court will ascertain which is the true return; that is to say, the return of the majority. There might not be a majority to any return if made by the individual members, for each member might make a separate return, differing essentially from that of each of the other members. The motion must be allowed, and the answers of the six supervisors stricken from the files. CALIFOENIA. 109 The relator move^for judgment on the pleadings; and in support of the motion, it is insisted, among other things, that the answer filed by the counsel for the defendant is only the answer of Supervisor McCoppin, who verified it ; and that if it is held to be either his answer or tha,t of the board, it does not state facts suflacient to constitute a defence to the action. It is apparent upon inspection that it is not the answer of McCoppin, for its form is: "The Board of Supervisors do come, and, for answer to the amended petition and affidavit, upon which the application of the above-named plaintiff is made, allege and show," etQ. The fact that it is verified by him has but slight, if any, tendency to show that it is his an- swer, and is entirely overcome by the fact that all the allega- tions are made in the name of the board. If it can be re- garded as a pleading in the cause, it must be held to be the answer of the Board of Supervisors. The relator objects to the answer "being considered the an- swer of the board, because it does not appear that the board, as an aggregate body, resolved upon and made the return; or,aswe understand the objection, that the board has not by resolution adopted the return, as prepared by their counsel, not directed what matters should be set forth in their answer. It is not doubted that the counsel who signed and filed the answer of the board, were duly authorized to represent them, and such being the case, they were fully empowered to appear for them in the action, and do all those things that counsel might law- fully do in behalf of a person who was the sole defendant. In this respect they bear the same relation to the board that they do to the clerk of the city and county, and their authority is the same in either case, and similar piresumptions will be in- dulged in, that the answer is the answer of the persons or body that it purports to be. 'No authority is cited, holding that it must be stated in the answer to the petition, or the return to the alternative writ, made by a corporation or a board form- ing a constituent part of the corporate authority, that the corporation or board had resolved upon the return or answer ; and no reason suggests itself to our mind why such a state- ment should not be required in the petition, when a corpora- 110 THE LAW OF MUNICIPAL BONDS. tion is the' relator, if it is necessary in the answer of the cor- poration. The general rules of pleading are substantially the same in mandamus as in other civil actions. (Tap. on Man., 8 !N". Y., 348; Comm.erdal Bank v. Canal Commissioners, Id Wend., 26 ; People v. Ransom, 2 Comst., 490.) j\mong the numerous cases found in our reports of actions brought by or against corporations, none is noticed in which it stated that the corporation had resolved upon the complaint or answer, or had, as a corporate act, directed what either should contain ; and in examining many of the eases cited by Tapping on Mandamus, no such statement is found or said to be required in the return ; but it would appear from those cases that it is neither usual nor necessary — the presumption b6ing that it was the return of the officer or bpdy it purported to be. In Mayor of Thetford's case, 1 Salk., 192, which was mandamus to the mayor and Common Council, the return was made in the name of the corporation, but without the common seal, or the hand of the mayor set to it. After search of precedents, which were found both ways, the court held the return good, because they were estopped by the re- cord to say it is not their act ; and the court says that the city of London, every year, makes an attorney, by warrant, with- out either sealing or signing. In Hex v. Mayor of Abingdon, 2 Salk., 431, which was mandamus to the mayor, bailifis, and burgesses, the mayor made a return, and brought it in to file it, and it was objected to as a return of the mayor and a mi- nority ; but Mr. Chief-Justice Holt said : " It is not fit that we should examine upon affidavit whether there was the con- sent of the majority." (See, also, Bex v. St. John's Coll., 4 Mod., 241.) But it is said that there are, in effect, two returns, or answers — that in the name of the board, and that composed of the answers of the six supervisors ; and that as the latter is inconsistent with the former, and is made by one-half of the members, it must overrule the answer made in the name of the board — at least that, taking all the answers together, they make such an inconsistent return, that they must be all disregarded. "We have already said that the members of the board are not parties to this action, and their answers as such CALirOESriA. Ill members must be disregarded. The presumption is tliat the answer made and filed by the counsel for the board in their name is the answer of the board. " When a corporation ag- gregate, to which a writ is directed, haS regularly resolved upon and made a return, individual dissentients cannot be allowed to dispute its propriety," (Tap. on Man'., 341;) but if the dissentients also file a return as the return of the cor- " poration, the court will ascertain which is the return of the majority; and doubtless, without holding to the strict rule in ] Salk., 192, that the members are estopped to say that the re- turn is not the return of the majority, they may allege that the return is not the return of the majority, or has not been resolved upon by the corporation, and thereupon have the collateral issue determined by the court. That, however, is not the case before us, but the dissentients merely under- take to controvert certain of the facts alleged in the answer of the board, in avoidance of the facts stated in the peti- tion. The question then occurs, is the relator entitled to judg- ment on the pleadings, regarding the answer verified by McCoppin as the answer of the Board of Supervisors ? The motion of the relator to that eflfect is equivalent to a de- murrer to the answer, on the ground that it does not state facts sufficient to constitute a defence. Section thirty-seven of the Practice Act, providing that " all the forms of plead- ing in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this Act," is applicable to proceedings in mandamus. The principal facts upon which the right of the relator de- pends, briefly stated, are as follows; the Board of Super- visors had been commanded by the final judgment of this court to subscribe six hundred thousand dollars to the stock of the Central Pacific Eailroad Company, and to issue the bonds of the city and county in payment of such subscrip- tion, pursuant to the provisions of the Act of April 22, 1863 ; that afterward, under the provisions of the Act of April 4, 1864, the Board of Supervisors passed ordinance Jlfumber Five Hundred and Eighty-two, approved June 21, 1864, the terms of which were accepted by the relator, by which the parties 112 THE LAW OP MUNICIPAL BONDS. compromised the claims of the railroa4 company upon the city and county, under the 4-ct of 1863, it being agreed that the board should, in lieu of making the subscription and deliver- ing the bonds to the amount of six hundred thousand dollars, deliver such bonds only to the amount of four hundred thou- sand dollars, without making any subscription to the stock, the bonds to be delivered to the relator, upon the condition that they should be accepted in full discharge and satisfaction of all obligations, claims, etc., of the company against the city and county ; that the company tendered to the city and county a full release and discharge of said obligations, claims, &c., to be delivered on the receipt of said bonds ; that the Mayor, Auditor, and Treasurer of said city and county, whose duty it was to prepare and sign said bonds, were in certain proceedings in this court, wherein they were the defendant and the company was the relator, ordered by a peremptory writ of mandamus, to execute and deliver without delay, to the company, the four hundred bonds, of one thousand dollars each, as in said ordinances provided. It seems not to be doubted, and the decision in the last mentioned case {People V. Coon, Mayor et al., 26 Cal., 635,) settles the point, that the four hundred bonds to be issued under ordinance l^umber Five Hundred and Eighty-two, are parcel of the six hundred bonds provided for in the Act of 1863, they differing in the latter only in the date they were to bear. In examining the answer somewhat in detail, the only ques- tion will be whether it states fact sufficient to constitute a de- fence to the action, and many of the objections taken in the argument by the counsel for the relator, which might have been considered if made the grounds of a special demurrer, .or of some proper motion to strike out, etc., must be disre- garded. The defendants' denial that they " became or were lawfully or duly or otherwise bound or obliged to subscribe six hun- dred thousand dollars, or any other sum, to the capital stock " of the company, or to execute or deliver any bonds, is not the denial of any fact alleged in the petition. The judgment in the case of The Peopk ex rel, Central Pacific Bailroad Company V. The Board of Supervisors, etc., whereby the defendants were "CALIFOENIA. 113 commanded to subscribe to the stock, not being denied stands admitted, and the denial that they were bound to obey the judgment, is only a denial of a conclusion or principle of law. {People v. Commissioners of Fort Edward, 11 How. Pr., 89.) If it is permitted to show collaterally that the judgment is void, the points of invalidity must be specified. The remarks we have just made are applicable to the denial that they were " bound by law to execute or deliver" the four hundred bonds to the company, and the accompanying aver- ment that ordinance Number Five Hundred and Eighty-two is " wholly illegal and void." The facts from which the court might draw the inference that the ordinance was void, and not the assumed inference, should have been stated. The further allegation that neither the board nor the Legislature have the right or power to make a donation to the company of four hundred thousand dollars of the money of the city and xiounty of San Francisco, even assuming that it appeared that such a donation had been attempted, is rather a specifi- cation of a ground of demurrer, than an allegation of a fact. The next averment of the answer is, that the election in the city and county of San Francisco, held pursuant to the Act of April 22, 1863, — the Act authorizing the subscription to the stock of the company, — " was not fairly^or properly or legally conducted, but was eflected, influenced, and controlled by corruption and bribery," practised and perpetrated by the company and its agents and employees ; and they specify nine instances in which the alleged agent of the company em- ployed the company's money to corruptly influence the electors to vote in favor of the proposition to subscribe to the stock of the company. It will be seen, on reading the Act of April 22, 1863, (Statutes 1863, p. 380,) that the board colild not be required, and were not permitted, to subscribe to the capital stock of the company, unless a majority of those voting upon the proposition voted in favor of the subscription. It was absolutely essential, therefore, in instituting proceedings against the board, to compel the subscription to be made ; that the relator should allege, and, if it was denied by the board, to prove on the trial that a majority of the votes cast were in 8 Ill THE LAW OF MUNICIPAL BONDS. favor of the proposition. The fact must have been found by the court, or have been admitted by the pleadings; in other words, the facts must have been alleged, and must have been true, for it was the fundamental fact in the action, and in its absence the court could not have rendered the judgment that was pronoiinced, commanding the board to make the sub- scription and issue the bonds. The matter thus became res judicata, and not subject to be again litigated in another action between the same parties. It is unnecessary to deter- mine whether the alleged bribery and corruption could haye been shown at the time the vote was canvassed, or in proceed- ings to contest the election ; but if not admissible on either of those occasions, it would have been admissible in the pro- ceedings against the board to compel them to make the sub- scription, if they had alleged that the result' at the election had been procured by those means. But now, in addition to the reason already given for excluding the alleged facts of bribery and corruption, they are immaterial and irrelevant, as they do not in any manner avoid the compromise on Which the relator proceeds in this action. The allegations respecting the failure of the board to pro- cure an inspection of the books of the company, to questions propounded to them, are so clearly immaterial that they re- quire no notice. They allege that the passage and approval of ordinance ITumber Five Hundred and Eighty-two were procured by the false and fraudulent representation of the company, that if the proposed compromise were not made, the whole subscrijj- tion of six hundred thousand dollars, with a year's interest, would be immediately due ; but it is not stated that any fact was falsely and fraudulently stated, from which the inference might be drawn that the whole amount of bonds and inter- est was then due ; and in the absence of an allegation that they were ignorant of the facts upon the existence or occur- rence of which the subscription became due, we must hold that the alleged representation was of a conclusion of law drawn from existing facts known to the defendants. Con- ceding the point contended for by the defendants, that the six hundred thousand dollars in bonds were payable in instal- CALIFOENIA. 115 ments, as assessments were called in from the stockholders generally, it yet is not alleged either that the company repre- sented that assessments to the full amount had been levied, or that the board was ignorant that they had not been so levied. The defendants allege that ordinance ]!?'umber Five Hundred and Eighty-two was never published and printed, as required by law ; and by that which follows in the same paragraph, we understand them to mean, not that the ordinance in the words in which it passed was published, but that the several pro- visions of the law directly or indirectly referred to in the or- dinance were not published with it. We do not understand that such a publication is required, but it was only necessary to publish the ordinance as passed — all persons being charged with notice of "h public Act of the Legislature on which an ordinance is founded. It is next alleged that the company did not accept said com- promise after the passage of the ordinance, and did not com- ply with the conditions expressed in the ordinance. It is not stated wherein they failed to comply, and therefore that por- tion of the allegation is insufficient. They set out in the an- swer the resolution of the company accepting the terms of the ordinance, which had then passed to print, and say that they are advised that such resolution is not an acceptance of the terms of the compromise proposed in the ordinance. The objection amounts in substance to a demurrer to the resolution, that- it is not sufficient in law to amount to an assent on the part of the company to-the terms of the compromise contained in the ordinance. It is not requisite that the assent to or ac- ceptance of the terms of the compromise should have been made by the company after the ordinance had been approved by the mayor. The company might by some proper corpo- rate action have proposed the terms of the compromise, and the board might thereupon have passed an ordinance, as they have done, and such acts would have constituted an assent by each, party to the terms. The question as to how the contract must be proven is quite different from that which relates to the time of assenting to the terms proposed. It may be re- marked that the commencing of this action, as well as the 116 THE LAW OP MUNICIPAL BONDS. previous action against the Mayor, Auditor, and Treasurer are very indicative of an acceptance by the company, even if it could be held that the acceptance of the terms by the com- pany should have been subsequent to the approval of the or- dinance. The defendants say that the alleged contract, in order to be binding, must have been made in writing, signed by the party to be charged. It requires no citation of authority to prove that a municipal corporation may contract by ordinance directly, and that a contract made in that manner as fully satisfies the Statute of Frauds as one made by the agents of the corporation who have been authorized to execute the contract. But they insist that the ordinance is not a con- tract ; that it is but a resolution to do a certain thing, that is, to render to the company certain bonds ; th^ the company resolved to receive bonds if all of them were tendered ; and that when the bonds have been tendered by the city and re- ceived by the company, and the company have executed to the city a release, as provided for, then the parties will have made an executed contract; but as yet there is no contract between the parties, the ordinance of the city and the reso- lution of the company amounting to nothing more than dec- larations of intention to enter into an executed contract. This certainly was not the view of the court in Tlie People v. Goon et al., nor do we think the position tenable. True, the company say, after accepting the proposal contained in the ordinance, that such acceptance shall be effectual only w-hen the whole of the bonds shall have been delivered to them ; but, taking the whole transaction of the parties together, it is manifest that the parties entered into a contract of compro- mise, but that the company would not yield their rights or discharge their claims, under the Act of 1863, until the city had complied with the terms of the compromise contract. The parties did not contemplate a further contract, but the company, in assenting to the contract, insisted on a per- formance of its terms by the city before the company would release the city from the obligations cast on her by the Act of 1863. The defendants further say that the company have not, by CALIFORNIA. 117 any corporate act, consented to be bound by the provisions of the Act of 1863, nor agreed to receive the bonds men- tioned in the Act. Such consent of the company was not required by the Act of 1864 to be the basis of the compro- mise, but it was only requisite that this court should have commanded the board to execute and deliver the bonds. The commencing of the proceedings by the company against the board was sufficient evidence, in that case, of the accept- ance by the company of all the terms of the Act; and the judgment having been rendered, compelling the board to make the subscription and issue the bonds, the inquiry now, whether the company had in fact agreed to receive the bonds which they, in that proceeding, demanded should be issued to them, is immaterial. The denial irf general terms that they became bound to ex- ecute and deliver the bonds to the amount of six hundred thousand dollars, or that they have ever been compelled by the judgment of this court to execute or deliver the bonds, forms no answer to the allegation in the petition that a judg- ment of this court was rendered, by which they were com- manded, by the peremptory mandate of the court, to execute and deliver the bonds, as no fact is alleged tending to invali- date the judgment. We have sufficiently indicated our opinion that a denial of this character is not a denial of a fact, but of a conclusion of law, and would be more properly classed among the grounds of demurrer than the allegations of the answer. The questions arising upon the facts alleged by the defend- ants, that the company's road does not have a terminus at San TraneiscOjnor at any point nearer than the city of Sacramento, that the work is one of general interest to the whole State, but not of local interest to San Francisco, and that the city has sub- scribed to the stock of the San Francisco and San Jose Rail- road, which has a terminus at San Francisco, etc., have been discussed by counsel with great ability, but the great length of the opinion will preclude us from considering them in detail. They are resolvable into the question whether the Legisla- H8 THE LAW OF MUNICIPAL BONDS. ture can impose upon a municipal corporation the burden of building, or aiding in building, a work wliicb is in no sense a work of local interest to the corporation, but which is of general interest to the people of the State. The counsel for the defendants deny the power to the Legislature, and say^ that the facts alleged by the board show that the railroad is not of local interest to thje city. By the provisions of the Act of 1863, the city was required to become a subscriber, to a certain amount, to the capital stock of the railroad com- pany, in the event that, at the election provided for in the Act, a majority of the electors of the city, voting on the prop- osition to subscribe, should cast their votes' in favor of the proposition. The majority of the votes having been cast in favor of the proposition to subscribe, it became the duty of the Board of Supervisors to make a subscription to the amount of six hun- dred thousand dollars, whereupon the city would become a stockholder in the corporation, with all the rights of other stockholders, and subject to all the liabilities of other stock- holders, except certain ones from which she was exempted by the provisions of the Act, and having the right to pay her subscription in her bonds instead of money. Upon the sub- scription being made, and the bonds, or an instalment of them equal to the assessments upon other stockholders, being deliv^ ered to the company, it could not be said that the city had made a donation to the company, or had been charged with the expense of a work which was being constructed for the benefit of the public, in any other sense than the same could be said of any stockholder in the company ; but she would be a stockholder in a work which was being prosecuted for the benefit of all the stockholders in the company. True, the work might not result in profit, but that is a risk incident to all enterprises of the kind. It became the duty of the city to subscribe to the stock, and to deliver her bonds to the company, and she was commanded so to do by the court ; and the company having accepted the terms of the proposed sub- scription, a claim accrued to the company against the city, that she should make the subscription and deliver the bonds, and thereby assume such liabilities, as a stockholder, as were CALIFORNIA. 119 required of and cast upon her by law. But the city, not wishing to become a stockholder^ and assume the liabilities incident to that relation, entei'S into a compromise with the company, under the authority of the Act of 1864, by which it is agreed that the city shall not subscribe, nor deliver the stipulated amount of bopds, nor incur the liabilities of a stock- holder ; and that in satisfaction of the claim of the company against her, she shall deliver to the company a certain less amount of her bonds. The bonds are the price she pays in extinguishment of the company's claim against her; and the transaction cannot be regarded as a donation in any other sense than as any compromise may be, nor as a burden im- posed on her to aid in the construction of a public work. The facts, therefore, that the work is not one of local interest to the city, and that she has already subscribed to a railroad that is of local interest to her, are immaterial, and constitute no defence to the action. The remaining allegations of the answer have been dis- posed of in considering other points in the case ; but it may be added, that in our view it makes no difference as to the validity of the compromise, whether the bonds were payable in instalments or in gross, nor whether a legal assessment had been made on the capital stock of the company, for, irrespec- tive of the time when the bonds imder the Act of 1863 might become due, the company held a claim against the city, which was a proper subject of, and formed a good consideration for, a compromise. The answer of the elerk of the city and county remains to be considered. It is provided in Section 5 of the Act of 1863, authorizing the subscription of the city to the stock of the company, that upon the bonds being signed by the Pacific Railroad Loan Commissioners, they " shall be presented by the president of the Board of Supervisors to the clerk of said city and county, who shall countersign the same as such clerk, in the presence of a quorum of such board, at a meet- ing thereof," &c. ; and it is provided by ordinance Ifumber Five Hundred and Eighty-two that the bonds thereby re- quired to be issued, should be executed in all respects, except as to date, as required by the Act of 1868. 120 THE LAW OF MUNICIPAL BONDS. The relator alleges in his petition that when the bonds had been signed by the Pacific Railroad Loan Commissioners, they were, by the president of the board, at a meeting of the board, in the presence of a quorum thereof, on the seventh day of September, 1864, presented to the clerk for the purpose of being countersigned by him, in the presence of a quorum of t]*«- board, but that he did not countersign the same ; and on the twenty-seventh day of September, the relator notified him that there would be a meeting of the board on the evening of that day, and requested him to attend and complete the countersigning of the bonds, but that the clerk did not present himself and countersign or offer to countersign any of the bonds. The relator shows that at the meeting on the 27th of September, the clerk was not requested by the board to countersign the bonds, and, by resolution, directed him to deposit them with the county treasurer, subject to the order of the board, which was immediately done. The clerk denies that on the 7th of September, or at any other time or meeting of the board, he had an opportunity to countersign the bonds, or that he was ever authorized to countersign them ; and he denies that he has authority so to do without the request of the board. The bonds, from the first step in their preparation up to their delivery to the com- pany, are under the control of the board, and everything in relation to their execution is done i;nder the direction of the board. The clerk of the city and county, in proceeding to countersign them, is as completely subject to their orders as the clerk of the board is in entering in their journal the fact of countersigning, and the number, date, and amount of the bonds. It will not be contended that the clerk could have proceeded to countersign the bonds after the board directed him to deposit them with the treasurer; and it is equally clear that he had no authority to proceed, unless the board directed him to do so, or afforded him an opportunity to proceed with the countersigning in their presence. His denial raises a material issue of fact, for if his answer is true in that respect, and the motion admits it to be true, he is not in default in the performance of the duties imposed upon him by the Act, and continued by the ordinance. CALIFORNIA. 121 Our conclusion is that the answer of the board does not . state facts gulBicient to constitute a defence ; and that the answer of the clerk sets up a valid defence to the action. The point presented by the defendants, that, as the relator ia not entitled to all the relief he claims, the peremptory writ •must be denied, may be passed upon now; though, strictly speaking, the issues of fact raised by the answer of the clerk should be first disposed of upon the evidence that may be in- troduced by the parties ; but the action, so far as the clerk is concerned, cannot be disposed of under this motion, on the ground of a misjoinder of parties defendant or of causes of action, as those objections should have been taken by de- murrer, for if they exist, they are apparent upon the face of the petition. The defendant cites two cases. The People v. The Board, ^c, of Dutchess, 1 Hill, 50, and The People v. The Board, ^c., 10 Abbott's Pr., 233, to sustain the proposition "that if the relator is not entitled to what he demands in the alternative writ, his motion for a peremptory writ should be denied, though it appear that he is entitled to a portion of the relief." The doctrine of those cases is that the peremptory writ should follow the alternative writ, and that if the alter- native writ demands too much — something more than the relator is entitled to — the judgment must be for the de- fendairt; for there cannot be a judgment for the relator for a part of the relief demanded in the writ and for the defendant for the other part. To the same effect also is Tappan on Mandamus, 402, 403. Without commenting upon the dis- tinjctions that might be found between such a case, when the question is : Shall the alternative writ be made peremptory ? and a case in which the proceeding is by petition and motion for a peremptory writ, when the court would doubtless have the right to frame the writ according to the exigencies of the case, we think the point may be solved on other principles. A proceeding to procure the issuing of a writ of mandamus is a civil action. In Kendall v. United States, 12 Peters, 615, the court says :" It is an action or suit brought in a court of justice, asserting a right, and is prosecuted according to the forms of judicial proceedings." (See People v. Pansom, 2 Comst., 490; Commercial Bank v. Canal Commissioners, 10 122 THE LAW OF MUNICIPAL BONDS. Wend., 26; Tyler v. Houghton, 25 Cal., 26.) The final deter- mination of the court in the matter is a judgment, and if ren- dered in any court but the Supreme Court, an appeal lies from the judgment. The parties appear, and by their pleadings form the issues, and if of fact, they may be tried by jury, and new trials may be had. The relator may in the same action re- cover the damages he may have sustained, and execution may issue for the damages and costs. In Peopk v. Oroton Aqueduct Board, 5 Abbott's Pr., 372, it is held that the rules of the code of New York do not apply to mandamus, because Section 471 expressly excludes from their operation that class of cases. There is no such reservation in our Practice Act; and in our opinion, the general rules of that Act are applicable to man- damus, in the same manner as to an action for an injunction or of quo warranto; and whatever may be the rule when the relator, after having procured the alternative writ, moves for the peremptory writ, without procuring an alternative writ, the court, under the enlarged discretion conferred by Section 147, may grant any relief consistent with the case made by the petition, and embraced within the issues, although it may •be only a part of that demanded in the prayer of the peti- tion. We have omitted to comment on many of the cases cited by the respective counsel, for the obvious reason thatethe at- tempt to do so, in a case brought before this court, as a court of original jurisdiction, in which all the numerous points are presented that suggest themselves to the minds of able and ingenious counsel, as is usual at nisi prius trials, would involve very great labor, without any corresponding benefit. The relator is entitled to judgment for a peremptory man- damus on the pleadings against the Board of Supervisors, but not against the clerk of the city and county, and as to him the proceeding must be dismissed. Sawyer, J., and Shafler, J., concurring specially. We are not prepared to say that the individual answers of the six supervisors, alleging a willingness to perform the duties sought to be enforced, ought to be stricken out. But dis- regarding them, and conceding the answer verified by McCop- CALIFORNIA. 123 pin to be, the answer of. the board, we are satisfied that said answer does not " raise a question as to matter of fact essen- tial to the determination of the motion ; " and that complain- ants are entitled to a peremptory mandamus against the Board of Supervisors, as prayed for in the petition. Loewy, the county clerk, substantially denies that he had an opportunity to countersign the bonds; and the inference from his answer is that he is ready to countersign when a proper opportunity is given. "We think his answer raises a material question as to him ; but we do not understand that the relators propose to put in any evidence on that issue ; and taking the answer as true, Loewy is not in default. The proceeding must, therefore, be dismissed as to Loewy, and a peremptory writ of mandamus issue against the Board of Supervisors.' ' The rule in California has been uniform since the or- ganization of its judiciary, and is fully stated in the learned opinion of the Supreme Court of the State which we give below, and to which frequent reference has been made. The doctrine laid down is that the question, of the nature of any object is a matter of legislative discre- tion with which the courts will have nothing to do unless there be palpable inconsistency ; that no matter what the object may be, it is within the authority of the legislative department, unless it be so obvious an infraction of the Constitution as to be apparent at first blush. The deci- sions of the State generally are based upon this idea. In the case we give, applying the rule, a railroad is declared to be a public improvement, the majority so holding upon the merits, and the minority acquiescing tipon the ground that the question was not an open one, having been settled by a long series of carefully considered ad- judications, the number and weight of which precluded any departure from them. 124 THE LAW OP MTJNICIPAL BONDS. The Stockton and Visalia Railroad Comipany v. The Common Council of the City of Stockton. [Opinion delivered May, 1871.] "Wallace, J. — An Act was passed by the Legislature at its late session, and approved on the first day of April, 1870, which is entitled " An Act to empower the city of Stockton to aid in the construction of the Stockton and Visalia Rail- road." (Acts 1869-70, p. 551.) In substance it directs the municipal authorities of the city of Stockton to donate three hundred thousand dollars to a company who propose to build a certain railroad, having a permanent terminus in the city itself, at its water-front. Under the provisions of the Act, the bonds of the city for the entire sum are to be placed in the hands of three gentlemen named in the Act, who are thereby created a Disbursioig Board, and who are to deliver the bonds to the company in designated sums from time to time, as the work actually pro- gresses. These bonds are to bear interest annually, accruing at a fixed rate, and to pay this interest as well as to dis- charge the principal sum mentioned in the bonds, the Act directs the municipal authorities of the city to levy an annual tax in the same manner in which city taxes for gen- eral municipal purposes are collected, etc. The authorities of the city have pursued the directions given them by the Legislature, so far as to prepare and deliver the bonds to the Disbursing Board, but they now refuse to levy a tax to pay the accruing interest thereon. To compel them to do this, the present application for a mandamus is made by the railroad company. The application is resisted by the city upon a single ground — "that said Act of April 1, 1870, and all the pro- visions thereof, are and ever have been repugnant to and in violation of the Constitution of- the State of California." It is thus made apparent that the case here must turn wholly upon the question of constitutional power in the Legislature to enact the statute, and that our duty begins and ends with a consideration of the mere point of law presented. CALIPOEKIA. 125 This is so obvious, that no one will controvert it. It is so plain of itself, that no reasoning nor process of demonstra- - tion could make it clearer. But self-evident as it is, a peru- sal of the voluminous printed arguments on file here admon- ishes us that it is not so plain but that it may easily be for- gotten. Surely we are not here to pass upon the motives of tHe authors of the statute. Though " corruption may invade the halls of legislation, and the interests of the people be betrayed by their chosen representatives," and though " the Executive may prove faithless to his trust," the constitutional authority of these functionaries to enact this statute would, nevertheless, be precisely as broad and deep in its measure as though the Act in question were admitted to have found its inspiration in the wisest statesmanship and the purest public virtue. It is unavailing, therefore, that the counsel for respondents should come here to complain that "it is notorioas that the facility of influencing legislative bodies is such that the pas- sage of any measure can be secured through the usual appli- ances," for even if this be unfortunately true, it is also true that we have no authority to reform these " legislative bodies," nor to call them to account for the manner in which they may have conducted the public business intrusted to their hands. Questions, too, which regard the mere policy of the statute ^- inquiries as to whether it is itself a wise law or a foolish law — whether its anticipated operation will be to promote or to retard the true prosperity of the people, are not fit for us to consider; for these and other questions cognate to these involve the field of mere political inquiry, which it does not become us to enter, and which we cannot enter, except we overleap the barriers by which the limits of our rightful authority are plainly defined. "We have deemed it proper to say thus much in limine, in order that our purposed silence in regard to these matters, concerning which it is our duty to be silent here, may not be misconstrued or misunderstood. The c^se before us requires an examination at our hands into the authority of the Legislature to enact the statute in question. 126 THE LAW OF MUNICIPAL BONDS. The authority of the judiciary in this country to consider the extent of the legislative power in the enactment of laws was formerly denied m toto, and it will be remembered that in the early days of the Federal Constitution some of the most distinguished public men, among whom was Jefferson himself, maintained the opinion that no court had the right- ful authority to declare a statute unconstitutional which hafl received the sanction of the popular will acting through its chosen representatives. It is known, too, that an impeach- ment of a judge of a State court of the highest grade was, at a later period, instituted for an attempt upon his part to uphold this power admitted to be anomalous, and that upon his trial but a single vote was wanting to his conviction of the charge of usurpation of authoritj'^ in his office. Though the power itself is now admitted, it is, neverthe- less, conceded to be always one of the utmost delicacy in its exercise, and never to be exerted except when the conflict between the statute and the Constitution is palpable and incapable of reconciliation. To this effect, the authorities are substantially uniform. In Santo v. Tlie State of Iowa, (2 Iowa, 208,) Woodward, J., in delivering the opinion of the Supreme Court of Iowa, unanimous on this point, said : " For some time after the establishment of the State Gov- ernment, it was doubted whether the judiciary possessed authority to declare and hold an act of the Legislature unconstitutional and void, and the exercise of the power was declined by some courts. And now, although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to unless the case be clear, decisive and unavoidable." And said the Supremo Court of Indiana, (4 Ind., 344 :) " Such questions (involving the constitutionality of statutes) are always regarded by the courts as of serious importance. The judiciary look to the acts of the Legislature with great respect, and reconcile and sustain them, if possible. The Q-eneral Assembly is the immediate exponent of the popular will — expressly delegated to clothe that will with the forms of law. The presumption that such a body has sanctioned CALIFOENIA. " 127 enactments in violation of the Constitution is not to be lightly indulged. That the Act is imperfect or impolitic is not enough. These defects subsequent legislation can remove by- amendment or repeal. To bring its validity within the con- trol of the courts, it must be clearly subversive of the Consti- tution." See, also, Rice v. Foster, 4 Harrington, 479 ; Fisher v. Mc- Gier, 1 Gray, 1 ; Commonwealth v. William, 11 Penn., 61, where the Supreme Court of Pennsylvania says : " Of late years it has been much the fashion to impeach the action of the legislative bodies as unconstitutional, when it happens not to accord with the party's notion of propriety and abstract right. This is very frequently done in sheer ob- livion of the doctrine that express prohibition or necessary implication is essential to oust the State Legislature of au- thority." We think that the adjudications in this court give the cor- rect definition of the judicial power to declare a statute uncon- stitutional, as now maintained by the general current of authority. It is said (12 Cal., 384,) that it " should never be exercised unless there be a clear repugnancy between the in- ferior and the organic law." Again (17 Cal., 30) : " But the Legislative Department, rep- resenting the mass of political powers, is no further controlled, as to its powers, or the mode of their exercise, than by the restrictions of the Constitution. Such restriction must be shown, before the action of the Legislature, as to fact or mode, can be held invalid." Again (Id., 551): "But it is equally well settled that this power (to declare an Act of the Legislature unconstitutional) is not to be exerCised in doubtful cases, but that a just defer- ence for the Legislative Department enjoins upon the courts the duty to respect its will, unless the Act declaring it be clearly inconsistent with the fundamental law, which all members of the several departments of the Government are sworn to obey." The law-making power is, in its essence and nature, the supreme power in the State, and the Legislature, in its exer- cise, impersonates the aggregated sovereignty of the people themselves. 128 THE' LAW OP MUNICIPAL BONDS. Hence it results that the Legislature is politically omnipo- tent, except in those particulars in which its power has been limited, qualified, or absolutely withdrawn by the provisions of the Federal or the State Constitution. Said Chief-Justice BtACK, in speaking of this feature of our organized political system: "If the people of Pennsylvania had given all the authority which they themselves possessed to a single person, they would have created a despotism as absolute in its control over life, liberty and property as that of the Russian Autocrat. But they gave a portion of it to the United States, specifying what they gave, and withholding the rest. The power not given to the Government of the Union was bestowed on the Government of the State, with certain limitations and excep- tions expressly set down in the State Constitution. The Federal Constitution confers powers expressly enumerated ; that of the State contains a general grant of all powers ex- pressly not excepted. The construction of the former in- strument is strict, against those who claim under it; th6 in- terpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the Govern- ment itself. The Federal Government can do nothing but what is authorized expressly or by clear implication ; the State may do whatever is not prohibited." (Sharpless v. Mayor of Philadelphia, 21 Penn. St. R., 160.) These general views found early expression in this court, {JPeople V. Coleman, 4 Cal., 46 ; Thome v. San Francisco, Id., 157,) and have since been steadily maintained here. (6 Cal., 89; 13 Id., 159; 17 Id., 547; 26 Id., 183.) Whenever, therefore, it is alleged, that a statute which has been enacted in due form by the Legislative Department of the Government of this State, is, indeed, in excess of its au- thority to enact, it is necessarily the allegation of an excep- tion to the contrary of an admitted general rule ; and, there- fore, the construction is " strict against those who stand upon the exception, and liberal in favor of the Government it- self." Hence, when we are called upon to declare that there was no authority for the Legislature to enact a particular statute, it is necessary that we be pointed to the clause or clauses of CALIFOENIA. 129 one or the other, or both, of these Constitutions supposed to have taken away the power entirely, or limited it to some- thing else than the subject to which the Legislature has ap- plied it. It will not do to talk about the " spirit of the Con- stitution " as imposing a limitation upon the legislative power. A limitation ought to be something definite in itself — as definite as a sum to be subtracted from a larger one, in order to ascertain a balance. The " spirit of the Constitution " as an interdiction upon legislative power was repudiated by this court in Patterson v. Board of Supervisors of Yuba County, (13 Cal., 182,) in which Justice Daniel of the Supreme Court of the United States is mentioned as having said, that if "judges were to adopt the notion that a law might be declared unconstitutional, because of its supposed repugnance to the spirit of the Constitution, they ought to employ a rapping medium to procure authentic revelations from that spirit." The " spirit of the Constitu- tion," as a means to ascertain the powers of other depart- ments, would partake too much of the personal spirit of the individual judges, chosen for the time-being to interpret that instrument, and, chameleon-like, it would be apt to prove white or gray or red or bluish or bottle-green, as the peculiar views of those having the spirit in their keeping might im- part color to it. However it may be urged upon a court as a standard by which legislative power is to be measured in a particular case, such as that now at bar for instance, we think that even those who so urge it would hesitate long before they could be brought to inscribe it upon the Constitution itself, that the powers of each of the departments of the Gov- ernment should actually be limited by the "spirit of the Con- stitution," as from time to time declared by the courts. The rule which requires that an alleged limitation upon the powers of the State Government should appear, either by the words which the people have employed for that purpose, or by an implication necessarily flowing from those words, and without which the words themselves cannot have their natural force and fair import, is firmly established. It assumes that it was the intention of the people that their representatives should exercise all political power, 8 130 THE LAW OF MUNICIPAL BONDS. except such as tte people themselves have singled out, and have either forbidden to he exercised at all, or permitted to he exercised only upon certain conditions, and under stated circumstances. If, however, there he among the great powers of govern- ment a single one upon which, more than upon any other, we would anticipate that the intended limitation of the power would have found exact and careful expression upon the face of the Constitution itself, that one would he the power involved in the case at bar — the power of taxation ; for it is notorious, that in this country and elsewhere; — every- where that government has found an organized djxistence among men — it has, more than any other, perhaps m(pre than all other powers together, proven to he the exhaustlesis source of political disquiet and disturbance in the body politic. Its general history has been much the same in all ccbuntries where the people have aspired to he free, and have smught to obtain guarantees for the safety and the protection 6f their property against the unreasonable or irregular exactj^ons of government. / To go hack somewhat less than three hundredth's in th^ history of the countl-y from whose political pcjmty ndiany of the most important features of our own sy^em have been derived, we find an important tax controversy pending, upon the point of the power to impose taxes u|5on the people ; and the particular inquiry was, whether that power belonged to the Xing, by virtue of the royal ^prerogative, or was only to be exercised by the people themselves through their representa- tives in Parliament. , It was in 1606 that Bates' case arose, upon an information in the exchequer, in which the question was distinctly pre- sented. It was recognized as one of surpassing importance to the English people, and, in his argument against the asserted power of the Crown in that case, Mr. Yelverton gave expression to the popular view of the day, when he said : " It is not what we shall be called, or how we shall divide what we have, but whether we shall have anything oir nothing." Bates' case was determined by the court in favor of the Crown, as were other like cases which followed — among CALIFORNIA. 131 them the celebrated ease of Hampden concerning the ship money. The controversy thus waged in the courts led at last to the long and disastrous struggle which culminated in the overthrow of the Government and the establishment of the protectorate. That all taxes must be laid by the people through their representatives in Parliament has been since firmly maintained in England. At the Restoration, even, amid the general national joy at the welcome event, it was not forgotten to resolve, that to tax in any other manner than " in Parliament is against the law of the land." The House of Commons alone have authority to originate bills of supply, and the upper branch of Parliament has no power to even amend such a bill, for the House of Commons pnly is composed of the representatives of the people. In this country the Revolution, as is well known, originated in the same idea so firmly fixed on the popular mind, that taxation should be imposed on the people only through their chosen representatives. Hence, in _ organizing the Federal Government, the House of Representatives was given the sole power of originating bills for taxation, (Const. U. S., Art. 1, § 7;) and various constitutional provisions upon this partic- ular subject are to be found in the State Constitutions of some thirty-three of the States, in some of which the rule, that measures of taxation must originate only in the popular branch of the Legislature, is preserved, and in the others qualified or abrogated altogether. It would be somewhat strange, in view of this history, if it should, after all, appear that those who framed the Constitu- tions of the State Governments in this country, and especially that of the State of California, should have, through mere in- attention, failed to limit the power of taxation in every re- spect which was deemed practicable. We accordingly find in the Constitution of California, in Section 13, Article H., an important limitation, not, indeed, upon the extent of the power itself, but upon the mere mode upon which the power was to be exerted. Taxation was thereby required to operate equally and uniformly, and upon the ad valorem principle. No attempt was made to limit the ;p(ywer itself in the hands of the State Government, The convention at Monterey knew very 132 THE LAW OF MUNICIPAL BONDS. well that such an attempt would be an attempt upon the • safety of the Government which it was their purpose to estab- lish, not imperil. Taxation originates in the financial necessities of govern- ment — those necessities are in themselves illimitable by hu- man agency — the means of the supply, to be adequate, must be illimitable too. It cannot be foreseen by the framers of a Constitution, who would limit the power of taxation, what may be the necessities of the Government, at a given time, or under the pressure of attack from without, or insubordination within its borders; or what pecuniary means it may need in its possible struggle with those difficulties,which it.is the very purpose of government to meet and overcome. To assure the public safety, it therefore dictates that the State be clothed with power to command its entire material resources. Hamilton, in elaboration of this truth, says: "Money is. with propriety considered as the vital principle of the body politic ; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community vidll permit, may be re- garded as an indispensable ingredient in every Constitution. From a deficiency in this particular, one of two evils must ensue ; either the people must be subjected to continual plun- der as a substitute for a more eligible mode of supplying the public wants, or the Government must sink' into a fatal atrophy, and in a short course of time perish." (Federalist, The possible financial necessity of the Government may require all the wealth within its limits ; the extent of the actual necessity is for the Legislature to determine in all cases — this is political power. It is the power to exhaust the sub- stance of the people by a levy equal in amount of their aggre- gate wealth. Hence it was aptly said by Chief-Justice Mar- shall, more than fifty years ago, in speaking of the power of taxation, as it existed under the American Constitution in his day, that " the power to tax involves the power to destroy." '{McCuUoch V. The State of Maryland, 4 "Wheaton, 316.) In the same case the same great authority adds (p. 428) : CALIPOEKIA. 133 " The only security against the abuse of the power is found in the structure of the Government itself. In imposing a tax the Legislature acts upon its constituents. This is in- general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their Government a right of taxing themselves and their property; and as the exi- gencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislators and on the influence of the con- stituents over their representatives to guard them against its abuse." The convention at Monterey understood well that they had not hmited the power of taxation in the State Government, and they understood, too, the reason why they could not venture upon the experiment. This is seen by Section 37, Article 4, where they provide for the restricting the power of municipal corporations to impose taxes; this restriction of the power of taxation in the hands of municipal corpora- tions could be safely imposed, because the safety of the State was not supposed to be committed to the municipalities, in general charged with dutfes of a mere local and police character. That the convention would have imposed a similar or some limitation upon the taxing -power of the State, had it been considered advisalSle at that day, cannot be doubted, for they limited the public indebtedness to a fixed sum, except under peculiar and named circumstances (Article 8); and they utterly prohibited the loaning of the public credit for private purposes under any circumstances whatever (Section 10, Article 11); but they omitted, and evidently ex ivdustria, to place any limitation upon the mere power of the State to impose taxes. The principle upon which taxation is to be imposed by the State Government is pointed out by the Constitution, but the extent to which it may be carried is left unlimited, except by legislative discretion. It is to be exerted to raise money for public use. The " public use," though mentioned in the Constitution, is not mentioned with reference to the power of taxation, or in connection with any limitation upon that power contained in that instrument. 134 THE LAW OP MUNICIPAL BONDS. It is declared (Section 8, Article 10,) that private property shall not be taken for " public use," without just compensar tion. Jfo constitutional definition of the words " public use " is, however, given in that instrument. For much the same reason as that already mentioned, con- cerning limitation upon the power of taxation in the hands of the State Government, the " public use," upon which the power of eminent domain was to be exerted, seems to have been left, in large measure, to the determination of those who were clothed with its exercise, in view of possible contingen- cies with which they might be called to deal, rather than tO attempt its restriction by anticipation. " Public use," " public purpose," and " public policy," are much the same in import. "Public policy" — the policy upon which governmental affairs are conducted for the time being — is legislative policy in the main, and " public use" and " public purpose " are largely dependent upon this policy, notoriously varying in our country from time to time, with the accession to power of political parties differing from each other as to the system of measures best adapted to promote the interest of the State. The resolve of a legislative body, by which a tax is imposed, or private property taken, is there- fore necessarily a legislative determination that the public use is to be promoted by the tax or the taking directed ; and such a determination is the determination of a merely political question by the political department of the Grovernment. The Legislature, in the case before us, having determined the construction of the contemplated road from Stockton to Visalia to be a matter of public concern, and as such author- ized taxation to aid in the work, the question arises as to how far that determination is open to review in the courts. That question was answered by this court in the case of Na^a Valley EaUroad Company v. Napa County, (30 Cal., 437 :) " Railroads concern the publig interest as matter of legal judgment, and however that conclusion may be opposed to the fact in the case at bar makes no difference, the action of the Legislature on the question not being open to review by the judicial de- partment of the Government." If we could review the legislative determination upon that CALIFOENIA. 135 point at all, a question would necessarily arise as to the extent to which that review could he carried here. Could we sub- stitute our judgment upon the point for that of the Legisla- tive Department absolutely, as we sometimes substitute our judgment for that of a court from whose judgment an appeal has been prosecuted to this court ? If it was the intention that we should do so, it would seem that the law should have pointed out some mode by which we could get before us, in an authentic form, the facts and circumstances, upon which the Legislative Department proceeded in the particular case. In the absence of these facts and circumstances we would be unable to say that an error had been committed at all. A case might, indeed, be presented, in which it might appear beyond the possibility of a question that a tax had been im- posed, or the property of a citizen had been taken, for a use or purpose in no sense public ; or in the language of Chan- cellor Walwoeth, (5 Paige, 159,) " where there was no foun- dation for a pretence that the public was to be benefited thereby," and in such case it would be our duty to interfere and afford relief. But should we interfere in any other than such a case, we would but Substitute a policy of our own for the legislative policy in the conduct of the affairs of the State, and substitute our will for that of the representatives of the people. The legislative judgment may have discovered a public use and a public benefit in the encouragement of a par- ticular class of improvements in the State ; it may be a public use in the building of a bridge, a road, or a mill, and may, in that view, aid its construction by giving the public funds to- wards that end. We may be ourselves unable to see why the particular work thus selected for Government aid should be preferred to another work of equal or, perhaps, in our judg- ment, of even greater public importance, but which has, nevertheless, been wholly overlooked ; but we cannot, upon such a view, forbid the Government aid to the work selected, any more than we could direct a similar bounty to the other work, in our opinion unreasonably omitted. In Tennessee, for instance, a statute declared, at an early day, when grist- mills were probably scarce, that every grist-mill which should thereafter be built, that should at any time grind for toll, 136 THE LAW OP MUNICIPAIi BONDS. should be held and deemed, " and is hereby declared to be a public mill." It further provided that the miller should grind according to turn ; that he should grind the grain well, if water will permit; that he should take no more than one-eighth of the grain for grinding ; that he should keep a certain description of grain measures, and then follows a penalty for keeping false measures or violating the other provisions of the statute. Under this statute one Goodlett applied, in 1832, to condemn the lands of one Harding, for the purpose of erecting a grist- mill, saw-mill and paper-mill thereon. The Supreme Court of Tennessee, upon this application, said : " The grist-mill is a public mill. The miller is a public servant. He is allowed a compensation for grinding, etc It will appear from what has been said, that when an acre of land is taken from any citizen for the purpose of erecting a grist-mill, though the title be vested in another citizen, yet that vestiture is for a public use, and is wholly different from the case of taking property from one man, and giving it 'to another for his private benefit only The petitioners say they are de- sirous to build a grist-mill, saw-mill and paper-mill. For these purposes they ask to have Harding's land vested in them. The saw-mill and paper-mill will have no public character ; the erection of these mills would be wholly for the private use of these petitioners. To take Harding's land for such use would be unconstitutional." (Harding v. Goodlett, 3 Terger, 53.) The Legislature of Tennessee, in pursuance of a policy of its own, had seen fit to declare that a grist-mill, grinding for toll, was a mill for public use — therefore the court held it to be such. But the Legislature had not declared that a saw- mill or a paper-mill, however conducted, should be considered a public mill — therefore the court could not hold them to be other than private in character. This case arose and was de- cided nearly forty years ago. The court did not, at that day, undertake to announce a policy of its own, and set it up against the policy of the legislative branch of the Govern- ment. It did not argue, either, that the circumstance that the miller operated the mill for his "private profit," and received CALIFOENIA. 137 one-ejglitli of Ahe grist for grinding, necessarily made tlie mill private, and not public, in point of constitutional law ; nor did it stop to inquire whether, if a grist-mill operated in that way was, indeed, to be considered a public mill, it ought not to follow that a paper-mill or a saw-mill, working on the same terms would, also, be public. The court seems to have been of opinion that legislative policy has something to do with determining " public use " and " public purpose," and that it was just possible that Tennessee legislative policy might determine that the erection of grist-mills in that State would promote a public^ purpose there, which would not be promoted by the erection of saw-mills or paper-mills. The court thought that this was a matter for legislative determi- nation, and it accordingly upheld the authority of the Legis- lature to declare grist-mills — though grinding for the "pri- vate profit" of the miller — to be public mills; it has not been suggested, either, that at that time the grist-mill interest controlled the Legislature of the State of Tennessee or the decisions of her courts. The true rule applicable to the case at bar is, that if it is possible that the w3rk or object selected by the Legislature for aid concerns the public use, we must consider that 'it does in fact do so ; if it is possible, therefore, that the city of Stockton may have a public interest in this railroad, then the legislative action is conclusive here that the city does, in fact, have such a public interest therein. Li the Sharpless case (supra), Chief-Justice Black (speaking of the Acts under which Philadelphia aided in the construction of certain railroads) expressed this view when he said: "But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the Legislature. For us it is enough to know that the city may have a public in- terest in them, and that there is not a palpable and clear ab- sence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency — not of law — much less of constitutional law." La Connecticut, the rule by which the court interprets the legislative action in such a case was declared in Booth v. Town of Woodbury, (32 Conn. E-, 128.) The town of Woodbury was supposed to be bound to fur- 138 THE LAW OF MUNICIPAL BONDS. nish thirty-two men to serve in the Pederal army under the call of the President during the late Civil "War. The selectmen of the town, under instructions of a town meeting, proceeded to raise, on account of the town, some six thousand dollars to be applied towards hiring substitutes for such citizens of the town as might be drafted thereafter ; and the Legislature of the State subsequently ratified these proceedings by which this gratuity was given by the town. The courts say : " In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived there- from, such action of the legislative power must be of an ex- traordinary character to justify the interference of the judi- ciary ; and this is not that case. Second, if there be the least possibility that making the gift will be promotive in any de- gree of the public welfare, it becomes a question of policy .... and the determination of the Legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb or insane, or grants to particular colleges or schools, or grants of pen- sions, swords or other mementos for past services involving the general good indirectly and in slight degree, are fre- quently made, and never questioned." Upon a similar question before it, the Supreme Court of "Wisconsin expresses substantially the same views. They said: " To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public in- terest in the purposes for which funds are raised must be clear and palpable — so clear and palpable as to be percepti- ble by every mind at first blush." Broadhead v. The City of Milwaukee, 19 Wisconsin R., 652. Li Schenley v. Gty of Alleghany, (25 Penn. R., 130,) the Supreme Court of Pennsylvania says " that the exercise of the taxing-power by the Legislature must become wanton and unjust — be so grossly perverted as to lose the character of a legislative function — before the judiciary will feel themselves entitled to interpose on constitutional grounds. To arrest the legislation of a free people, especially in refer- CALIPOElSriA. 139 ence to burdens self-imposed for the common good, is to restrain the popular sovereignty, and should have clear war- rant in the letter of the fundamental law." In his work on constitutional limitations, p. 488, Judge CooLBY (claimed by the respondent to be the ablest living com- mentator upon constitutional law) says : " It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden is the Legislative Department of the State, .... and in deter- mining this question the Legislature cannot be held to any narrow or technical rule. Certain expenditures are not only absolutely necessary to the continued existence of the Gov- ernment, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude or charity. The officers of Government must be paid ; the laws printed ; roads constructed, and public buildings erected. But with a view to the general welfare of society, it may also be impor- tant that the children of the State should be educated, the poor kept from starvation, losses in the public service indem- nified, and incentives held out to the faithful and fearless dis- charge of duty in the future by the payment of pensions to those who have been faithful public servants in the past. There will therefore be necessary expenditures, and expendi- tures which rest upon considerations of policy alone, and in regard to one as much as to the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive." Again, at page 487, the same author, after* stating that taxation can be imposed for public purposes only, says: "In this, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that when the Legis- lature shall overstep the legitimate bounds of their authority the courts can interfere to arrest their action. There are many cases of unconstitutional action by the Representatives of the people which can be reached only through the ballot- box, and there are other cases where the line of distinction between that which is allowable and that which is not, is so faint and shadowy that the decision of the Legislature must 140 THE LAW OP MUNICIPAL BONDS. be accepted as final, even though the judicial opinion might- be different." Other like authorities might be cited upon this point, but we think that without them it is plain enough that when the Legislature has determined a given purpose to be a public purpose, we must so consider it unless we can see at first blush that it is not possible that it could be such. The field of legislative policy is vast in extent — it embraces in its am- ple range whatever can be supposed to promote the interest of the body politic, enhance the public revenue by increasing the values of objects to be taxed, facilitate the free interchange of commodities, or improve the social, moral or physical con- dition of the community. These and almost innumerable other and like purposes (favorably affecting, it may be, some particular individuals more directly than others, and benefit- ing particular interests or localities to a greater degree than other particular interests or localities) are supposed, in the general judgment of mankind, to be in 'some degree promo- tive of the material welfare of the State, and therefore fall within the constitutional power of the Legislature as being purposes of a public character, to be fostered and advanced in its discretion. "Within this broad range it is for the Legis- lature to select such objects as in its judgment may appear as deserving the munificence of the Government, and in so doing "the Legislature (as we have seen) cannot be held to any technical or narrow rule." It will not probably surprise any one to learn that the discretion to determine what is and what is not in this sense a public purpose is confided to the Legislature, and that in the , rests upon a fear, real or feigned, that the popular vote in a par- ticular locality is not to be trusted with the question of local taxation for the purpose of local improvement. It looks really to a line of demarcation which it would draw between the rich and poor in the same community; and it would deny to the latter the power to participate in imposing a burden to be borne in part by the wealth of the former. "When this question, for instance, first came before the Supreme Court of Iowa, in 1853, Kbnnby, J., who then dissented from the opinion of the majority of the court, said : " If this doctrine is to obtain, then it is in the power of a bare majority of voters, destitute of property, to saddle a tax upon a minority, the only property holders in the county." But the judgment of that court, as then delivered, did not yield to the argument. {Dubuque County v. Dubuque and Pacific Railroad Co., 4 Iowa E.., 1.) The court determined in that case that an Act which authorized a popular vote with a view to the imposition of local taxation for local improvements was constitutional. In 1862, however, and after the personnel of the bench had CALIFORNIA. 149 been completely changed, the question was again presented, and a similar Act was then held unconstitutional, and much upon the rich and poor idea announced by Mr. Justice Kenney in 1853. The court said in 1862 that the expressed opinions of the supreme tribunals of some fourteen or fifteen of the States had reached conclusions " not satisfac- tory to the inquiries and consciousness of the public heart ;"% and it declared that the question would continue to obtrude itself upon the courts until a decision was arrived at which " will leave the capital of private individuals .... under the control and dominion of those who have it, to be em- ployed in whatever field of industry and enterprise they themselves may judge best." [State of Iowa v. County of Wapello, 13 Iowa K, 393.) The history of the question in Iowa illustrates, too, that powers political are for the political representatives of the people, and not for the courts, to exercise ; for the authority of the Legislature in the premises, now conceded by the Su- preme Court of that State, had been repeatedly asserted by the Legislature, and as often denied by the court, for several years preceding the late decision in Stewart v. Board of Super- visors of Polk County, It is said, however, that in the case at bar the act is not "taxation" within the meaning of the Constitution, because it is " simply taking the money of one man and giving it to another," and that, therefore, it is not the raising of money to meet " the public consumption or expenditure," nor to provide " for the use of the State, nor for the use or benefit of the State Government." This proposition is based upon the alleged fact that the corporation which is to receive this money is a private and not a public corporation, and that the road itself, when built, is to be operated by the corporation for its own benefit and profit. The general power of the State Government to build such a road as this one is admitted. The authority to build it upon the basis here adopted is denied ; it is claimed that the power to construct the road cannot be exercised through the agency of the railroad corporation. It is not the power to construct, but the mode of its exercise, which is thus questioned. We 150 THE LAW OP MUNICIPAL BONDS. miglit put this objection at rest by simply repeating tbe lan- guage of Judge Baldwin, in delivering- the unanimous opinion of this court in a case already cited, (17 Cal., 30 :) " But the Legislative Department, representing the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the restriction of the Constitution." What provision of the Constitution has de- clared that the Legislature, in the prosecution of an enterprise per se of an admitted public character, shall employ no pri- vate agency, or shall take care that no private person shall derive a pecuniary profit thereby ? or in what clause is there to be found a constitutional inhibition of the " mode " here adopted ? Too much prominence in argument here has, however, been imparted to this view to justify us in thus passing it by, conclusive as we deem the answer already given. At every step in the discussion, on the part of the city, we meet the multiform proposition that " public use " and " private profit " cannot go hand in hand in the prevention of this enterprise, — that there is a fatal antagonism between the two, and that the moment that " private profit " lifts itself into view upon one side of the proposed work, " public use " must disappear from the other. In a case involving the same objection, the Supreme Court of Massachusetts said : " But it is said that this grant was made upon the petition, and for the sole benefit of an individual, and was not needed for the accommodation of the public. .It is doubtless ti'ue that the leading motive of the defendant in erecting the bridge was private profit; and so almost all other enterprises, many of which have re- sulted in great public improvements, have originated in mo- tives of private gain." To our minds, however, the policy involved is so apparent, that neither illustration nor argument can set it in a clearer light. It is exposed by a mere refer- ence to the usual and ordinary mode of conducting the public business. Government habitually moves through the agency of employees in executing its purposes, — these employees must be compensated in some way, — and here we come, unavoidably in every instance, upon the spectre of " pri- vate profit," which must, upon this view, frighten the Gov- CALIFOENIA. 151 ernment from the prosecution of any public enterprise what- ever. If an incorporated stage company, for instance, should put in a bid for carrying the mails at a fixed compensation, would any one doubt that it -was the sole purpose of the company to obtain for itself a portion of the public moneys ? Would any one attribute to it a motive of a less selfish character, or claim that a consideration of the public good had in the slightest degree actuated it in making its bid ? Surely not. But, upon the other hand, if the Government should accept the bid at the proposed price, would not its known purpose be to promote a public service of recognized importance ? Could any one claim that' its object in providing for carrying the mail was less public in its character, because the prosecution of that purpose incidentally afforded "private profit" to, the stage company? Surely not; yet the case we haye supposed has been of constant occurrence from the earliest organization of the Government in providing for the mail service. We have instanced a familiar case by way of illustration — it might be indefinitely extended into all the varied circum- stances in which the Government is to be supplied : to public printing, army stores, etc., in all which private profit is the avowed motive on the one side, and the " public service" the true object on the other. In 1831, the case of Beehnan v. Saratoga and Schenectady Mailroad Company (3 Paige, 73,) was decided by Chancellor Walwokth. .In that case it appeared that a railroad company, in constructing their road from Saratoga Springs to Schenec- tady, had seized upon certain real estate in the exercise of the power of eminent domain. There, as here, no question was made but that the State of New York might have built the proposed road herself, and might have appropriated the land in question, and applied the public moneys also for that purpose. The objection of Van Yechter, for the complainant, (whose pleasure-grounds around his country residence had been invaded,) was that the defendants are a private corpora- tion, and the road when made will be private property; it will not be for public use, but for the private use and emolu- ment of the company, etc. In fact, the argument of the 152 THE LAW OF MUNICIPAL BONDS. counsel for the complainant upon that point presented it with a force never surpassed in any case falling under our notice. The Chancellor, in deciding the case, assumed, for the pur- pose of the decision, that the company was in truth a private company in the exact sense claimed by counsel. He declares, however, that it belongs to the Legislature to determine if the public interest will in any way be promoted by the taking of private property for such a purpose. He states that it is for this principle that lands of one private individual are per- mitted to be overflowed and condemned in order that another may obtain a mill-site ; and that not only agents of the Gov- ernment, " but also individuals and corporate bodies have been authorized to take private property for the purpose of making public highways, turnpike roads and canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes," etc. In all such cases the object of the legislative grant of power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agent of the Government, or through the medium of corporate bodies, or of individual enterprise. And, according to the opinion of Chief-Justice Marshall, in the case of Wilson v. The Black- bird Greek Marsh Company, {2 Peters' K, 251,) "measures cal- culated to produce such benefits to the public, though effected through the medium of a private incorporation, are undoubt- edly within the powers reserved to the States," etc. It must be observed that the Chancellor in this case, following the view of the Chief Justice of the United States, — each of them distinguished for learning and ability, as well as for purity of character, — holds that public improvements of this nature may be effected by the State Government " through the medium of corporate bodies or of individual enterprise." But how is this power to be availed of at all, if the corpora^ tion or individual selected for the purpose is to derive no "private profit" thereby? Can such service be obtained without pecuniary compensation in some way awarded? The counsel has not suggested, in this connection, that it would be possible to find a corporation or an individual so public- spirited as to undertake an agency in effecting the proposed CALIFOENIA. 153 public improvement, without the expectation of "private profit " to accrue, nor is it believed that even in the earlier day in vsrhich the Chancellor and the Chief Justice lived private agencies of such a wholly disinterested character were to be readily found. When it is said, therefore, that the Government possesses the power to prosecute a public enter- prise through an agency private in its character, the power to compensate such an agency is at the same time necessarily conceded, for otherwise the power to make the employment would be practically incapable of execution, and a power in- capable of execution is no power at all. The power to compensate the private agency thus employed is therefore clear enough ; and if this be so, it must be ad- mitted that the measure of that compensation, and the niode in which it is to be afforded, are mere details, which will vary with the prevailing habits of the public service, the condition of the public treasury, or the mere policy which would seem to recommend one plan of making compensation as prefera- ble to another plan. Suppose, for instance, that the entire gross proceeds of the business be paid into the treasury of the State, and the " private agency," by which the road was built and is operated, is to be paid by the State a sum equal to a fixed per centum of the ascertained cost of the road with or without allowance for deterioration by use, as the case may be; or that the net profits earned by the road are to be equally divided between the State and the " private agency ; " or that the gross proceeds paid into the treasury shall be returned to the agency after certain deductions are there made ; or sup- pose that the State is to have the authority to require that sufficient means of transportation for all persons and property to be carried BtiaR be kept in readiness on the road ; that so many trains of cars of a designated character shall regularly, at stated times, pass over the road ; that the road shall be kept in repair at the expense of the corporation operating it, and without any expense to the State ; and that, as its " pri- vate profit" for rendering this service, the "private agency" by which it is performed shall receive compensation from those who use the road, at a rate not exceeding that which the State itself may from time to time prescribe. These, and 154 THE LAW OP MUNICIPAL BONDS. an infinite variety of other metHods wliic]! might be sug- gested, would be but different ways of effecting compensation for services rendered by a private agency in operating and maintaining a work of public use. Of the propriety of the mode of compensation adopted in a particular case, it is for the Legislature to judge; and we know no provision of the Constitution which is violated in the mode adopted here. The Legislative and Executive Departments of the Gov- ernment seem to have deliberately reached the conclusion that a " public use " was to be promoted by the construction and operation of a railroad, such as the Stockton and Visalia road is designed to be; and, even if in so doing they have abused or mismanaged the constitutional authority over the subject, that circumstance would afford no justification to us for the assumption of unauthorized powers for the correction of such abuses. , No amount of supposed public g^od to follow would excuse us for the usurpation of powers not belonging to the Judicial Department of the Government. "There is always some plausible reason (said Bronson, J.,) for the latitudinarian constructions which are resorted to for the purpose of ac- quiring power — some evil to be avoided, or some good to be attained by pushing the powers of government beyond their legitimate boundary. It is by yielding to such influences that Constitutions are gradually undermined and finally over- thrown. One step taken by the Legislature or the judiciary in enlarging . the powers of the Government, opens the door for another that will be sure to follow ; and so the process goes on until all respect for the fundamental law is lost, and the powers of the Government become just what those in authority choose to call them." (3 Corns., 568.) The power of the State Government to foster and regulate internal improvements is unquestionable. Should we deny to the Legislative Department the possession of this power, or should we attempt to narrow its clear constitutional scope by applying to it the uncertain measure of our own views of wise policy in the conduct of public affairs, we would, in the hope of accomplishing a temporary good, permanently mar CALIFORNIA. ' 165 the symmetry of the structure of the Government itself, so far at least as a decision of ours could he permitted to work such an unfortunate consequence to the State. Though late events have awakened the general public attention to an anxious consideration of the extent of the legislative power upon this subject, those events have not as yet fixed a new limit to the power itself, as it has heretofore existed, nor would they justify us in stepping aside from the well-beaten track . which we follow, to tread upon the new and strange paths into which some, though few, of our brethren of the bench have, we hope, but temporarily wandered. 'No propositions in the case can be affirmed with greater confidence than that, under Constitutions substantially like ours, railroads, though operated by private companies, are by mere legal conclusion for " public use ; " that the power of eminent domain, confessedly exercisable only in behalf of " public use," may therefore be exerted in behalf of rail- roads under legislative permission; that as fostering the " public use," aid may be extended to the construction of such roads by means of the power of eminent domain or of subscription to capital stock, and by donations made by cities and other political subdivisions of the State under the authority of the Legislature first given (or subsequently obtained, as was held in 1843, by the Supreme Court of Con- necticut in Oity of Bridgeport v. Housatonic Mailroad, 15 Conn. R., 475) ; and such is the purport of the judicial decisions of the highest courts of Virginia, Connecticut, Pennsylvania, Ohio, Indiana, Tennessee, Illinois, Kentucky, ISTew York, Georgia, Florida, Texas, Mississippi, Missouri and South Carolina, and other States. These decisions cover a period of little less than half a century of time ; and they embody the views of constitutional law with reference to the ques- tion before us, which were entertained by some of the most distinguished jurists who have shed lustre upon the Ameri- can bench. They are cited in the briefs, and will be found to be not the mere expression of conclusions reached upon the points involved, but, in many instances, elucidated by a learning and research absolutely exhaustive of the general principle of the law of taxation as applied to the system of government under which we live. 156 THE LAW OF MUNICIPAL BONDS. Upon authority, and upon principle as well, we think that the Act in question cannot be said, by us, to be, in any sense, unwarranted by the Constitution, or beyond the constitu- tional authority of the Legislature to enact. It is ordered that the writ of mandamus issue as prayed for. I concur. Ehobes, C. J. Crockett, J. — I concur with Justice "Wallace, in the result at which he has arrived, and 'for the most part in his reasoning ; but without attempting an elaborate investi- gation of the questions discussed by him, I propose never- theless to state, very briefly, the points which, in my opinion, are decisive of the action. First — It is established by an unbroken current of de- cisions, by many courts of the highest authority in this country, that under the right of eminent domain lands held in private ownership may be taken for the use of private railroad corporations, on making compensation therefor; and that this is a public use, in the sense of that clause of the Constitution which permits private property to be taken by virtue of the right of eminent domain. This proposition is now too firmly established by a lorfg and uniform series of decisions, to be overthrown or shaken, at this late day, except by an amendment of the Constitution; and if the taking of such lands for the use of a private railroad corpo- ration is a public use, which justifies the exercise of the right of eminent domain, on behalf of such corporations, I can perceive no reason whatever why taxation imposed to aid in the construction of the road is not for a public pur- pose. In the former case, though the land taken is devoted to the use of a private corporation, which owns and controls the road, and exclusively enjoys its emoluments, the use is nevertheless held to be public, in the sense of the Consti- tution, because one of the most important functions of gov- ernment is to provide highways for the people, by which commerce is promoted and the general prosperity increased. In the performance of this duty, it is not doubted by any one, that the State may itself construct these highways, and CALIFOEliriA. 157 defray the cost of them out of the public treasury, or by the imposition of a special tax for that purpose. I^o one ques- tions that such a tax would be for a public purpose. But, instead of itself performing the work by its agents employed and paid for that purpose, the State may avail itself of the aid, energy, and skill of private corporations, and construct highways which, in the opinion of the Legislature, will pro- mote commerce, develop the resources of the county and in- crease the general prosperity. It is on this theory only that the exercise of the right of eminent domain can be invoked or justified on behalf of private railroad corporations. In such cases the land is deemed to be taken for a publio use, only because it is the duty of the State to provide such high- ways for the people ; and it is the peculiar province of the Legislature to determine when and where such highways are necessary. From its decision on this point there can be no appeal to the courts, and the only remedy for an abuse of its powers in this respect must be found at the ballot-box, or in an amend- ment of the organic law. Assuming, therefore, that it is solely on this theory that the exercise of the right of eminent domain can be invoked on behalf of private railroad corpo- rations (a proposition which I deem to be thoroughly well established both on reason and authority), I think it follows, as a logical sequence, that the same principle which enjoins upon the Legislature the duty of providing convenient high- ways for the peoples, and in furtherance of that end justifies the exercise of the right of eminent domain in behalf of private railway corporations, must, of necessity, authorize the imposition of taxes to aid in the construction of the road. If the use of the land taken is public, the purpose of the tax is also public, and for precisely the same reason, inasmuch as they both spring from and are founded on the duty of the State to provide highways for the public convenience, and are both intended solely to promote that object. Both being designed to accomplish the same result, to wit, to promote the" construction of a highway, which the Legis- lature, in the performance of its duty, has determined to be a work of public utility, and in furtherance of the public 158 THE LAW OF MUNICIPAL BONDS. prosperity, if tlie use for which the land is taken is to be deemed a. public use, I think it is impossible to resist the conclusion that the purpose for which the tax is levied is a public purpose. In respect to the question whether the use in the one case or the purpose in the other is public or private, they stand on precisely the same footing, inasmuch as they both spring from the same public duty, and are both intended to promote the same public work of general utility. Nor does the fact that the road is to be owned and con- trolled by a private corporation, for its own emolument, any the more prove or tend to prove that the purpose of the tax is private, than the same fact would prove or tend to prove that the land was taken for a private and not for a public use, for the obvious reason that inasmuch as the ownership and control of the road is not one of the elements which enter into the question whether the use is public or private, it can have no effect, for the same reason, in determin- ing whether the purpose of, the tax is public or private. The object of the Legislature in permitting the land to be taken, is not to benefit the corporation, but to promote the construction of a highway which it deems to be a work of public utility ; and, in like manner, the purpose of the tax is not to enrich the corporation, but to secure the construc- tion of the road. If the corporation is incidentally or even directly benefited, by the use of the land and money, the Legislature has, nevertheless, performed a public duty in thus providing a highway designed to promote commerce and increase the general prosperity. On no other theory can the exercise of the right of eminent domain, in behalf of private railway corporations, be justified or defended, and a tax levied to promote the work stands on precisely the same footing. Second — If any question of constitutional construction can be said to be settled by the weight of authority, it is, that under State Constitutions almost identical, in this respect, with our own, the Legislature has thg constitutional power to authorize municipal corporations to subscribe for stock in private railroad corporations, organized to construct a road passing through or terminating mthin the. territorial CALIFOENIA. 159 limits of the municipality ; and to levy a tax to pay for such subscriptions. The decisions on this point run through a period of nearly forty years, and are not only very numer- ous, but almost uniform. I shall not attempt to review or collate these authorities; and it is sufficient, on this point, to say that the power of the Legislature, under Constitutions similar to ours in this respect, to authorize such subscription and tax, is now too firmly established, in American juris- prudence, to be either questioned or denied. In very few of the States has this power been more broadly asserted, or more persistently entertained, than by the courts of this State ; and if the rule of stare decisis is to have any weight on such a subject, the question should be considered as no longer open to debate in this court. With an un- broken line of decisions on this point, running through so long a period, and emanating from courts of the highest authority in this country, it is now too late to inquire whether the question has been settled properly or otherwise. The repose and good order of society demand that when a ques- tion of this character has been firmly settled, by a long series of judicial decisions, it should not be opened to further discussion in the courts. In such cases, if the interpretation of a clause of the Constitution by the judiciary, which has been long acquiesced in and repeatedly reaffirmed, shall be found to operate injuriously, it would be better to obviate the difficulty by an amendment of the organic law rather than to encounter the evils which invariably flow from sud- den and frequent changes in the construction by the courts of constitutional provisions. Assuming it, therefore, to be definitely settled, so far as judicial interpretation can settle such a question, that the Legislature has the constitutional power to authorize municipal corporations to subscribe for the stock of private railroad companies and to levy a 'tax for the payment of such subscriptions, it only remains to be determined whether there is any difference in principle between a tax levied to pay for a subscription to such stock and a tax raised for the purpose of donating a sum of money to aid in the construction of the road. In the case of the subscription, the validity of the tax can bp maintained. I 160 THE LAW OF MUNICIPAL BONDS. think, on no other solid ground than that already indicated, to wit, that it is the duty and within the power of the Legis- lature to provide highways for trade and travel ; and, being the sole judge of the times and places at which such high- ways are needed, it may aid their construction by means of subscription by those municipal corporations through (and possibly near) whose territorial limits the road will pass. I am aware that in such cases the validity of the tax has fre- quently been upheld, partly on other grounds, and some of the decisions in support of the taxing-power in that class of cases proceed on the theory that the tax is for a public pur- pose, because, by means of the subscription, the municipal corporation, and consequently all the people within its limits, acquire a proprietary interest in the road and its earnings, and are entitled to a voice in its management. But if the validity of the tax is to rest on this theory only, I think it could not be maintained. If the fact that the municipality is to have a proprietary interest in the enter- prise and to participate in its management is to be the sole test by which to determine whether the tax is for a public or private purpose, without reference to the nature of the enterprise, it needs no argument to prove that municipal cor- porations and their members — the people who compose them — are wholly at the mercy of the Legislature, and hold their estates only by its sufferance. If the Legislature should determine it to be necessary that a town or city should have a beet-sugar manufactory, a wholesale clothing store, a dozen iron-foundries, and several piano-forte manu- factories, and should direct the corporation to subscribe for stock in private companies, organized to accomplish these enterprises, and to levy a tax on all the people of the munici- pality to pay for the stock, it is obvious that the people might thus be compelled, against their will, to embark their estates in purely commercial enterprises, on the plea that in the opinion of the Legislature the public would derive some incidental benefits therefrom. In such a case, if the ques- tion whether the tax is for a public or private purpose is to be determined Solely by the fact that the municipal corpora- tion is to have a , proprietary interest in the contemplated CALIFOKNIA. 161 enterprise, and to participate in its management, irrespective of the public or private nature of the enterprise itself, it is obvious that under so broad a construction of the Constitu- tion all restraint would be practically removed from the power of the Legislature over the property and estates of the people. It might compel the inhabitants of towns, cities or counties, without their consent, to invest their capital in commercial enterprises of perhaps more than ^oubtful expedi- ency and with a moral certainty that the investment would prove disastrous. I think the framers of the Constitution could not have intended to confer upon the Legislature, under the taxing-power, a discretion so wholly devoid of ' restraint and so capable of gross abase. The extent of its power over municipal corporations, in respect to taxation, is not to be measured by the fact that the corporation is or is not to have a proprietary interest in the enterprise to be pro- moted by the tax, but depends on wholly different considera- tions, having no relation to that question. If the work to be accomplished be confessedly of a public nature, as contradistinguished from a private enterprise, there can be no doubt of the constitutional power of the Legisla- ture to promote its construction, by contributions from the public treasury ; or if the work be local, then by authorizing the particular municipality in which the proposed improve- ment is located, to aid it. by subscriptions of stock, to be paid for by taxation; and, as already stated, this proposition is now too firmly established to admit of debate. But it pro- ceeds on the theory that the subscription is intended, not to benefit the corporation constructing the road, nor simply as a profitable investment of the funds of the municipality, but solely for the purpose of promoting the construction of a highway for trade and travel. Though the subscription may directly benefit the railway corporation, and though the in- vestment may possibly prove profitable, these are not the primary objects of the tax, but only incidental to the main purpose, which is, to secure the constr.uctioil of the road. If it were known in advance that the stock would be utterly valueless in the market, and that the road would never pay a dollar in dividends, this would in no degree impair the 11 162 THE LAW OF MUNICIPAL, BONDS. validity of the tax, the main object of which was to secure the construction of the road as a convenience for trade and travel, to enhance the value of contiguous property, and to increase the general prosperity. This being the primary object of the tax, the benefit to the railway company and the invest- ment of the funds of the municipality in the stock are only incidents which in no wise affect the purpose of the tax, or prove it to be far a public or private purpose. The sole pur- pose of the tax being to secure the construction of the road, which is undeniably a public purpose, it is none the more so because the money raised by the tax is invested in stocks of the company, nor any the less so because the railway corpo- ration derives a benefit from the investment. iNeither of these considerations touches the question of the primary purpose for which the tax was raised, to wit, to promote the construc- tion of the road. If these views be correct, it results as a logical sequence that, if money be raised by taxation to be donated to the railway company, for the sole purpose of se- curing the construction of the road, the purpose of the tax would be none the less public than if the same result was accomplished by an investment of the money in the stock of the company. My conclusion therefore is, that the Act of the Legislature in question does not violate the Consti- tution. It cannot be denied that it is extremely difficult to define with exact precision the line which limits the constitutional power of the Legislature in authorizing the imposition of taxes by municipal corporations, to promote the construction- of local improvements by private persons or corporations ; and it is obviously a power which is capable of great abuse. That it has been frequently and grossly abused in some of the States of the Union, is attested by the enormous debts which have thus been created, and the popular discontent which has ensued. In several of the States, the evils resulting from legislation of this character had become so intolerable as to lead to amendments of their Constitutions, limiting or clearly defining the powers of the Legislature in this respect; and this is, manifestly, the only effective remedy. In a popular Government like ours, where the tenures of office are short. CALIFORNIA. 163 and clianges are constantly occurring in those wlio make and administer the laws, the only security against such abuses will be found in an amendment of the organic law. Under its existing provisions the courts are, in a great measure, power- less to remedy the evil. Speagub, J. — I concur in the order solely upon the ground that I cannot now regard the q-uestions involved in this case as open questions in this State under our Constitution as it is. This court having, by a uniform line of decisions com- mencing with Patterson v. MarysviUe, (13 Cal., 175,) sustained and sanctioned laws substantially obnoxious to the same con- stitutional objections as the statute involved in this case, the question should be considered settled. Could I regard the questions involved as original in this State, I should not hesi- tate in denying the order asked by the petitioner, notwith- standing the long array of authorities from other States to the contrary. Temple, J. — I concur in the order made in this case solely upon the ground that I regard the question as settled by the previous decisions of this Court, as well as by the almost un- broken current of authorities in other States. I differ from much of the reasoning of my associates, and if the question were new, should be inclined to agree with the respondent upon the main question discussed. To overturn the almost unbroken line of decisions now, however, would not establish a rule of decision, but would make an exception merely, in the current of authorities. It would shake the confidence of every one in the stability of judicial decisions, and would add , nothing to the force of the limitations upon legislative power. The people can readily circumscribe this power without doing violence to established precedents or destroying the confi- dence of the community in that branch of the Government which should be least influenced by popular pressure. CHAPTER VII. CONNECTICUT. The Constitution of the State of Connecticut was adopted in the year 1818, and has remained substantially unchanged, with the exception of supplementary amend- ments. No provision directly pertinent to the subject of Municipal Bonds is contained in it. The only restric- tions upon the Legislature are those of a general character such as have been before discussed (see Chapter V.) . In the case of the Oity of Bridgeport v. Housatonic Railroad Company, hereinafter given, "the eleventh section of Ar- ticle 1, which precludes the taking of private property for public purposes without just compensation, was urged as preventing the city from subscribing to the stock of a railroad company; but the court held that the section did not admit of the construction sought to be placed upon it. The fact that there are no constitutional provisions that define the power of the Legislature, would appear to be sufficient to fix the rule as it obtains in the State. It necessarily follows that the legislative opinion is of the greatest force, and that the courts, governed by common- law precedents, will only disturb it when there is no room for doubt. This view has been uniformly taken by the courts of the State upon numerous occasions. [Booth v. Town of Woodbury, 32 Conn., 128.) The earliest case that arose in Connecticut was that of the CUty of Bridgeport v. Housatonic Railroad Company, (15 Conn., 475,) which was decided in the year 1842, 184 CONNECTICUT. 165 after a most critical consideration. The early date of the case, coupled with the ability of the opinion, have made it a prominent precedent, and given to it a celebrity to which it is fairly entitled. The substance of the rulings is as follows : In March, 1837, the city of Bridgeport voted to take stock in the Housatonic Railroad Company, and to pro- cure loans of money by pledging the faith of the city therefor. In May, 1838, the Legislature confirmed and legalized the acts of the city ; and on June 15, 1838, the bonds sued on were duly issued. The court held, nemine dissentiente, 1. That the Legislature had power to give authority to municipal corporations to subscribe stock in railroads passing through or terminating within their limits ; 2. That the Legislature had power, by act or resolu- tion, to confirm and render valid, prior voidable acts of such corporations; ' 3. That the fact of a municipal corporation becoming a stockholder in a railroad, and therefore, pro tanto, going beyond the legitimate ends for which the corporation was created, is only an incident to the general power to pro- vide for the interests of the citizens of the corporation, and does not, therefore, take it out of the scope of its corporate acts ; 4. That a majority of the citizens of a municipal cor- poration can constitutionally decide upon the acts of the corpoi'ation, and compel a minority to contribute, by taxa- tion, to objects to which such minority are opposed. The opinion will, also, be found to contain much dicta of value pertinent to the points above named. 166 THE LAW OF MUNICIPAL BONDS. The City of Bridgeport v. The Soicsatonic Railroad Corrvpany. This was an action of debt on bond, brougbt originally by the Housatonic Railroad Company against the city of Bridge- port, before a justice of the peace, and appealed to the county court. In the latter court, the defendants pleaded ncn est factum; on which issue was joined, and closed to the court; and on that issue the cause was tried, at Fairfield, December Term, 1842. Bissell and Huntington, for the plaintiffs in error, remarked : That it was competent for the original defendants to deny that those, by whom the corporate seal was affixed to the bond in suit, had lawful authority to do the act, and thus to show that it is their act and deed. Stark v. Highgate Arch Co., 5 Taun., 792; Broughton et al. v. Manchester and Salford Water-works, 3 B. & Aid., 1, (5 E. C. L. 215 ;) McLoudv. Selby, 10 Conn. R., 390. The bond, upon the face of it, binds not only the corporate property of the city of Bridgeport, but also the property of every citizen thereof It also appears from the instrument, in connection with the resolution to which it refers, what was the consideration of the bond, and for what purpose it was given ; which was to aid the Housa- tonic Railroad Company in constructing a railroad from the line of the State of Massachusetts to the city of Bridgeport. See Charter, Section 1, Priv. Stat., 1025. They then con- tended : 1. That the city had no power, under its charter of incorporation, to subscribe for stock in this company, nor to pledge the credit of the city for its payment. The charter discloses the purpose for which it was incorporated, and also its powers. Priv. Stat., 854-368. The purpose was to enar- ble the city to establish a more perfect government and police, and one better adapted to its situation ; and the whole frame of the charter shows that the powers conferred were such, and such only, as were adapted to this purpose. It is a fundamental principle, that the powers of a corporation are limited by its charter ; and it has none other than those that are expressly conferred, and such as are necessarily incidental; by which last expression is meant those, and those only, that are indispensable to carry into full effect the powers expressly COUNECTICtTT. 167 granted. Angell and Ames on Corp., 139, 148, and the cases cited; Life and Fire Ins. Co. v. Mechanic Ins. Co., 7 Wend., 31 ; The New York Firemen Ins. Co. v. Sturges, 2 Cowen, 664; Idem V. Fly et al., 2 Cowen, 678 ; Idem v. Cosdem, 5 Conn. R., 560; UUca Ins. Co. v. Scott, 19 Johns. K, 1; Beatty v. Marion Ins. Co., 2 Johns. R., 109. If the power now claimed is conferred by the city of Bridgeport, by its charter, it must be found, either in the power to purchase and hold property, or in the power to levy taxes ; and in regard to both, the language of the charter is confessedly very broad. The city is author- ized to '.' purchase, hold, and convey any estate, real or per- sonal." But has the city, therefore, the power to purchase every species of property, and for every possible purpose ? Cohens v. Virginia, 6 Wheat., 264; Stetson v. Kempton, 18 Mass. R., 272 ; Willard v. Newhuryport, 13 Pick., 227 ; 7 Johns. R., 493, 502, 505 ; 20 Johns. R., 439. It is,- however, said that a railroad may be beneficial to a city ; and therefore it may aid in its construction. The argument proves too much ; and shows that a corporation may embark in any and every enterprise which may promise to promote its prosperity. The exercise of the power in question looks beyond the limits of the city, and is not necessary to carry into effect any of the objects contemplated in its charter. Such was evidently the understanding of the city; hence the application to the General Assembly. 1st. That the resolve of the General Assembly neither sanc- tions the acts of the city nor confers the powers necessary to give validity to the bond. [Here the counsel referred to the resolution in connection with the various votes o^ the city upon the subject.] 2d. That the confirming resolve is unjust, retrospective, and unconstitutional, and, therefore, void. In the first place, it is unjust in this, that it is an attempt to bind individual incorporators, by a contract, to which they never assented, and in relation to a matter in which neither they, nor the corporation, have the slightest corporate interest It compels these individuals to pledge their credit and their property in aid of a corporation with which they have no connection, and in aid of a project in which they have no confidence. 168 THE LAW OF MUNICIPAL BONDS. Secondly, the resolve is also retrospective. It is not claimed that every retrospective Act is of course void. But when- ever such Acts have received the sanction of a court of justice, it has heen on a principle that they subserve the great purpose of public justice. If manifestly unjust, or in violation of the social compact, they are invalid. Goshen v. Stonington, 4 Conn. R, 222, 3, 4, 5, 6 ; Calder ^ Ux v. Bull et al, 3 Dal., 386; Beach v. Wallcer, 6 Conn. R., 697, 698; Mather v. Chapman, 6 Conn. R., 58 ; Berlin v. New Britain, 9 Conn. R., 181; 16 Mass. R., 245. The resolve empowers the majority to tax the minority to pay for a mere experiment. It becomes a question of taxation, and involves the principle that the minority may be taxed for any purpose, however foreign to the objects of their incorporation. It is utterly op- posed to our whole system of taxation on the subject of taxa- tion. It is as dangerous as it is novel, and is calculated to encourage a spirit of reckless speculation. If this may be done in the case of a city, it may also be done in regard to all our qvxisi corporations. Thirdly, the Act in question is unconstitutional, Const. Conn., Article 1, Section 11. It virtually authorizes the taking of property, either for public or private use, without compensa- tion. And whether the taking be for the one purpose or the other, it is in direct violation of the Constitution, and also of the great principle of common rights. Is here, then, a taking of property ? It is admitted that an execution on one of these bonds may be levied on the individual property of any corporator. The form in which this is done cannot be very material. Hawley and Dutton, contra, contended, 1. That the city had, by its charter, power to subscribe. Priv. Stat, 355, Sec- tion 5. 2. That, if otherwise, the Act of the Legislature confirmed the subscription, and legalized the bonds. In the first place, a void Act may be confirmed by the Legislature. Wilkinson V. Leland et al, 2 Peters, 627, 662. Com. Dig., tit. Confirm- ation, D. Secondly, in this case, the city also ratified the Act of the Legislature. 3. That the Act was not unconstitutional. CONNECTICUT. 169 In the first place, legislative power is given to the General Assembly, by the Constitution, without any express limita- tion. Const. Conn., Article 3, Section 1. It, of course, pos- sesses all the power that any Legislature can have under . a free government. Secondly, the General Assembly possesses original, unlim- ited legislative power, except so far as it is restrained by the Constitution. Thirdly, the construction of ways is peculiarly the province of the Legislature, and has always been so considered. Fourthly, if the Legislature has general jurisdiction over the construction of ways, it has a right to exercise a discretion as to the mode of accomplishing the object. » Fifthly, the Legislature might have constructed the whole road, and assessed $150,000 on the city of Bridgeport. A fortiori, it could authorize the city to subscribe for stock. Sixthly, it is the peculiar duty of the Legislature to protect the interests of each portion of the State. If it should con- sider the construction of a railroad necessary for this purpose, it would have the right to direct it to be built, as well as to construct light-houses, beacons, &c. Seventhly, if the Legislature has a right to legislate at all on the subject, — in other words, if it has jurisdiction, — its acts will be valid, however unwise or inexpedient they may be. Eighthly, this act was apparently necessary and proper to* protect the interest of the city of Bridgeport. It was also really so. ' " Ninthly, the objection that this was taking the property of individuals . for public purposes, without compensation, is without foundation. The same objection could be made in the case of appropriations for colleges, schools, highways, &c. The city also received the same consideration that individual subscribers received. Tenthly, the suggestion that the Act compels men to sub- scribe against their will, is' equally groundless. So far as the proceeding is in invitum, it is merely compelling the citizens to contribute their proportion to a public object. Eleventhly, the city was a corporation suitable and proper to exercise the agency conferred upon it, by the Legislature, to earry its own purposes into effect. 170 THE LAW OF MUNICIPAL BONDS. Twelfthly, the assent of all persons interested is to be pre- sumed from their remaining quiet for four years, without attempting to get the law repealed. To allow them, in this way, to secure all the advantages of the law, and then repu- diate it, would be doing great injustice to the community. In support of the foregoing positions, the following author- ities were cited: Stark y. McGowen, 1 Nott & McCord, 387; Thomas V. Leland et al., 24 Wend., 65 ; Mc Masters v. The Com- monwealth, 3 Watts, 292; Livingston y. Mayor, ^c, of New York, 8 Wend., 85, 101 ; The People v, Morris, 13 Wend., 325 ; Blood- good V. Mohawk ^ Hudson JRiver JRailroad Co., 18 Wend., 9, 30 ; The People ex rel. Lynch v. Mayor, ^c., of New York, 25 Wend., 680 ; Dartmouth College v. Woodward, 4 Wheat., .518 ; Wilkinson V. Leland, 2 Peters, 627, 662, 26 Wend., 54, 8 B. & Cres., 477. Church, J. — The unusual practical importance of some of the questions involved in this case, and the zeal and ability with which they have been discussed, have demanded and received from us an investigation as deliberate and mature as the performance of other duties have enabled us to give. And the result has been, a clear opinion, that the documents offered by the original plaintiffs in the county court, were by that court properly admitted in evidence, as material upon the issue joined in the case. The action is brought to recover the interest upon a bond executed by the city of Bridgeport, with all the legal formal- ities and solemnities necessary to give validity to such an instrument. The agents of the city were duly appointed and empowered, and their signatures, with the seal of the corpo- ration, have been affixed to the bond. The defendants have pleaded the general issue of non est factum to the action ; under which plea, unembarrassed, as we think, by any matter of estoppel, they have a right to contest and deny the power of .the city to execute the bond and the coupon or certificate in suit. * ' Whether it was incumbent upon the plaintiffs, after having proved the authority of the agent, and the execution of the bond, then to prove' the right and power of the city to make the contract under consideratiori, we need not inquire ; it was CONNECTICUT. 171 certainly competent for tliem, in this preliminary stage of the investigation, to make this proof; and the evidence ob- jected to materially and directly conduced to. prove this im- portant part of the issue. There have been some questions discussed by counsel, which we halve not supposed necessarily involved in the case ; and some others, naturally enough suggesting themselves to us in the'course of the investigation, which are not presented by this record; such as, whether the original charter of the city of Bridgeport gave authority, of itself, to the city, to execute this bond, and in what manner a judgment and execution in favor of the plaintiffs may be enforced and collected. The essential questions arising here, we think, grow out of the resolution of the General Assembly of May, 1838. The most material facts necessary to a proper apprehen- sion of the case, and appearing upon the bill of exceptions, are, that as early as March 2, 1837, the city of Bridgeport, at a legal meeting,' voted that it was expedient to aid in the con- struction of the Housatonic Railroad, by subscribing $100,000 to its capital stock, and at the same time appointed an agent to make subscription. Agents were also appointed, to pro- cure funds necessary to pay the sum subscribed, by procuring loans of money, at interest not exceeding six per cent, per annum, with power to pledge the credit of the city therefor, by issuing certificates, or by. promissory notes, or by securi- ties in any other form. The agents of the city accordingly did subscribe the sum required on the books of the railroad company ; and this act was ratified and confirmed by the city, at a legal meeting, on the 25th of March, 1837. At this meeting, a further subscription of $50,000 was authorized, and the agents directed, as before, to negotiate the funds re- quired to meet it. Until this time, the city had probably be- lieved that their acts of incorporation conferred sufllcient powers to warrant its action in this matter. 'But either doubting it now, or from other precautionary motives, it, at this meeting, voted that a petition should be presented to .the Legislature for' the passage of an Act necessary to give full force and validity to its former proceedings on this sub- ject, and that such further powers might be conferred upon 172 THE LAW OF MUNICIPAL BONDS. the city as should be necessary and proper to, carry said pro- ceedings into effect. The General Assembly, accordingly, in May, 1838, granted the petition, and ratified, confirmed, estab- lished, and made obligatory on said city, and the citizens thereof, all their former proceedings, in the same manner, and to the same extent, as if all the necessary powers for that purpose had been conferred by the charter of the city; and also granted to the city full power and authority, at any legal meeting, specially warned for that purpose, to adopt such other measures as, in the opinion of such nieeting, might be necessary to carry into effect, in a manner most conducive to the interests of the city, all the former proceedings, and to provide for the payment of the subscriptions, and the issuing and negotiation of said loans, notes, certificates, or scrip, or such other securities as the city should authorize, order, or direct. This legislative Act or resolve was after- wards duly accepted and approved by the freemen of the city, in conformity with the proviso of the resolution. This city is a municipal corporation, an artificial body, capable of being invested with, and of exercising, powers of great extent; and if the powers conferred upon it by the resolution of 1838 had been created by its original Act of incorporation, we could not have doubted their efficacy, nor the legal obligation conferred by a proper exercise of them. And we have not been able, after a full consideration of the aforesaid resolution, produced, as it was, by the considerate application of the city itself, and adopted and ratified, as it has been, by the freemen of the city, at a meeting called es- pecially for its consideration, to distinguish between acts done under its sanction, and acts which might have been performed, by virtue of the same authority contained in an original charter. Under the authority^. derived from this resolution, this bond in dispute has been executed with all the legal formalities, ordinarily sufficient to charge either one individual or a corporation with the obligation of its payment. "Wherefore, then, should not the city of Bridgeport Tse adjudged liable, to pay ? Several reasons in opposition have been, with great force, urged upon us. * CONKECTICtTT. 173 1. It is claimed that aside from what is hereafter suggested as a constitutional infirmity of the resolution of 1838, it is necessarily imperative as a confirmatory Act, because, if the proceedings of the city and its agents previous to that resolve were void, as the defendants suppose, from want of authority in the city to act, they could never be rendered effectual for any purpose, by any^^act of legislation ; and we have been re- ferred, in support of this position, to the principles of the common law applicable to deeds of confirmation inter partes. Although individuals may not have power to make good oh initio that which was originally void, by subsequent deeds or acts of confirmation; yet this cannot be true of acts of sovereignty — acts of legislation not conflicting with consti- tutional right. And in giving a construction to such an act, the only question can be, what was the intention of the Legislature ? "When this is ascertained, our duty is impera- tive to give to that intention its legal effect. In the present case there exists no doubt on this point. The declared pur- pose of the city in asking legislative interference was, to give validity to its previous votes, not to perpetuate their infirmity, if such infirmity there was. To comply with the request of the city, was the object of the Legislature in passing the re- solve — not to defeat and disappoint it. The end of all con- firmatory laws, so far as they are intended to be retroactive, is to set up and give original effect to acts before void or in- operative. Such was the object and such the effect of our statute of 1820, confirming void marriages, as declared by this court in the case of Goshen v. Stonington, 4 Conn. E., 209. And such, also, for many years, has been annually true of the re- solves of the General Assembly confirming the void acts of the assessors and boards of relief in making out the tax lists of the towns ; and that this is the proper effect of such l^ws, was expressly adjudged by the Supreme Court of the United States in the case of Wilkinson v. Leland, 2 Peters, 662. 2. Again, it is said, that the resolution under consideration is retroactive, and opposed to the fundamental principles of legislation, and conflicts with natural justice; and further- more, that it is directly unconstitutional, and for these reasons void. The history of legislation and jurisprudence in this 174 THE LAW OF MUNICIPAL BONDS. country of Constitutions, both state and national, has spoken too frequently and too explicitly upon the character of retro- active laws, from the time of the decision of the^ case of Calder v. Bull, 3 Dallas, 386, to be disregarded at this day. Retrospective laws, whether they be public or private, not re- lating to crimes and punishments, but merely civil in their operation, are not void because they are retroactive. .Void they may be, to be sure ; and so may be, and so frequently are, laws of a prospective character. We concede that retro- active laws generally have many features of injustice, although intended to effect much good; but as the judiciary is not the guardian of the Legislature, but is the weaker department of the Government, possessing no veto power over acts of constitutional legislation, more properly belonging to the executive; we cannot disregard a legislative enactment, be- cause it is retroactive in its purpose and effect, whatever may be our opinion of the general policy of such laws. It belongs to us rather to settle questions of constitutional power than questions of policy. Waker v. Bacon, 8 Mass. E.., 468 ; Lock V. Bane, 9 Mass. R., 360; Foster v. Essex Bank, 16 Mass. R., 245; Goshen v. Stonington, 4 Conn. R., 209; Waterbury v. Clark, 4 Day, 198; Mather v. Chapman, 6 Conn. R., 54; Beach v. Walker, Id., 190 ; Booth v. Booth, 7 Conn. R., 350 ; Bach v. Vm Kluk, 7 Johns. R., 506. It certainly has been more than intimated — it has been declared — by judges and courts of the highest respectability and authority in this country, that retroactive and other statute provisions, which unjustly take away or impair vested rights, or impose new duties in respect to past transactions, without just compensation, are to be treated in this respect as inoperative, either by a very liberal construction of the lavfs themselves, or as being essentially opposed to the spirit of the Constitution, and the fancied social compact, although not within the letter of any constitutional prohibition. On the contrary, the names of distinguished jurists are not want^ ing, who deny to the judiciary any right to treat such laws as void. Vide authorities above cited ; also, Satterlee v. Matthew- son, 2 Peters, 280 ; Osborne v. Hager, 1 Bay, 179 ; Fletcher v. Peck, 6 Cranch, 135 ; King v. Dedham Bank, 15 Mass. R., 447; CONNECTICUT. 176 Wales V. Stetson, 2 Mass. R., 143; Society for the Propagation of the Gospel v. Wheeler, 2 Gallis, 105 ; Cochran v. Van Surlay, 20 Wend., 365; Senator Verplank's opinion; Butler v. Palmer, 1 Hill, 324 ; Charles Miver Bridge v. Warrm Bridge, 11 Peters, 420; American Jurist for October, 1833, p. 297; \Allen v. McKeen, 10 American Jurist, 273 to 297;] Judge Iredell's opinion in Colder v. Bull, 3 Dal., 398 ; Varick v. Smith, 5 Paige, Ch. R., 137. It has been intimated, from respectable sources, that the test of the vali(iity of retroactive laws is, whether they be unjust in their operation, and if they are, that they should thus far, at least, be disregarded. If such laws clearly abro- gate vested rights, — if they take the estate of one man and transfer it to another, &c., without reasonable cause, and are, therefore, palpably unjust, — we should probably so consider them, if possible, as to avoid these effects, or, in accordance with the expressed opinion of our own courts, consider them in this respect inoperative ; not, perhaps, because we might believe them in the abstract to be unjust, but rather because they stand opposed to the true spirit of the Constitution, and, therefore, are unconstitutional and void. There may not often be any great difficulty in determining what are the principles of natural justice, nor what would tend to undermine that which theorists may suppose to be the fundamental principles of the social compact, especially by those who acknowledge the precepts and obligations of re- vealed religion; yet these principles are not always of easy and undoubted application to the infinitely varied forms of human action. And we know' of no other municipal power which can more safely make such application than the Legis- lature ; and as a court, although we might dissent from its conclusions, yet we disclaim any right to disregard them, for no other reason than that we might consider them unreason- able, impolitic, or unjust. Goshen v. Stonington, 4 Conn. R., 209; 1 Bl. Com., 91, Christian's notes. In the present case, however, all these consideratirons are rather hypothetical than relevant to the essential bearing of the facts disclosed by this bill of exceptions ; for we do not perceive anything, either in the votes and proceed- 176 THE LAW OF MUNICIPAL BONDS. ings of the city of Bridgeport, or of its agents, or in tlie reso- lution of the General Assembly, so far as it is necessary to consider it, in this case, so unusual, so dangerous or unjust, as to require of us such an extreme exercise of judicial power, as for such causes, to declare them void. We know that much of the commercial prosperity of our cities and other business communities depends upon the extent and facilities of their intercourse with the interior country, as well as with distant and foreign places. To promote the intercourse, by construct- ing and improving roads, canals, bridges, harbors, wharves, &c., has been a very frequent object of the enterprise of the inhabitants of such communities; and American .cities, in their corporate capacities, have frequently given aid to such improvements without exciting alarm, or of being suspected of thus oppressing their citizens, or of invading unjustly any salutary principle of the social system. In the present instance, the city of Bridgeport, acquainted, as we presume, with its own wants and resources, and what would best pro- mote its prosperity, upon full and frequent deliberation, both before and after the resolution of 1838, decided that the construction of the Housatonic Railroad and its termination within the limits of the city "would result in great advantage to the city ; " and it was, therefore, desirous of aiding in its construction. The General Assembly of the State coincided in this opinion of the citizens of Bridgeport ; and there is nothing apparent upon this record, or elsewhere, whifth has convinced us that either the city or the Legislature was mis- taken in this matter. It should be borne in mindj that it was neither the declared nor the actual purpose of the city to deal or speculate in the stock of the railroad company, but solely to aid in the construction of what was believed to be a great public improvement, which would result in direct advantage to the city, by directing the business of the interior from other channels, and securing it to Bridgeport. A subscrip- tion to the stock was a means, and the only practicable means, of furnishing the intended aid and effecting the primary ob- jects. To subscribe for this purpose to the stock of the rail- road company was not an unusual transaction, but rather, according to the business language of the day, a fair business CONNECTICUT. 177 operation. If, therefore, the city became directly a stock- holder in a corporation, and its citizens indirectly interested in a railroad, this was only an incidental result of their efforts to give aid to the construction of the road for the interest of the city and its citizens^ The State itself is a stockholder in several banks, and so are many of our corporations, both civil, charitable, and ecclesiastical. In all this we see nothing to alarm. But it was said in argument — and herein rested a strong ground of the defendant's claim — that this resolve was unjust, and opposed to the fundamental principles of the social com- pact, and an infringement of the vested rights of the citizens of Bridgeport, because it authorized a majority of citizens to compel a minority to contribute to objects which Ihey disap- proved and opposed, and to tax them against their will for objects foreign to the original purposes of the city charter. We have no official knowledge of the existence of a minority upon any subject now in controversy, appearing either as remonstrants before the Legislature, or acting in any corpo- rate meetings of the city. But if we had, we cannot regard their complaints, under the present form of proceeding. And here we take occasion once more to remark, that our present business is, to determine whether the bond in suit is obliga- tory upon the corporation, and not whether the individual estate of the citizens may be taken to satisfy a judgment against the corporation, either by the common law of the State, or by force of the resolution we are considering. The objection we are discussing, we think not only too broad, but too late. It would lie with equal reason against every Act of the Legislature creating a public municipal cor- poration in opposition to the will of any one who could be made subject to its action. It is a fundamental principle of all our popular institutions, both sovereign and corporate, that majorities must govern, and minorities must submit, in every case where the body does not transcend its constitu- ■ tional or chartered powers. The practical effect of this prin- ciple, it is confessed, is often not only injurious to the major- ities themselves, but unjust to others ; but this consequence is only the lesser evil, and the price paid for the greater good. 12 178 THE LAW OP MUNICIPAL BONDS. If minorities exist, the acts of majorities are of necessity op- posed to what such minorities may believe to be their inter- ests and their rights. The levying and collection of taxes is always a compulsory act of the majority, and generally very ungraciously submitted to by the minority. The present ease is not unlike most others in this respect. Such of the citizens of Bridgeport as were opposed to the projects of the city, and believed they were inconsist- ent with legitimate city powers, and subversive of the rights of the minority, have had frequent opportunities of being heard, as well by the Legislature as by the courts. Minori- ties are not so merged and absorbed in the corporate body, as to have no rights and be entitled to no protection. But if there has been injustice either in the proceedings of the Legislature or the city, by holding such proceedings void, we should only transfer the bearing of the injustice from the citizens of Bridgeport, who would gladly have availed them- selves of the expected favorable result, to third persons, who have confided in the good faith of such citizens. Whether the resolution of the Legislature was void depends upon its real character, and its necessary tendency and effect, and not upon the result of an experiment. Most of the reasoning of the defendants, in this part of the case, as we have seen, is grounded upon the assumption, that this resolution is altogether retrospective, arid that it should be subjected to the common odium attached to retroactive laws. This is a mistaken construction. It is prospective also ; and sufficiently so to legalize these bonds. It is an enabling Act, and authorizes the city " to adopt such other measures as should be thought necessary to carry into effect the former proceedings of the city, and to provide for the payment of subscriptions, &c., by issuing scrip or other secu- rities, as said city should authorize, order, or direct." Under this power the corporation again acted, and, in effect, as if de novo, enacted everything which had before been done, and consummated everything necessary to be done "to secure the object contemplated by said subscription." If such power had been conferred by the original charter, and such had been the action of the city under it, as we have before re- marked, no one would have doubted its legality. CONNECTICUT. 179 "We have been referred to no express constitutional provi- sion, with Avhich the resolution under consideration is sup- posed to conflict, except it be Article 1, Section 11, of the Constitution of this State. " The property of no person shall be taken for public use, without just compensation therefor." This resolution, in conferring power upon the city of Bridge- port to make subscription to the stock of the railroad com- pany, and to issue its bonds or other scrip, and borrow money, &c., confers no power of taking private property for public use not found in the original charter. The power of taxation, which is the only one savoring of this interest, is to be found there, not here. The authority of city legislation is, to be sure, extended to new subjects; and therefore taxes maybe increased, as the objects of taxation are multiplied, and, in this way, indirectly, private property is demanded for public use ; but this does not fall within this prohibition of the Con- stitution : if it did, then all charters of incorporation confer- ring a power of taxation, would be unconstitutional. At any rate, so far as the taxing-power is given, if this is embraced in the foregoing constitutional provision, it is not a forced construction of it, to say, that the compensation secured by the Constitution is provided by the overbalancing advantages and benefits, which both the citizens of Bridgeport and the Legislature supposed would be conferred, by the construction of the railroad. 3. It remains only to consider whether the authority given by the Legislature, by the resolution of 1838, has been pur- sued, and whether the powers conferred upon the corporation have been executed by the city and its agents ? And in doing this we admit, that in this country, all corporations, whether public or private, derive their powers from legislative grant, and can do no act for which authority is not expressly given, or may not be reasonably inferred. But if we were to say, that they could do nothing for which a warrant could not be found in the language of their charters, we should deny to them, in some cases, the power of self-preservation, as well as many of the means necessary to effect the essential objects of their incorporation. And, therefore, it has long been an estab- lished principle in the law of corporations, that they may 180 THE LAW OF MUNICIPAL BONDS. exercise all the powers within the fair intent and purpose of their creation, which are reasonably proper to give eft'ect to powers expressly granted. In doing this they must have a choice of means adapted to ends, and are not to be confined to any one mode of operation. The city of Bridgeport, by its votes, directed loans to be effected, as a means of paying its subscriptions. This the Legislature authorized and approved ; and now it is claimed that by virtue of this authority, the city was not empowered to issue its bonds to the railroad company, instead of money procured by such loans. If the same object was accom- plished, by issuing the bonds, as would have, been by bor- rowing and paying the money, it would be very much like trifling with the law to hold that the legal consequences are essentially different. The railroad corporation thus became the creditor of the city, instead of some other persons, and received the bonds as cash, in payment of subscriptions. There can hardly be said, in this respect, to have been a departure from the literal terms of the city votes ; and if there had been, the present objection, coming from the city itself, after it had received the full contemplated considera- tion for its bonds, and after having carried its entire purpose into effect, by this mode of operation, ought not to receive our countenance or favor. {Bank of Northern JJberties v. Cresson, 12 Serg. & Eawle, 306 ; Buckley v. The Derby Fish- ing Co., 2 Conn. E., 254 ; Witte v. The Same, Id., 260.) 4. Very nearly of the same nature were other objections to the acts of the city agents ; such as that the subscriptions were paid in advance, and that the interest upon the bonds was made payable semi-annually. It was one of the regulations of the railroad company that the subscriptions to its stock should be paid by instalments ; but this was intended as a privilege to stockholders, which they might waive if they pleased. The city acted in further- ance of its supposed interests in issuing its bonds in full of its subscription in advance. And this act, when connected with the object of the railroad company to pay to the city semi-annual interest upon the amount of subscriptions, not payable by the general terms of the subscription, could CONNECTICUT. 181 result in no loss to the city, if such obligation should be fulfilled. It is true, the city agents were only authorized to negoti- ate loans at an interest not exceeding six per cent, per annum. They did not go beyond this power by issuing bonds at that rate of interest, payable semi-annually. The rate per cent, was prescribed by the vote, but the period for its payment was left to the discretion of the agents. They exercised this discretion prudently, and only conformed to the usual course of business of this character. It is notori- ous that all stocks, as well those of the United States, the individual States and the stocks of municipal and private corporations, are created and issued upon the same terms ; and none others could find favor in the market. Upon a careful review of the proceedings of the city of Bridgeport, and the conduct of its agents, we cannot doubt but everything has been done in reasonable, if not in literal, conformity with the powers conferred by the Legislature ; and especially that the bond in question, approved, as it has been not in substance alone, but in form also, by the freemen of the city, in a deliberate meeting, carried out the entire pur- pose, as well of the corporation as of the Legislature, and is of full and perfect obligation upon the city. Such are the most prominent reasons for the opinion we have expressed in this case, and such as have convinced us that there is nothing erroneous in the judgment of the county court ; and we shall, therefore, advise that it be reaffirmed. In this opinion the other judges concurred. Judgment affirmed.^ ' Beardsley v. Smith, 16 Conn., -368, for the sequel of this case, and the final decision ; and see Jewett v. The Thames Bank, 16 Conn., 513 ; Mast Haddam Bank v. Shatter, 20 Conn., 21: Bradley v. N. T. ^ iV. R. S. R. Co., 21 Conn., 801. * 182 the law of municipal bonds. 29th Connecticut Eepoets. Society for Savings v. The City of New London. Debt for tlie interest on thirty-one bonds of the city of New- London, the interest being certified by interest warrants ap- pended to the bonds. One of the bonds, with the interest warrant belonging to it, was as follows ; the others being like it with only a change of numbers : New London City Scrip. "United States of America, State of Connecticut, Certificate No. 38, $1000. This certifies that the Mayor, Aldermen, Common Council and Freemen of the City of New London, are indebted to the New London, Willimantic and Palmer Railroad Company, or bearer, in the princi- pal sum of one thousand dollars, payable to said company, or bearer, at the end of fifteen years from the first day of July, 1852, with interest thereon, at the rate of six per cent, per annum, payable semi-an- nually, on presentation and delivery of the annexed Q ^ interest warrants. In testimony whereof, and pur- ^5^ o suant to a two-thirds vote of the city of New London, S, ««= passed in a city meeting duly warned and held for ^ 'S that purpose, on the fourteenth day of April, 1852, ^ § I have caused this certificate to be executed in the ^ (3 name and on behalf of the Mayor, Aldermen, Com- ^ mon Council and Freemen of the said city of New § London, under their corporate seal, and to be coun- tersigned by the treasurer thereof, this thirty-first day of July, 1852. Andkbw C. Lippett, Mayor. C. Butler, City Treasurer. * Literest warrant No. 30, for thirty dollars, being half-yearly interest on Certificate No. 38, of the city of New London, State of Connecticut, payable on the first day of July, 1859, at the Union Bank in said city. $30. C. Butler, City Treasurer. CONNECTICUT. 183 The defendants pleaded the general issue, with notice of the special miatters of defence hereinafter stated. The issue was closed to the court. On the trial the following facts were proved. The bonds in question were issued by the city of New London under the authority of the following resolution of the General Assembly, passed in 1847 : " Resolved by this Assembly, that the Mayor, Aldermen, Common Councilmen and Freemen of the city of New London, be and they hereby are authorized and empowered to issue scrip or certificates of debt, in such form as they shall think proper, under their corporate name and seal, pledging the credit of said city, to such an amount, not exceeding $100,000, as shall hereafter be determined by a meeting of •said city, warned and held for the purpose, by a vote of two- thirds of the electors present and voting on said question, and the same to deliver to the ISTew London, Willimantic and Springfield Railroad Company, (taking proper security there- for,) to aid in the construction and completion of said railroad; and the said scrip and certificates of debt which shall or may be issued as aforesaid, shall be obligatory on said city and the inhabitants thereof, to all intents and purposes, and may be -enforced and collected in the same manner and to the same extent that debts lawfully contracted by towns in the State are enforced, under existing laws of the State. This resolve shall not have any force or validity in law, until the same shall have been approved by two-thirds of the electors present at a city meeting of the city of JSTew London, duly warned and held for that purpose, and a copy of said doings lodged in the office of the Secretary of this State." The New London, Willimantic and Springfield Railroad Company referred to in the resolution, was chartered by the G-eneral Assembly of this State at the same session. By its charter, it was empowered to construct a railroad from the city of New London to Willimantic, and thence to the north line of the State towards Springfield. By a resolution passed in 1848 by the General Assembly, this corporation was em- powered to unite with a corporation previously chartered by the Legislature" of Massachusetts under the name of the New 184 THE LAW OP MUNICIPAL BONDS. London, "Willimantic and Palmer Eailroad Company, and the two corporations to become one, under the name of the New London, Willimantic and Palmer Railroad Corporation. This union was soon after made by the two corporations, and was confirmed by a resolution of the General Assembly, in 1854. The bonds in question were issued after this union, and were delivered to the new company. The court found that the corporation to which the city issued the bonds was substantially the same corporation as the 'New London, "Wil- limantic and Springfield Eailroad Company described in the resolution empowering the city to issue bonds. A meeting of the freemen of the city, legally warned, was holden on the second day of March, 1850, for the purpose of acting upon the question of approving the issuing of the bonds under the authority of the resolution of the General Assembly. The vote was taken by ballot, and resulted in a vote of three hundred and forty-four in favor, and of two hundred and eighty-four against, the approval, which was less than two-thirds. At another meeting of the city holden for the purpose on the twelfth day of March, 1850, another vote was taken by ballot, which resulted in three hundred and eighty-five yeas, and three hundred and fifty-seven nays. Another meeting was holden on the tenth day of March, 1852, at which another vote was taken, which resulted in two hundred and seventy-seven yeas, and two hundred and seventy-seven nays. Another meeting was called to act again on the same subject, and holden on the fourteenth day of April, 1852, at which another vote was taken, which resulted in seven hundred and eighty-five votes in favor of issuing the bonds, and two hundred and four against it. This being more than the required two-thirds, the Mayor, who presided at the meeting, declared the resolution in favor of issuing the bonds to be adopted, and immediately thereafter a copy of the proceedings of the city meeting, properly certified, was lodged in the office of the Secretary of the State. The following votes were passed by the city at this meeting : Voted, To accept, approve, and adopt the following resolu- tion of the General Assembly of this State, passed May ses- sion, A. D. 1847, authorizing the Mayor, Aldermen, Common CONNECTICUT. 185 Council, and Treasurer of the city to issue scrip or certificates of debt, &c., viz. : [Here follows the resolution of the Gen- eral Assembly.] Voted, That as soon as may be after the doings of this meeting, accepting the foregoing resolve of the General Assembly, shall have been lodged in the office of the Secre- tary of the State, the Mayor be and hereby is authorized, empowered and directed to issue scrip or certificates of debt, payable fifteen years from date, with interest semi-annually at six per cent., in such form as shall seem to him proper, under the corporate name and seal of the city of JSTew Lon- don, signed by him, together with the city Treasurer, pledg- ing the credit of the city to the amount of $100,000 ; and the same to deliver to the N'ew London, "Willimantic and Palmer Eailroad Corporation, to aid in the completion of their road, and also in forming a connection of their road with the ]N'orwich and "Worcester Eoad in Norwich, and with the l^ew Haven and IS'ew London Railroad, in the city of 'New London, upon receiving from said corporation, as collateral security for the punctual and full payment by said corporation of the interest and principal of said scrip or cer- tificates of debt, thus delivered to them by the city, as the same shall fall due, a conveyance of all the lands, property and franchises of said railroad corporation, subject only to the prior mortgages of the same, amounting in the whole to the sum of $800,000 : provided, that said conveyance shall also contain a provision for the payment, quarterly, into the hands of trustees appointed for that purpose, of twenty-five cents for each through passenger that shall go over their road from New Haven to "Worcester or Boston, or from "Worcester or Boston to ISTew Haven, to be held by them as a sinking-fund, to be applied exclusively to the payment of the principal and interest of said city scrip as the same shall fall due, together with all incidental expenses attending the issue of said scrip ; and further, that this grant or vote is upon the express condition that said New London, Williman- tic and Palmer Eailroad Company shall make, or .cause to be made, a connection between their road and the Norwich and "Worcester Eailroad Company at Norwich, and between their 186 THE LAW OF MUNICIPAL BONDS. road and the New Haven and ISew London Railroad Com- pany at JS^ew London, by extending their road through Beach Street to the depot at the foot of the parade. Another city meeting was called and holden on the thirty- first day of July, 1852, in consequence of difficulties in the way of immediately forming the connection with the Norwich and Worcester Railroad, required by the vote of April 14, 1852, and of some doubts as to the construction of that vote in other respects, at which the following vote was unani- mously passed : Voted, "That the Mayor be and he is hereby instructed and directed to issue and deliver to the New London, Willi- mantic and Palmer Railroad Company, on receiving from said company the security called for by the vote passed at a city meeting held on the fourteenth day of April last, of the scrip or certificates of debt named in said vote to the amount of seventy-five thousand dollars, when the connection shall be made at New London, or directors of the road shall give their personal guarantee, to the satisfaction of the Mayor, that said connection shall be made within sixty days." By the resolution of the General Assembly the city was empowered to issue the bonds only for the purpose of aiding the railroad company to " construct and complete " its road. By the charter of the New London, Willimantic and Spring- field Railroad Company, the company was required to com- plete its road within four years from the granting of the charter ; which period expired in 1851. In 1851, a further period of two years was allowed by the General Assembly to the corporation as it then existed, as the New London, Willi- mantic and Palmer Railroad Corporation, for the completion of the road. The court found that in the interval no changes had taken place materially affecting the objects for which the issuing of the bonds had been authorized, and which would, in any reasonable probability, have varied the opinion of the Legislature on the subject; that the railroad was not com- pleted at the time of the issuing of the bonds; that the issu- ing of the bonds was necessary for the completion of thfe road ; and that the vote of the city directing the issuing of the bonds, was within a reasonable time after the Act of the CONNECTICTTT. 187 Legislature authorizing the city to issue them ; and that the conditions on which the bonds were to be delivered had been complied with. A statute in force at the time of the passage of the resolu- tion empowering the city to issue the bonds, provided that, " whenever anj' amendment or alteration of the charter of any corporation [should] be made, if not otherwise specially provided in the resolve making such alteration or amendment, the same [should] not become operative, unless, within six months after the passage thereof, it [should] be accepted at a meeting of said corporation legally warned for that purpose." Sundry other facts important in the case are sufficiently stated in the opinion of the court. The superior court ren- dered judgment for the plaintiffs, and the defendants moved for a new trial. The exceptions taken by the defendants and upon which the motion for a new trial was founded, will suf- ficiently appear from the opinion of the court. Ellsworth, J. — The Legislature of this State, by a resolu- tion passed in 1847, empowered the city of New London to issue scrip or certificates of debt to an amount not exceeding $100,000, to aid in the construction and completion of the road of the l^ew London, Willimantic and Springfield Rail- road Company, a corporation chartered at the same session of the Legislature. To this resolution was appended a pro- viso, that the power so given should not take effect until the resolution was approved by a two-thirds vote of the citizens, and a copy of their doings lodged in the office of the Secre- tary of the State. On the 14th of April, 1852, a meeting of the citizens waa duly warned and held, and a vote passed approving of said resolution, a copy of which proceedings was lodged in the office of the Secretary of the State. At the same meet- ing, the city voted that scrip or certificates of debt might be issued to an amount not exceeding $100,000, in such form as the Mayor should think proper. In July following, the city directed bonds to be issued to the amount of $75,000, upon certain conditions which were afterwards fulfilled. The certificates or bonds were accordingly issued, in the 188 ■ THE LAW OP MUNICIPAL BONDS. name and under the seal of the city, by the Mayor and Treas- urer, and immediately delivered to the New London, "Willi- mantic and Palmer Railroad Corporation, to aid in the con- struction of the road mentioned in the resolution. These bonds soon passed into the hands of bona _^e holders, at something more than their par value. Some were taken by individuals, and some by the batiks of this State. Those taken by the banks, at least some of them, were, during the existence of the general banking law, deposited by the banks with the Treasurer of the State, as a basis and securiiy for their circulation, in pursuance of the statute of the State. For several years the bank commissioners reported these bonds to the Legislature as so held, which reports were ap- proved and regularly published in the newspapers in New London and Hartford. The most unreserved publicity was given to all these proceedings, and no objection was ever, made by any of the citizens of New London. Further, for several years the city of New London continued to pay the coupons attached to the bonds, and these payments regularly appeared in the city Treasurer's reports. Now, if this be all there is in the case, it is most obvious that the city can make no valid defence to the suit. We propose to show, in eflfect, that this is so, certainly as to bona fde holders of the bonds, whether we examine the case upon principles of natural justice, or of law and equity. If the resolution of 1847 had not contained a proviso requiring the consent of the city before the authority given shoujd take effect, the resolution would have been in force at once, as an addition to the existing charter of the city, it being a municipal corporation. And hence, if the condi- tions of the proviso were fulfilled by the facts hereinbefore recited, as they certainly were, if they be nothing more in the case, the authority was perfected on the fourteenth day of April, 1852, the day when the city decided to make the loan of $100,000. It has been said, I know, that this accept- ance of the resolution was too long delayed ; but the court below has found that the acceptance was within a suitable time, and, under the circumstances, the delay was reasonable and proper. CONNECTICUT. 189 Whetlier lodging a copy of the acceptance with the Secre- tary, in case of affirmative action (for .otherwise it was not necessary,) was required in order that the Government might know that the city had complied with the resolution, or for some other purpose, we need not inquire. It is certain that the plaintiffs had a right to resort to the Secretary's office to learn what the city had done in making the loan ; and it may be presumed that they cautiously exercised that right, and conducted their purchase accordingly; for the bonds contain a reference, on their face, to that vote, as the authority underwhich they were issued. What, then, are the objections made to these bonds? That as to time, we have answered already ; and were we at liberty to examine that question de novo, we see not why the action of the city might not legally have been delayed as was done. The time obviously was necessarily left to their judgment; the Jjegislature intended that it should be so, we think, by leaving it undefined and general. The city were to have security before they made the loan ; but in 1847 the railroad company was scarcely organized ; the road had not even been surveyed or established ; nor, so far as appears from the papers, had anything been done to satisfy the citizens that the enterprise would be commenced, or, if com- menced, that it would be completed, or, if so, that it would result to their benefit, so as to make it worth their while to render the aid expected. Again, it is said that the citizens at first, and on two other occasions, signified their pleasure not to accept the grant, by voting in the negative, and that this objection is entirely fatal. "We think it is not so. The argument is, that the refusal at the first exhausted the power to approve, and this power was thereafter wholly extinct. The first answer we make to this is, that the city of N"ew London cannot, with propriety, make this objection. The bondholders had no knowledge of this refusal, nor were they obliged to know of it. They found a vote of approval, passed as the resolution required, lodged in the office of the Secretary of the State. They might, we think, well rely on this evidence as full authority for the bonds, and were not obliged to search 190 THE LAW OF MUNICIPAL BONDS. further in the Secretary's office for what the law did not require to be there, a certificate of the refusal of the city to issue the bonds ; nor were they obliged to search the records of the city of New London to see if there had been any prior action there; and it is not pretended they had any knowledge in fact of such a negative vote. Applying, then, to the case the settled doctrines of princi- pal and agent, or the rules of law applicable to negotiable paper, there seems to be no force in this objection. The city had apparently and really complied with all tlxe requisites prescribed in the resolution ; and it may not now urge secret and collateral objections against these bonds, when there was not at the time a single circumstance calculated to excite doubt or suspicion. Could the maker of a negotiable note under like circumstances set up such a defence ? We think not; and we do not see why the city of New London, or, if we look beyond the city to the citizens personally, why they should not be governed by the same rule of law. The proceedings of the city in issuing the bonds. were well known to all the citizens. We must consider- them as con- versant with the votes of April 14th and July 31st, and everything that was done under the votes ; the issuing the bonds in the name of the city; the delivery of them to the New London, Willimantic and Palmer Railroad Corporation for their use; the advertisement of them in the public papers ; and the fact that they were bought by honest pur- chasers, from time to time, for the ultimate benefit of the citizens themselves. They knew, too, that the bonds were taken by the Treasurer of the State as security for the issues of bank paper. If all this was without authority, why, we ask,' did not the citizens then make their objections? Why did they not enjoin the city agents from further proceedings ? At least, why did they not give notice to the public, and put purchasers on their guard, when they knew that a grievous loss must ensue if the bonds were unauthorized. We must believe that, after such acquiescence, it would be an outrage upon 'morality and justice, and an impeachment of the integrity of the citizens of New London, to allow the city to repudiate its obligations for such a cause. Many of the CONNECTICUT. 191 citizens, we well know, disapprove of and condemn such a repudiation; and we trust all of them would do so, were it a simple transaction between man and man, where the culpa- bility could not be thrown off upon a municipal corporation. But it is this very circumstance which enhances the impro- priety of the act of repudiation; for the integrity of a public body is its principal virtue. To violate or impair this, is to undermine government itself, and to destroy the very institutions of the civil state. Such repudiation can- not receive the countenance of this court of justice. Hith- erto, repudiation has not anywhere been countenanced among us ; and we trust it would not have received favor in this instance with any of the citizens of 'Hew London, had they carefully considered the consequences of this Act, and the precedent they were establishing for other and less favored communities. The general doctrine of equitable estoppel, especially as to tax-payers, is most ably discussed and approved in the cases of The State v. Van Home, 7 Ohio, S. E., 327 ; Knox County' Commissioners v. Aspinwall, 21 How- ard, 539 ; Task v. Adams, 10 Cush., 252 ; Graham v. Maddox, 6 Am. Law Eeg., 595, 618; and Gold v. Venice, 29 Barb., 442. Perhaps no one thing has done more to disparage the fair fame of our country abroad, or to impair the integrity of our institutions at home, than the loose sentiments which prevail in some parts of the land, as to public and corporate indebtedness. It seems to be thought by some people, that, as to obligations of this character, nothing more is called for from the debtor than what is agreeable, easy and convenient. Honor, honesty and punctuality are thought to be quite foreign to the subject. But this is a very great mistake, false and ruinous in the extreme. These virtues are as essen- tial to public bodies as to individuals; and the nation. State, city or municipality that does not observe and cherish them, has upon it a blight which will, in the end, destroy its best interests. It was said on the argument, that however proper it might be to compel the city of ISFew London to fulfil her engage- ments, if the city, as such, was alone effected, yet that indi- vidual citizens, tax-payers, have rights of their own, which 192 THE LAW OF MUNICIPAL BONDS. they may defend in the name of the corporate body.- But we can recognize no such independent character in the citi- zen. Besides, the city alone appears here to defend. And if the individual citizens were to be considered as appearing for themselves, they could only defend in the name and according to the rights of the city. As we have already said, if we may look through the body to notice the individuals as distinct from the corpora- tion, we must notice them as individuals throughout the proceedings upon which we have been commenting, and then we see them sitting with folded hands, silently counte- nancing the usurpation and fraud of which they are now com- plaining. "We have hitherto proceeded upon the idea that the case is one of election, an election at the first meeting of the city; as if it were the case of private property, or an election under an instrument conferring title, and have based our remarks upon the inadmissibility of such a defence in a suit by a bona fide bondholder. But we are not satisfied that this is a case of that character. In view of the object of the city in getting power to loan its credit, and the language used in the resolution granting it, we think it is not. We think it is rather the case of municipal power, to be exercised when- ever two-thirds of the voters of the city give their assent that it may be done. Let it be remembered that the power was given to the city at the same session at which the 'Eew London, Willimantic and Springfield Railroad Company was incorporated. At that time the enterprise had assumed no practical form; nothing had been done; and whether anything would be done, or whether security could be furnished by the railroad company, as required by the resolution, or what time the loan would be called for, were wholly undetermined and uncertain. Of course time and circumstances entered most essentially into the character of the grant. "We believe the Legis- lature might well have expected that the city would proceed to act upon the subject at any time whenever two-thirds of the citizens should think it expedient. It might have been found necessary, as it doubtless was, at the early meetings of CONNECTICUT. 193 the citizens, to postpone action, and hence to adjourn for a time, or indefinitely, or, which is the same thing substantially, do nothing at present; which latter course was in effect adopted. But however this may be, the language in the proviso seems to be decisive of the meaning of the Legisla- ture; it is " until " — that is, whenever, as soon as two-thirds of the voters give their approval. This construction of the resolution is not forced or unnatural, and therefore we prefer to adopt it, as best comporting with the justice of the case, and most in harmony with the views of the citizens of New London until after the situation and interests of parties had become fixed. The case of Musser v. Fairmount and Arch St. Hallway Company, 7 Am. Law Reg., 284, w.e do not consider to be applicable to this case. There, the court decided that an election was to be made within a definite period ; and, considering the subject-matter of the election and the lan- guage of the grant, we cannot say that they were wrong in the construction which they put upon that grant. They were of opinion that it required immediate action ; but that is not the case before us. It is further said, that the resolution of 1847 authorized the issuing of scrip or certificates to the New London, Williman- tic and Springfield Railroad Company; whereas these were issued to the New London, Willimantic and Palmer Railroad Corporation. The resolution does not say to whom they shall be issued, but only to whom they shall bb delivered. This is very express ; while the form of the certificate is left to the city, who have directed these bonds to be issued and deliv- ered to the New London, "Willimantic and Palmer Railroad Corporation. These corporations are found by the Superior Court to be one and the same, and that the latter road is the same as that for which the certificates were to be originally issued. It is said that this cannot be true, because it involves a legal impossibility. We think otherwise. They may be one. Such a contingency was originally anticipated, and pro- vision made for it, in the charter of the New London, Willi- mantic and Springfield Railroad Company, When finally the modification or union of the companies took place, the name of the existence of the New London, Willimantic and 13 194 THE LAW OF MUNICIPAL BONDS. Springfield Railroad Company was given to and confirmed in the combined company, and all the franchises, rights, and property of the former were transferred to and became vested in the latter ; so that the bonds were deliverable to them of right. Again, it is said that the action should have been brought in the name of the itfew London, "Willimantic and Palmer Railroad Corporation, payees in the bonds. But the bonds are made payable to bearer, and are legally negotiable. It is quite too late, after the accumulated decisions in our books of the highest authority, to urge this common-law objection as to such bonds. The bonds, as we say, were made payable to bearer, that they might be delivered to the New London, "Willimantic and Palmer Railroad Corporation to be sold. They were of course to be put into the market, and their value depended very much upon their being negotiable like a note. "Without it, they would have scarcely been market- able or valuable. It is true that, in most cases, railroad bonds are expressly authorized, in the charters of the companies, to be sold and transferred ; but when this is not expressly de- clared, it is given by implication : so that bonds of this char- acter are, at the present time, held to' be negotiable, as much as bills of exchange.- The old maxim that a chose in action cannot be assigned in law, has long since been exploded as to railroad bonds. "We refer only to a few cases in support of the proposition. Edwards on Bijls, 60 ; Knox County Ckmi- ■ missioners v. Aspinwall, 21 Howard, 539 ; Oraig v. Vickshurg, 31 Miss., 216 ; Carr v. Lefevre, 27 Penn. S. R., 413. The statute passed in 1845 is not, in our opinion, applicable to this case. Probably it does not embrace municipal corpo- rations at all. Besides, the resolution of 1847 is excluded by the exceptions in the Act of 1845. "We do not advise a new trial. CHAPTEE VIII. DELAWARE. The following is the provision in the Constitution in this State, defining the creation of corporations. There seems to be no provision, making a distinction between private and public corporations ; hence, we may infer, that the people preferred to rely upon the wisdom of the Legislature. Section 17, Article II. — No Act of incorporation, except for the renewal of existing corporations, shall be hereafter enacted without the concurrence of two-thirds of each branch of the Legislature, and with a reserved power of revocation by the Legislature ; and no Act of incorporation which may be hereafter enacted shall continue in force for a longer period than twenty years, without the re-enactment of the Legislature, unless it be an incorporation for publie improve- ment. ' The decisions of the higher courts of the State relating to the law of Municipg,l Bonds are few. The case of Hough V. The City of Wilmington, decided by Chancellor Bates in August, 1872, is the only one directly in point. And in our treatise we find it to be chiefly impor- tant as defining the discretionary power of municipali- ties, and as establishing that the action of the authori- ties of a municipal corporation, within their powers, where there is no fraud and private rights are not in- fringed, will not be inquired into by the courts, nor will the courts entertain suggestions that such action is con- trary to public policy. We give the decision of the learned Chancellor at the conclusion of this article. 196 196 THE LAW OF MUNICIPAL BONDS. Another case, that of Bice v. Foster, is often cited, where the validity of Municipal Bonds impinges upon questions growing out of the right of the Legislature to submit the question to a political division, whether they will adopt or reject, a proposition suggested by the legis- lative authorities, and on its adoption, to become a law. From these and similar decisions, the following most important question arises : By what authority may mu- nicipalities exercise the discretionary powers of legislation, and to what extent f A liiarked distinction is made between the legislative power and the rights and immunities that rest upon the grant of certain parts of that power. It is to be inferred that, while the Legislature cannot alienate or dissever the peculiar elements of force that preserve its distinguishing character as an original branch of sover- eignty, it may, nevertheless, authorize agents to exercise powers in the nature of those that mark its distinctive functions. Thus, upon the creation of a municipal cor- poration, while it can utterly destroy the corporate exist- ence of the lesser body, by withdrawing its charter, so long as it permits the latter to remain uncancelled, it permits, also, the exercise of certain necessary legislative powers. The necessary truth of these principles will be apparent upon a consideration of the true character of the Legis- lature. All original power, of every nature, being in the people, and one form of that power being exercised alone by the legislative branch, it is clear that there can be no absolute grant of it to any agent ; for the Legisla- ture is, in no fanciful sense, merely an agent of the people. But, nevertheless, it is alike the privilege and duty of the Legislature to adopt all reasonable means, within the limits of the organic law that controls it, to carry DELAWAEB, 197 out the true objects of government, and to promote the comfort and happiness of the people. And when it creates an agency, in the form of a municipal corpora- tion, it creates " a Government within a Government." It gives to the latter Government an organic law — an enumeration of principles — which is called a " charter." And, in the construction of that "charter," the same rules obtain, as in the construction of the organic law of the supreme authority. The " charter " must be taken to embrace " implied powers ; " and so long as it remains unrevoked, those "implied powers" must continue to exist. They are controlled ; only, by the terms of the charter and the supreme organic law to which every part of the governmental system must be subservient. An eminent jurist thus treats of this subject: " The objection, that the Legislature cannot constitu- tionally delegate to a local corporation the power of local legislation and taxation for local purposes, is founded upon a misconception of the nature and extent of legis- lative power granted to the legislative department, and is disproved by the practice of constitutional govern- ments everywhere." It is the legislative power of the Commonwealth, excluding the power over the Constitution itself, that is vested in the Legislature, subject only to the restriction above referred to. That power undoubt- edly includes the power of erecting local corporations, to be invested with subordinate powers, essential to the local convenience, and to the enforcement of good order and peace within the corporate territory. A special local taxation, as already intimated, follows justly and natu- rally, as the correlative of the separate association of the incorporated community for purposes essentially peculiar to itself, and in which the Commonwealth at large has only such partial and indirect interest as the whole com- munity, is supposed to have, in the prosperity and good 198 THE LAW OF MUNICIPAL BONDS. government of every part. While, therefore, the Legis- lature, as the depository of the general legislative power, may and should, in the erection and regulation of these subordinate governments, which are but instruments for conveniently carrying out the objects of the State Govern- ment, confer only such powers as are necessary for the local convenience, and limit the powers of taxation so as to prevent unnecessary and oppressive .burdens, it seems more convenient and appropriate, and more accordant with the spirit of our institutions and polity, that the power of local regulation and of taxation for local pur- poses, should be exercised by the local authorities, than by the central Government. And although it is true that , the Legislature cannot constitutionally delegate the gen- eral powers of legislation, or any portion of them, yet the power of erecting municipal corporations with powers of local regulations and taxation, being itself a part of the general legislative power, may be exercised at the discre- tion of the Legislature, without a violation of the Con- stitution or principles of the Government, ( Williamson V. Commonwealth, 4 B. Monroe, 150 ; Keasy v. City of Louisville, 4 Dana, 525 ; LexiTigton v. McQuillan's heirs, 9 Dana ; Tesh v. Commonwealth, 4 Dana, 625 ; Louisville V. Hyatt, 2 B. Monroe, 177 ; Same v. Same, 5 B. Mon- roe, 199.) ^ In many of the Constitutions of the States will be found the following or like provisions : " The corporate authorities of counties, townships, school-districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes." Some of the States limit the amount to a certain percentage of the assessment of the taxable property, while others leave it ^In Winn v. Macon, reported in externa under Chap. X., Georgia, will be found a construction affecting the power of a city to bind the public prop- erty, where it enjoyed a liberal discretion as to certain objects. DELAWAEB. 199 entirely to tlie discretion of the ' law-making power, wherever that may reside. For decisions under the provisions above quoted, see Nichols v. The Mayor et at. of Nashville, under Chap. XXIX., Tenn., also" decisions in the Chicago, Danville and Vincennes R, R. v. Frederick Smith, under Chap. XI., 111. The words corporate purpose must have a mean- ing coextensive with the relation of corporations to the sovereign government, having in view their object, and the wants and prosperity of the people. Experience, in the history of government, has de- monstrated the fact that the demands of the people can better be judged and passed upon, when they are made responsible for the demand. And as in the United States the wants and interests of different sections are entirely unlike, there is obvious wisdom in referring to the people the determination of what is, or is not, a public duty or purpose. When it becomes apparent that it is necessary for their comfort or convenience, the people of a locality demand the issue of a charter of incorporation, in which are contained such privileges, as may be necessary, for their purposes ; and the Legislature thereupon grants them the right to employ proper means to effect their objects. New duties and new responsibilities are imposed upon them, and they assume a new relation to the sovereign power, acting within prescribed limits, but at the same time with power to effectuate the purposes which have made the new relation necessary. In fact, one of the prime objects of the new relation is to give to the muni- cipal corporation the discretionary power to legislate, within the prescribed limits, upon all matters pertaining to what may in its judgment be considered to come under the definition of public purpose, public use, and public benefit. 200 THE LAW OF MUNICIPAL BOJfDS. That such legislation, is restricted, is evident ; as, the power is first intrusted by the people to the sovereign, the State, — to grant or withhold. And by reserving this grant, the incorporation is simply the agent of the State to perform more directly the objects of government. But when the discretionary power rests with the munici- pality, its authority to act, and bind all parties, is of as much force, as that of the State. A distinction must be made between an incorporated village and city and a town or county. They are each political divisions; yet, by the special charter incorpo- rating the first, a new duty is imposed, arising from the necessity of the charter, the grant of which is, as above stated, in the nature of a division of the discretionary power, of the Legislature proper. The very fact that they require and accept a special charter of incorporation is suflScient evidence that they have entered upon the per- formance of new duties ; and are required, to exercise their own discretion, with the same power that a legis- lative body does. It is not a franchise they receive by which the city may acquire property as a means of wealth, or where there are vested rights conferred. If it were so, there would be a contract, and the legislative power could not annul, Dartmouth College v. Woodruff. But the object is, to enable the people, to enjoy certain rights incident to a corporate capacity, purely of a public nature. Hence a broad distinction must be made between what is popu- larly known as a franchise and those rights which are conferred by charter upon the citizens or members of a municipal corporation. This doctrine is ably discussed by Judge Shaeswood in the case of City of Philadelphia , V. Fox. He says : " The city of Philadelphia is, beyond all question, a municipal corporation ; that is, a public corporation ere- DELAWAEB. 201 ated by the Government for political purposes, and hav- ing subordinate and local powers of legislation. It is an incorporation of persons, inhabitants, of a particular place, or connected with a particular district, enabling them to conduct its social civil government. Globe Mun. Corp. 1. It is merely a revocable agency, having no vested right to any of its powers or functions — the charter or Act of erection being in no sense a contract with the State, and therefore fully subject to the control of the Legislature, who may enlarge or diminish its ter- ritorial extent or its functions, may change or modify its internal arrangement, or destroy its very existence, with the mere breath of arbitrary discretion. Sic volo, sic jubeo — that is all the sovereign authority need say. This much is undeniable, and has not been denied. That while it thus exists in subjection to the will of the sover- eign, it enjoys the rights and is subject to the liabilities of any other corporation, public or private, is equally un- doubted. This was the very object of making it a body politic, giving it a legal entity and name, a seal by which to act in solemn form, a capacity to contract and be con- tracted with, to sue and be sued, a persona standi in ju- dicio, to hold and dispose of property, and thereby to acquire rights and incur responsibilities. These fran- chises were conferred upon it for the purpose of enabling it the better to eflfect the main design of its institution, the exercise of certain of the powers of government, subordinate to the Legislature, over a certain part of the territory of the State. But all this affects its relations to other persons, natural or artificial ; it does not touch its relations to the State, its creator. It is nothing to the purpose, then, to show that a city may act in certain par- ticulars as a private corporation — may make contracts as such, and that it cannot impair the obligation of a con- tract, entered into by it, in that capacity, because it may 202 THE LAW OP MUNICIPAL BONDS. deem it for the benefit of its citizens to do so ; and that it is not in the power of the Legislature, under the pro- visions of the Constitution, to authorize the violation of such a contract. Western Saving Fund Society v. Oity of Philadelphia, 7 Casey, 175, 185. It is equally aside from any question respecting its essential nature and sub- jection to the sovereign will, to discuss its liabilities for the acts or neglects of its officers or agents, or whether it cart rightly be made or has been made responsible for such as are not appointed or selected by itself,'but by the State, or in some special mode provided by the State. Mayor v. Baily, 2 Denio, 433 ; Prather v. Oity, 13 B. Munroe, 559 ; Alcorn v. The City, 8 Wright, 348. The sovereign may continue its corporate existence, and yet assume or resume the appointment of all its officers or agents into its own hands ; for the power which can cre- ate and destroy, can modify and change. Indeed, the Legislature of this Commonwealth, under the Constitu- tion, could not by contract invest any municipal corpora- tion with an irrevocable franchise of government over any part of its territory. It cannot alienate any part of the legislative power, which by the Constitution is vested in a General Assembly annually convened. Parker v. The Commonwealth, 6 Barr., 507. If the Legislature were to attempt to erect a municipality with a special provision that its charter should be unchangeable or ir- revocable, such provision would be a nullity ; for Acts of Parliament derogatory from the power of subsequent Parliaments bind not. Blackstone's Com., 90. " That such political institutions have not and cannot have any vested rights as against the State is strikingly illustrated and exemplified in the Borough of Dunmore's Appeal, 2 P. F. Smith, 374, where it was held by that court that municipal corporations, being creatures of leg- islation, have no constitutional guarantee of trial by jury, and such trial may be denied them." DELAWAEE. 203 The laws or ordinances, necessary for the government of a city, would be of but little use to a town or county, — neither would the laws and ordinances of one city be applicable to all. While in the city of Boston, there would be a requirement, that the snow must be kept from the sidewalk, this would be of no force in the city of New Orleans. Each portion of the country, and even of the same State, has its peculiar interests to be protected and regulated by law. Also, each State and city has its peculiar means for developing its surround- ing wealth or advantages, which are not common to all. In fact, incorporated cities receive from the sovereign, the authority vested by the people in the sovereign in trust, to be yielded up from time to time as wisdom and the purposes of the Government may dictate. It is not a delegation of the legislative power, but is a division of its responsibilities by which the incorporations are charged with more than a political duty. And yet it is reserved in the provisions of the Constitution. Hence, we may conclude that with the incorporation of villages and cities, they are vested with the power of legislatiTC bodies to create obligations, and bind the tax- paying power for their fulfilment. And the courts will not question the exercise of their discretionary power, beyond that of a legislative body proper. The same rule will apply to their discretionary power as we have laid down in Chap. III. And we may add further, that such grants, and the statutes making them, must receive a reasonable construction, and not be so construed as to defeat the intention of the Legislature and the object of the grant. In Chap. III., we have shown that what constitutes a public purpose is to be determined by the legislative power, and that in the United States, the amity that sub- sists between the different members of the Union may be 204 THE LAW OF MTJNICIPAL BONDS. made of controlling weight in the settlement of any ques- tion, it being a recognized duty to encourage every inci- dent of civilization that tends to enhance and promote the public welfare. As is above intimated, the same principle may be applied to municipal corporations. But in the organization of cities, the new duties and liabilities incurred are especially prominent. They are the centres of enterprises which are peculiar to them- selves, and which are necessary incidents of their success. To encourage such incidents and to enlarge and increase their operation and number, is a part of the manifold duties that are imposed upon the governments of all cities. It would appear to be obvious, from their being the centres of commercial and manufacturing interests, on which not only their wealth is dependent, but the prosper- ity of their citizens and of the surrounding country, that they should enjoy a liberal discretionary power, for corpo- rate purposes and for public improvement. No division of territory can be more equally benefited by the acts of the body politic, than a city. The benefit is made more uniform, in any public improvement, than it could be in a county or town ; and, for this object, the power is diffused among the members rather than concentrated in the head ; and with the growth of this view we may expect greater powers of local government entrusted to the municipal corporations scattered over the United States. None can better form a correct judgment whether an object is for public purpose or not, or whether a tax would be a benefit or a burden, when applied to public improve- ment, than the people of the village or city interested. Chancellor Kent, vol. 2, page 281, says : " It will soon be difficult to trace the numerous and complicated modifications which corporations are made to assume, and the much greater diversity of objects for which they, were created. DELAWARE. 205 " We are multiplying in this country, to an unparal- leled extent, the institutions of corporations, and giving a flexibility and variety of purpose unknown to the Ro- man or the English law." But, for the last half century, we have been met in court with the inquiry. Where is the limit of this discretionary power to end ? What is there that the legislative power may not designate as " public purpose," " public use," or " public benefit," .and impose a tax in aid thereof? These questions admit of but one answer. There is no definite limit or rule, except that which the good sense, judgment, and ability of the legislative body may prescribe ; and the only remedy is with the people. In the language of Chief- Justice Marshall, [4 Peters, 563.] " The interest, wisdom and justice of the representative body and its relations with its constituents furnish the only security against unjust and excessive taxation as well as against unwise legislation generally." The only limitation is that the legislative power shall not clearly and positively exceed the unmistakable conditions of the organic law. To assert that the law-making power will knowingly impose a burden in excess of its powers or duty, or -act. through ignorance or malice, is begging the question. -With as much propriety it might be said that it is dangejQus to have a government wherein there is legislative discretion.^ We give herewith the decision in the case of Hough v. City of Wilmington, involving the question of the discre- tionary power of city governments, in which it is held in substance that only an unmistakable violation of their charters will warrant the interference of the courts. Bates, Chancellor: * * * * One other subject remains to be examined. The complain- ant, by an amendment to Ms bill, alleges that he is a citizen 1 See also Louisiana, Chap. XVL 206 THE LAW OP MUNICIPAL BONDS. of Wilmington and a tax-payer, and in that character he seeks the injunction as a measure of protection to the public interest against the additional expense and increased taxation which may result from the action of the City Council. I waive the question raised in argument as to who are proper parties to institute legal proceedings for the correction of abuses or breaches of trust by Municipal Corporations, and will treat the case, under this branch, as properly before me. Both counsel, at the conclusion, desired that the motion be disposed of upon its merits, free from technical objections. It will only be necessary on this point to define the limit of judicial interference with the discretionary powers vested by the Legislature in Municipal Corporations or their officers. The precise hmit I take to be this : — that the courts may in- terpose so far as to protect private rights when violated or threatened by the action of these bodies, also to restrain them from the assumption of powers not granted by their charters, and further, to guard the public interests against any corrupt or fraudulent abuse of the powers granted to them. But where no private right is infringed and the City Corporation or its officers are exercising their discretion in good faith, the court will not revise the grounds of their proceedings, nor en- tertain the suggestion that their action is inexpedient for the public interest. This is a plain rule, easy of application, rea^ Bonably safe for the public without needlessly trammelling the bodies or officers in whom discretionary powers are vested ; and it is also a rule well settled by judicial authority. People V. New York, 54 Barb., 169; People v. Lowber, 7 Ab- botts R., 177; Reynolds v. Mayor of Albany, 8 Barb., 597; McLaughlin V. Kneass, 7 Phila., 634, and Wiggins v. Phila., 2 Brewster, 444. To apply the principle to this case : — The paving of streets in the city of Wilmington, together with a large body of other enumerated powers, is, by the twenty-seventh section of the City Charter, vested in the City Council. It is a dis- cretionary power, and is confided without any expressed re- striction whatever. Much argument was directed to show that the authority exercised for the paving of streets is not legislative or political, but is a trust, in the strict and proper DELAWARE. 207 sense, for the management and disposal of the property of the citizens, and is subject to the same rules which govern the ordinary responsibility of trustees. Be it so. The dis- tinction is not material to this case. Either way, whether considered as an act of legislation or as the exercise of a trust in the strictest sense, the power in question is essentially dis- cretionary. A large discretion must run through all the de- tails of its exercise, such as the devising of suitable plans for the work, the adopting of specifications and giving out of contracts, and the raising of means to pay the expenditure. The action of the Council now drawn into question is its abandoning the original specifications of macadamizing Fourth Street, rejecting the bids put in under the first call, adopting new specifications, and receiving bids under them. ^PTow, as has been just decided, this proceeding violated no right, legal or equitable, of Mr. Hough, as a bidder ; and, so far as it may concern the public interest, there is no sugges- tion of bad faith or corruption in the action of the City Council. It appears to have been an honest exercise of dis- cr,etion in. a subject-matter confided to the Council by the charter, and with which, whether it were well or ill judged for the interests of the city, the courts have no authority to interfere. Where a discretionary power conferred by charter is found to be too large, or is at any point specially liable to abuse, it is for the Legislature to provide proper limitations or checks. So far as the public welfare in these matters depends upon the personal qualifications of city officers, the remedy is in the hands of the citizens at the elections. The courts, as be- fore stated, can interpose only when necessary to protect pri- vate rights, or to restrain the assumption of powers not granted by the charter, or the fraudulent or corrupt abuse of powers granted. The motion for an injunction must be denied and the bill dismissed. As the question of delegation of legislative authority, growing out of the acts of municipalities, is often put in issue, we publish so much of the case of Foster v. Rice 208 THE LAW OF MTJUICIPAL BONDS. as relates to tlie question of what is a delegation of legis- lative power, wherein the court has made a distinction between the power of legislation and the mode of dis- charging that power. Their exhaustive reasoning has made it apparent that much of what has been claimed in argument to be a delegation of the legislative authority, arises from making no distinction between the power in- cident to government, and the power itself of the Govern- ment. As has been remarked, a municipality is a Gov- ernment within a Government, with legislative power equal to its object ; yet it is perfectly clear it could not, nor could the Legislature, empower it to pass a law crea- ting a new crime nor repeal a law that was in force. The discretion is limited wholly to its legitimate objects. For further authority on the question, see 5 Watts & Sargt., 283. UEIiAWAEB. 209 Edward L. 'Rice v. John Foster. Debt on a lease. Case stated. The Legislature of Dela^ ware by the Act of the 19th of February, 1847, entitled " An Act authorizing the people to decide by ballot whether the license to retail intoxicating liquors shall be permitted among them," In pursuance of this Act, elections were held in April, 1847 ; and certain paper-writings purporting to be the returns of said elections were filed in the court, showing a majority of votes in New Castle County against license. The present action was brought for the purpose of trying the constitutionality of this Act of Assembly. It was an action of debt on a lease from Eice to Foster, of a tavern- house in "Wilmington, at a rent of $700 per annum ; subject to a proviso that the rent should be only $500, " if, by the laws of this State, the Court of General Sessions have not at the May Term, 1847, any lawful authority to act under the law now in force." Booth, Chief Justice. — The question arising upon the statement of facts in the case submitted to the court, is whether the judges of the Court of General Sessions of the Peace and Gaol Delivery have any lawful authority to recom- mend to the Governor of the State any person or persons to keep an inn, tavern, or. public house of entertainment, for the sale of intoxicating liquors, within the county of New Castle. The questions arising on the record were submitted to the Superior Court, and were reserved, by order of that court, for hearing before all the judges. The case came up for hearing in the Court of Appeals, consisting of Johns, Jr., Chancellor, Booth, Chief Justice, and Judges Harrington, Milligan, and Hazzard, at the June Term, 1847 ; and was argued mainly on the constitutional question. The proposition that an Act of the Legislature is not uncon- stitutional unless it contravenes some express provisions of the Constitution is, in the opinion of the court, untenable. The nature and spirit of our republican form of government ; the purpose for which the Constitution was formed, which is to protect life, liberty, reputation and property, and the right 14 210 THE LAW OF MUNICIPAL BOUDS. of all men to attain objects suitable to-tbeir condition witbout injury by one to another; to secure tbe impartial administra- tion of justice ; and, generally, the peace, safety and happiness of society have established limits to the exercise of legislative power, beyond which it cannot constitutionally pass. An Act of the Legislature directly repugnant to the nature and spirit of our form of government, or destructive of any of the great ends of the Constitution, is contrary to its true intent and meaning, and can have no more obligatory force than when it opposes some express prohibition contained in that instrument. It is irrational to maintain that such an Act is a law, when it defeats the very object and intention of legis- lative power. Therefore an Act, such as that mentioned in the argument, to make a man a judge in his own cause, would not be valid ; because it never was the intention of the Con- stitution to vest such power in the Legislature, the exercise of which violates the principles of natural justice. So also is an Act void, if it palpably violates the principles and spirit of the Constitution, or tends to subvert our republican form of government. Of this character, it is contended, is the Act of the Legislature of the 19th of February, 1847. The powers of government in the United States are derived from the people, who are the origin and source of sovereign authority; the framers of the Constitution of the United States, and of the first Constitution of this State, were men of wisdom, experience, disinterested patriotism, and versed in the science of government. They had been taught by the lessons of history, that equal and indeed greater dangers re- sulted from a pure democracy than from an absolute mon- archy. Each leads to despotism. Whenever the power of making laws, which is the supreme power in a State, has been exercised directly by the people under any system of polity, and not by representation, civil liberty has been overthrown. Popular rights and universal suffrage, the favorite theme of every demagogue, afford, vrithout constitutional control or a restraining power, no security to the rights of individuals, or to the permanent peace and safety of society. Li every gov- ernment founded on popular will, the people, although in- tending to do right, are the subjects of impulse and passion, DELAWARE. 211 and have been betrayed into acts of folly, rashness and enormity by the flattery, deception and influence of dema-. gogues. A triumphant majority oppresses the minority; each contending faction, when it obtains the supremacy, tramples on the rights of the weaker ; the great aim and objects of civil government are prostrated amidst tumult, violence and anarchy; and those pretending patriots, abounding in all ages, who commence their political career as the disinterested friends of the people, terminate it by becoming their tyrants and oppressors. History attests the fact, that excesses of deeper atrocity have been committed by a vindictive promi- nent party, acting in the name of the people, than by any single despot. In modern times, the scenes of bloodshed and horror enacted by the democracy of revolutionary France, in the days of her short-lived, misnamed republic, shocked the friends of rational liberty throughout the civilized world. There, in the midst of the most refined and polished nation of Europe, the guillotine dispensed with the forms of law as unmeaning pageants ; and, under the capricious mandates of popular frenzy, running wild in the pursuit of the phantom of a false, licentious liberty, " suspicion filled their prisons, and massacre was their gaol delivery." In the Convention of 1787, which formed the Constitution of the United States, the spirit of unsubordination, and the tendency to a democracy in many parts of our country, were viewed as unfavorable auguries in regard both to the adop- tion of the Constitution and its perpetuity. The members most tenacious of republicanism, were as loud as any in de- claiming against the vices of democracy. Mr. Gerry, of Massachusetts, the friend and associate of Mr. Jeflferson, thought it " the worst of all political evils." The necessity of guarding against its tendencies, in order to attain stability and permanency in our Government, was acknowledged by all. Even the propriety of electing by an immediate vote of the people the first branch of the national legislature, was seriously questioned by some of the ablest members and warmest advocates of a republican form of government. Mr. Sherman, of Connecticut, opposed it on the ground that the people were constantly liable to be misled ; and he in- 212 THE LAW OF MUNICIPAL BONDS. Bisted that the election ought to be by the State Legislatures. Mr. Gerry remarked that " he did not like the election by the people." He said, " The evils we experience flow from the excess of democracy ; the people do not want virtue, but are the dupes of pretended patriots." Mr. Madison, although he considered " the popular election of one branch of the national legislature as essential to every plan of free govern- ment, was an advocate for the policy of refining the popular appointments by successive filtrations?' Mr. Edmund Ran- dolph, of Virginia, observed, "That the object was to provide a cure for the evils under which the United States labored ; that in tracing these evils to their origin, every man found it in the turbulence and follies of democracy ; that some check, therefore, was to be sought for against this tendency of our governments ; and that a good Senate seemed most likely to answer the purpose." In the debates on the Federal Consti- tution in the Virginia convention, Mr. Madison, always the advocate of popular rights, subject to the wholesome re- straints of law, remarked, " That turbulence, violence, and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions ; and that these in republics, more frequently than any other cause, have produced despotism." " If," he observes, " we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. If we consider the peculiar situation of the United States, and go to the sources of that diversity of sentiment which pervades its inhabitants, we shall find great danger to fear that the same causes may terminate here in the same fatal effects which they produced jn those repubUcs." To guard against these dangers fnd the evil tendencies of a democracy, our republican Government was instituted by the consent of the people. The characteristic which distinguishes it from the miscalled republics of ancient and modern times is, that none of the powers of sovereignty are exercised by the people ; but all of them by separate, co-ordinate branches of government in whom those powers are vested by the Con- stitution. These co-ordinate branches are intended to operate aa balances, checks and restraints, not only upon each other. DELAWAKE. 213 but upon the people themselves ; to guard them against their own rashness, precipitancy and misguided zeal ; and to pro- tect the minority against the unjustice of the majority. The people of the State of Delaware have vested the legis- lative power in a General Assembly, consisting of a Senate and a House of Eepresentatives ; the supreme executive powers of the State in a Governor ; and the judicial power in the several courts mentioned in the sixth article. The sovereign power, therefore, of this State, resides with the legislative, executive and judicial departments. Having thus transferred the sovereign power, the people cannot resume or exercise any portion of it. To do so would be an infraction of the Constitution, and a dissolution of the Government. Nor can they interfere with the exercise of any part of the sovereign power, except by petition, remonstrance or address. They have the power to change or alter the Constitution; but this can be done only in the mode prescribed by the instru- ment itself. The attempt to do so in any other mode is revolutionary. And although the people have the power, in conformity with its provisions, to alter the Constitution, under no circumstances can they, so long as the Constitution of the United States remains the paramount law of the land, establish a democracy, or any other than a republican form of government. It is equally clear that neither the legislative, executive, nor judicial departments, separately, nor all com- bined, can devolve on the people the exercise of any part of the sovereign power with which each is invested. The as- sumption of a power to do so would be usurpation. The department arrogating it would elevate itself above the Con- stitution, overturn the foundation on which its own authority rests, demolish the whole frame and texture of our republican* form of government, and prostrate everything to the worst species of tyranny and despotism — the ever varying will of an irresponsible multitude. The powers of government are trusts of the highest importance, on the faithful and proper exercise of which depend the welfare and happiness of society. These trusts must be exercised in strict conformity with the spirit and intention of the Constitution, by those with whom they are deposited; and in no case whatever can they be 214 THE LAW OP MrriTICIPAL BONDS. transferred or delegated to any other body or persons, not even to the whole people of the State, and still less to the people of a county. It is a plain proposition of law, that a power, or authority, vested in one or more persons to act for others, involving in its exercise judgment and discretion, is a trust and confidence reposed in the party which cannot be transferred or delegated. The making of laws is the highest act of sovereignty that can be performed in a free nation ; and therefore the legislative power may be truly said to be the supreme power of a State. Its exercise requires superior intellectual faculties, improved by study and experience; although it seems to be a common notion, with many pre- tended advocates of popular rights at the present day, that every man is instinctively fitted to be a member of the Legis- lature. If the legislative functions can be transferred or delegated to the people, so can the executive or judicial power. The absurd spectacle of a Governor referring it to a popular vote, whether a criminal, convicted of a capital offence, should be pardoned or executed, would be the subject of universal ridicule : and were a court of justice, instead of deciding a case themselves, to direct the prothonotary to enter judgment for the plaintiff or defendant, according to the popular vote of a county, the community would be dis- gusted with the folly, injustice and iniquity of the proceeding. All will admit that in such cases the people are totally in- competent to decide correctly. Equally incompetent are they to exercise with discernment and discretion, collectively, or by means of the ballot-box, the power of legislation ; because, under such circumstances, passion and prejudice incapacitate them for deliberation ; and the tricks of demagogues, excited feelings, party animosities, and the corrupting influences <«lways brought to bear upon popular elections,, would banish reason, reflection and judgment. If the delegation of the legislative power of the State to the people of a county, to make laws through the medium of a ballot-box, — involving in it an abandonment by the Legislature of the trust reposed in them, which they have sworn to execute with fidelity, — does not seem to many persons to be destructive of the Con- stitution,, and to lead to all the dangers of a democracy, DELAWARE. 215 against wMcli the founders of our Government were so anxious to guard, it can be only because it is presented under the specious appearance of a profound deference and devotion to tbe popular will ; and because its destructive ten- dencies are clouded and obscured by the incense of adulation offered to the majesty of the people. The question then arises, whether the Act of the 19th of February last transfers or delegates legislative power ? If it does, it is unconstitutional. The Legislature, at their late session, were urged by nu- merous petitions, signed by a large number of very respect- able citizens, to refer it to the people to decide whether the laws licensing the sale of. intoxicating liquors should be re- pealed. If the members of the Legislature, by the convic- tions of their own judgment, were assured that the sad evils of intemperance flowed from the existence of these laws, it was their duty to repeal them, or to introduce such modifi- cations as might destroy their batieful influence. This course was required of them, although the will of the constituents of many of the members might have been opposed to it. The doctrine of the common law is, that a member of a legislative body, although elected by a particular county or district, is bound, in the performance of his functions, to act not merely for the benefit of his own constituents, but for the whole State. The Legislature, acting with the best intentions, and fol- lowing the precedents set by the Legislatures of other States, the constitutionality of which had never been brought to the test of a legal decision,' declined the responsibility which it was their duty to assume ; and thus devolved the performance of their trust on the people of each county, in order that a majority, on whom no responsibility rested, might decide a* question which none had the authority to decide but the , Legislature. The laws licensing the sale of spirituous and vinous liquors are valid laws, and must remain in full force until repealed or modified by the regular and constitutional exercise of the legis- ' The Supreme Court of Pennsylvania, whose legislation on this subject was followed, has since decided the Pennsjlrania law to be unconstitutional. 216 THE LAW OF MUNICIPAL BONDS. lative power, by a law passed by tbe Senate and House of Rep- resentatives, in general assembly met. No sucb law has been, or was intended to be, passed by the Legislature. They pur- posely avoided it. They merely left the subject to the people of each county to decide by ballot The people of each county were to act on the subject, and not the Legislature. The license laws were to be repealed in a county, not by the will of the Legislature, but by the will of a majority of the citizens who voted in such county, although it might be against the will of the majority of the citizens of the State; by the exercise of the legislative power by the people of a county, which could not be done by the people of the State ; by a law (falsely so called) enacted and passed through the medium of ballot-boxes, and not by a law enacted by the Senate and House of Eepresentatives of the State of Dela- ware in general assembly. A law when passed by the Legislature, is a complete, posi- tive, and absolute law in itsqjf, deriving its authority from the Legislature, and not depending for the enactment of its pro- visions upon any other tribunal, body, or persons. It may be limited to expire at a certain period, or not to go into operation until a future time, or the happening of a contin- gency, or some future event, or until some condition be per- formed. Of this description are many of the laws of the General Government respecting duties and imposts, and laws of our own State respecting private corporations, which latter are not to operate until some condition be performed, or the assent of the corporators be given ; because a private incorporation is a contract between the State and the corpo- rators ; and therefore the Legislature cannot compel persons to become an incorporated body ; or, against their assent, im- pair, alter, or repeal the rights and privileges conferred by the charter. All such laws are complete and positive in themselves when they pass from the hands of the Legislature, and are not to become laws by the creative power of other persons. - But the Legislature are invested with no power to pass an Act which is not a law in itself when passed, and has no force or authority as such, and is not to*become or be a law until it shall have been created and established by the DELAWARE. 217 will and act of some other persons or body, by whose will also existing laws are to be repealed or altered and supplied. The Act of the 19th of February, 1847, is of this char- acter. In a legal sense, it is not a law ; it is npt complete and positive in itself. It is not a rule prescribed by the supreme power of the State to its citizens, enforcing some duty or pro- hibiting some act ; but was to become a rule only when en- acted or sanctioned by the popular vote of the county ; and then to be a rule prescribed not by the constitutional legisla- tive power of the State, but by the power of the majority in a county ouer the minority. Excepting the fifth section, the Act of February last in effect is in the nature of a bill pre- pared and presented by the Legislature of the State to the people of each county, to be enacted or rejected by them. It contains in substance these propositions : 1st. That the Court of General Sessions of the Peace and Gaol Delivery shall not recommend any person or persons for licenses to sell intoxi- cating liquors ; that the retailing of them shall be prohibited as a nuisance, except when sold for medicinal or sacramental purposes, or to be used in the arts; 2d. That it shall be the duty of the same court to license a competent number of persons to keep temperance houses, without the sale of intox- icating liquors; and a sufficient number of storekeepers, physicians, or apothecaries to sell spirituous and vinous liquors for medicinal and sacramental purposes, and to be used in the arts; but for no other purposes whatsoever; 3d. That every person or persons who shall sell or deliver any intoxicating liquors, except for the purposes before mentioned, shall be liable to indictment, and on conviction be fined not less than twenty, nor more than one hundred dollars. The people are called upon to decide the matter by ballot, at the usual places of holding elections. On each ballot is to be written or printed the words " License " or " No License." If there be a majority of votes for " no license," the several propositions contained in the Act are by such majority en- acted into a law, and the license laws are repealed. If a majority of votes be for "license," the propositions are rejected, and fhe license laws continue in full force. There is no substantial difference between this and the case of a bill 218 THE LAW OP MUNICIPAL BONDS. introduced into either branch of the Legislature. In the latter, the bill becomes a law by a majority of the votes of the members of each house; in the former, by a majority of the votes of the people of the county at an election. But the Act of the 19th of February delegates the legislative power of the State to be exercised by the people of each county not only in a single instance, but year after year. By the fifth section, whenever one-fourth in number of the legal voters at the last preceding election in any county shall request the Levy Court to present the question of " license " or " no license " again to the people, it becomes the duty of the Levy Cpurt to give public notice thereof; and the question is to be again decided by ballot on the next succeeding first Tuesday in April ; and so on in every year in which such written request shall be made. By the Constitution of this State, the legislative power cannot be called into action oftener than once in every two years, except by the Governor upon extraordinary occasions ; and then to be exercised only by a Senate and House of Eep- resentatives. But the fifth section of this Act, transcending the Constitution, authorizes a minority of voters in each county to call into action every year the legislative power on this subject, to be exercised by the people of such county through a ballot-box ; thus actually annulling the Constitu- tion, and subverting our form of governipent. But although such absurd and pernicious consequences are the result, the section referred to is strictly in accordance with the principle and intention of the Act itself, which proceeds on the assump- tion that, as legislative power is derived from the people, it may be transferred back to, resumed, and be exercised by them ; and that a law which they make in the exercise of such power is valid and binding. It is a legal maxim, tha* the same authority and strength which create an obligation, are required to annul or dissolve it : therefore, if such a mis- named law be valid, it cannot be suspended, changed or re- pealed except in the manner in which it was made, and by the same authority ; that is, by means of a popular election, and by a majority of the persons voting at such election. But it is argued that the Act of February last does not transfer or delegate legislative power; that the Legislature DELAWARE. 219 have the right to pass conditional laws, which are to com- mence their operation or to be void upon the happening of some future event or some contingency ; that this Act is one of that character, and does not differ in principle from several Acts of Congress, and statutes of our own State, whose validity has been affirmed by judicial decisions. By way of illustration, we are referred to the cases of The Aurora v. The United States, 7 Church, 382; 2 Peters' Cond. Eep., 540; Stewart v. Jefferson, 3 Harr. Del. Eep., 335 ; and Gfray v. The State of Delaware, 2 Harr. Del. Eep,, 76. In the first case, it appears that on the first of March, 1809, Congress passed an Act interdicting the commercial intercourse between the United States and Great Britian and France, commonly called the non-intercourse law; which, by the nineteenth section, was to continue in force until a certain period, and no longer ; that by the fourth section of the Act of Congress of the first of May, 1810, on the same subject, it was declared, in case either of those nations should revoke or modify her edicts, so that they should cease to violate the neutral com- merce of the United States, the President should declare the fact by proclamation; and if the other nation should not, within thrdfe months afterward, revoke or modify her edicts in like manner, then that certain enumerated section of the Act of the first of March, 1809, should be revived, and be in full force so far as related to such nation ; and in regard to the nation revoking or modifying her edicts, that the restric- tions imposed by the Act of the first of May, 1810, should, from the date of such proclamation, cease and be discon- tinued. The Supreme Court of the United States decided that the Legislature may make the revival of an Act depend on a future event, and direct that event to be made known by a proclamation; that there was no sufficient reason why it should not exercise its discretion in reviving the Act of March, 1809, either expressly or, cpnditionally ; and that the nineteenth section of that Act could not restrict their power of extending its operations without limitation, upon the oc- currence "of &ny subsequent combination of events. There is not the slightest resemblance between the law of Congress 220 THE LAW OF MUNICIPAL BONDS. and the Act of our Legislature. The non-intercourse law was complete and perfect in itself when it passed from the hands of its makers. The Act of May, 1810, declared it should be revived on the fiappening of a subsequent event, to be made known by the President's proclamation, which operated simply as a rule of evidence, but did not make or enact the law. Had the President been empowered to repeal existing laws and create a new law, by the exercise of his will, and to announce his decision by a proclamation, as the people of New Castle County were empowered to do by the Legislature of this State, and to have their decision an- nounced by the returns of an election, there would be an analogy between the two cases. Were it possible to suppose such an absurdity on the part of Congress, their Act would have been declared void, which thus undertook to transfer the legislative power exclusively to the President, and to ab- rogate the Constitution. In the case of Stewart v. Jefferson^ the Court of Errors and Appeals of this State held that the supplement to the Act for the establishment of free schools, authorizing a tax to be laid in each district by a majority of the school-voters in such district, was a constitutional law. It is argued that the power of taxation is legislative power ; that this power is delegated by the school law to the voters in each school-district, authorizing them to raise taxes for the support of their schools; and that the operation of the law, so far as it regards the tax, depends on the popular vote of the district. By the law of this State for establishing and supporting free schools, each school-district is constituted a corporation with limited powers ; the clear income of the school-f and is apportioned among the several counties ; the share of each county is divided among the several school-districts of such county, and an equal portion given to each as a donation ; provided the voters in such district raise by subscription or tax, in any one year, a sum equal to one-half of such district's share of the school-fund. (Vol. 8, Del. Laws, 21.) But no tax can be levied or assessed in any school-district, unless upon a vote by ballot there shall be a majority of votes for the tax. (Vol. 8, Del. Laws, 171.) DBLAWAEB. 221 In the distribution of the school-fund, the Legislature had the right to appropriate an equal portion to each school-dis- trict, as a donation; and to prescribe as a condition, that before it should be paid a certaiif sum should be raised in the district, either by voluntary subscription or by a tax, as should be determined upon by the corporators themselves. N^o power is granted to them or to any other persons, to re- peal or change any part of the law ; nor does its existence or operation depend on the performance of the condition, or, in any manner, upon the will or acts of the corporators. If the condition be not performed, the defaulting district loses its portion of the fund, which, after a certain' period, is appro- priated to the support of free schools in the other districts. K'o ingenuity can discover the shadow of similitude between the Act of the 19th of February, 1847, and any part of the school law. To say that the authority given to the school- voters — to members of a corporation — ^to determine whether a tax shall be laid or not is a grant of legislative power, is an abuse of language. Legislative power is the power of making laws. The making of a law prescribing by what persons or by what body, when, and in what manner, taxes shall be laid and collected, is the exercise of legislative power. But the making of a resolution or order, or the determina^ tion or direction, by the persons or body appointed for such purpose by the law, that taxes shall be laid and collected, is simply the execution of an authority granted by statute. The collection of them is the performance of a mere minis- terial duty. The imposition of taxes, therefore, by managers of marsh companies and other incorporated bodies, and by the Levy Court of a county, is the execution of an authority granted by the statute which appointed them aa the proper persons or body to carry its provisions into effect ; and is not the exercise, in any sense, of the term legislative power. The granting of an Act of incorporation is the exercise of legislative power To make ordinances for its own govern- ment, subject to the control of the Legislature, and not incon- sistent with the Constitution and laws of the State or of the 222 THE LAW OF MUNICIPAL BONDS. United States, is one of tlie rights inseparably incident to every corporation aggregate. This is implied by law from the very Act of incorporation itself, although the charter may be silent on the subject. tVith what show of reason, then, can it be said that the power, whether expressed in the char- ter or not, to make ordinances for the management of the local concerns of the corporation, and the government of its members, is a transfer or delegation of the legislative power of the State ? or that it is anything else than the execution of an authority or trust expressly or impliedly conferred by the Act of incorporation — an Act which is a complete law in itself, and not in the power of the corporation, or of any body or set of men, to change, alter, or abrogate, except the Legis- lature ; and deriving all its power and efficiency from that source and no other. The city of Wilmington is a municipal corporation, invested by the express terms of its charter with power to make ordinances, subject to the control of the Legislature, for its own local purposes and the government of the city, which can affect none but those who come within its jurisdiction, or who have assented to them by themselves or their representatives. An ordinance, then, is but a law of the city. The making of it is the exercise only of the law-making power of the city, and the authority to make it cannot be a delegation of the legislative power of the State. The Judges all concurring that this judgment be rendered, by the Superior Court, for the plaintiff. Harrington, J., concurring. Doubtless, the Legislature may pass conditional laws ; but there are many conditions that would make such laws im- proper. A law opening a road, on condition that the owner of the land over which it passes will give it for that purpose; *a law for building a bridge, on condition that individuals vidll contribute to the cost in certain proportions; a law, altering, abridging, or enlarging the vested powers of corpo- rations, aggregate, subject to the consent of suchcoj-porations; or a law giving to school-districts a portion of the school- fund, on condition that such districts will raise an equivalent BELAWAEB. 223 or proportional sum, — are all instances of proper conditional legislation ; even though the assent of the corporators in the one case to the change of their charter, or of the district in the other to accept the donation, and comply with its terms, should be signified by a majority vote. These are all good conditions, capable of being performed without in any way interfering with the legislative will. But a law declaring an ofl^'ence, or providing a punishment, or repealing an existing law, on condition that the Governor, or any other individual, shall assent to it, is as plainly unconstitutional. It is the naked veto power. It substitutes for, or rather adds to, the legislative will another will, which it makes necessary to the existence of the law. This is unconstitutional. 'So one doubts it. 'So one will pretend that a law with such a condi- tion would be good. Yet what is the diJBference in principle between that and the condition of the Act of 1847 ? It " au- thorizes the people to decide by ballot," whether a new law of the State shall prevail ; whether an old law of the State shall be repealed. Say, it goes further, and authorizes the people of a county again and again to repeal and re-enact this law at pleasure, without any return to the Legislature, or further expression of their will. Is not this plainly substi- tuting the will of the people for the will of the Legislature ? Is it not, in fact, abandoning the power of legislation on the subject? Yet it is this judgment and will of the Legislature that is law; if, therefore, the Act gives no evidence of legislative will, how can it be a law? Law is a rule of conduct pre- scribed by the legislative power — the result of legislative judgment and the manifestation of legislative will. This Act prescribes no rule, expresses no judgment, manifests no will of the Legislature, but leaves it to the judgment and will of the people to " decide by ballot whether the license to retail intoxicating liquors shall l^e permitted among them." The most that can be possibly claimed for such an Act, as the ex- pression of legislative will, is, that it is to be a law, enacted by the Legislature on condition that a majority of the people of one of the counties approves of it. But this is the very 224 THE LAW OF MUNICIPAL BONDS. condition which has been conceded to be unconstitutional in the case of a bill subject to the approval of the Governor. What is the difference ? A law depending for its existence on the approval of one man, is the same in principle with a law depending on the approval of any number of men or of the whole people. For it is not pretended that any legislar tive power resides in the people any more than in the Gov- ernor. What difference is there, then, between the two cases? . . . CHAPTEE IX. FLORIDA. The constitutional provisions of the State of Florida are as follows : Section 17, Aeticlb IV. — The Legislature shall not pass special or local laws in any of the following enumerated cases, that is to say ; . . . regulating county, township and municipal business ; . . . for the assessment and collection of taxes for State, county and municipal purposes, &c. Section 22, Article IV. — The Legislature shall provide by general law for incorporating such municipal, educational, agricul- tural, mechanical, mining and other useful companies or associations as may be deemed necessary. Section 3, Aeticle X. — The respective counties of the State shall provide in the manner fixed by law for those of the inhabitants who, by reason of age, infirmity or misfortune, may have claims upon the aid and sympathy of society. The provision last above given, it will be seen, makes the support of certain classes compulsory upon the counties as a public duty. The issue of Municipal Bonds for such purpose is, therefore, clearly allowed. Section 25, Article XVI. — All bills, bonds, notes, or evidences of debt outstanding and unpaid, given for or in consideration of bonds or treasury notes of the so-called Confederate States, or notes and bonds of this State paid and redeemable in the bonds and notes of* the Confederate States, are hereby declared null and void, and no action shall be maintained thereon in the courts of this State.' The present Constitution, adopted subsequent to the Rebellion, differs somewhat in its provisions affecting > See Chap. V. 16 225 226 THE LAW OP MUNICIPAL BOXDS. , municipalities from that which previously obtained. But the principles announced in the opinion in the case of Gotten v. Commissioners of Leon Co., 6 Fla., 610, which we give in fall, may be taken to be the law of the State. The legislative rule is adhered to with marked distinctness. The following are the points specifically decided, and will be of importance in presenting new facts as well as establishing the validity of Municipal Bonds. Under our State Constitution, it is the appropriate function of the judicial department to decide whether a statute of the Legislature be or be not constitutional ;. but, in deference to a co-ordinate branch of the Gov- ernment, it ought never to nullify a statute, except in a case free from doubt. In proceeding to define and determine the constitu- tional power of the legislative department, it is proper to note the characteristic difference which marks our Federal and .State Constitutions. "Whilst the former contains only specific grants of powers, the latter makes a general grant of all the political power of the people, restrained only by specific reservations. Hence, in de- termining upon the validity of statutes, the Acts of Congress are to be construed with greater stringency than the Acts passed by our General Assembly, No certain rule can be prescribed by which to deter- mine when a work of internal improvement shall be deemed to be embraced within the meaning of the. phrase, " county purposes," as the same is used in the fourth clause of the eighth Article of the State Consti- tution. Neither the locality of the work, nor the an- ticipated benefit to be derived from it, is of itself a cer- tain test ; but as furnishing a general rule, the concur- rence of the two would seem to be required. That the Pensacola and Georgia Eailroad Company is FLORIDA. 227 a private corporation, affords no valid reason why the shares of its capital stock, purchased by and on behalf of the county of Leon, should not be deemed to be the public property of the citizens of the county. The act of subscription to the capital stock of the Pensacola and Georgia Railroad Company, by the Board i of County Commissioners of Leon County, is within the meaning of the phrase " county purposes," as used in the Constitution of the State. The word " necessary," occurring in the second clause of the eighth Article of the Constitution, and by impli- cation transferred to the fourth clause of the same Ar- ticle, when applied -to the taxing-power of the county authorities, is to be taken rather as an indication of a grant of discretion, to be exercised within the appropri- ate limits of their general power, than as a restraint upon that power. The provision of the Act, which required that a sub- scription to the stock of the railroad company, by the county commissioners, should depend upon a vote of the qualified voters of the county, was not a delegation to the people of legislative powers, but only a legitimate mode of obtaining an expression of the will of the con- stituent, as a guide for the action of the representative. The provision contained in the Act, that each tax- payer should receive a remuneration, in the shape of stock in the railroad company, equivalent to the amount of his tax assessment, is not in conflict with either the first or twenty-fourth clauses of our " Declaration of Rights." The provision of the Act which authorizes the coun- ties to issue bonds for the purpose of raising money to pay for the stock to be purchased, does not contravene the letter or spirit of the thirteenth clg,use of the thirteenth Article of the Constitution, which prohibits the General 228 THE LAW OF MUNICIPAL BONDS. Assembly from pledging the faith and credit of the State to raise funds in aid of corporations. The twenty-second section of the Act of the General Assembly of 1855, entitled " An Act to provide for and encourage a liberal system of internal improvements in this State," is declared to be constitutional. Appellants filed their bill for an injunction to restrain the county commissioners of Leon County from levying and collecting a tax imposed by them, to meet an in- stalment of stock subscribed by the county in the Pensa- cola and Georgia Railroad Company. On presenting the bill, an injunction was granted, which, however, was dissolved on the coming in of the answer, and the bill was dismissed. The question presented by the pleadings for the de- cision of the court is, whether the General Assembly has the constitutional power to confer upon counties, as attempted by the "Act to provide for and encourage a liberal system of internal improvements in this State," passed in January, 1855, the authority to subscribe for shares in the capital stock of certain railroad companies, and impose and collect taxes for the payment thereof. The following is the opinion of the court in full : DUPONT, J., delivered the opinion of the court. It would prove but a useless waste of words, an unprofit- able expenditure of time, to engage in any labored effort to impress the importance of the question presented by this case for the adjudication of the court. The bare announcement that it involves the construction and interpretation to be given to certain clauses of the Con- stitution of the State — the fundamental law of the land, the embodiment of the delegated sovereignty of the people — is a sufficient guarantee that it has received at the hands of the court that calm, thorough and anxious consideration which befitted the occasion. "Without, therefore, indulging in the encomiums upon our republican institutions which FLORIDA. 229 usually constitute the exordium to efforts of this character, we the rather address ourselves at once to the particular point involved in the case, and, aided as we have been by the argu- ments and investigations of the able counsel engaged ou either side, we shall endeavor, plainly and briefly as we may, to assign the reasons which have operated to conduct our minds to the conclusion at which we have arrived. Before, however, entering upon the discussion of this point, it may not be inappropriate and unprofitable to consider and endeavor to define the legitimate power of the judicial department, when called upon to arrest the action of a co-ordinate branch of the Government. Indeed, we deem a clear apprehension of the limits of this power not only essential to the harmony of the three great departments which have been established by the fundamental law as con- tained in their State Constitution, but absolutely necessary for the very conservation of that instrument itself; for it has happened, and may happen again, that the arm which is invoked for the protection of that sacred palladium of oue political rights may, from a misapprehension of its legiti- mate functions, give it its most deadly wound. Instances are not lacMng to show that the judiciary, in essaying to shield the Constitution against the presumed aggressions of the Legislature, has itself become the greater aggressor. Every enlightened court will be admonished by these in- stances, of how delicate a character is the duty imposed upon it, when called upon to decide the constitutionality of an Act of the Legislature. "While it is an essential element in the character of an independent judiciary firmly to main- tain and resolutely to exercise its appropriate powers when properly invoked, it is equally its duty to be careful not rashly and inconsistently to trench upon or invade the pre- cincts of the other departments of the Government. That the judicial department is the proper power in the Government to determine whether a statute be or be not constitutional will not, at this day, be questioned. That matter, though once mooted by no less a man than Thomas Jefferson, was put finally to rest by the decision in the ease of Marbury v. Madison, wherein C. J. Mars hat.t, gave it the 230 THE LAW OF MUNICIPAL BONDS. sanction of his great name. But it is a most grave and important power, not to be exercised lightly or rashly, nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers. If there exist upon the mind of the court a reasonable doubt, that doubt must be given in favor of the law. In support of this position is the case of Hylton v. The United States, 3 Dallas E., 171, in which Mr. Justice Chase declares, " if the court have such power, I am free to declare that I will never exercise it but in a very clear case." And in Cooper v. Telfair, 4 Dall., 14, Mr. Justice "Washington says, " the presumption must always be in favor of the validity of the laws, if the contrary is not clearly demonstrated." In Fletcher v. Peek, 8 Cranch R., 87, C. J. Marshall, who, in the previous case of Marbury v. Madison, had dwelt so strenuously upon not only the power but the duty of the judiciary to restrain the other depart- ments within their appropriate boundaries, declared, "it ia not slight implication and vague conjecture that the Legisla^- ture is to be pronounced to have transcended its powers, and its acts to be considered void. The opposition between the Constitution and the laws should be such that the judge feels a clear and strong conviction of their incompatibility with each other." In further support of this position may be cited any num- ber of decisions by the State courts. "We shall refer to only a few of them, remarking, however, that if there be one to be found 'which constitutes an exception to the general doc- trine, it has escaped our search. In Adams v. Howe, 14 Mass. E., 345, the doctrine is thus stated: " The Legislature is, in the first instance, to be the judge of its own constitutional powers; and it is only when manifest assumption of authority or misapprehension of it shall clearly appear, that the judicial power will refuse to execute the law." In Wellington v. Petitioners, ^c, 16 Pick. E., 95, the same court announce their determination "never to declare a statute void unless the nullity and invalidity of the Act are placed, in their judg- ment, beyond reasonable doubt." In the case of Gity of Louisville v. Hiatt, 2 Mon., 170, the Court of Appeals of Ken- tucky say : " If it be doubtful or questionable whether the ^ FLOEIDA. 231 legislative power lias exceeded its limits, the judiciary cannot interfere, though it may not be satisfied that the Act is con- btitutional." The same doctrine is again announced by that court in the case of Lexington v. McQuillan's heirs, 9 Dan., 514. They declare : " We should be justly chargeable with wandering from the appropriate sphere of the judicial de- partment, were we, by subtle elaboration of abstract princi- ples and metaphysical doubts and difficulties, to endeavor to show that such a power may be questionable, and on such unstable and injudicious ground to defy and overrule the public will, as clearly announced by the legislative organ." In the case of Police Jury v. Succession of McJDonovgh, de- cided in the Supreme Court of Louisiana, and reported in 8th Louis. An. Eeports, 341, Slidbll, C. J., says : "It is true, that if a statute passed by the Legislature is not warranted by the powers vested in that body, such Act cannot have the force of law, and it is the solemn duty of the judiciary so to declare it, when an attempt is made through the judiciary to enforce it. But this is a most grave judicial power, not to be exer- cised lightly, nor in any case where it can be made to appear plainly that the Legislature has exceeded its powers. In just deference to a co-ordinate department of the Government, it is always to be presumed that a statute js conformable, to the Constitution, and has the form of law, until the contrary is clearly shown." Eanny, J., in delivering the opinion in the case of the Cincinnati, Wilmington and Zanesville Railroad Company v. The Commissioners of Clinton County, reported in 1st Ohio State Eeports, 77, has placed this matter in such strong light that we cannot resist a further citation, even at the hazard of being considered unnecessarily prolix. He says : " But while the right and duty of interference in a proper case are thus undeniably clear, the principles by which a court should be guided in such an inquiry are equally clear, both upon principle and authority. It is never to be forgotten that the presumption is always in favor of the validity of the law ; and it is only when manifest assumption of authority and clear incompati- bility between the Constitution and the law appear, that the judicial power can refuse to execute it, which interference 232 THE LAW OF MUNICIPAL BONDS. can never be permitted in a doubtful case ; and tbis results . from tbe very nature of tbe question involved in tbe inquiry. The Legislature is, of necessity, in the first instance, to be the judge of its own constitutional powers. Its members act under an oath to support the Constitution, and in every way under responsibilities as great as judicial officers. Their manifest duty is never to exercise a power of doubtful con- stitutionality. , Doubt, in their case, as in that of the courts, should be conclusive of all affirmative action. This being their duty, we are bound in all cases to presume they have regarded it, and that they are clearly convinced of their power to pass a law before they put it in the statute-book." But why multiply authority to sustain a proposition so plain, so reasonable, and perfectly conclusive to the mind of any one who has the slightest apprehension of the princi- ples underlying the great fabric of a republican government? Upon the rigid observance of the principles embraced in this proposition, depends the harmony of the great departments of the Government. Violate it, and soon they will be seen like errant spheres madly shooting from their appropriate orbits, and engendering passion, strife, embarrassment, con- fusion, uncertainty, where there should alone exist love, peace, union, concord and co-operation. The constitutional power of the General Assembly to confer upon the several counties of this State, as they have at- tempted to do by the enactment of the 22d Section of the Act of 1855, entitled " An Act to provide for and encourage a liberal system of internal improvements in this State," the authority to subscsibe for shares in the capital stock of certain railroad companies therein referred to, and to provide by tax- ation, through their respective Boards of County Commis- sioners, for the liquidation of the debt so to be incurred, is the particular question submitted for our decision. In order to a better understanding of the argument, and as in its progress we shall have occasion to refer specially to its provisions, it may be proper to set forth the section in full. It is as follows : " Section 22. Be it further enacted. That it shall be law- ful for the Board of County Commissioners of any county, or FLORIDA. 233 the Mayor and Council of any city, or the Trustees of any town, through or near which such railroad or their extensions may pass or in which they may terminate, and they are here- by authorized, to subscribe and hold stock in said company, upon the same terms and conditions, and subject to the same restrictions as other stockholders : Provided, it shall be first submitted to the vote of the legal voters of said county, city or town, to be held and taken at such times and places, and in such manner, as said authorities respectively may appoint, whether or not stock shall be taken ; and if, when the vote be thus taken, it shall appear that a majority of the votes shall be in favor of such subscription, it shall thereupon be lawful for the Board of County Commissioners, city or town author- ities, by agents by them appointed, to subscribe and take in such company such an amount of stock as they shall deter- mine : Provided, that in no case of county subscription the amount shall exceed fifty per cent, of the cost of construction through said county ; and to issue the bonds of said county, city or town, payable with interest at such times and places as they may deem proper, and dispose of the same for the pay- ment of such subscription, pledging the faith and resources of said county, city or town, for the payment of such bonds and interest; and they shall from time to time levy and col- lect such a tax as shall be necessary to pay the instalments of interests on the bonds, as the same become due, or to create a sinking-fund for the gradual reduction of the same : Pro- vided, that the rate of interest shall not exceed ten per centum per annum ; or funds may be raised by such Board of County Commissioners or city or town authorities, by tax, in such sums or instalrbents as will meet such subscriptions, and the receipt for the payment of such tax shall entitle the payers thereof, for every one hundred dollars so paid, to have one share or more, as the case may be, of the stock so subscribed by said county commissioners,jCity or town, in said company, and which receipts shall be assignable, l^o stock held by any county, city or town, shall be assignable by said county, city or town, until the bonds issued for the purpose of pro- curing funds for the payment of said county, city or town subscription, shall be paid, except in exchange for such bonds." 234 THE LAW OF MUNICIPAL BONDS. The counsel for tlie appellants, contesting the exercise of this power by the General Assembly, have cited us to several general principles of government which, even if they were not expressly enunciated in our " Declaration of Rights," are of too universal acceptance in this country to admit of any question as to their correctness. Among the proposi- tions thus cited is the one " that all political power is inhe- rent in the people." While we readily admit the truth of this proposition, we by no means concur in the application which has been made of it, or in the argument attempted to be deduced therefrom. If we correctly apprehend the use intended to be made of this political axiom, it was to assimi- late the Federal and State Constitutions, and to invoke the same stringency of construction when applied to the one as to the other. But there exists a manifest difference in the very elements of the two instruments, and this elemental difference induces also a difference in the rules of construc- tion to be applied to either instrument. While the Federal Constitution contains only specific grants of pov^ers, coupled with a general reservation, the State Constitution makes a general grant of all the political power of the people, restricted only by specific reservations. This characteristic difference will be readily perceived by a bare reference to the two instruments. In the eighth section of the first Arti- cle of the Federal Constitution is enumerated specially the several powers delegated to the legislative department of the General Government. But, so jealous were the people of the respective States, that, not content with this special enumeration of the powers intended to be granted, they afterwards fortified their reserved rights by 'an affirmative declaration, in the nature of an amendment to that instru- ment, " that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Here, as before remarked, is a specific grant, with a general reservation. In section first of Article II., in our State Constitution, may be found the grant of power which the people have delegated to the State Government. It is couched in these terms : FLORIDA, 235 " The powers of the Government of the State of Florida shall be divided into three distinct departments, and each of them confined to a separate body of magistracy, to wit, those which are legislative to one; those which are execu- tive to another ; and those which are judicial to another." This is certainly a full, entire and express grant of all political power, and may be correctly denominated a general grant ; but in the twenty-seventh clause of the first Article constituting the " Declaration of Rights," is contained the restriction upon that grant, and that clause is in the follow- ing words, viz. : " That to guard against transgressions upon the rights of the people, we declare that everything in this Article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or to the following provisions, shall be void." Here, then, is a general grant of powers, coupled with specific restrictions; and this comparison serves to verify the characteristic difierence existing between the two instru- ments, as before announced. Indeed, all writers who have commented upon the subject, readily admit the elemental difference, and freely recognize the difference to be observed in applying the resul'ts of constcuction. Without further elaboration of the general propositions assumed by the counsel for the appellants, we now address ourselves to the specific objections alleged in argument against the power of the General Assembly to pass the section of the Act of 1855 complained of. The main argument of the ap- pellants is based upon the assumption that the first and second clauses of the eighth Article of the State Constitution con- tain restrictions upon the taxing-power of the General As- sembly, and that by implication, if not expressly, all these restrictions are applicable to and control the taxing-power of the county authorities. The sections referred to are in these words : 1. " The General Assembly shall devise and adopt a system of revenue; having regard to an equal and uniform mode of taxation, to be general throughout the State." 2. " No other or greater amount of tax or revenue shall at 236 THE LAW OF MUNICIPAL BONDS. any time he levied than may be required for the necessary expense of the Government." The fourth section of the same Article, which contains the only special delegation of power to the counties to tax, is in these words : " The General Assembly shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes, respectively; and all prop- erty shall be taxed upon the principles established in regard to State taxation." Now, without undertaking to decide, or even to intimate an opinion, whether the second clause above referred to does in- deed impose a peremptory restriction, and such an one as can be practically enforced by the judiciary against the general taxing-power delegated to the General Assembly, we may, for the sake of argument, admit that it is a restriction, and constitutes one of the principles applicable to the ta'xing- power of one of the counties, as referred to in the fourth clause of the eighth Article. That Article may then be read thus : " The General Assembly shall have power to authorize the several counties and incorporated towns of this State to im- pose taxes for county and corporation purposes respectively ; and all property shall be taxed according to an equal and uniform mode of taxation, to be general throughout the county; and no other or greater amount of revenue shall at any time be levied than may be required for necessary county purposes." This exposition and interpretation of the fourth clause places the matter in the very strongest light contended for on the part of the appellants, and accords to them all the legiti- mate' fruits of their argument upon this objection. It will ■ readily be perceived, then, that the whole argument is nar- rowed .down to the simple inquiry whether or not the act complained against, to wit, the subscription for shares of stock in the Georgia and Pensacola Railroad Company by the Board of County Commissioners of Leon County, is legiti- mately a county purpose, veithin the meaning of the said fourth clause of the eighth Article of the Constitution. "We think that it is ; and, in order to demonstrate the correctness FLOEIDA. 237 of tliis conclusion, it may be proper to note the difference ex- isting between the ordinary expenses of the State and'county organizations. While the ordinary expenses of the former are mainly induced by the necessary support of the officers required to conduct the business appertaining to the three great departments of the Government respectively, that of the latter is confined almost exclusively to the improvement of the social condition of the citizens, there being no salaried officers to support. The Constitution does not attempt to give a definition to the term " county purposes," and, to obtain a correct interpretation of that phrase, we must look to the contemporaneous legislation upon that subject, and the uni- form action of the county courts under the territorial govern- ment. By this reference, it will be abundantly demonstrated that at that day county purposes were taken to embrace prin- cipally the erection and repair of court-houses and jails, the opening and maintaining public thoroughfares within the limits of their respective counties, by opening roads, building bridges and causeways, and keeping the same in repair, licensing and regulating ferries and toll-bridges, &c. It is thus seen that the entire subject of highways was, at the time of the Constitution, an object peculiarly within the jurisdiction of the county authorities; and we are hence war- ranted in the. assumption that it was so understood by the Convention when they used the phrase " county purposes." But we do not understand the appellants to differ from us in this interpretation, when applied to ordinary roads and bridges through a county; the objection is only when it is sought to apply it to a " railroad." Upon what sound prin- ciple this particular species of thoroughfare is to be with- drawn from the interpretation of the phrase before referred to, we are at a loss to perceive. Surely, it will not be seri- ously contended that, while the county authorities are per- mitted, in the erection of their court-houses and jails, to avail themselves of the improvements in architecture brought about by the advancement so rapidly going on in the arts and sciences, they shall be precluded from availing them- selves of the benefits resulting from the most magnificent discovery of the age. With almost as good reason might it 238 THE LAW OP MUNICIPAL BONDS. be insisted that they should confine their citizens to treading the toftuous windings of the Indian's " trail," or to the little less primitive thoroughfare of the pioneer's "bridle-way." But, not to do injustice to the argument of the appellants, we remark that the objection seems to be, not so much to the particular nature of the work, as to the fact that it is not wholly confined within the territorial limits of the county, and was therefore not embraced in the phrase " county pur- poses." The counsel who closed the argument for the appel- lants, contended that the test to be applied to the work, as determining its character in this respect, was -its locality; while the counsel for the respondents insisted that the true test was to be found in the anticipated benefits. "We think that neither the one nor the other of these tests, taken by themselves, will furnish the correct rule, but, as a general rule, that it requires a concurrence of both; for it will readily strike the mind of every one, that a great enterprise may be em- braced entirely within the limits of a county, and therefore exclusively local, without in the slightest degree being enti- tled to the distinctive character of a county purpose. While, on the other hand, another enterprise, though entirely without the county limits, may confer innumerable benefits upon, and advance the best interests of, the county, with as little claim to the character of a county enterprise. Indeed, it would be as unprofitable as it is dangerous to attempt to prescribe any definite rule to be looked to as furnishing the correct test on this subject. It is better not to essay to cir- cumscribe by fixed rules that which no human intellect can fully embrace. "Wisdom would counsel that each case of this kind should be decided as it may arise, untrammelled by the decision of the preceding one. Another argument used to show that the object contem- plated by the county 'subscription does not come within the meaning of the phrase " county purposes " was, that the cor- poration whose stock was subscribed for was a private corpo- ration. "We do not think the argument at all conclusive; for, though it be true that the Georgia and Pensaeola Eailroad Company be a private corporation, yet the stock purchased by the county is certainly public property, and belongs to the FLORIDA. 239 citizens of. the county, in the proportion of their respective contributions by way of taxes. In further elaboration of our views on this subject, we take it for granted that no one would seriously contest the right of the county to construct a railroad to be located wholly within her territorial limits, provided she possessed the means of herself. ISTow, if this be admitted, then the point is yielded as to the character of the object to be attained, and the only question that can arise is as to the lawfulness of the means to be employed. In this view of the case we can discover no objection, in the absence of the ability in herself to effect the object, that she should invite the co-operation not only of contiguous counties, but even of individual capital and enterprise. ~ The two objections now under consideration, viz., that the purpose of the subscription was not a " county purpose," and " that the corporation through whose agency the road was expected to be built was a private corporation," both came up for consideration in the case of Nichol et al. v. Mayor and Aldermen of Nashville, 9 Humph. E., 252, and were so fully discussed, that we feel ourselves constrained to cite somewhat at large from the report of the case. The Judge who deliv- ered the opinion in that' case, after stating the two objections, goes on to remark : " This twenty-ninth section of the second Article of our Constitution provides that the General Assem- bly shall have power to authorize the several counties and incorporated towns in the State to impose taxes for county and corporation purposes, respectively, in such manner as shall be prescribed by law ; and all property shall be taxed according to its value, upon the principles established in re- gard to State taxation." It may here be noted that this pro- vision in the Tennessee Constitution is almost in the very words, and certainly embodies the very spirit, of the provision contained in the fourth clause of the eighth Article of our Constitution. The Judge goes on to say, " The reason why this clause was embraced in our Constitution, those contem- poraneous with its formation know to have been, that doubts had been suggested by the highest judicial tribunal of the State as to whether the taxing-power could be delegated by the Legislature to the counties and to the incorporated towns, 240 THK LAW OF MUNICIPAL BONDS. and the clause was intended to remove these doubts." Ad- dressing himself particularly to the points under considera- tion, he proceeds : " Is the making of the road from Nash- ville to Chattanooga a corporation purpose of the town of ISTashville ? What is a corporation purpose of the town of Nashville ? General definitions are always difficult to be given with precision and accuracy, especially where they have to cover as extensive ground as that embraced by the expres- sion ' corporation purposes.' I shall therefore not attempt to specify what are corporation purposes of the city of Nash- ville ; they are and may be made to be as numerous and di- versified as may be found requisite by experience to promote the peace, comfort, and prosperity of its corporation, and anything which promotes these things is, or may be, consti- tuted a legitimate corporate purpose." . . . . " Such are all facilities of canals, roads, the improvement of rivers, by which their navigable use is extended, by all which the com- mercial interests of a town are increased and expanded by reason of the increased facilities of communications thus furnished, by means of which the wealth of its "populators, individually and collectively, is increased, with a consequent increase of the comforts and enjoyments of life. " It is true these improvements must have some connection with the corporate town claiming them as corporate purposes, more direct than that which would result from the general increased prosperity of the county by reason of such im- provements, made without a direct reference to or in direct connection with the town ; that is, the improvement claimed to be a corporate purpose, of the character under discussion, must have such relation to the town as to be the medium through which this prosperity is attained. It must begin or terminate at the town, or pass through or so near to it as to be capable of affecting its direct interests. It would seem to be an incontestable truth, that a corporate town is deeply in- terested in the making of any road, or other means of trans- portation and travel whereby the facilities of its commerce are increased ; and, if it be so interested, why shall it not be- come a corporate purpose to have them made? It would really seem almost useless to argue in favor of it. Is there FLOEIDA. 241 anything illegal in it ? Is there anything against good morals in it? Surely not. A town is situated ten miles from a navigable stream. It is obvious that it would be a matter of great importance to the town, its commerce and general pros- perity, to have a railroad or macadamized road to the river. It concerns no one else but this town, and no one else will make it. Shall it not become a corporate purpose of this town to make it, if it be able ? Surely no one will deny but that it may." .... '.' If a corporation may make the road, may it not go in with others to make it ? If the undertaking be too expensive to be carried into execution by the corpora- tion itself, or, if others be desirous of uniting with it for the effectuating of the design, why may they not unite? Again, it may be asked, Is there anything wrong in this ? Is there anything against the public good in this ? Is there any- thing against law in this ? Surely not." These views are so simply and forcibly expressed, and at the same time are so pertinent to the points under discussion, that we have, at the hazard of extending this opinion to an unreasonable length, deemed it profitable to refer to and cite them fully. Slidell, C. J., of the Supreme Court of Louisiana, ex- pressed similar views upon the same point which arose in the case of Police Jury v. Succession of McDonough, (18 Louisi- ana An. Reports, 341,) which was decided as late as the year 1853. Referring to the inquiry what are county purposes, he remarks : " This question is not a new one ; on the contrary, it has been frequently subjected to a rigorous judicial inves- tigation, and its answer may be satisfactorily found in the illustrations which are presented in decided cases. Thus, in the case of Goddin v. Crump, 8 Leigh's Virginia Reports, the improvement of James and Kanawha rivers was considered, as regards the city of Richmond, a local purpose by reason of its connection with the commercial prosperity of that city." After citing the observations of Tuckbr, J., in the last foregoing case, and several others to the same point, he proceeds to express the following enlightened views : " If the decisions cited be true exponents of the law, as we think they are, their application to the present case is obvious. 16 242 THE LAW OF MUNICIPAL BONDS. The contemplated railroad passes through the territorial limits of this corporation, and has one of its termini there. If the enterprise is successful, the results which have been experienced in other towns and sections of the Union may be realized here. Its facilities of commerce may be en- hanced. An impulse to industry within its limits may be given, its population augmented, its lands rise in value. Whether these prosperous results will ensue, is in the womb of the future. But it is evident that the Legislature ex- pected them, and it is clear that the police jury and a majority of the voters so thought. The Legislature plainly declared such an enterprise to be within the range of their corporate purposes. The police jury, acting under the legislative sanction, declared by their ordinance their opinion that the measure would conduce to the interests of their locality, and a majority of the tax-payers have con- curred in that opinion. "Whether their expectation is false or well founded, is not, under such a state of legislation, a judicial question. We take it to be a well-settled principle, that if the Legislature can constitutionally exercise a power, it is to be presumed by the judiciary, in just deference to a co-ordinate branch of the Government, that in the particular case it was exercised discreetly, and with a deliberate and just regard to the interests of its citizens." (Citing the opinion of C. J. Shaw, in the case of Norwich v. The County Commissioners, 13 Pick., 62.) * We might cite several other cases, going to illustrate the meaning of the term, " county purposes," but we deem the foregoing sufficient to warrant us in declaring the act of sub- scription to the capital stock of the Georgia and Pensacola Railroad Company, by the Board of County Commissioners of Leoif County, to be fully within the letter and spirit of that phrase. It was urged with much earnestness at bar, that the word " necessary," "in the connection in which it occurs in the second clause of the eighth Article of the Constitution, and by implication transferred to the fourth clause of the same Article, qualifies the term " county purposes " occurring in the latter clause, and that it ought to exercise a potent influ- FLORIDA. 243 ence in determining the true meaning of tliat term. It was argued that the word " necessary," in this connection, must be taken to limit the action of the county authorities to such purposes only as were indispensable to promote the interests ' of the county. In other words, that it restrained their action to the superintendence of the ordinary affairs of the county. However this may be, when applied to the expenses of the State Government, (of which we desire to intimate no dpinion,) we are very clear that, as applied to the counties, the term does not have the , effect contended for. The word " necessary" is an adjective possessing degrees. A thing or purpose may be necessary, more necessary, indispensably ne- cessary. An object simply necessary to subserve the interests of a county is as much a " county purpose " as though that object Were indispensably necessary. We do not see that a reference to the term furnishes any light to the interpretation of the phrase "county purposes," or that it serves in the slight- est degree to fix or limit the true meaning of that phrase. If, indeed, it had any distinctive meaning in the connection in which it is sought to apply it, (and we are rather of the opin- ion that it has,) we are incline* to think that that meaning is precisely the reverse of that contended for in the argument for the appellants, and that it is rather the indication of a grant of discretionary power, to be exercised by the county authorities within the appropriate limits of their general powers, than a restraint upon those powers. As pertinent to the matter under discussion, we cannot more forcibly express our views than by citing the very lucid comments of Chancellor Kent upon a kindred subject, to wit, the constitutional powers of the Federal Government. "We remark incidentally, however, that while we fully adopt the logic of the distinguished commentator, we by no means de- sire to be considered as sanctioning his application of it. The reasoning may be perfectly sound when applied to a government of general powers, such as is our. State Govern- ment, and yet wholly fatal and inconclusive when applied to a government possessing only enumerated powers, such as is the,Federal Government He says ; " The Constitution has not left the right of Congress tp employ necessary means for 244 THE LAW OF MUNICIPAL BONDS. the execution of its powers to general reasoning. It is ex- pressly au'tliorized to employ such means ; and necessary means, in the sense of the Constitution, does not import an •absolute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word ' necessary' admits of all de- grees of comparison. A thing may be necessary, very neces- sary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to be taken into view. The powers of the Government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises of human affairs. To pre- scribe the specific means by which the Government should in all future time execute its powers, and tp confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and perni- cious; because it would be an attempt to provide, by immuta- ble rules, for exigencies which, if foreseen at all, must have been seen dimly, and would deprive the Legislature of the capacity to avail itself of experience, or to exercise its reason and accommodate its legislation to circumstances. If the end be legitimate, and within the scope of the Constitution, all means which are appropriate and adapted to this end, and which are not prohibited, are lawful." 1 Kent, Com., 252. These views are as logical in expression as they are beautiful in conception, and, appropriately applied, are overwhelmingly conclusive. "We belong not to the latitudinarian school, but our every lessSn on the subject of government has taught us to discriminate the distinctive elemental nature of the Federal and State organizations. While the one is simply a confed- eration of separate and independent political sovereignties, each striving for the mastery, the other is the pure embodi- ment of the will of the people, and constitutes a unit. Accustomed to witness the ceaseless conflicts of opposing powers, whether our eyes be turned to our own federal organ- ization, or to the monarchical governments of Europe,, we have learned to give expression to our political jealousy with- PLOEIDA. 245 out duly considering the appropriateness of its application. Here, under our State Government, we liave no exacting John , no jealous and determined Baron. The people's breath creates the sovereign. The people's breath can demolish it. All these harsh epithets, then, so richly abounding in one of the dissenting opinions cited at the argument of this case — such as " piracy," " licensed robbery," " spoliation by a domi- nant faction,'.' and the like — we conceive to have been un- called for, in the connection in which they are to be found, and are to be admitted rather for spiciness, than for their rhetorical taste or political applicability. Another objection urged against the validity of the act of subscription to the stock of the railroad company, and one that at the first blush is rather imposing and plausible, is, that by the terms of the statute its operating vitality was made to depend wholly upon the votes of the people. The position assumed in the argument was, that this act of sub- . mission amounted, in fact, to a virtual delegation of the tax- ing-power to the people, and therefore a clear violation of those clauses of the Constitution which confine the exer- cise of that power to the General Assembly, and, by their permission, to the respective county authorities. If the view taken of this subject by the appellants were correct, and it be true that the Act in question does delegate to the people the authority to make subscription, and the consequent power to levy taxes to pay for the same, we have no hesitancy in declaring such an Act of the Legislature to be a palpable in- fraction of the Constitution, and one that would demand the prompt interposition of the judiciary. It would clearly be changing the essential character of our political institutions by converting a representative government into a pure de- mocracy. But such is not the view we have taken of the provision in that Act. "We can discover nothing in which it bears even a semblance to a delegation of legislative power. The only operation of that provision is to obtain, in a per- fectly legitimate mode, the expression of the will of the con- stituent as a guide for the action of the representative. Is there anything in this violative of the principles of republi- can government, or abhorrent to our ideas of popular rights ? 246 THE LAW OF MTJliriCIPAL BONDS. Indeed, if there be one principle of gdvernment more jeal- ously maintained, one more earnestly insisted upon, one of more universal acceptation than another, it is that " the rep- resentative is bound by the will of the constituent." This principle constitutes the foundation of all representative gov- ernments; and there are those now on the stage of action who vividly remember the shock that was given to the pop- ular mind when a high functionary of the Federal Govern- ment, some years since, gave utterance to the sentiment, " that the arm of the representative ought not to be palsied by the will of his constituents." We have looked into the Act critically, in order to ascertain if it is in fact obnoxious to the objection under consideration. After authorizing the Board of County Commissioners of any county to subscribe for the stock of such railroads as are therein referred to, the Act contains a proviso in these words : " Provided, it shall be first submitted to the vote of the legal voters of said county, city, or town, to be held and taken at such times and places, and in such a manner as said authorities respectively may appoint, whether or not stock shall be taken ; and if, when the vote be thus taken, it shall appear that a majority of the voters shall be in favor of such subscription, it shall there- upon be lawful for the Board of County Commissioners, city or town authorities, by agents by them appointed, to subscribe and take in such company an amount of stock as they shall determine." It will be readily perceived, by a close attention to the phraseology of this proviso, that even should the vote be favorable to the subscription, there is no express mandate in it making it the duty of the commissioner to subscribe. So far as the letter of the law is to determine its operation, it is very clear that a discretion is still left with them to refuse. How far, in this particular, the spirit of the law shall con- trol its letter, we do not undertake to decide, or even to intimate an opinion. But be this as it may with regard to the act of subscription, we think there can exist no reasonable doubt but that the amount of subscription is still within the discretion of the Board of Commissioners, unaffected by the vote of the people. If we are correct in this construction, then it results undeniably that the vote contemplate*d by the FLORIDA. 247 proviso can, in no proper sense, be deemed to be' an act of legislation. As upon the points hereinbefore discussed, we bave, upon the one now under consideration, an array of precedents which conclusively settle the lawfulness of such a submission to thq popular vote, whether it be objected to as " the delegation of legislative power," or "as an act of condi- tional legislation." In the case of Police Jury v. Succession of McDonough, before referred to, this very point was discussed and settled. The court says : " Is such submission really inconsistent, as was suggested at bar, with the genius of our institutions ? If the Legislature could constitutionally confer on the Police Jury authority to pass a taxing ordinance, it would seem rather a safeguard against oppression than the reverse, to qualify the power of requiring it to be exercised with the approbation of a inajority of those who are to bear 'the burden." (Citing De Tocqueville, p. 65; White's Dig; of the Laws of Mass., 1147; 2 Gill's Eeports, 19; 7 vol. West., L. J., 22; 8 Barr., 395 ; 10 Barr., 216.) The same point arose in the case of the Cincinnati, Wilmington, and Zanesville Railroad Company v. The Commissioners of Clinton County, hereinbefore referred to. In Kentucky, the precise point was ruled in the case of Talbot v. Dent, 9 B. Mon., 526, and afterw3.rds aiRrmed in the well-considered case of Slack v. The MaysvUle and Lexington Sailroad Company, decided in 1851, and reported in 13 B. Mon., 1. This precise point has frequently been before the courts in all its various phages, and, with scarcely an exception, has been uniformly ruled in favor of the law. But, if further authority be deemed necessary to put the question at rest, we refer to the concurrent action of the Federal Government and the State of Virginia, with regard to the retrocession of the county of Alexandria, in the District of Columbia. The Act of Congress of the 9th of July, 1846, submitted the question of a retrocession to the vote of the qualified electors of that county. Virginia had previously enacted a law signifying her willingness to receive back the county whenever the Congress of the United States should see proper to retrocede the same. Congress enacted the law of the 9th of July, 1846, submitting the question of 248 THE LAW OP MUITICIPAL BONDS. retrocession to the qualified voters of the county, providing the machinery for the election, and enacting, that if a major- ity of the voters should be against' accepting the provisions of the Act, it should be void and of no effect ; but if a major- ity should be in favor of accepting, then it should be in full force ; and, in that event, it should be the duty of the Presi- dent to inform the Governor of Virginia of the result, and that the law was consequently in force. After stating the facts of that case, the Supreme Court of Pennsylvania forcibly remarks : " Many of the most profound constitutional law- yers of the Union were in Congress at that time, and the State of Virginia never hesitated to accept the retrocession, because the Congress of the United States delegated to the people the decision of the question. This Act, under all the circumstances, must therefore be considered high authority as a precedent in tBie development of the constitutional functions of the legislative power." It was further objected against the validity of the Act of our Legislature, that by the terms of the twenty-second sec- tion, it was provided that, each tax-payer of the county should receive a remuneration in the shape of stock in the railroad company, equivalent to the amount of his assess- ment ; and the position was assumed that this provision was a clear infraction of the first and fourteenth clauses of our " Declaration of Eights," which were intended to secure to the citizen the right " of acquiring, possessing and protect- ing property." Fortunately for us, this is not a point now for the first time to be decided. It has been made in many of the several railroad cases which have arisen in the States of the Confederacy, and has uniformly been adjudged in favor of the law. "Without indulging in an argument of our own on this point, we will content ourselves with short extracts from the opinions in the two cases of Police Jury v. Succession of McDonough, and Talbot v. Bent, before referred to in this opinion. In the first of the above-named cases, the court says : " The objection made to the law on the ground that the stock subscribed for by the respective police juries is to go to the tax-payers, as provided in section fourth, seems to- us PLOEIDA. 249 untenable. In the understanding of practical men, this is surely no grievance. Its manifest object was to lessen the burden of the tax-payer. If the stock should prove worth- less, it imposes no additional burden on the holder ; it in- volves him in no further responsibility. But if the stock should prove valuable, such value would be so much taken from the tax." In the case of Talbot v. Dent, the Supreme Court of Ken- tucky says : " It is true, it is somewhat an anomaly for the governing power to levy a tax for a particular purpose, and at the same time, in a measure, reimburse him by the trans- fer of the thing paid for by the tax ; still, if the Government •were under a valid obligation to pay, and had the right to meet this obligation by a tax upon its citizens, a contribu- tion ratably assessed and levied for this public object, upon all the property of the citizens, would not lose its character of a tax, nor be less obligatory upon individuals, because the payment of it would entitle them respectively to correspond- ing portions of the thing for which the Government had contracted the debt or obligation, for the discharge of which the contribution was required." These views are so logically and forcibly expressed, and the matter placed in so simple a light, that we deem it a work of supererogation to add to them. It was further objected at bar that the provision contained in the twenty-second section of the Act of 1855, which author- ized the counties to issue bonds for the purpose of raising the money necessary to pay for the stock purchased, was an infraction of the thirteenth clause of the thirteenth Article of the Constitution, which expressly prohibited the General Assembly from pledging the faith and credit of the State to raise funds in aid of any corporation whatsoever. The argu- ment was this, that the letter of the clause confined the pro- hibition to the State only ; yet its spirit made it applicable to and equally binding upon the counties. We have before declined to determine how far a restriction plainly applicable to the exercise of power- by the Legislature shall be taken to affect the county, but, for the sake of the argument, are willing to admit the position assumed, viz. : That all the restrictions of the Constitution which are expressly applied 250 THE LAW OF MUNICIPAL BOKDS. to the legislative power of the State, are equally binding upon the legislative powers of the counties. "With the full advantage of this admission, however, we do not see 'that the objection urged is at all strengthened ; for there is noth- / ing in the provisions of the section referred to that author- izes the Board of County Commissioners to "pledge the faith of the county to raise funds in aid of any corporation whatsoever." By an attentive reading of that section, it will be seen that the bonds therein authorized to be issued, are not intended to raise funds " in aid of the corpora- tion," but expressly to provide the means, by a disposal of the same, to pay for the stock so to be purchased. And it is equally apparent .that the authority to "pledge the. faith and resources of the county," is to give credit to those bonds only, and not for the benefit of the company, or for any other purpose whatsoever. We think, therefore, that the objection, however forcible it might be in the state of the case assumed, does not apply to the law now under considera- tion." "We have thus, at some length, gone over the several objec- tions alleged in argument against the validity of the particular section of the Act referred to. "We have given to the objec- tions, and to the arguments in support of them, the most de- liberate consideration. "We have taxed to the uttermost ex- tent all our powers of discrimination. We have resorted for light to all of the decided cases within our reach. We have scrutinized with anxious care and attention the powerful rea- soning of the many able jurists, whose opinions are to be found in the books of reports, to discover, if we might, the great desideratum — the truth ; and, after the most laborious investigation, we are constrained to announce the particular section of the Act in question to be perfectly compatible with the provisions of the Constitution, and therefore valid. If we should have erred in this conclusion, it will present an extraordinary instance of a most singular fatality attending the adjudication of a great constitutional question ; for may it be not as a pregnant fact, that as often as the questions in- volved in this case have arisen for adjudication, they have received but one determination, and that in accordance with the conclusion arrived at in this case ? The courts of Virginia, FLOEIDA. 251 Massacliusetts, Connecticut, Pennsylvania, OMo, Kentucky, Tennessee, Mississippi and Louisiana, all hold the same uniform language upon this subject; and if there be a single adjudication in Qpposition to our conclusion, as announced in this case, we have failed to have it brought to our notice. In the face of such an overwhelming and imposing array of authority, it would indeed have been most extraordinary, even if our own reasoning had tended to conduct us to an opposite conclusion, not to have raised in our minds a serious doubt as to the cor- rectness of that reasoning. And we are taught by the lessons hereinbefore inculcated, in regard to the appropriate function of the judiciary, that whenever, in the examination of a great constitutional question involving the exercise of powers by a co-ordinate branch of the Government, a rational doubt arises . as to the validity of any particular act of that department, a proper and respectful regard and deference for the same would dictate an affirmation of the act. In the beautiful and forcible language of an eminent jurist, already referred to, " If a court, in such a case, were to annul the law Vhile entertaining doubts upon the subject, it would present the absurdiiy of one department of the Government overturning in doubt what another had established in settled conviction, and to make the dubious constructions of the judiciary out- weigh the fixed conclusions of the General Assembly." In order, however, to break the force and weaken the authority of the decided cases, it was suggested at bar that those causes were adjudicated under Constitutions essentially differing from ours ; that the restrictions upon the legislative power to be found in our Constitution are more stringent than those imposed by any of the Constitutions of the several States where those adjudications have been made, and that therefore they ought not to be considered as authority in this case. "We have carefully examined the several State Constitutions alluded to, and have not found that difference to exist which is contended for. In the majority of them we find the re- straints upon the legislative department equally stringent with those imposed by our own; and in several of them they are even more stringent. Let the decree of the Chancellor be affirmed with costs. CHAPTER X. GEORGIA. The Constitution of this State at present in force was adopted in the year 1868. It contains only the follow- ing provision directly pertinent to the law of Municipal Bonds. Section 28, Aeticle I. — The General Assembly may. grant the power of taxation to county authorities and municipal corporations, to be exercised within their several territorial limits. The decisions of the State are entirely harmonious. The popular view in respect to legislative discretion, as well as the nature of railroads and similar works, has been several times affirmed ; the opinions going as far as those of almost any other State. In the case of Winn V. Bacon, which we print below, it is decided that the city had a right to determine the nature of a railroad and banking company in so far as to pledge the public prop- erty of the city to the payment of a subscription there- to. The subscription was held to be within the power of the city, and a supplemental Act, authorizing an addi- tional loan for a like purpose, was held valid. The court, also, gave expression to the view that a railroad is to be classed as a public corporation. The case is important as illustrating the doctrines hereinbefore laid down touching the discretionary power of municipal corporations to bind the public property. By an Act passed in 1833, the city was authorized to borrow |200,000, and to pledge the public funds and 252 GEOEGIA, 253 property, and the common thereof, for the redemption of the debt, and also to purchase any real or personal estate for the use and benefit of the city. The city sub- scribed for five hundred shares of the stock of the Monroe Railroad and Banking Company ; and in 1838 the Legislature passed another Act, in which, after re- ferring to the fact of the previous loan which had been authorized, and that the same had already been borrowed and invested in stocks for the purposes of internal improve- ment, they gave power to contract another loan of like sum, and to pledge the public property of the city for the payment of the sums ; and it was held that by these Acts the subscription to the stock of the said company was, by necessary implication, recognized and ratified. We give also the case of Powers v. Inferior Court of Dougherty Co., which is a direct reafiirmance of the validity of a tax in aid of a railroad or public improve- ment. The law of the State appears to be so well settled, that any extended observations concerning it appear to be un- necessary. Winn v. The City Council of Macon. This was an action of debt brought by John D. "Winn, plaintifi", against the Mayor and Council of the city of Macon, defendant, for the recovery of certain bills of the Monroe Eailroad and Banking Company, and of which company the defendant was a stockholder, and, as such, liable, as claimed by plaintiff, for the payment and ultimate redemption of its share or proportion of said bank-bills, under the charter of said company. The case came up on the following facts agreed upon by counsel representing plaintiff and defendant, viz. : That plaintiff read his declaration, and the various extracts from the minutes of the City Council of Macon, from 1833 to 1838 inclusive, and hereto attached, marked 1, 2, 3, 4, 5, and read in connection therewith the charter of the city of Macon 254 THE LAW OF MUNICIPAL BONDS. as amended up to the year 1839 ; and read also the two Acts of the Legislature, and passed 24th December, 1833, and the other, 29th December, 1838. It being also agreed that said city charter may be referred to as law, without being copied herewith, plaintiff also read a certified copy of a memorial to the Legislature which accompanied the bill passed into said law of 1838, and hereto annexed marked A. It is admitted that the circulation of the bills of the Monroe Railroad and Banking Company at the time of its failure was $193,220. That the entire number of -shares of said com- pany's stock was and is five thousand seven hundred and fifteen. That defendant was and is a subscriber for and owner of five hundred of said shares, and that plaintifip's bills, sued on, amount to $3,475. Upon the aforesaid state of facts the parties make the fol- lowing points, upon which the opinion of the court is consid- ered as given in the shape of instructions to the jury: 1st. Plaintiff contends that the subscribing for said stock was a corporate function, and the charter of the city fully authorized it. 2d. If not a corporate function, then the court is asked to charge that the Legislature, especially by the said two Acts of 1833 and 1838, authorizing the further loan of $200,000, knew that the city of Macon had engaged in internal im- provements of this kind, and actually contemplated subscrip- tion for this stock, and that said loan was in part authorized for this purpose, then it was a legislative sanction, and there- fore defendant is bound for the subscription. 8d. That in this case, the legislative acts relied on as per- mitting this subscription, and the making of loans to pay for it, steered clear of any constitutional objection as to dele- gating power to tax the citizens of the town ; said Acts only authorizing the pledge of the corporate property or public domain of the city. The defendant requests the court to charge ; That, 1st. The charter of the city did not authorize the said sub- scription. 2d. There was and is no legislative permission or sanction of said subscription for said stock. GEOEGIA. 255 3d. That any sucli legislative sanction or permission would be unconstitutional and void. Charge of Judge Poweks. — The opinion of the court is ad- verse to all the positions assumed in the several requests of plaintiff's counsel, as being substantially erroneous under the facts and pleadings in this case. This court is also of the " opinion that the several grounds assumed in the Requests of defendant's counsel contain sound legal principles as applied to the facts and pleadings in this case : it being the opinion of this court that the Legislature has not the power to author-, ize a mere municipal corporation to become owners or specu- lators in stocks, either of railroads or other stocks, or to engage in and become competitors with her own citizens or others in any of the business affairs or avocations of life, the same being foreign to the ends and objects of the very ex- istence of a municipal corporation, and in conflict with the duties as at first established. To which rulings and charge the plaintiff excepts, and assigns error. Lumpkin, J. — As counsel for the corporation yield the right to the Legislature to delegate the power to the city of Macon to subscribe for stock in the road, the only question submitted for our decision is, whether the grant has been conferred in this case either directly or by necessary implication ? By the tenth section of the Act of 1833, Pamphlet 112, it is provided, "That the Mayor and Council of the city of Macon, or a majority of them, shall have power and authority to borrow money and contract loans, not to exceed $200,000, for the usie of the city, both from bodies corporate and from individuals, either residing in or out of the State; and to pledge the funds or property of the corporation of the city of Macon, and the commons thereof, for the redemption of such loan or loans ; and also shall have power to purchase any real or personal estate tor the use and benefit of the cor- poration; and, sell and dispose of all or any part of the property, domain, land, or lots, or any personal property to said corporation belonging or appertaining, by lease for years, 236 THE LAW OF MTJNICIPAL BONDS. or fee simple, as to the said Mayor and Council, or a majority of them, shall seem right and proper." Passing hy the grant of power in this Act, which is exceed- ingly broad, and which seems to point to some extraordinary investment of city capital in works of internal improvement, or some other enterprise, and disregarding the aliunde tes- timony explanatory of this Act, we come to the Act of 1838. It purports to be " An Act to amend the several laws for the incorporation of the city of Macon, and to authorize the Mayor and Council to contract for the loan of money," &c. Next comes the preamble, which recites that " Whereas, an Act has been heretofore passed authorizing the Mayor and Council of the city of Macon to contract for the loan of a sum or sums of money, not exceeding $200,000; and whereas, that sum has been already borrowed and vested in stocks for the purposes of internal improvements." In order, therefore, to enable said corporation to raise further sums, it is enacted, " that the city authorities have power to contract a further loan of $200,000 over and above the amount already borrowed ; and that the town commons and public property of the city be pledged for the payment of the same." Pamphlet 66. "With a full knowledge, on the part of the Legislature, that the previous.loan of $200,000 authorized by the Act of 1833 had been vested by the city " in stocks for the purposes of internal improvement," instead of rebuking the corporation for a mis- application of these funds, they indirectly approve of the measure, and confer upon the city authorities power to borrow as much more for the same purpose. !N"ow, when it is recollected that the five hundred shares of the stock of the Monroe Railroad and Banking Company had been sub- scribed for in the month of September previous to the pas- sage of this Act, as the minutes of the board show, can it be doubted that it both sanctions and ratifies that transaction by necessary and irresistible implication? And, moreover, the Act of 1838 serves as a key to explain the objects and intent of the loan contracted for under the prior Act of 1833. The money authorized to be raised by that Act, to aid in the construction of the roads below and above the city, proving GEOEGIA. 267 inadequate for that purpose, a further application is made to the Legislature, and power given to contract another loan. This is not a power to levy a tax or to burden the inhabi- tants of the city of. Macon with a personal liability. It is only the town commons and the public property that are pledged for the payment of the loan. Whether it was wise in the corporation to take stock in this road, it is not per- mitted to this court to inquire. It was a question exclusively for the determination of the Mayor and Council, under the advice of the community whom they represented, and who by a popular vote seem to have decided in -favor of the sub- scription. The results may not have equalled the expectations of the more sanguine and hopeful. When one surveys, how- ever, the princely palaces which crown her hills, her colleges and churches, her hotels, depots, warehouses and stores, her foundries and factories, rivalling in extent and costliness any in the Union ; the expansion of her commerce, the wealth of her population, individually and collectively , surrounded by all the comforts and enjoyments which make life desirable, — I see no reason for regret that Macon, the beautiful central city of the State, should have contributed her part to those improvements which have been the medium through which this prosperity has been attained ; and although her involve- ment on this account were a hundred-fold greater than it is, I am persuaded that the high-souled counsel who so ably represented her rights and interest in this discussion, would be the last man living to recommend that repudiation was a proper remedy for a debt contracted for such a purpose as this was. Judgment reversed. 17 258 THE LAW OF MUNICIPAL BONDS. The following is the first case that arose in Georgia, in which the constitutionality of an Act authorizing the im- position of taxation in aid of a railroad was in question, and the decision, which sustains the Act, has remained the settled law of the State. The case contains only the affirmance of the validity of the Act, but is necessary to show the position of the courts of the State. No similar cases of moment have arisen since this decision was an- nounced. The adjudication appears to have permanently disposed of all controversy. Powers V. The. Inferior Court of Dougherty Co. This was a bill filed by George Walker and Abner P. Powers, against the Inferior Court, Tax-Colleetor and Sheriff of Dougherty County, for an injunction to restrain the col- lection of certain tax executions issued against complainants. The bill states, that complainants, although non-residents of Dougherty County, are the owners of considerable real and personal estate situated therein ; and were the owners of said property prior to the twenty-fourth day of November, 1855. That on said day the General Assembly of the State of Georgia passed an Act authorizing the Inferior Court of said county to submit the question of subscribing for stock in a railroad to the legal voters of said county; and if a majority of the votes cast should be in favor of subscription, then the Inferior Court was authorized to subscribe for a certain amount of capital stock, to issue bonds, and to assess and levy a tax for the payment of the interest accruing on said bonds, and for the ultimate redemption of the bonds them- selves. By the court, Bbnning, J. — The only question in this case is, whether the Act of 1855, " To authorize the county of Dougherty to aid in constructing the Georgia and Florida Railroad between Albany and Americus, or other railroad running to said county, by the subscription of stock and the issue of bonds therefor, upon a vote of the citizens," is un- GEORGIA. 259 constitutional ? If tlie Act is constitutional, the decision of the court below, there is no doubt, was right. This Act makes " the county of Dougherty " a corpora- tion; makes the Inferior Court of that county .the represen- tative of that corporation ; requires that court, at the option of the " legal voters " of the county, to subscribe not less than $100,000, nor more than $150,^00, to the capital stock of the Georgia and Florida Railroad Company, or such other company as might be " indicated " by a majority of the voters of the county ; and to issue to such railroad company, in pay- ment for the stock that should be so subscribed for, the county corporation bonds, bearing seven per cent, interest per annum, of which bonds the principal was to be payable in not more than ten years, and the, interest semi-annually ; pledges the stock that might be thus subscribed for, " as well as the resources derivable from " a county tax, (for which it provides,) for the redemption of the bonds; prohibits the stock that might be subscribed for from being " used or transferred for any other purpose ; " but says that " the divi- dends of profit shall be appropriated to the payment of interest on bonds, and the stock " shall be appropriated to the " redemption ; " and authorizes and requires the Inferior Court to " assess and collect a county tax of such per cent, upon the State tax as " should " be suflicient to pay the in- terest, protect the credit, and, should it be necessary after the application of the county railroad stock for that purpose, to provide for the redemption, at maturity, of such " bonds as might be issued under the Act." Acts of 1855-56, 184. For the interest on the bonds, the " profits " of the stock were to be primarily liable, and the tax-payers secondarily liable; in other words, the tax-payers were to lend their credit to the county, and look for their security and. indemnity to the railroad stock got by the county on that credit, and to such benefits of a general nature as might fiow from the rail- road. This was the great effect of the Act. This being so, it is manifest, that whether this security or indemnity was suflUcient or not, would depend on what would be the value of the purchased stock added to what would be the value of the benefits conferred by the railroad. If it 260 THE JjA.w op municipal bonds. should be so, that the stock woilld be below par, yet still, if its value, added to the value of the benefits conferred by the railroad, would make a sum equal to what would have been the value of t^e stock if the stock had been at or above par, then the stock and these benefits taken together would be a source of full security or indemnity. It could not be known before the completion of the road, what would be the value of the stock, nor what would be the value of the benefits to result from the road ; indeed, what would be the value of these benefits could not be known with anything like certainty afterwards. All that could be known beforehand on these points, was what might be the opinion on them of those persons best qualified to form an opinion on them, and most interested to form that opinion correctly. Those persons, in very large proportion, were the voters of Dougherty County. And, for knowing their opinion on the points, the Act provided. And their opinion was ascertained. When those voters voted " subscription," they proclaimed that they considered the value of the stock, and the value of the benefits to result from the road, to be at least equal to the value of the bonds ; for, in so voting, they agreed themselves to endorse the bonds on the sole security of that stock and those benefits. As to the sufficiency of the security or indemnity, this, then, was the opinion of the persons who were, in large part, best qualified to form an opinion on that subject, and most interested in that opinion being a correct one. And this opinion has not yet been refuted. Indeed, it is an opinion that can be refuted by nothing but the event ; and the event lies still further in the future, — as far in the future as the winding up of the railroad company. And, indeed, it is an opinion that stands, as yet, unweakened by any counter- opinion. There is not a counter-opinion expressed even in the bill. Whereas, it is an opinion that stands supported by the concurring opinion of all the stockholders in the road ; and many of them must be persons who can look only to their stock for their security. If this opinion was correct, then the security and indem- UEOEGIA. 261 4 nity provided by. the Act for the county tax-payers was full. And certainly sucli an opinion as this is entitled to some respect. At all events, such was the only security and indemnity provided by the Act, viz., the stock taken by the county, and the. benefits to result from the road. Is it proper to count these benefits in counting the security and indemnity given to the county tax-payers ? There is a law which compels every man to contribute so much labor every year to keeping up the common roads. And in counting his indemnity, there is nothing to count but the benefits of a general nature to result from the existence of common roads. Every man has rights in the common road. True. And every man has rights in a railroad. A railroad is a com- mon carrier ; and every man has the right to compel a com- mon carrier to carry him and his goods, on the payment to the carrier of what the law deems compensation. The diflference in the two cases, therefore, is one merely of degree. The compensation may perhaps be better in the one case than in the other, that is all. One thing is certain ; these are real benefits, such as "put money in the purse." In the neighborhood of the railroad land rises, wages advance. So much, then, for the Act viewed in its great effect; the effect complained of in this bill in equity. That effect, as we have seen, was, in substance, to compel the payers of the county tax to lend their credit to the county on the security and compensation of the railroad stock taken by the county, and of the benefits to flow to the public from the existence of the railroad. Now what means did the Act take to accomplish this effect ? It made the county of Dougherty a corporation, represented by the Inferior Court of that county ; it required such Inferior Court to issue to the railroad company the bonds of the county td the extent of from $100,000 to $150,- 000 in payment for so much stock in the company; it pledged this stock for the payment of the bonds; it enjoined the Inferior Court, in case this stock should prove insufficient to pay the bonds, to assess and collect a county 262 THE LAW OP MUNICIPAL BONDS. tax that should be sufficient to pay the bonds. These were the means the Act took to accomplish the effect. Such then being the Act in its effect, and in the means it took to accomplish that effect, is it unconstitutional ? ThLs is the question. And, first, as to the Constitution of the United States. This Act is the act of a State, and therefore, if it violates any part of the Constitution of the United States, the part must be some one of those parts which imposes restrictions on the States. Of those parts there is one which says that no State shall pass any " ex post facto law," or law impairing the obligations of contracts. Bat no law, except a law relating to crime, can be an ex post facto law ; and this Act is not a la^ relating to crime. And no law except a law relating to existing con- tracts can be a law impairing the obligation of contracts; and this Act is not a law relating to existing contracts. This part, then, is not violated by the Act. The others of these parts are, if possible, still less violated by the Act. It is useless to refer further to them. There is a clause in the Constitution in these words : " iNor shall private property be taken for public use without just compensation ;" but this clause is in the amendments, and the amendments restrict, not the power of the States, but the power of the United States. 7 Peters, 243. Besides, there was in this case what, perhaps, it is to be presumed, for the present at least, was "just compensation." In brief, this Act, whether considered in its effect or in its means, does not appear to us to be contrary to anything in the Constitution of the United States. Secondly, as to the Constitution of the State. And, first, was the Act, considered in its effect, in accord- ance with the Constitution of the State ? The Act in its effect was, as we have seen, an Act to com- pel the payers of the county tax of Dougherty County to lend their credit to that county, on the security of the stock to be taken by the county in the railroad company, and of the benefits to result to the public from the road. Every law passed by the Legislature is in accordance with GEOEGIA. 263 the Constitution of tlie State, if it be a law whicli that Con- stitution has given the Legislature power to pass. That Con- stitution has given the Legislature power to pass all such laws as it may deem to be necessary and proper for the good of the State, if they are not contrary to something contained in that Constitution. " The General Assembly shall have power to make all laws and ordinances which they shall deem nec- essary and prftper for the good of the State, which shall not be repugnant to this Constitution." This is the language of the Constitution. And, according to this language, it takes two things, and only two, to make an Act of the Legislature constitutional — one, that the Legislature shall deem the Act to be necessary and proper for the good of tha State ; the other, that the Act shall not be repugnant to the Constitution. Consequently, if these two things exist with respect to an Act, the Act is constitutional, no matter what sort of an Act it is. And of these two things, one, it may doubtless be assumed, exists in respect to every Act passed by the Legislature. It may be assumed that the Legislature deems every Act passed by it to be an Act that is necessary and proper for the good of the State, that is, I suppose, necessary and proper to bring' about some particular thing or things which, in the opinion of the Legislature, will be for the good of the State. The question then, whether an Act is constitutional or not, must turn upon this alone; whether the other of the two things exists in respect to the Act, that is whether the Act is " repugnant " to the Constitution. Assuming, then, that the Legislature, in passing this Act, deemed it to be necessary and proper for the good of the State, the only question at present is whether the Act con- sidered in its effect was repugnant to the Constitution. An Act, to be repugnant to the Constitution, has to be re- pugnant to something contained in the Constitution. Now, of the. things contained in the Constitution, which is the one that the Act in its effect is repugnant to ? That one has not been pointed out to us, and we are unable to discover it for ourselves. There is no provision in the Constitution to the effect that the Legislature shall pass no law compelling the 264 THE LAW OP MUNICIPAL BONDS. tax-payers of a county to lend their credit to the county, with or without security, to enable the county to do this thing and that thing. There is nothing in the Constitution saying that the Legis- lature shall pass no law interfering with private rights, with or without compensation. If there had been, many laws that now exist, or that have existed, could never have existed. Among them I may mention the following : • 1. Charters to railroad companies, allowing the companies to take the land over which their railroad is run, on paying for the land whatever arbitrators or a jury might say the land was worth. 2. Charters to cities, allowing them to open and to close streets ; to prescribe the materials, &c., out of which houses are to be built; above all, allowing them to lay and collect taxes, and not giving the tax-payer anything by way of in- demnity or compensation, except such benefit as may result to him from the money being well spent in public affairs, 3. Acts allowing cities to take stock in railroad corpora- tions, and in banking corporations. In every such case the money with which stock is paid for must come directly or in- directly out of the pocket of the tax-payer. See a case de- cided at Macon, January, 1857, on this question. 4. Acts requiring the State itself to take stock in such cor- porations. This State must take the money, with which it purchases such stock, from the tax-payer. 5. Laws allowing the Inferior Court, on the recommenda- tion of the grand jury, to levy and collect a county tax. 6. Laws authorizing war. In every such law there is as- serted the principle, that the State may compel the citizen to march into the cannon's mouth " at the word of command," and yet not be bound to pay him or his family anything for the loss of his life or his limb. Pensions are gratuities. If we admit that the State may compel its very best men to yield it their lives, whenever it deems the public good to require & war, is it not like straining at a gnat and swallowing a camel, to deny that the State may compel its citizens to yield it a part of their credit, or of their property, whenever it deems the public good to require something done which GEOBGIA. 266 cannot be done without a part of tlieir credit or of their property ? 7. Certain laws wMcli I shall call laws of negation. First. Laws saying that a man shall not lay out his money in negroes, if these have been imported into the State from another State for the purposes of trade. Second. Laws stopping a man from work and business every seventh day. Third. Laws depriving married women of liberty and of the right of property ; laws depriving all women of political rights. Fourth. Laws depriving men of their liberty for debt. They get no pay for the time lost in prison. Fifth. Laws depriving men of property, of liberty, of life, for crime. Sixth. Laws depriving a whole race of every right, ex- cept the right to life, — and this not for debt, not for crime, — the laws of slavery. In many of these instances there is no compensation offered, or thought of, except that sort of indirect compensa- tion which consists in good done to the public. ^ The argument of the plaintiffs, to make out the Act, con- sidered as to its effect, unconstitutional, was, in substance, this, that the Act was an unjust law. See the fourth, fifth, sixth, seventh, eighth, and ninth grounds of the bill of ex- ceptions. Their counsel did not, however, cite any particular clause or part of either the Constitution of the United States or the Constitution of the State, as a clause or part, saying that a State shall not pass any unjust law. What, then, is this argument worth ? First. Suppose it to be true that the Act is unjust in its effect, does that make it repugnant to anything contained in either Constitution? Is there anything contained in either that says that no unjust law shall be passed ? There is not. Second. But it cannot be admitted that the Act is unjust, at least in the sense of the word unjust by which courts must be governed. So far as they are concerned, justice is law — the law of the land, not some " higher law." And then this 266 THE LAW OF MUNICIPAL BONDS. Act gives, as we have seen, what may be considered indem- nity until the event shows it not to be an indemnity ; and I suppose that an Act touching private rights, but giving in- demnity, may be tolerated by even the " higher law." K, then, this Act, considered as to its effect, was not repug- nant to anything in the Constitution of the State, was it, considered as to the means it took to accomplish that effect, re- pugnant to anything contained in that Constitution ? This is the remaining question. The means the Act adopted for this purpose may, as we have seen, be stated to be these : It made the county of Dougherty a corporation, with the Inferior Court as its repre- sentative; it required the Inferior Court to issue the bonds of the county to the railroad company, amounting to not less than $100,000, and not more than $150,000, in payment for so much stock of the company; and it required that court to assess and collect a county tax sufficient to pay. the bonds in case the bonds could not be collected out of this purchased stock. Was the Act, in respect to these its means, repugnant to anything in the Constitution ? If so, to what thing ? Nothing was pointed out to us as such a thing by the plaintiffs, either in their bill of exceptions or "in the argu- ment of their counsel. The only grounds in the bill of exceptions bearing on the present point, are the first, second and third. Of these, the first is, that the Act gives to the Inferior Court unlimited power of taxation for railroad purposes. But in fact, the Act in effect gives the court power to collect no more taxes than shall be sufficient to pay on bonds that cannot exceed $150,000 in amount such balance as remains due on them after certain railrqad shares, bought with those bonds, shall have been applied to the payment of the bonds. The second is, that the Act incorporates the county of Dougherty without any object specified. But what the object was, is apparent. It was to enable the county to aid in the construction of the road. Besides, is every Act which merely fails to specify ita object, repugnant to the Constitution ? Surely not. OEOBGIA. 267 Tlie third is, that the taxing-power is legislative, and not judicial ; and that the Legislature cannot delegate a power to tax, it being a delegated power to them. Admit it to be true, that the taxing-power is legislative and not judicial, yet what of it ? This Act does not seek to make the taxing-power judicial. This Act itself imposes whatever tax there is imposed; it confers on the Inferior Court only the power to "assess and collect" the tax. It sets a limit beyond which the tax cannot go, viz., the amount that may remain due on the bonds after their stock, dividends, and all shall have been applied to their payment. The office which it confers on the Inferior Court is merely to apply this stock to the payment of the bonds, and then, if the stock shall not prove sufficient to pay the whole of the bonds, to assess and collect, in taxes, enough to pay the balance. The Act cannot tell whether there will be any balance, nor whether, if there shall be any, what will be its amount. So it requires the Inferior Court to ascertain these things, and, when it has done so, to regulate itself by them. In this respect the Act does no more than what is done by the general tax Act. That Act makes it the duty of the Governor and 'Comptroller-General to " assess such a rate per cent., not exceeding one-twelfth of one per cent, on the entire amount (of the taxable property), as will raise an amount of revenue corresponding to the wants of the State, and notify the several tax-collectors throughout the State of the rate per cent, so imposed, and the amount to be collected by him in each county." This amount, the Act says, shall not exceed $400,000, exclusive of the expenses of collection. Acts of 1851-52, 291 ; Acts of 1853-54, 109. The taxing-power no more pertains to the executive de- partment than it does to the judiciary department. There are other Acts still more nearly resembling this ; as, first, the Act of 1821, to authorize the Inferior Courts to levy extraordinary taxes on the recommendation of two-thirds of the grand jury. This Act merely sets a limit to the court's taxing-powers. The tax is not to exceed fifty per centum on the general State tax annually. Cobb's Digest, 184. 268 THE LAW OP MTTXICIPAL BONDS. Secondly: The Act of 1856, to authorize the Inferior Court, upon the reeomm-endation of the grand juries, to assess and collect, a tax for the payment of jurors. This Act authorizes the justices of those courts, on the recommendation of the grand juries, " to assess and raise a tax for the reasonable com- pensation of the grand and petit jurors." Here is rather a wide margin given to those courts. Acts of 1855-56, 274. In all of these cases, the question is whether the power given to one department — be the power confined within limits or not, be it great or small, certain or uncertain — is a power " properly attached " to one of the other two departments. The words of the Constitution are, " No person or collection of persons, being of one of those departments (the legisla- tive, executive and judicial departments), shall exercise any power properly attached to either of the others, except in the instances" by itself " expressly permitted." Cobb's Dig., nil. Now, can it be said with truth, that such powers as those which the Acts aforesaid attach to the executive and judi- ciary departments, respectively, are such as would be more properly attached to the legislative department ? Ought the Legislature to stay in session merely to do what these Acts require the Governor and the Comptroller-Gteneral and the Inferior Court to do ; that is to saj^, merely to assess and col- lect a tax, the elements for ascertaining the amount of which are fixed ? Surely not. " The Legislature cannot delegate a power to tax ; it being a delegated power to them." Is this proposition true ? The Constitution, as we have seen, gives to the Legislature power to make all laws which it may deem necessary and proper for the good of the State, which shall not be repug- nant to that Constitution. And it does not say anywhere that the Legislature must not delegate any of this power ; nor does it say anything equivalent to saying that. True, it says, " The legislative power shall be vested in two separa,te and distinct branches, to wit, a Senate and House of Kepre- sentatives, to be styled the General Assembly." But what is legislative power ? It is the power to make law. If un- limited, it is the power to make a law for the creation or the GEOEGIA. 269 destruction of any right. Therefore, if unlimited, it is the power to make a law that creates or delegates the right to make laws. Now, the legislative power of the General Assembly is un- limited, if the above quoted words of the Constitution, by themselves, are to be taken as the criterion. Those words merely say that the legislative power shall belong to the Gen- eral Assembly. And so far as the present argument is con- cerned, those words are to be taken by themselves ; for the question is whether those words amount to saying that the General Assembly shall not delegate the power to legislate. It follows, then, that if we go by those words, we must say, not that the Legislature cannot delegate legislative powers, but that it can delegate legislative power. And legislative bodies have, it seems, -generally considered that the legisla- tive powers which they possess was a power authorizing them to delegate legislative power. The British Parliament, possessing the legislative power of Great Britain, has, by virtue of that power, delegated to a company of merchants the power to make laws for the fourth part of the people of Asia. So it every day delegates to British Colonies the right to make laws for themselves, within certain, limits. So it delegates more or less of legis- lative power to cities, and other municipal corporations ; and even to mere business corporations, for it gives to these the power to make by-laws. ' Our Congress gives to the territories the power to make their own laws, within certain limits. Our own State Legislature gives to cities the power to make laws for themselves : it creates numerous business cor- porations, with the power to make by-laws; it confers on cer- tain of the courts the power to make " rules of court." But is it of any consequence, in the present case, whether the proposition in qiiestion is true or not ? Is there, in fact, any delegation of legislative power by this Act? Is the power merely to " assess and collect " an imposed tax a power that is legislative ? I think not. To say so, is to say that the Governor and Comptroller-General and the tax-collectors, when they are in the exercise of the powers conferred on 270 THE LAW OF MTTNICIPAL BONDS. them by the general tax law, are in the exercise of legislative power; for when they are in tha exercise of those powers, they are assessing and collecting the State tax. The result is that this Act, considered with respect to the means which it took to produce the effect which it did pro- duce, is not, in our opinion, unconstitutional. There remains but a single point. The tenth ground in the bill of exceptions is, that " the body of the Act contains matter not contemplated by the caption or preamble." We think that the body of the Act merely provides a mode of payment for the bonds referred to in the title. And it is to be supposed that the title contemplated a payment of the bonds to which it referred. Upon the whole, therefore, we think that the Act was con- stitutional ; consequently, we think that the court below was right in refusing to sanction the bill. CHAPTEE XI. ILLINOIS. The "Western States have naturally derived the great- est benefits from the progress of public improvements ; and among them there are few that have developed with as great certainty and upon as grand a scale as Illinois. Possessed of every element of strength, with a soil and climate of unsurpassed excellence, a population of enor- mous energies, and a territory peculiarly eligible in loca- tion, she has, within a quarter of a century, grown from a wilderness into a gigantic commonwealth, whose influ- ence is felt in every corner of the nation. And in none of the States has there been a more general exercise of the rights of eminent domain and taxation in aid of rail- roads and other improvements.' These rights have, per- haps, been persistently abused ; but the result has been that the means of intercommunication of the people of the State are superior to those of the inhabitants of any territory of equal size on the face" of the globe. The value of every species of property within her borders has been enhanced, her educational system has been perfected in the fullest measure, her cities have been beautified by public buildings, and, with her State and municipal bonds the safest of their class in the market, she appears to be a monument of the practical wisdom of the modern the- ories that have carried her, in so brief a period, to the exalted position she occupies. The present Constitution of the State is essentially modern in its characteristics. It is of very recent adop- 271 272« THE LATV OF MtrSTICIPAL BONDS. tion, having been ratified by the people in the year 1870 and is remarkably clear in its provisions, in some parts beiag so exact in respect to details as to appear more like a statute than an enumeration of principles. The con- vention by which it was framed was composed of men of large experience, who had grown up with the State, and who were peculiarly competent to judge of the wants and necessities which were to be met. Among the subjects that wer6 canvassed with especial care was that of public improvements, and the means of fostering them without jeopardizing the welfare of the masses. So great was the anxiety in respect to railroads, that, after protracted debate, it was decided to appeal di- rectly to the people; and a separate vote upon a distinct article was directed to be taken. The provisions defining and limiting the issue of mu- nicipal bonds are calculated to fully correct the evils they were designed to meet ; and, if too narrow, will, in a few years, yield to the demands of a period in which the abuse of a necessary principle is not felt. So close and definite are the provisions, that they are apprehended at once by the people ; and the precedent of submitting the subject to a popular vote having been established, it will require little more than a change- of public opinion to take the State back where it was before the Constitution of 1870 was adopted. The following sections have relation to the subject of municipal and other corporations, and the powers of the Legislature in respect thereto : Section 22, Article IV. — The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say : for ... . Granting .to any corporation, association, or individual, the right to lay domi railroad tracks, or amending existing charters for such purpose ; ILLINOIS. •273 Granting to any corporation, association, or individual, any special or exclusive privilege, immunity, or franchise whatever. Sectioit 8, Article IX. — County authorities shall never assess taxes, the aggregate of which shall exceed seventy-five cents per one hundred dollars' valuation, except for the payment of indebtedness existing at the adoption of this Constitution, unless authorized by a vote of the people of the county. Section 9, Article IX. — The General Assembly may vest the corporate authorities of cities, towns, and villages with power to make local improvement by special assessment, or by special taxation of contiguous property, or otherwise. For all other corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes; but such taxes shall be uniform, in respect to persons and property within the jurisdiction of the body imposing the same. Section 10, Article IX. — The General Assembly shall not im- pose taxes upon municipal corporations, or the inhabitants or prop- erty thereof, for corporate purposes ; but shall require that all the taxable property within the limits of municipal corporations shall be taxed for the payment of debts contracted under authority of law ; such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same. Private property shall not be liable to be taken or sold for the payment of the corporate debts of a municipal corporation. The last sentence of the above section is calculated to create a false impression in the minds of the public. It has relation only to bonds issued subsequent to the ratification of the Constitution of 1870, and does not affect those which were in esse, or the right to issue which had vested prior to that date. Owings v. Speed, 5 Wh., 420; Von Hoffman v. City of Quincy, 4 Wall., 535. Section 12, Article IX. — No county, city, township, school-dis- trict or other municipal corporation shall be allowed to become in- debted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding five per centum on the value of the taxable property therein, to be ascertained by the last assessment for State and county taxes, previous to the incurring 18 274* THE LAW OF MUNICIPAL BOXDS. of such indebtedness. Any county, city, scLool-district or other mu- nicipal corporation, incurring any indebtedness as aforesaid, shall, before or at the time of doing so, provide for the collection of a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof within twenty years from the time of contracting the same. This section shall not be construed to prevent any county, city, township, school-district or other municipal corporation, from issuing their bonds in compliance with any vote of the people which may have been had prior to the adoption of this Constitution, in pursu- ance of any law providing therefor. Section 4, Article XI., relates to the construction of horse- railroads, and is designed to protect the people of the State from the incursions of sovereign capital. No law shall be passed by the Gen- eral Assembly granting the right to construct and operate a street railroad within any city, town, or incorporated village, without re- quiring the consent of the local authorities having the control of the street or highway proposed to be occupied by such street railroad. The following section concerning municipal subscrip- tions to railroads or private corporations, was submitted to a separate vote, and was ratified by an overwhelming majority. It was thought to be a very close section, but, while fully carrying out the prime objects for which it was adopted, it has not in fact entirely precluded the construction of railroads by municipal aid.^ No county, city, town, township, or other municipality, shall ever become subscriber to the capital stock of any railroad or private cor- poration, or make donation to, or loan its credit in aid of, such cor- poration. Provided, however, That the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions where the same have been authorized, under existing laws, by a vote of the people of such municipalities prior to such adoption. The following Act to fund and provide for the pay- ment of the debts of municipal corporations, appears to be essential to an exact understanding of the status of > See Chap. XXX., Ohio. ILLINOIS. '275 their bonds issued in aid of railroads. The substance of the Act is as follows : Any county, township, city or town that votes aid to a railroad running through either, is entitled to the State tax on the increased assessed valu- ation of all the property in such township over and above its assessed valuation in the year 1868, for the period of ten years : also the entire tax for all purposes, both State and local, on all the property, both personal and real, be- longing to the New Railroad, for the period of ten years, for the purpose of paying the principal and interest on the bonds issued by such township in aid of the railroad. The tax, when collected, is paid to the State Treasurer. The Treasurer is required to credit the same; and if there is not enough each year to pay the amount owing, the Treas- urer adds enough to the State tax against the county, township, city or town, to raise the necessary amount of money to pay the full amount each year ; and the Treas- urer is required to pay out of this fund the principal and interest due on the bonds, the same as he is required to pay on the State bonds. AN ACT TO FUND AND PROVIDE FOR PAYING THE RAILROAD DEBTS OP COUNTIES, TOWNSHIPS, CITIES AND TOWNS IN THE STATE OF ILLINOIS. Section 1. Be it enacted hy the people of the State of Illinois, represented in the General Assembly, That whenever any county, township, incorporated city or town shall have created a debt which still remains unpaid, or shall create a debt under the provisions of any law of this State, to aid in the construction of any railway or railways, that shall be completed within ten years after the passage of this Act, whose line shall run near to, into or through said county, township, city or town, it shall be lawful for the State Treasurer, and he is hereby re- quired, immediately upon receiving the revenue for each year, to place to the credit of such county, township, city or town so having incurred such indebtedness, in the State 276 THE LAW OF MUNICIPAL BONDS. treasury, anBually, for and during tlie term of ten years, all the State taxes collected and paid into the stated treasury on the increased valuation of the taxable property of said county, township, city or town, as shown by the annual assessment rolls, over and above the amount of the assessment roll of the year 1868, excepting the State school-tax and the two-mill tax provided for by the Constitution of this State for the pay- ment of the said debt. And whenever any county, township, city or town shall have created a debt as aforesaid, it shall also be lawful for the collector of taxes, and he is hereby re- quired, annually, for and during a term of ten years, to pay into the State treasury all the taxes collected for any purpose whatever on the assessment of the railroad or railroads for whose aid the said debt was incurred, including the road-bed and superstructure, and all fixtures and appurtenances there- of, the locomotives, cars, machinery and machine-shops, depots and all other property, real and personal, of said rail- way company within such county, township, city or town; and immediately upon receiving the same, the State Treas- urer shall place to the credit of such county, township, city or town, in the State treasury, the whole amount so received, except the State school-tax and the two-mill tax provided by the Constitution of this State for the payment of the State debt ; and it shall be the duty of the said collector of taxes to furnish the State Auditor a separate and detailed account of the amoimt of taxes collected from said railway or rail- ways, at the time of his annual settlement with the State Auditor. And the State Treasurer shall give to said collector separate receipts for the respective amounts paid into the State treasury to the credit of said county, and said receipts shall be taken and received by the county court, or other legal authorities, as vouchers for the amount collected on account of the county and local assessments on said railroad property in the annual settlement with such collector; and the several amounts of money in this section provided and ordered to be placed to the credit of such county, township, city or town, shall be applied by the State Treasurer to the payment of the bonded railway debt of such county, township, city or town, as hereinafter provided. ILLINOIS. 277 Section 2. And the county clerk or other proper officer, upon the issuing of the bonds in payment of said railroad debt, shall make a registration thereof in a book to be kept for that purpose in his office, showing the date, amount, number, maturity and rate of interest of such bonds, and upon the subscription or donation to what railroad the same was given. And the said bonds, and bonds heretofore issued and still unpaid, in order to receive the benefits of this Act, shall be registered by the holder thereof at the office of the auditor of the public accounts, who shall cause the same to be registered in a book kept for that purpose. Such registra- tion shall show the date, amount, number, maturity and rate of interest of such bond, under what Act and by what county, township, city or town issued ; and the auditor shall, under his seal of office, certify upon such bond the fact of such registration, for which registration and certificate the auditor shall be entitled to a fee of one dollar from the holder of each bond. Section 3. In all cases when any county, township, in- corporated city or town shall issue bonds under the provisions of law, and be entitled to the benefits of this Act, it shall be the duty of the county clerk of such county, or of the officer to whom or to whose office the assessment rolls for State taxation are or shall be returnable, within five days after such return, to make out and transmit to the State Auditor, to be filed in his office, a certificate stating the total value of all property, real and personal, within such county, township, city or town, as exhibited by such assessment. Section 4. When the bonds of any county, township, city or town shall be so registered, the State Auditor shall an- nually ascertain the amount of interest for the current year due, and accrued, and to accrue upon such bonds, and from the amount so ascertained he shall deduct the amount in the State treasury placed to the credit of such county, township, city or town, as herein provided and directed, and from the basis of the certificate of valuation of property heretofore provided to be transmitted to him, or in case no such certifi- cate shall be filed in his office, then upon the basis of the total assessment of such county, township, city or town, for 278 THE LAW OP MTTNICIPAL BONDS. the year next preceding, he shall estimate and determine the rate per centum on the valuation of property within such county, township, city or town, requisite to meet and satisfy the amount of interest unprovided for, together with the or- dinary cost to the State of collection and disbursement of the same, to be estimated by the auditor and treasurer, and shall make and transmit to the county clerk of such county, or to the proper officer or authority whose duty it is or shall be to prepare the estimate and books for the collection of State taxes in such county, township, city or town, a certificate stating such estimated requisite per centum for such purpose, to be filed in his office, and the same per centum shall there- upon be deemed added to and a part of the per centum which is or may be levied or provided by law for purposes of State revenue, and shall be so treated by such clerk, officer or authority in making such estimates and books for the collec- tion of taxes, and the said tax shall be collected with the State revenue, and all laws relating to the State revenue shall apply thereto, except as herein otherwise provided. Section 5. The State shall be deemed the custodian only of the several taxes so collected and credited to such county, township, city, and town, and shall not be deemed in any manner liable on account of any such bonds, but the tax and funds so collected shall be deemed pledged and appro- priated to the payment of the interest and principal of the registered bonds, herein provided for, until fully satisfied. The State shall annually collect and apply all the said taxes and funds placed to the credit of such county, township, city, or town, for and during the term of eight years, to the pay- ment of the annual interest on such registered bonds of such county, township, city, or town, in the same manner as in- terest on the bonds of the State is or joaaj be collected and paid, but in like moneys as shall be receivable in payment of State taxes ; and for and during the remainder of the term of years during which said registered bonds shall remain unpaid, the funds provided in section one of this Act accruing from taxes collected on the property of said railroad or railroads, and the surplus, if any, of the other funds in this Act pro- vided, remaining after the payment of interest on the bonds. ILLINOIS. 279 • shall be applied to the payment of the principal of said regis- tered bonds on presentation at the State treasury; or the treasurer shall purchase the same in open market at not more than par; and upon such payments or purchase of the said bonds, the amount paid upon the principal of said bonds shall be endorsed thereon, and receipts thereof shall be taken and filed in the office of the State Treasurer; and the interest coupons or bonds, when fully paid, shall be returned to the office of the State Treasurer, and shall be cancelled and de- stroyed in the same manner as those appertaining to the State debt ; and the fund derived from the taxes collected on the increased assessment over the year 1868, and the tax levied to meet the interest on said registered bonds, shall continue to be annually applied to the interest of said bonds ; and the said taxes and funds i-equired in this Act to be placed to the credit of counties, townships, cities, and towns, shall be applied by the State Treasurer to the payment of the registered rail- road bonds of such county, township, cities, or towns, equally and without discrimination. Section 6. The State may, out of such funds, first retain or satisfy the ordinary costs of the State of the collection and disbursement thereof; and in case of non-presentment of such bonds or interest coupons for payment at the time and place when and where the interest on tlie State debt is or may be paid, then, on the beginning of the next year, the money by reason thereof undisbursed, together with any surplus for any cause remaining, shall be carried to the fund of such county, township, city, or town of the current or ensuing year, and be considered by the auditor in making his next estimate for taxation therein for such year under this Act, and shall be applied accordingly during the first eight years of the operation of this Act. All laws relating to the payment of interest on the State debt, or the cancella- tion of evidences thereof not consistent with this Act, shall apply to the receipt, custody, and disbursement of the taxes and funds provided by this Act. Section -7. And it shall not be lawful to register any bonds under the provisions of this Act, or to receive any of the benefits or advantages to be derived from this Act, until 280 THE LAW OP MUNICIPAL BONDS. after the railroad, in aid of the construction of which the debt was incurred, shall have been completed near to, or in such county, township, city or town, and cars shall have run thereon ; and none of the benefits, advantages, or provisions of this Act shall apply to any debt, unless the subscription or donation creating such debt was first submitted to an election of the legal voters of said county, township, city or town, under the provisions of the laws of this State, and a majority of the legal voters living in said county, township, city or town were in favor of such aid, subscription or donation; and afay county, township, city or town shall have the right, upon making any subscrip- tion or donation to any railroad company, to prescribe the conditions upon which such bonds, subscriptions or donations shall be made, and such bonds, subscriptions or donations shall not be valid and binding, until such conditions prece- dent shall have been complied with ; and the presiding judge of the county court, or the supervisors of the township, or the chief executive officer of the city or town that shall have issued bonds to any railway or railways, immediately upon the completion of the same near to, into or through such county, township, city or town, as may have been agreed upon, and the running of the cars thereon, shall certify, under oath, that all the preliminary conditions in this Act required to be done to authorize the registration of such bonds, and to entitle them to the benefits of this Act, have been complied with, and shall transmit the same to the State Auditor with a statement of the date, amount, number, ma- turity and rate of interest of such bonds, and to what com- pany, and under what law issued, and thereupon the said bonds shall be subject to registration by the State Auditor, as hereinbefore provided. Section 8. And each railway company in aid of which any bonds shall hereafter be issued by any county, town- ship, incorporated city or town, to pay for any subscription to the capital stock of such company, or for any donation made to such company, shall give to such counties, town- ships, cities and towns, collectively, a representation in the board of directors of such company of one-fourth of the number of such board of directors, until after the said rail- ILLINOIS. 281 way shall have been completed, and the cars shall have run thereon, and until all the conditions of the subscriptions and donations to such railway company by such counties, town- ships, cities and towns shall have been fully settled and complied with by said railway company ; and thereafter the said counties, townships, cities and towns shall be repre- sented in said boards of directors only in the manner and proportion that other stockholders are represented ; and the Governor of the State is hereby authorized and empowered to appoint the directors herein provided to represent the interest of the said counties, townships, cities and towns in the boards of directors of such railways as shall receive bonds to be entitled to the' benefits of this Act. Section 9. And Jhe State Auditor, from the total value of all the property in this State, after the same shall have been equalized in accordance with the provisions of " An Act to amend the revenue laws, and to establish a State board of equalization of assessments," approved March 8, 1867, shall deduct the amount of the said increased valuation of the taxable property above the valuation of the year 1868, in such counties, townships, incorporated cities and towns as may be entitled to the benefits of this Act, and the taxes upon which are herein directed to be credited to counties, town- ships, cities and towns, and upon the amount remaining, he shall cause to be collected such a per cent, as shall be suffi- cient to pay the appropriations and other demands upon the treasury due to the end of each fiscal year, and the same See Chap. Vin. ' See Chap. IIL ILLINOIS. 293 quently quoted and approved in later decisions, and, as in other courts, unhesitatingly carried out. The first case of moment that involved directly the question of public improvements was that of Shaw v. Dennis, 5 Gilman, 405, in which it was held that an Act authorizing a certain precinct to impose taxation for the purposes of keeping up a bridge across a river, was de- clared to be constitutional ; and the levy of the tax by the authorities of the precinct was sustained. In Ryder v. The Alton, &e., R. R. Co., the question, as to the constitutionality of an Act authorizing a sub- scription to the stock of a railroad company by a muni- cipal corporation, was in issue, and the Act was declared to be constitutional. This decision was followed in Pret- tyman v. The Superintendents of Tazewell Co., 19 111., 406; Robertson v. Rochford, 21 lb., 451 ; Johnson v. Stark Co., 24 111., 75 ; Perkins v. Lewis, 24 111., 208 ; Butler v. Dunham, 27 lb., 474 ; Clarke v. Supervisors, &g., 27 lb., 305 ; Piatt v. People, 29 lb., 54. And finally, in Chicago &c., R. W. Co. V. Smith, in which, in addition to the legislative rule, the validity of law^s authorizing dona- tions to railroads as well as subscriptions is affirmed as a matter which did not admit of doubt. In no State of the Union are the decisions more posi- tive and consistent than in Illinois. There is not only no variation, but not even a tendency to impair the certainty of the rulings that, once established, have remained," and must of necessity continue to remain,, absolutely undis- turbed. We present below the opinion in Shaw v. Dennis, in which the validity of taxation in aid of a bridge is affirmed. 294 THE LAW OF MtTNICIPAL BONDS. Skaw V. Dennis. This was an action of trespass, in tlie Winnebago Circuit Court, brought by the appellee against the appellant, Hiram K. Maynard, and Ephraim Wyman, for taking and driving away certain cattle, the property of the appellee. The declaration contained two counts, which were substan- tially alike, and in the common form. The defendants sev- ered in their pleas, Maynard pleading separately, and the others joining in a like plea. Maynard pleaded not guilty, and two special pleas of justi- fication. His first special plea set forth that, on the twenty- fifth day of February, 1847, the Legislature passed an Act to authorize the levying of a special tax upon the owners of property in Rockford precinct, for the purpose of maintaining a certain bridge, which had been previously erected across Kock River, at Rockford, and constituting the other defend- ants, Shaw and Wyman, together with two others, a corpo- rate body, by the name of Bridge Commissioners, to carry out the provisions of the Act; that on the twenty-ninth day of March, 1847, said Bridge Commissioners entered upon their duties, and on the thirtieth day of April, 1847, made put a list of the taxable persons of Rockford precinct, together with an assessment of the taxable property of each, at the rate of fifty cents on each one hundred dollars ; that on the twenty- ninth day of November, 1847, said Bridge Commissioners delivered their warrant to the defendant, Maynard, who was then sheriff and collector of said county of Winnebago, au- thorizing him to collect eight dollars and forty-two and a half cents from said plaintiff, Dennis, that being the amount of tax assessed against him as owner of property in said Rockford precinct to the amount of $1,685 ; and that the de- fendant took the prpperty mentioned in the declaration, by virtue of the authority of said warrant, as sheriff and collector for the purpose of making said tax from it. His second special plea is substantially like the first, except that it sets forth that the warrant was signed by three of the Bridge Commissioners. The other defendants pleaded jointly not guilty, and two special pleas setting forth substantially the same state of facts as in Maynard's special pleas. ILLINOIS. 295 The plaintiff joined issue on tlie pleas of not guilty, and demurred specially to all the special pleas, which demurrers were sustained by the court. The parties went to trial upon the issue joined, and judgment was rendered in favor of the plaintiff for sixty-five dollars. Shaw took an appeal to this court. The appellant assigns for error that the Circuit Court erred in sustaining the demurrer. The cause was argued ex parte by the counsel for appellant at an early day in the term, the counsel for the appellee not having been in attendance. Subsequently, on appearing, he was allowed to join in the errors assigned; and having been furnished with the authorities cited by appellant's counsel, the argument was continued. The opinion of the court was delivered by Caton, J. The first section of the Act of the 25th ©f February, 1847, under which all the defendants in the court below justified, authorized the levy of a special tax upon all the taxable prop- erty in Rockford precinct, " for the purpose of repairing and maintaining the bridge across Rock River, at Rockford, and to defray the debt incurred in its erection and repair ; said tax not to exceed fifty cents on one hundred dollars of taxable property." In the second section, two of the defend- ants, Shaw and Wyman, and two other persons, are appointed " Bridge Commissioners of the Rockford Bridge," and they and their successors are made a body corporate and politic, and are vested with the power to declare the amount of tax to be levied, and are required to make out and deliver to the collector of Winnebago County, a list of all persons liable to taxation under the Act ; such list, together with the amount and valuation of taxable property, "to be taken from the last assessment of taxable property in said county," and the Com- missioners were required to deliver to the collector a warrant ■for the collection of the tax. This second section also author- ized the Commissioners, with the proceeds of the tax, to keep' the bridge in repair, and to discharge past indebtedness, if they thought proper. Previous to the payment of such debts, however, the Commissioners are required to settle and state 296 THE LAW OF MUNICIPAL BONDS. all the accounts in relation to said bridge. These first two sections only are set out in the pleas, nor is it material to no- tice the balance of the Act. Mrst, it is objected that this Act is unconstitutional, because it imposes a tax upon Eockford precinct to pay the private debts of individuals, incurred in the erection of this bridge. The particular portion of the Constitution supposed to be vio- lated is not pointed out, even admitting that the tax was to be assessed as supposed. But it does not appear, either from the Act itself or from this record, whether the " past indebt- edness " referred to in the Act was due from individuals or from the public. But admitting the fact to be as stated upon the argument, that individuals had become personally re- sponsible for debts incurred in the construction of this bridge, we have no doubt that the Legislature had a right to impose a tax upon the precinct to provide for' the payment. It will hardly be denied that the Legislature has a right to impose a local tax upon a town or city, a precinct or county, for some local improvement, as the erection of a bridge, or the repair of a road. In doing this, to be sure, it cannot say that one man shall pay all and the others none, or that one shall pay one dollar and another ten ; for the tax must still be uniform, and upon the value of the property which each one has, so that the burden presses alike upon the whole community. But the Legislature must necessarily have the right to say how large that community thus subject' to the tax shall be, whether a city or only one of its wards, or a precinct, a county, or the whole State. If the Legisla- ture had the right to impose this tax to build a bridge, it would be equally lawful to purchase one, to pay for one already constructed for the public accommodation. But this is not a case of first impression. Thomas v. Leland, 21 Wend., 65, is, in fact, a much stronger case than this, and fully answers the objection now made. There certain citi- zens of the city of Utica had executed their bond to the State to pay into the treasury $38,615, to defray the extra expenses of terminating the Chenango canal at that place. Subsequently, the Legislature passed a law imposing a tax upon the owners of real estate in Utica for the purpose of ILLINOIS. 297 paying that bond. This law the Supreme Court held to be constitutional, upon the ground that the money had already been expended in the construction of a public work, by which the owners of such real estate had been especially benefited. Even admitting, as counsel suppose, that the Constitution of l^&w York does not prohibit the Legislature from exercising judicial powers, it in no wise weakens the authority of this case ; for the imposition of a tax for a speci- fied purpose is in no sense the exercise of a judicial power, but it is purely and strictly legislative. But it is said that in the Act before us the Legislature has found and determined the existence of a debt, and thus trenched upon the powers exclusively conferred upon the judiciary. This Act bears no analogy to those upon which the decisions referred to were made. The most that can be said of this Act is, that it assumes that there may be debts unpaid which were incurred in the erection or repair of this bridge, but it does not undertake to determine their nature or amount, or to whom due, or from whom. All of this is referred to the Commissioners, to ascertain and determine; nor even then does the Act make it imperative upon them to pay such debts out 0/ the proceeds of such tax. "Whatever there is involved in this act of judicial power, or even of discretion, is vested in the Commissioners, and is not at- tempted to be exercised by the Legislature. Indeed, in no part of this Act can we discover the remotest attempt on the part of the Legislature to exercise judicial powers. There is another objection urged to the validity of this law. The Act directs the Commissioners, in determining who is liable to pay said tax, and the amount each shall pay, to be governed by " the last assessment of taxable property in said county." It is insisted that this is an unjust criterion, for a man might have disposed of all the taxable property assessed to him in the last assessment before this tax was actually de- clared by the Commissioners. This objection is more refined than practical, and, if allowed, would at once annihilate the power of taxation. The assessment of the tax, and the valua- tion of the property, are never simultaneous acts. The county tax is assessed, as declared by the County Commis- 298 THE LAW OF MUNICIPAL BONDS. sioners' Court, at their Marck term, and the assessment of the valuation, and owners of the taxable property need not be completed until September following. • Under this system the same injustice may be committed, for a man may be com- pelled to pay a tax for a whole year on property which he has only owned for a single day. Indeed, the same horse may be assessed to two different individuals for the same year, for each might own him at the time the assessor takes the list of his property, and yet a third person may have owned him at the time the tax was actually imposed. In the same way other property might go unassessed altogether. In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year's tax upon a given article of property among a dozen individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The Legislature must adopt some practical system ; and there is no more danger of oppression or injustice in taking a former valuation, than relying upon one to be made subsequently. We have ho doubt but this Act is clearly within legislative power, and must be enforced. It is further objected that these pleas do not show that ten days intervened between the time when the demand was made for the payment of the tax, and the time of the levy or distress. This objection assumes that the collector, in the execution of the warrant for the collection of this tax, vauai be governed by the provisions of the general revenue law. But there is as much propriety in saying that he should be governed by the provisions of Section 8, Chapter 25, Eev. Stat., which provides for the collection of taxes in incorporated towns, where a demand previous to the' levy does not seem to be required. The case of the tax before us assimilates much nearer to these local corporation taxes than to the general revenue of the State. But admitting the applica- bility of the provisions of the general revenue law, and we do not think the objection well taken. By Section 32, Chap- ter 89, Eev. Stat., the collector, on receiving the assessment list, is required to proceed to collect the taxes charged in said ILLINOIS. 299 list, by calling upon each person residing in said county, at his or her usual place of residence, and requiring payment thereof. Section 34 provides that the collector, in case of the absence from home of the tax-payer, shall leave a written or printed notice with some member of the family, requiring payment of the tax within ten days of the date of the notice, and that said notice shall be deemed a sufficient demand for the taxes of such person. And the twenty-fifth section is as follows : " In case any person shall refuse or neglect to pay his or her taxes when demanded, or within ten days there- after, it shall be the duty of the collector to levy the same, together with the costs and charges that may accrue by dis- tress and sale of the personal property of such person as ought to pay the same, wherever the same may. be found in the county. ISTo real estate of any person shall be sold for taxes, while personal property of such person can be found by the collector.'" "We are of opinion that this section does not inhibit the collector from making the distress till after the expiration of ten days from the demand, where the de- mand is personal, as required by Section 32, but leaves it dis- cretionary with him to make the distress or not within that time. Were we to adopt any other construction, the demand made by the collector would but afford facilities to the tax- payer to defraud the revenue, and the collector might be compelled to stand by powerless, and see the party remove his property without the State, with the avowed purpose of avoiding the payment of the tax. Such an intention ought not to be imputed to the Legislature, unless it is clearly in- dicated by the language used. Here the statute makes it im- perative upon the collector to make a levy at all events, if the tax is not paid within ten days after the demand, but contains no intimation that he may not make the levy before that time. The language is so imperative, that if he does not make the levy as soon as practicable after the ten days have expired, he would be responsible for any loss which might accrue by reason of such neglect, and the County Commissioners would be authorized to withhold a credit for such delinquent tax, where it might have been made by a prompt levy. In case a personal demand is not made, but the notice is left as is re- 300 THE LAW OF MUNICIPAL BONDS. quired in Section 34, then tlie demand may be considered as incomplete till the expiration of the ten days within which, by the terms of the notice, the party has to pay the tax. It was also objected on the argument, that the warrant, as stated in some of the pleas, was not issued by all the Com- missioners. A careful examination will show that the de- murrers do not raise this question. A joint demurrer is filed to the second and third pleas in each set of pleas ; and as the second plea is not obnoxious to the objection taken, we cannot say, in the language of the demurrers, " that the said second and third pleas are not sufficient," &c. As the ques- tion is not raised, we do not choose to decide it. Although, as the Commissioners are by the Act made a corporate body, which may ^ct by a majority of the corporators, and as the issuing of the warrant was a corporate Act, it would seem to follow that the warrant was well issued by the majority. The judgment of the Circuit Court is reversed with costs and the cause remanded. The case of Prettyman v. Tazewell Co. is so often quoted that we give the opinion in full. It contains a positive reaffirmance of the rule of leg- islative discretion, and tlie public nature of railroads. The opinion of the court was delivered by Walker, J. — The first question we propose to consider is, whether the Legislature has constitutional power to authorize counties and cities to subscribe for shares of the capital stock of railroad companies. To determine the question satisfactorily, it will be proper to ascertain the true rule of construction to be ap- ' plied in testing the constitutionality of an Act of the State Legislature. While the Federal Government is one of dele- gated powers, supreme to the extent of the power granted, that of a State is rather to be regarded as a limitation of the legislative department ; and it is competent for the Legisla^ ture to exercise all powers not forbidden by the Constitution of the State, nor delegated to the General Government, nor prohibited to the State by the Constitution of the United States. Sawyer v. Ciiy of Alton, 3 Scam., 130; Mason v. Wait, 4 Scam., 134. ILLINOIS. 301 This court again say, " that in determining a question in- volving the inquiry whether an exercise of power by the leg. islative department of the State is constitutional, is readily conceded to be not only a matter of delicacy, but of grave im- port, and demands the most deliberate and mature considera- tion. It should not, moreover, be decided but in cases of clear necessity, and when the act done is in plain conflict with the Constitution." Lane v. Gorman, 3 Scam., 240. These, it is conceived, are the true rules by which to test the validity of the exercise of the legislative power of a State; and applying these tests, we will proceed to determine whether the Acts in question are prohibited by the Constitution, The only portion of our State Constitution referred to as violated by the Act of the 6th ISTovember, 1849, is the thirty-eighth section of the third Article of the Constitution, which provides that " The credit of the State shall not be given to or in aid of any individual, association or corporation." From the terms used in this provision, or from plain and necessary implication, does it. appear that the framers of that instrument intended to prevent the Legislature from author- izing counties and cities to subscribe for shares of the capital stock of railroad incorporations ? The language, in terms, does not. The credit of the State alone is mentioned ; coun- ties and cities are not mentioned. It is a familiar rule of con- struction, that the express mention of one thing implies the intention to exclude others. Co. Litt. 210 a. ; Broom's Max. 505. It is no more than reasonable to suppose that, if the framers of the Constitution had intended to embrace counties and cities in this prohibition, they would have named them, and especially so when they have been so specific in regard to the great number of prohibitions enumerated in that in- strument. I have been unable to find, a single decision hold- ing a legislative enactment void because it authorized the per- formance of an Act supposed to be embraced within the reason of some other prohibition ; and it is believed that none such exists. Such a reason would be highly proper to urge in favor of a change of the fundamental law, or upon the Legislature, to prevent them from exercising the power. But the Constitution itself furnishes the only test in determining 302 THE LAW OF MUNICIPAL BONDS. the validity of a statute. Any other would be dangerous in the extreme, as the courts would then be virtually the framers of the Constitution, and not the people. It is the duty of the courts to determine what the provisions of the Constitution are, and not what they should have been. If a law is unwise, the Legislature is responsible, and it is for their constituents to apply the corrective, and not for the courts, for that reason, to hold it void. We can only look to their power to act under the Constitution, and not to the effects of their exercise of constitutional authority in determining the validity of their acts. It was urged that, under this prohibition, the State has no power to subscribe for stock in such an incorpo- ration, or to levy a tax to aid its construction, and that to au- thorize counties or cities to do so, was indirectly doing the same thing. It certainly has the power to authorize indi- viduals to subscribe- for such stock, although it is itself pro- hibited from doing so. There are many acts it may not do, and yet may authorize others to do. It has no power to try a suit, yet it may authorize a court to do so; and may not ex- ercise many judicial, ministerial and executive acts, which it may authorize others to perform. The Act in no way lends the credit or pledges the faith of the State to these incorpo- rations. It is not responsible for the redemption of the bonds, or for the payment of the interest on them. It only author- izes counties and cities to lend their credit to or in aid of such incorporations. And we think that the Legislature had con- stitutional warrant for so doing, and the Act is not void. In the case of Chicago, Danville and Vincennes JR. R. Co. V. Smith, decided in 1872, and which may be taken to be in the nature of a summary of all the cases pre- viously decided by the Supreme Court of Illinois, which we give in full below, the only difference relied upon be- tween the issue and that previously decided was, that the money appropriated was a donation, and not a subscrip- tion. The case was ably and exhaustively argued before a full bench ; but the conclusion unanimously arrived at was, that a donation, like a subscription, was clearly ILLINOIS. 303 within the legislative discretion, and that there was no difference whatever between an Act authorizing the one, and an Act authorizing the other. The Chicago, Danville and Vincennes Railroad Co. r. Smith. ThorntOjN^, J. — Defendant in error jS.led his hill in the Circuit Court to enjoin the collection of taxes levied under an Act of the Legislature, and in pursuance of a vote of the people, to aid in the construction of a railroad. The Act authorized all towns, acting under the township organization law, to appropriate such sums of money as they should deem proper to aid in the construction of the road, to be paid as soon as the track should have been located and constructed through the towns. The road was completed before the appropriation was made; and it was a donation to the company, and not a subscription to its capital stock. Upon the hearing, the Circuit Court made the injunction perpetual, and pronounced the Act unconstitutional. The officers of the town, who made the appropriation and levied the tax, were the " corporate authorities " of a muni- cipal corporation ; and they acted in the premises after a majority of the legal voters of the municipality had author- ized the appropriation upon the condition of the construction of the road. The only question is as to the power of the Legislature to authorize municipalities to subscribe to the capital stock of railroad companies, and to appropriate money as a donation to aid in the construction of the roads. The only difference between this case and numerous cases decided by this court, is, that the money appropriated by virtue of the statute in question is a donation instead of a subscription. But for this difference we might stand securely upon the maxim, stare decisis et non quieta movere. Frequent fluctuations in the opinions of courts of last resort involve the court in absurdities; render the law uncertain; destroy that feeling of reliance so essential to the strength and stability of all au- 304 THE LAW OP MUNICIPAL BONDS. thority; and produce miscliiefs innumerable. The decisions of courts had better be involved in some error, than subject to change upon every change of the judiciary. In the discussion of legislative power, we have nothing to do with questions of policy or expediency. The Constitution has created the legislative and judicial departments ; the one to make the law, the other to construe and administer it. It may be mischievous in its effects ; burdensome upon the people; conflict with our conceptions of natural right, ab- stract justice or pure morality, and of doubtful propriety in numerous respects; and yet we would not be justified to hold that it was not within the scope of legislative authority for such reason. The question as to the repugnancy of a law to the Consti- tution is always one of much delicacy; and courts will never indulge the supposition unless the repugnancy is manifest to the understanding. In Lane v. Donovan, 3 Scam., 238, this court said : " The determining of a question, involving the inquiry whether an exercise of power, by the legislative department of the State, is constitutional, is readily conceded to be not only a matter of delicacy, but of grave import, and demands the most deliberate and mature consideration. It should not, moreover, be decided but in cases of clear necessity, and where the character of the Act done is in plain and obvious conflict with the Constitution." The law should not be pronounced void in a doubtful case or upon slight implication. " The opposition between it and the Constitution must be clear and strong." People v. Marshall, 1 Gil, 672. The infringement of the Constitution must be evident be- fore the courts will interfere and hold, the act nugatory. People V. Hatch, 33 111., 130. In ex parte McCollum, 1 Conn., 504, Savage, C. J., said that a court ought not to declare a law unconstitutional without a case is presented in which there can be no rational doubt. In delivering the opinion in the case of Fletcher v. Peck, 6 Cranch, 87, C. J. Marshall said : " The question whether a law be void for its repugnancy to the Constitution is at all ILLINOIS. 305 times a question of much delicacy, wldch ought seldom or never be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligation which that station imposes. But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." In the same court, whose decision is chiefly relied on to induce a reversal of the former opinions of this court, equally explicit language, in regard to the duty of courts, has been used. In Twitchell v. Blodgett, 13 Mich., 152, Coolet, C. J., said : " It is conceded to be the settled doctrine of this State, that every enactment of the State Legislature is presumed to be constitutional and valid; that before we can pronounce it otherwise, we must be able to point out the precise clause in the Constitution which it violates ; and that the conflict be- tween the two must be clear, or free from reasonable doubt ; since it is only from constitutional provisions, limiting the legislative power and controlling the legislative will, that we derive authority to declare void any legislative enactment." "We might multiply extracts from the opinions of the ablest courts to the same effect. Enough has been cited to show the firm position of the judiciary; that the courts ought not, and in justice to the rights of a co-ordinate department of the State Government cannot, declare a law to be void, without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity. An objection to this law is urged which has been made since the origin of the character of legislation now under consideration. It is assumed that the taxes levied are to be appropriated to a private, and not a public purpose ; that the benefits re- sulting to the public — the people at large — from the con- struction of railroads, are merely incidental ; that the profits 20 306 THE LAW OF MUKICIPAL BONDS. arisiDg from their operation enrich the individuals who form the private corporation; and therefore all laws imposing taxes to aid in the building of railrords,. to be owned and operated by private corporations, are unconstitutional. If the premises are correct, that the corporations are strictly private, and the benefits, to the public, purely incidental, the conclusion might logically follow. The argument assumes, as unquestionable, the point to be determined ; as true, the fact to be ascertained. In the enactment of laws the Legislature must exercise its judgment and discretion. As to questions of pure policy and expediency — no express or necessarily implied consti- tutional provisions intervening — it is the sole judge. It has also the undoubted right to take a comprehensive view in determining the necessity of a law, and the character of the purpose to be accomplished by it. A court, with any pro- priety, cannot arrogate to itself all power and wisdom in such matters ; and if there be grave doubt as to the nature of the purpose, the doubt must always be solved in favor of the ac- tion of the Legislature. Concede that taxation for a mere private enterprise is wrong and invalid, is the construction of the road, to which the aid is proposed to be given, of that character ? It is a road from Lake Michigan to a point opposite Vin- cennes, in the State of Indiana, traversing nearly the entire length of the State. The road was completed before the pay- ment of any money was asked, though it was built upon the faith of it. Are the advantages which accrue to the public from the construction and operation of railroads merely incidental, in the sense of the term as commonly used ? "We are inclined to think that they rather resemble the in- cident in law, and appertain to and follow the principal thing. The benefits resulting to the people of the State from our system of railroads are untold and incalculable. The mind can scarcely grasp them. Eailroads have almost super- seded all other modes of intercommunication between the several parts of our extensive and growing States. They have become an absolute necessity — indispensable to our in- ILLINOIS. 307 creased growth, and to the removal of our immense surplus. They have added millions to our taxable property; given augmented facilities to every department of trade; enriched the mass of the people ; largely enhanced the value of our lands; built up manufactories; and brought us into close proximity with the best markets of the country. All share in the blessings flowing from them. Railroads are, in truth, the people's highways for pleasure, and business and commerce. Without them our internal trade would languish and die, and our corn and wheat rot in our granaries. For more than a quarter of a century the courts have re- cognized and referred to them as public improvements, made for the public good, and to subserve the public interests. Johnson v. The County of Stark, 24 111., 75 ; Cin., WU. and JanesvilU JS. H. Co. v. The Commissioners, 21 Ohio, 1 McCook, 77; Sharpless v. The Mayor, ^c, 21 Penn., 9 Harris, 149; Nichols V. Mayor and Aldermen of Nashville, 9 Humph., 252 ; Goddin v. Crump, 8 Leigh, 120 ; Enfield Toll Bridge Co. v. Hart, and N. H. R. JR. Co., 17 Conn., 40 ; Beekman v. Saratoga and, Schenectady It. B. 0>., 3 Paige, 45 ; Bhodgood v. Mohawk and H. R. R. Co., 10 Wend., 9 ; Newbury Turnpike Co. v. Eastern R. R. Co., 23 Peck, 326. The courts, while ready and willing to protect these corpo- rations in all their rights, have uniformly asserted, and seem determined to maintain their obligations to the public. The principles of common law, and their charters, accepted by them, and which clothe them with a portion of the sovereignty of the State, impose duties on them to the public which they must discharge. They can be compelled, by the mandates of the courts, to a full performance of them, and parties seek- ing redress need not resort to the imperfect action at common law, but may apply for 'the more efiectual remedy by man- darrms. Railways are improved public highways; and the courts have uniformly held that they are of such public use as to justify the exercise of the right of eminent domain, in taking all real estate that may be necessary for the construction and maintenance of the road, its depQts, side-tracks, stations, 308 THE LAW OF MUNICIPAL BONDS. machine-shops, and other necessary appendages ; disfiguring, and rendering unfit for cultivation, farms, and even- in de- stroying dwellings. The necessity and expediency for the exercise of this right in making public improvements, either for the benefit of all the people of the State, or of a particular municipality, must be determined by the Legislature. Mere convenience is not sufficient to justify the exercise of the right. The public use must be necessary and pressing. In referring to the urgency of the public use, Woodbtjet, J., in the case of West Biver Bridge Company v. Dix, 6 How., 646, said, " So, as to a road, if really demanded in particular forms and places, to accommodate a growing and changing com- munity, and to keep up with the wants and improvements of the age, — such as its pressing demands for easier and social intercourse, quicker political communication, or better inter- nal trade, and advancing with the piiblic necessities from blazed trees to bridle-paths, and thence to wheel-roads, turn- pikes and railroads." Though the' distinction between the right of eminent do- main and the power of taxation may be manifest, yet when the public use, necessary for the exercise of the former, has been settled by both the legislative and judicial departments, and a particular enterprise has thus been fixed, as of public importance, the position is very much strengthened, that taxation for such an enterprise is for a public purpose. This court has decided that such corporations are created for the public good; to increase the facilities and conveniences, and promote the great ends of commerce ; and that they can- not organize monopolies, and make contracts injurious to the public interests. Vmcemies v. C. ^ A. B. B. Co., 49 111., 33 ; Chicago ^ N. W. B. B. Co. v. The Pepple ex rel. Hempstead. In view of the past history of railroads ; the impos- sibility of dispensing with them ; the necessity of an increase of the number, to open more outlets for the products of our fertile and inexhaustible soil — all of which were well known to the Legislature — and sustained by nu- merous authorities — we must hold that,, even if the appro- priation in this case was not for a public purpose, in the ILLINOIS. 309 broadest sense, tlie character of the purpose is involved in such doubt, that we cannot declare void the action of the Legislature. Is the law, under consideration, in violation of the fifth section of the ninth Article of the Constitution of 1848? That section provides that "the corporate authorities of counties, townships, school-districts, cities, towns and vil- lages may be vested with power to assess and collect taxes for corporate purposes ; such taxes to be uniform in respect to person and property within the jurisdiction of the body imposing the same." It is contended that the appropriation was not for a " cor- porate purpose." If it was for a public purpose — for the benefit of the inhabitants of the municipality — then it would be for a corporate purpose. The latter cannot be distinguished from the former ; and all that we have said in relation to the public purpose of the tax will apply with equal force to a corporate purpose. We refer to the follow- ing cases in which the questions discussed have been settled by this court : Prettyman v. The Supervisors of Tazewell County, 19 HI., 406 ; Johnson v. The County of Stark, Supra ; Perkins v. Lewis, 24 HI., 208 ; Bvikr v. Dunham, 27 111., 474 ; The President and Trustees v. Prick, 34 111., 405. In the case of Nichols v. The Mayor and Aldermen, supra, a subscription by the city of Nashville to a railroad was held to be for a corporate purpose. The Constitution of Tennessee provides that " The General Assembly shall have power to authorize the several counties and incorporated towns in this State to impose taxes for county and corporation pur- poses respectively," The language is substantially the same as in our own Constitution. The city of ITashville having sub- scribed, a bill was filed to restrain the issue of bonds ; and the court decided that theXegislature had power to authorize the subscription ; that the construction of the road was a corporate purpose; and that the city might either levy the tax or issue bonds to obtain the money. In Taylor v. Thompson, 42 111., 9, this court defined a corpo- rate purpose to mean " a tax to be expended in a manner 310 THE LAW OF MUNICIPAL BONt)S. wMcH shall promote the general prosperity and welfare of the municipality which levies it." "We adopt this definition ; and are of the opinion that no person can doubt but that taxes expended to aid in the con- struction of a railroad must promote the general prosperity. The remaining question is, whether a distinction exists between a donation in aid of the road and a subscription to the capital stock of the corporation. The distinction is more apparent than real ; indeed, to our view, is entirely shadowy. 'No principle could justify the authority to a municipal cor- poration to become a stockholder in a railroad company merely to acquire equitable rights and to prevent the misap- plication of the funds. The power is granted in consideration of the public bene- fits ; and these are as great in the one case as in the other. The decree of the court below is reversed, and the cause remanded. Decree reversed. chapti:e XII. INDIANA. The constitutional provisions of the State of Indiana, as well as the law of the State, are so fully and ably discussed in the case of the Lafayette, Muncie and Bloom- ington R. R. v. Geiger, decided in the year 1871, and which we present below, that any discussion appears to be almost supererogatory. The case may be taken to be an authoritative review, the prime object of Wrhich was, perhaps, to settle any doubts that might arise in the future concerning the important questions treated of. Every constitutional provision that can be supposed to affect, directly or indirectly, the issue of Municipal Bonds, was fully considered. Every point was strenu- ously urged, and each is boldly met by the court and disposed of. The following are the provisions passed upon. We give them in the order in which they are discussed in the opinion : Section 22, Article IV. — The General Assembly shall not pass local or special laws in any of the following enumerated cases, that is to say : . . . . Eegulating county and township business. Providing for supporting common schools, and for the preservation of school funds ; . . . , Section 6, Article X. — No county shall subscribe for stock in any incorporated company, unless the same be paid for at the time of such subscription ; nor shall any county loan its credit to any in- 311 31si THE LAW OF MUNICIPAL BONDS. corporated company, nor borrow money for the purpose of taking stock in any such company ; nor shall the General Assembly ever, on behalf of the State, assume the debts of any county, city, town, or township, nor of any corporation whatever. Section 5, Aetiole X. — No law shall authorize any debt to be contracted on behalf of the State, except in the following cases : To ■ meet casual deficits in the revenue ; to pay the interest on the State debt ; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defence. Section 25, Article I. — No law shall be passed, the taking effect of which shall be made to depend upon any authority except as provided in the Constitution. Section 1, Aeticle -X. — The General Assembly shall provide • by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulation as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious or charitable purposes as may be specially exempted by law. After an elaborate and most intelligent examination of these provisions, the court decides that none of them prevent the passage of an Act by the Legislature author- izing a county to make subscription to a railroad. The last three sections are disposed of upon recognized principles ;^ but the leading feature of the opinion is the construction of Section 6, Article X., which was proba- bly the only one relied upon by the appellee. The conclusion arrjved at in respect to this section is thus expressed : " We therefore hold that the General Assembly pos- sesses the power under the Constitution to authorize counties to subscribe for stock in a railroad company, cii the express condition that the stock is paid for in money at the time when the subscription is made ; and that the means provided in the said Act to raise the money with 'See Chap. V. INDIANA. 313 wbicli to pay for said stock were appropriate, plainly- conduced to tlie end proposed, were not prohibited by the Constitution, and were not inconsistent with the letter or spirit of the Constitution." " The fourteenth section of the Act in question pro^ vides that said Board of Commissioners may, after the assessment herein provided for, or any part thereof shall have been collected, take stock in such railroad company from time to time, in the name of the proper county or township, as the case may be, and pay there- for when the same is taken out of the money so collected as aforesaid, etc. Now it is plain, from the above-quoted provision, that this Act was not intended to bind a county for a dollar until the money shall be in the treas- ury from the special tax levied to pay for the stock, and no subscription is authorized to be made until that time. This complies with the plain and undoubted require- ments of -the Constitution. When the money is in the treasury, there is no limitation or restriction contained in the sixth section." An important point relating to election is also decided, the court holding that, in the absence of fraud and of proof that illegal votes were cast, or legal votes ex- cluded, an election will not be set aside, it being the duty of the judiciary to give effect to the will of the people as expressed at the ballot-box wherever it is pos- sible to do so. In addition to the above, the following sections are found in the present Constitution of the State : Sectioit 3, Article IX. — The county boards shall have power to provide farms as an asylum for those persons who, by reason of age, infirmity or other misfortune, may have claims upon the sympa- thies and aid of society. The first case that arose in Indiana was that of The 3-14 THE LAW OF MUNICIPAL BONDS. City of Aurora y. West. It involved the question of the validity of subscriptions to the stock of railroad corpora- tions ; and the court held an Act permitting such sub- scriptions to be valid. The case has grown to be a lead- ing one in the State, and we therefore present the opinion in full. When it is read in connection with the decision in the Geiger case, it will show conclusively the complete determination of the questions at issue. City of Aurora v. West. Perkins, J. — Suit against the city of Aurora. Demurrer to the complaint overruled. Answer. Demurrer to the an- swer overruled. Reply. Demurrer to the reply overruled. Judgment for the plaintift". Exceptions were taken to the overruling of the demurrers. The case is as follows : The fity of Aurora was incorporated by an Act of the General Assembly of Indiana, entitled, " An Act granting to the citizens of the town of Aurora, in the county of Dearborn, a city charter," approved February 14, 1848, the eighteenth section of which, being the provision of the Act having im- mediate reference to the question at issue, is as follows : " Section 18. The said city council, whenever a majority of the qualified voters of said city require it, shall have power, and they are hereby authorized, to take stock in any chartered company for making roads to said city, or for watering or lighting said city ; provided, that no such stock shall be sub- scribed on the gart of the city until a majority of the quali- fied voters thereof have signified their assent thereto that they are in favor of the subscription for such stock by the city council ; and to raise funds for the payment of such stock, the bonds, under seal of said corporation, payable in such manner and at such time as they may deem proper and expe- dient, and bearing interest at six per centum per annum, pay- able annually, and therein pledge to the holders of such bonds that the stock so taken, with all the dividends thereon accruing, shall be held and firmly bound for the payment of the said bonds and accruing interest on the same, and the INDIANA. 315 interest coupons attached to said bonds, shall be received at all times, when due, for the payment of all taxes due to said city, the amount of stock subscribed in any one chartered company not to exceed $50,000." In September, 1850, the city council of the city of Aurora subscribed for $50,000 of the capital stock of the Ohio and Mississippi Railroad Company, and in payment of that sub scription issued the bonds of the city to the amount of $50,- 000, the interest on which was payable on the first day of January, annually. The bonds were issued on the first. day of January, 1852, being under the new Constitution. "When the railroad waa located through the city of Aurora does not clearly appear. The bonds, &c., were assign^ to "West and Torrence; the interest was not paid when due, and this suit was brought to recover the amount. The suit, as we have seen, was successful below. The city appeals, and claims that the judgment of the Circuit ,Court should be reversed. It is insisted that the bonds of the city are void. Counsel argue thus: " 1. That the city council of Aurora was only authorized to ' take stock ' in a ' chartered company for making roads to said city ; ' that the Ohio and Mississippi Railroad Company was not designed for any such purpose, but with views and objects foreign to such purpose ; and that, therefore, as a nec- essary consequence, the subscription made by the city coun- cil to the capital stock of that company was unauthorized and void. " 2. That as the city of Aurora was not, by the Act incor- porating the railroad company, a point on the line of the con- templated railroad, and the road not being located to or through the city of Aurora ; at the time of subscription, the same was unauthorized and void, and even if it would have been valid, if either of the states of things had existed at the time of the- subscription, any Act predicated on that void sub- scription was a nullity. " 3. That the term ' road,' as used in the city charter, must be taken iil its general sense as synonymous with ' highway,' ' public thoroughfare,' and not as a private enterprise, gottea 316 THE LAW OF MUlTICIPAL BOKD8. up for private purposes : in its very nature a monopoly, such as must be the case with every railroad ; and, " 4. Tha,t the State cannot confer on corporations designed simply for the purposes of local municipal government the powers sought in this instance to be exercised by, and en- forced against, the city of Aurora — to incur heavy liabilities by subscribing to the capital stock of companies having general, even national, and not merely local purposes in view. We insist that the power never did exist ; and that if it ever did, the spirit of the present Constitution is in direct hostility to it, and that the bonds issued in 1852 were issued without au- thority." The provision as to the route of the Ohio and Mississippi Railroad, in the charter of the company, was : " Section 13. That the president and directors of said com- pany shall be, and they are hereby, invested with all the rights and powers necessary and proper for the survey, loca- tions, construction and repairing of a railroad, on the most direct and practicable route between Lawrenceburgh on the Ohio River, and Vincennes on the Wabash River — having in view the interest of the company, and the convenience of the citizens of the State of Indiana, — and to extend eastwardly on the like most direct and practicable route to the city of Cin- cinnati in the State of Ohio ; and to extend westwardly on the like most direct and practicable route through the State of Illinois to the city of St. Louis in the State of Missouri." We shall not, in examining the case, follow the order pur- sued by counsel in their argument. "We will first consider the last position assumed by them. It involves the important question in the cause. The internal improvement of a State by means of roads and canals has always been a legitimate subject to call into exer- cise the legislative power of the State. It has been, and still is, thus in Indiana. Under the old Constitution, such im- provements could be carried on by means of loans creating a State debt. Under the new, they cannot be carried on by that particular means by the State, but must be paid for by taxes raised as the works progress. This is an express limitation on the exercise of the power by the State inserted in the Consti- INDIANA. 317 tutioii. The same limitation is imposed upon the exercise of a like power by the counties of the State. Section 6 of Ar- ticle X, reads : "1^0 county shall subscribe for stock in any incorporated company unless the same be paid for at the time of such subscription; nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company; nor shall the G-eneral Assembly ever, on behalf of the State, assume the debts of any county, city, town, or township, nor of any corporation whatever." This section, by implication, concedes the power to counties to take stock, at all events by permission of the Legislature, in companies chartered to construct works of internal im- provement under the new Constitution, by making cash pay- ment at the same time, under the old, as we have seen, without; and it does not impose any limitation upon the power of cities touching the matter, while it shows that the subject of their taking stock in such companies must have been before the Constitutional Convention. The provisions in the new Constitution, then, on the ques- tion under consideration, amount to this : They admit the power of the State to construct works of internal improve- ment, but forbid her, in her State capacity, to create a debt for the purpose. They grant that the power may be conferred upon counties to take stock in companies chartered to con- struct such works, but require simultaneous payment. They do not prohibit the conferring of the power to take stock upon cities either by means of cash or credit, or of otherwise aiding these undertakings, but they prohibit the State from assuming any debts cities may contract. The implication, from these provisions, in regard to cities, if there be any, is in favor of their power to take stock, &c. At all events, if they ever possessed the power, that power is left unimpaired. The Convention did not consider that an inhibition upon the State to construct internal improvements, in her capacity as such, by means of loans, prohibited her from authorizing other agencies to construct them by such means ; hence, they proceeded to impose the restriction as to 318 THE LAW OF MUNICIPAL BONDS. counties, but did not extend it to cities, though naming them in the same section. The maxim, therefore, that the expres- sion of one excludes the other, must apply. Suppose the .Constitution said that the State should not, by means of her own officers and funds, construct railroads, would the provision be construed to prohibit the State from chartering companies for that purpose? It would rather imply that they were to be constructed by such agencies, for an intention to entirely arrest the improvement of the State could not be presumed. If, then, cities, under the old Constitution, or, it would seem, under perhaps any Constitution, could be invested by the Legislature with the power of aiding works of internal improvements, they still can be invested with such power. The question, therefore, presents itself. Can such power be given to a city ? Of the policy of conferring it, we have said all that it becomes us to say, in The City of Lafayette v. Cox, 5 Ind. R., 38, to which we refer. Of the capacity to coiifer it, we have not heretofore expressed an opinion. That is now the question. We have seen that no express constitutional provision stands in the way of granting such power to a city, as we hold that the prohibition in the Constitution upon the Legislature to create a State debt does not prohibit that body from authorizing cities to create debts. This is our construc- tion of the language of the Constitution. But it is insisted that the power is not a legitimate part of the authority of a municipal corporation — that it is outside of the purpose for which such corporations are created — and that this is a suffi- cient reason for holding them incompetent to receive a grant of such power. But is not this begging the very question to be decided ? For what precise purposes are municipal cor- porations created ? How much power, and no more nor less, is embraced by the idea of a municipal corporation ? We have not been satisfactorily enlightened on this point. If the Legislature can confer a little legislative power upon a city for local objects, can it not confer a greater amount for the same objects? It would hardly be said that cities were cre- ated simply to establish and enforce police regulations — to maintain order among the citizens. By common custom, INDIANA. 319 they establish sanitary regulations, rules governing markets, &c. ; and on what principle do they exercise these powers,? They go further. They construct streets, sidewalks, bridges, &c., within their limits. They do more. They build wharves to accommodate their trade and commerce coming to them from a distance ; they construct water-works — going for the purpose miles beyond corporate limits. They construct works for lighting, &c. . These, and other like powers, though not existing in every one, yet, we believe, all concede, may be conferred upon municipal corporations as legitimate, as con- stitutional ; though in their exercise the citizens are not sev- erally equally benefited in proportion to taxes paid. See Lafayette v. Cox, 5 Ind. R., 38. l^ow, if a city may build wharves, or take stock in companies created to build them, to foster commerce — may take stock in companies chartered to furnish the people water, light, &c., — why, as a question of power, may it not take stock in companies for the making of highways to facilitate the bringing in of bread and meat and fuel to the citizens ? Are not these of nearly as much im- portance to them as water, light, &c. ? And are not such works, in a special manner, locally advantageous to the city ? And where the citizens of a place see fit to ask, and the Legislature to grant, such power, and the citizens have subse- quently, in the prescribed mode, exercised it, no constitutional provision forbidding, a court whose province is simply to de- cide what the law is, not what it should be, cannot annul such exercise of power. How much local benefit must an improve- ment confer to bring it within the spirit of a local one ? If a city may build a wharf to accommodate its commerce, may it not also a depot ? May it not build the track o£a road through its corporate limits ? May it not, then, put in that amount of stock or bonds to pay the company the sum the depot and track- would cost? The practical application of the power of cities must ne- cessarily change with the progress of science and invention. Before the uses of gas were known, cities did not erect gas- works. Let it be observed that, while we think we cannot hold it unconstitutional for a city to aid in the construction of a high- 320 THE LAW OF MUNICIPAL BOITDS. way — a legitimate public undertaking, and one which pro- motes the convenience of all the citizens by facilitating the introduction among them of fuel, bread, &g., thus conferring a local benefit — we mean in no manner to be understood that a city could engage in trade and traffic in those articles. Such pursuits belong to the individual citizens and private corpora- tions. See Beehe v. The State, 6 Ind. R., 501. And for a city to traffic in stocks or bonds owned by third persons, might be regarded as such private pursuit. The in- vestment by the city must be in aid of the public undertaking — a legitimate object of pursuit by a government. This distinction is important, and should be borne in mind. It is sometimes said that by talcing stock, or otherwise aiding a railroad, a city compels her citizens to invest their property in a partnership operation against their will. It is, in some sense, true. So she does when she takes stock in, or other- wise aids, a gas-, or a water-works company. So does the State thus compel her citizens, in the same sense, to invest their means in a partnership with her when she constructs a railroad or canal. The citizen's money is taken by taxation and invested- in the work, and his dividend, his profits, come back in the tolls, rents, &c., paid into the State treasury. So, also, in city investments, through the city treasury. But these are public undertakings of a governmental character. When prosecuted by State taxation, the citizen consents to them through his representative in the State Legislature. When by city taxatiorl, the city consents by its more imme- diate representative in the city Legislature. And, beyond doubt, general powers of government, for local interests,, may be exercised as equitably by a city as by a State administration. It will also be noticed that we have, thus far, treated the power conferred upon cities to enact ordinances, levy and col- lect taxes, &c., as a delegated legislative power. If it be such, then legislative power may be delegated ; and the extent to which it may be done in particular cases must depend upon the Legislature, if the Constitution is silent upon the point, the grant being subject, of course, to the constitutional limitations upon the legislative power of the State. See, on this point, INDIAITA. 321 Am. Law Reg., pp. 1, 29, 85 ; Clarke v. The City of Rochester, 5 Am. Law Reg;, 289. But if the above-named power of cities is not legislative, and legislative power cannot be delegated, tben this immemorially exercised power of taxing, &c., is some other nameless power conferred by the Legislature, and, for aught we are able to discover, may as properly be exercised for paying for stock in a railroad running to or through a given city, whereby a channel is opened for bringing coal, flour, &c., to it, as for paying for stock in a company to bring water to the city. It is true, the water-works may benefit, nobody but the citizens of the city, while the railroad may benefit the surrounding country, to some extent, at the same time that it confers a great local benefit on the city — one, perhaps, greater than the water-works. But, where such is the case, should the city be deprived of the right to benefit itself locally, be- cause it cannot do so without also benefiting others ? And if the argument is a good one, that cities are necessarily in- capable of aiding any improvement that may extend beyond the corporate limits, will it not apply with equal force tO' States ? May it not be said that a State is created to govern within its territorial limits ; and, hence, that it is unconstitu- tional for it to aid in any work extending beyond those limits ? that Indiana, therefore, could not aid in the construc- tion of the Wabash and Erie Canal because it extended into Ohio? That she could not, with the consent of Ohio, con- struct that portion of the Whitewater Canal lying in that State because it was without her territorial limits? That South Carolina could not aid in the construction of a railroad to Memphis, in Tennessee, or to New Orleans, in Louisiana ? But is this the doctrine ? A State can do what its Constitu- tion does not, by positive prohibition or reasonable implicar tion, prohibit. The United States, and city corporations, can do only what their Constitutions permit. If the Constitution of the United States expressly authorize the Government to construct, with the consent of the States, roads within their limits, would there be any doubt of her power to do so ? If a State, then, can construct by permission ; if South Carolina can, with the consent of Tennessee, construct a road in that State, cannot a city of a State be authorized by the State 21 322 THE LAW OF MtTNICIPAL BONDS. to take stock in a road extending beyond her corporate limits ? We think the proposition may be asserted, that one gov- ernment may act within the territorial limits of another, with the consent of the latter. Another objection must be here noticed, though not pre- sented by counsel. It has been suggested, that taxation to pay the city indebtedness sued upon, is the taking of private property for public use; and the suggestion is true; and it is the important fact in the case which renders the taking legal. Property may be taken through the taxing-power, for public use, without any other compensation than the common benefit which the appropriation and expenditure of the proceeds of the tax produce. It is only the taking of specific pieces of the property of an individual, by virtue of the right of eminent domain, that is prohibited by the Constitution, without special compensation. See the distinctions touching this subject clearly drawn in The People v. The Mayor, ^c, of Brooklyn, 4 Comst., 419. But suppose that the collection of a tax for the purpose mentioned, the tax-payer not consenting, would be an unconstitutional taking of private property, who should complain of it ? There is nothing in the record showing us that any citizen of Aurora objects to his property being, or having been so taken ; that every one is not acquiescing, con- senting ; that they have not all of them stood by and seen the subscription made, bonds issued, and money expended by the company, on the faith of these acts. May they not bind themselves, be estopped, by such acts ? See the State ex rel. ^c. V. Sickler, at this term. "With one member of the court, these considerations have weight in the decision of the cause. To this point, we have proceeded rather in meeting argu- ments against the existence of tlie power in question in cities generally, than otherwise. We now turn to present a short and, to us, a conclusive one in support of the power of the city of Aurora to take stock and issue bonds. " In England, corporations are created and exist, by pre- scription, by royal charter, and by act of Parliament. With us, they are created by authority of the Legislature, and not otherwise." 2 Kent's Com., 276. INDIANA. 323 " When a corporation is duly created, many powers, rights and capacities are annexed to it. Some of them are deemed to be necessarily and inseparably incident to a corporation, by tacit operation, without an express provision; though it is now very generally the practice to specify, in the •• Act or charter of incorporation, the powers and capacities with which it is intended to endow the corporation." Id., 277. " Public corporations are such as are created by the Govern- ment for political purposes; as counties, cities, &c., they are invested with subordinate legislative powers, to be exercised for local purposes connected with the public good ; and such powers are subject to the control of the Legislature of the State." Id., 275. And " under republican governments, where the political tendencies are centrifugal, — tending to diffuse power among the members, rather than concentrate it in the head of the body politic, — we may expect greater powers of local govern- ment entrusted to the municipal corporations scattered over the State." Lafayette v. Cox, 5 Ind. E., 38. Such was the spirit in which our new Constitution was framed and adopted. Hence the restraints upon the legisla- tive power in regard to enacting local and special laws, and the provisions for extending local administration. As to the corporations, that Constitution, Article XI., Sec- tions 13 and 14, ordains that : " Corporations, other than banking, shall not be created by special act, but may be formed under general laws. "Dues from corporations, other than banking, shall be secured by such individual liability of the corporators, or other means, as may be prescribed by law." ' Such is the great power conferred upon the Legislature of creating corporations. And the fourth specification of the schedule declares that : "All Acts of incorporation for municipal purposes shall continue in force under this Constitution until such time as the General Assembly shall, in its discretion, modify or repeal the same." These propositions result thus : 1. The Constitution of the State authorizes the Legislature 324 THE LAW OF MUNICIPAL BONDS. to create corporations, and imposes no limit as to the powers to be conferred on them ; no clause confining their action to objects entirely disconnected with anything outside the corpo- rate limits. 2. Under this Constitution, the law creating a corporation will be the index to the objects for which it was created, and to the powers with which it is endowed, if the grant does not conflict with some other provision of- the Constitution than those above named, or exceed the power possessed by the Legislature itself. 3. As the charter of Aurora was granted prior to the 'new Constitution, and conferred the power to subscribe stock, &c., and was continued and confirmed by that Constitution, that city has the power to take stock, &e., by express constitutional grant, so far as it could be thus conferred. 4. That charter specifies the roads in which the city may take stock, viz., those running to the city; and, indepen- dently of the fact that the charter itself is confirmed by the Constitution, we cannot say, in opposition to the judgment of the Legislature of the State and people of the city, that such roads may not be of such local interest to the whole city as to justify the exercise of the taxing-power of the corpora- tion, over the persons and property of the citizens of the city, to aid in their construction. We would now proceed to the other points. "We think a road running through a city is a road running to it. Every road to it is necessarily a road running from it ; and one road running through and beyond it, in each direc- tion, is, for the purpose of accommodation to the citizens, equal to two roads to the city. We think the Ohio and Mis- sissippi Railroad fills, to Aurora, the requirements of the charter in this particular; and as the date of the determina- tion of the company to locate the road through that place is not given, we presume it was prior to the subscription of stock ; though we do not mean to decide that it must neces- sarily have been so. This case is entirely different from that of Lafayette v. Cox, supra. There, the charter did not confer the power to take stock, but it was attempted to be inferentially derived. Here, INDIANA. 325 t"he power is expressly granted, and the question is merely whetlier the road in which the stock was subscribed is one contemplated by the charter. We think, also, that a company chartered to build a rail- road, is chartered to build a road. We think a railroad is a road as properly as a turnpike-road, or a plank-road, is a road; and one of these kinds was contemplated by the charter, and not common public highways, — as the latter are not constructed by chartered companies, while the former are, and the stock is to be taken by the city in a chartered company. A railroad would accommodate the people of the city more than a plank- or a turnpike-road, and the stock would be of more value. We think every consideration favors the sub- scription to the railroad, if to any. The following embraces the material parts of the latest and most important ease, above referred to : The L. M.'^ B. R. R. Co. et al. v. Geiger. This case presents for consideration and decision, the con- stitutionality and validitj"^ of an Act entitled "An Act to authorize aid to the construction of railroads by counties and townships taking stock in and making donations to railroad companies," approved May 12, 1869, and the regularity and legality of the proceedings had, under suci Act, by the Board of Commissioners of Tippecanoe County. The record shows the following facts : Geiger is the owner of real and personal property in said county subject to taxation to the amount of $20,000 and over; on the 20th day of July, 1869, at a special session of the Board of Commissioners, a petition was presented signed by over one hundred freeholders, asking a donation to the rail- road named of $373,000. Under the provisions of the law of May 12, 1869,' the Commissioners made an order of which the following is a copy : " Said Board, after taking said petition under advisement, and after being fully advised, do order that the polls of the several and respective voting places and precincts be opened 326 THE LAW OF MUNICIPAL BOKDS. upon Saturday, the 28tli day of August, 1869, and tlie votes of the legal voters of said county be taken for or against the appropriating of the money by the said county, for the pur- pose of aiding in the construction of the said Lafayette, Muncie and Bloomington Kailroad, as prayed for in said pe- tition, by taking stock in said company, and that the Auditor give due and legal notice to the qualified voters of said county of the opening of the polls pursuant to this order. " And it is further ordered and declared that it is the opin- ion and judgment of said Board that the appropriation asked for by said petition to aid in the construction of said railroad, should be made by taking stock in said railroad company, and not by donation, and that when said assessment is made, should the same be voted for on the said 28th day of August, 1869, then, and after the same is made and paid in, at the proper time, said Board will aid in the construction of said railroad by taking stock therein." The Auditor of the county published the proper notice in the Lafayette Daily and Weekly Courier, and the Sheriff made publication of the notice of election in three public places in each township of the county. On the 26th of August, 1869, at a special meeting, the Board set aside an order passed on the 11th of December, 1868, establishing voting-precincts and polling-places, making new ones, and appointing inspectors and judges in Fairfield township, of said county, in which the city of Lafayette is situated. In two polling-places, one in Wabash and one in "Washing- ton townships, the vote was irregular in this: that the certificates, poll-books and tally-sheets were not present, nor were the inspectors present who had the same in charge. The Board of Commissioners reported the following as the vote : The whole number of votes cast was 5,657. For the appropriation 3,253 Against the same 2,404 Thus showing a majority in favor of. 849 This certificate was signed by seventeen out of nineteen inspectors, and attested by the Auditor of the county as chairman. INDIANA. 327 The complaint admits " that the vote of said two omitted precincts, if the sitme had been counted, would still have left a majority of the votes cast in said county of between five and six hundred in favor of the railroad appropriation." At the regular June session of the Board an order was made, levying a tax of one-half the amount of said appropri- ation so asked for as aforesaid, to wit, " the sum of one hundred and eighty-six thousand five hundred dollars, upon the real and personal property in said county of Tippecanoe, to be collected pro rata upon the same; and the Auditor of said county is hereby directed to assess and apportion the same against and upon the tax duplicate as required by law." Another order was made on the 14th of June, " that there be levied for county purposes, for the year 1870, twenty cents on each one hundred dollars of valuation of taxable property, and one dollar on each poll, to be assessed, levied and collected according to law, and a special tax of ninety cents on each one hundred dollars' valuation of taxable property to aid in the construction of the Lafayette, Muncie and Bloomington Rail- road through Tippecanoe County, said tax to be used in taking stock in said railroad company in the name of said county, when said tax is collected." The complaint avers that the railroad company, defendant, procured the petition of the freeholders to be filed, and the passage of all orders of the Commissioners, and that said company had filed petitions with the Board for the purpose of having aid aflforded to build its road by having stock taken, etc. The complaint alleges that said tax is wrongful and oppres- sive, and ought not to be collected for the following reasons : 1. That said Act is unconstitutional and void. 2. That the proceedings of the Commissioners in ordering the vote and levying the tax were unauthorized and void. 3. That the petition of the freeholders, and the proceedings of the Commissioners in reference thereto, and of those acting under them, are defective and irregular in this, to wit : {a). Because the prayer of the petition was in the alterna- tive («'. e. for a donation or for taking stock), which it was im- possible to grant in the terms asked. 328 THE LAW OP MUNICIPAL BONDS. (&) Because if the petition was correct, the proposition should have heen submitted to the voters in the alternative, so as to leave the Commissioners free afterwards to determine the mode of appropriation. (c) Because the inspectors of two voting-precincts were not present, and did not participate in the proceedings of the Board of Canvassers, nor were the votes cast at those precincts canvassed by the Board. {d) Because th§ simple question submitted to the voters was whether the Board should take stock in the railroad company. (e) Because the Commissioners, instead of taking thp peti- tion under advisement, determined, prior to the taking of the vote, that they would take stock in the company. (/) Because instead of taking the petition under advise- ment, the Commissionei's determined to take stock, and then merely submitted to the voters the question of whether they would or would not ratify their action. (g) Because the notices required by statute were not given, but that the notices merely submitted the question of taking stock. (A) Because of the changing of the voting-places in Fair- field township no valid notices were given of the time and places at which the polls would be opened in the county, (and especially in that township,) for the reception of votes upon the question of the railroad appropriation. (i) Because the vote of Fairfield township was cast at the places designated by the Commissioners in their order of August 26, 1869, of which no notice was given, instead of the usual places theretofore established. Prayer for an injunction restraining the Auditor from as- sessing said railroad tax or any part of it upon the tax dupli- cate against the appellee's property, etc. A general demurrer to the complaint was filed by the de- fendants, which was overruled, and exceptions taken. The defendants refusing to answer further, the Court en- tered a perpetual injunction against the levying or collection of the tax in accordance with the prayer of the complaint, to which the defendants excepted. Two errors only are assigned : iNDiAisrA. 329 1. That the court erred in overruling the demurrer to the complaint. 2. That the court erred in granting the injunction. The opinion of. the court was delivered by Buskiek, J., who, after stating the recognized rules of construction and in- terpretation, proceeded as follows : Having laid down the rules by which we are to be governed in construing the Constitution and the law in question, we proceed to consider th^ real questions involved in this case. The Jirst and principal objection urged against the validity of the action of the Board of Commissioners is, that the Act of the Legislature authorizing aid by cbunties and townships to the construction of railroads, is unconstitutional and void, for the reason that the Legislature does not possess the constitu- tional power to tax the people for such a purpose. We ap- proach the discussion of this grave and important question deeply impressed with the weight of responsibility imposed upon us, and the magnitude of the interests involved in our decision. We have given the subject our best and most care- ful consideration. We have been greatly aided in our labors by the very thorough and able briefs filed in this cause, and by the very accurate, comprehensive and exhaustive argument submitted to us by the very able and learned counsel engaged in the case. The constitutional power of the State Legisla- tures to impose a tax upon the people to aid in the construc- tion of railroads, canals and other works of improvement, has been undergoing the most thorough and elaborate dis- cussion in many of the States. The question has been passed upon by the courts of twenty-four States. The most of these decisions have been based upon the general power of taxation passed by the legislative department of the Grovernment. In some of the States it was held that there was an express dele- gation of power in the Constitution. We propose to base our decision upon the provisions of our own Constitution and the adjudications of this court, with such aid as we can derive from decisions in other States in construing our Constitution. It has been earnestly insisted by the appellants that Section 6 of Article X. of our State Constitution, contains a grant of 330 THE LAW OF MUNICIPAL BONDS. power; while the appellees have contended that that section was intended as a restriction and limitation upon the general grant of power. The decision of this question will be deci- sive of the principal point involved in the case. Section 6 of Article X. reads as follows : " Section 6. No county shall subscribe for stock in any incor- porated company unless the same be paid for at the time of such subscription ; nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company ; nor shall the General As- sembly ever, on behalf of tlie State, assume the debts of any county, city, town, or township, nor of any corporation what- ever." In 1836 the State of Indiana engaged in a general system of internal improvements. The State issued her bonds for millions of dollars, which were sold in the market at a heavy discount. The money thus secured was squandered on various railroads and canals, without completing any of them. The State was unable to pay either the interest or the principal of her bonded debt. The bonds of the State greatly depre- ciated in value, and her credit was utterly ruined in the money market. This wasteful, reckless and extravagant expenditure of money continued until 1842, when the whole system broke down, and the completion of the works commenced was abandoned by the State. On the 28th of January, 1842, the Legislature passed an Act entitled " An Act to provide for the continuance of the construction of all or any part of the pub- lic works of this Stete by private companies, and for abolish- ing the Board of Internal Improvements, and the offices of Fund Commissioners and Chief Engineer." .... Under this Act many private companies were formed. A large number of the counties took stock in such associations and issued bonds, instead of levying taxes, and became thereby largely indebted. On the 14th of February, 1848, the Legislature passed an Act incorporating the Ohio and Mississippi Railroad Com- pany. .... Under this Act the. most of the counties through which the said' railroad passed in the Stete of Indiana, made subscrip- INDIANA. 331 tions of stock in said company, and issued their bonds to secure the payment thereof. Charters were granted to several other companies with similar provisions. Under the State system the State had become bankrupt, and under the county system many of the counties had created heavy and onerous debts. In 1846 and '47, the State effected a compromise with her bondholders by surrendering to them the Wabash and Erie Canal for one-half of the debt, and issuing more bonds for .the other half. Such was the condition of our State when the Constitutional Convention assembled in 1850; and in plac^g a construction upon the provisions of our present Constitution, we are required to take into consideration the provisions of the old Constitution, existing laws, the mischi'efs resulting therefrom, and the remedy proposed in the new Constitution. Section 5 of Article X. was adopted to prevent the State from again engaging in a system of ip^ernal improvements on credit This section does not prohibit the State from building rail- roads or canals, but it does provide that no debt shall be con- tracted for that purpose. The Legislature undoubtedly pos- sesses the power, under the general grant of powers, to engage in the construction of works of public use, provided she has the money and pays for the work as it progresses. The only limitation or restriction on the power of the General Assembly is, that no debt shall ever be contracted on behalf of the State for such object. Sections 5 and 6 of Article X. engaged the earnest and serious attention of the Convention. The discussion of the matters embraced therein consumed six entire days, and was conducted with great earnestness and marked ability. The debates in the Convention, on the mat- ters embraced in Sections 5 and 6, show that nearly every speaker referred to the financial condition of the State, coun- ties, cities, and the people, produced by the attempt to con- struct railroads and canals on credit ; nearly everj^ speaker expressed himself in favor of the construction of such works, but declared that the past experience had demonstrated that it was neither wise, safe, nor politic to permit either the State or counties to create any debt for such purpose. Ther6 was 332 THE LAW OF MUNICIPAL BONDS. great diversity of sentiment in the Convention. Some of the members advocated absolute prohibition ; a few opposed any restriction; but the great majority were in favor of retaining the power, and desired to place such restrictions and limita- tions upon the exercise of the power as would prevent in the future the evils that resulted from the credit system. The result was the adoption of Sections 5 and 6, which by plain implication admit that, by the general grant of legislative power, the power was delegated to the General Assembly; and these sections were intended to restrict and limit the power conferred in such a manner as to prevent the creation of any debt by the State or counties for such purpose. Let us analyze Section 6, and see what it contains. It con- tains four propositions : 1. No county shall subscribe for stock in any incorporated company, unless the same be paid for at the time of such subscription. 2. E"o county shall loan its credit to any incorporated company. 3. No county shall borrow money for the purpose of taking stock in any such company. 4. That the General Assembly shall never, on be- half of the State, assume the debts of any county, city, town or township, nor of any incorporation whatever. These propositions are plainly stated, and seem to be easily under- stood, except the clause prohibiting a county from loaning its credit to any incorporated company. The meaning of this clause is rendered plain by reference to the practice that pre- vailed under the Act of 1842, while a number of the counties had guaranteed the payment of bonds issued by the private associations that had been organized under the Act of 1842. The object of the inhibition in question was to prohibit and render impossible this practice. These propositions are all stated negatively. They were intended as limitations upon the general powers granted by Section 1 of Article V.,and necessarily assumed the negative form. Let us transpose the first clause and state it affirmatively. Thus transposed, it would read : " Any county may subscribe for stock in any incorporated company, if such stock is paid for at the time of such subscription." This is the plain and undoubted mean- ing of this clause. If the purchase had been to absolutely prohibit a county from subscribing for stock, the object would INDIANA., 333 have been effectually accompli^lied by omitting the condition. The section would then have read : " Il^o county shall sub- scribe for stock in any incorporated company." The language would have been plain and unambiguous, and there would have been no room for doubt. The prohibition would have been absolute. It will not do to say that this cause was intended as a prohibition. It was a limitation upon an existing right. It is manifest that the framers of the Constitution supposed that the power to subscribe for stock had been previously granted, for it would be absurd to suppose that they would either attempt to prohibit or limit a power that did not exist. If this clause is treated as a prohibition, it unavoidably results that the same construction must be placed on Section 5, which would deprive the General Assembly of the power to con- struct a railroad or canal, although she had the money to pay and contracted no debt therefor. Nor would the evils of such a construction stop here. Section 21 of Article I. reads as follows: "1^0 man's particular services shall be demanded without just compensation. ISTo man's property shall be taken by law without just compensation; nor, except in case of the State, without such compensation first assessed and tendered." If the construction contended for was applied to the sentence that " no man's property shall be taken by law without just compensation," it would deprive the General Assembly of the po\^er to grant the right of eminent domain to any incor- porated company. If this sentence was transposed and stated in an affirmative manner, it would read : " Any man's prop- erty may be taken t)y law for a public use, provided just com- pensation is made therefor ; and if such property is taken by any person other than the State, the compensation shall be assessed and tendered before it can be taken." The evident purpose was to recognize the existence of the right of eminent domain, and to impose a restriction upon the exercise of such right, so as to prevent a corporation from taking private property until just compensation had been assessed and ten- dered. The sixth section provides that " no county shall sub- scribe for stock in any ' incorporated company,' " &c. This language is general. It does not define the character or pur- poses of the company. It therefore becomes necessary to 334 THE LAW OP MUNICIPAL BONDS. ascertain, if possible, the character and purposes of the com- pany intended by the framers of the Constitution. Mr. Jus- tice Martin, in delivering the opinion of the Supreme Court of Michigan in the case of Swan v. Williams, 2 Mich., 427, gives a very clear and comprehensive definition of the differ- ent classes of corporations : . . . . It is quite clear to us that the framers of the Constitution, in using the phrase " incorporated company," referred to the second classes of incorporations as defined hy Judge Mar- tin.^ This is manifest from several considerations. The power was being conferred upon counties which are included in the first grand class. It certainly was not the intention to authorize counties to subscribe for stock in townships, cities or towns. It is equally plain that it was not intended that counties should subscribe for stock in strictly private corpo- rations, such as banking, insurance, manufacturing or trad- ing companies. It was broadly admitted in argument, and is well settled on principle, and by a long and unbroken line of decisions, that the power of taxation cannot be exercised for private purposes; it must be for a public use. The meaning and intention of the framers of the Constitution are rendered quite plain and obvious when we " look to the history of the times, and examine the state of things when the Constitution was framed- and adopted." The policy of the State has been to encourage counties to take stock in canal and railroad companies. Laws then in existence au- thorized such subscriptions. Besides, the debates in the Convention, on the matters embraced in Sections 5 and 6, bear no room for doubt as to the class of incorporated com- panies intended. It was admitted, in argument, that a county might sub- scribe for stock in a railroad company if the money was in the treasury to pay for it when the subscription was made, but it was contended that no power existed to adopt means to carry into execution the powers granted. It is the duty of the court to give such construction to the section under consideration as will execute the powers granted. It is the duty of the court to execute and not defeat the will of the ' See Stewart v. Supervmrs, Chap. XIII., wherein a like construction is found. INDIANA. 336 people as expressed in the Constitution.. It is admitted that .when the Legislature has authorized it, counties may sub- scribe for stock in railroad companies on condition that the money is paid when the subscription is made. The counties are prohibited from loaning their credit or borrowing money to subscribe for such stock. The Board of Commissioners are prohibited by the law from collecting by taxation more money than is absolutely required for the current expenses of the county. If the Commissioners obey the law, and act honestly and fairly with the people, there will never be any considerable surplus in the treasury. It will occasionally happen that there will be a deficit, and then again a small su:^lus. The great and wise men who framed our present Constitution ffurely never intended to grant a power that could not be fairly executed ! Surely it was never intended that the Boards of Commissioners of the several counties should, under the guise of raising money for the ordinary expenditures of the counties, accumulate a surplus of money, with which to subscribe for stock in incorporated companies. Such a practice would be a fraud upon the people. Prior to the adoption of our Constitution, the practice had been to submit the question to the vote of the people. "We think that it was quite obvious that it was intended by the Conven- tion that the question of subscribing, for stock should be left with the Legislature and Boards of Commissioners, who are responsible to the people. This is, at any rate, the honest and fair mode of acting. The people should never be cheated or defrauded into taking stock in a railroad. If the question is fairly submitted to them, and they, with full knowledge know that it is intended to subscribe for stock, impose the law on themselves, they will have no cause of complaint against any person but themselves. Having arrived at the conclusion that Section 6 of Article X. recognizes the existence of the constitutional power in the Legislature to authorize municipal corporations to sub- scribe for stock in railroad companies, subject to the limita- tions subscribed, we are next required to determine whether this power carries with it, by necessary implication, the power to adopt such means as may be adequate to ac- 336 THE LAW OP MUNICIPAL BONDS. complisli the end proposed. Marshall, C. J., in delivering the unanimous decision of tlie court in the case of McGul- lough V. Maryland, 4 Wheaton, 421, says : "We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think that the sound construction of the Constitution must allow to the national Legislature that discretion, with respect to the means by which' the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legiti- mate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but comply with the letter and spirit of the Constitution, are not unconstitutional." In the case of Thayer v. Hedges, and another, 29 Ind., 141, this court adopts the rule of construction laid down by Mar- shall, C. J. Ekazer, J., in speaking for the court, says : " To do so, it may resort to any measure which is appro- priate, which plainly conduces to that end, and which is not prohibited, and is not inconsistent with the letter or spirit of the Constitution." In support of this rule of construction, we refer to the fol- lowing authorities: 1 Wheat, 304; 6 Wheat, 264; 3 Marsh. 423; 8 Peik., 196; 6 Conn., 493; 6 Berin., 272; 5 Mon., 194 3 Cranch., 358; 4 Wheat, 316; 1 Virgeas., 128; 4 Conn., 314 2 Marsh., 75 ; 9 Wheat, 738 ; 10 Wheat, 1. It is conceded that Section 1 of Article V., and Section 6 of Article X., combined, confer on the General Assembly the power to authorize, by appropriate legislation, municipal cor- porations to subscribe for stock in railroad companies on the express condition that the money is paid at the time of such subscription ; that counties cannot loan their credit or borrow money for such purposes ; that the counties have no means of obtaining money except by taxing the people ; and that it would be a fraud upon the tax-payers to obtain the money by indirect, unfair and illegal modes. Does it not necessarily and una.voidably result from these premises, that the only fair and legitimate mode of obtaining the money for such purpose IXDIANA. 337 is to submit the question to the people ; and that the means adopted in the case under consideration were appropriate, plainly conduced to the end, were not prohi]bited and are not inconsistent with the letter and spirit of the Constitution ? We have heretofore shown that it is a rule of construction that a cotemporary exposition of the Constitution practised and acquiesced in for a period of years, fixes the construction ; and that the court will not shake or control it. We have shown what was the policy of the State, as declared in her legislative acts. We now proceed to show what exposition has been given of the old Constitution, and the laws passed under it, authorizing counties to take stock in railroad com- panies, and of the new Constitution. The question was submitted to the voters of Knox County, under the twelfth section of the special charter of the Ohio and Mississippi Railroad Company, whether they were in favor of the county subscribing for^stock in such company. The vote was in favor of subscription. The bonds of the county were issued prior to the adoption of the present Con- stitution. The county afterwards refused to pay the interest upon such bonds. Wm. H. Aspinwall and others, who were the owners of some of the bonds issued by said county, com- menced an action in the Circuit Court of the United States, against the Commissioners of said county, to recover the amount of interest due on such bonds. The plaintiff re- covered judgment in the Circuit Court, and the defendants appealed to the Supreme Court of the United States, where the judgment was affirmed. The Supreme Court held that the law under which such subscription was made to be valid, and that the action of the Board of Commissioners was bind- ing upon the county. Vide, 21 ; How., 539. After the rendition of this judgment, the Commissioners of said county refused to levy a tax to pay such judgment. The same plaintiffs commenced a proceeding by mandate against the Commissioners of said county, in the Circuit Court of the United States, to compel them to levy a. tax to raise money to pay said judgment. A peremptory mandate was awarded. The Commissioners again appealed to the Supreme 22 338 THE LAW OF MUNICIPAL BONDS. Court of the United States, where the judgment below was again affirmed. Vide, 24; How., 376. The people of Daviess County, by a popular vote under the said twelfth section, decided in favor of taking thirty thousand dollars stock in said railroad. The vote was taken on the first Monday of March, 1849. The Commissioners of said county, on the 10th of September, 1852, in pursuance of said Act and election, subscribed for such stock, and issued the bonds of the county. The new Constitution took effect the first day of November, 1851. The Commissioners of said county refused to pay the interest on such bonds. The holders of the bonds commenced an action in the Circuit Court of the United States, against the Commissioners of said county, to recover two instalments of interest on such bonds. The judges of the Circuit Court divided, and certified a division of opinion, and on that the case went to the Supreme Court of the United States. The vote had been taken under the old Constitution, ■ and the subscription had been made and the bonds had been issued after the new Constitution took effect. The question was whether at the time when the ne^ Constitution took ef- fect, there was not such a right to the subscription and bonds vested in the railroad company, as could be held, notwith- standing the constitutional prohibition against a county sub- scribing for stock in a railroad company, and issuing bonds therefor instead of paying for the same at the time when such subscription was rtiade. The Supreme Court held that the vote in favor of the sub- scription was valid, but that the subscription and bonds were void, for the reason that the sixth section of Article X. of our Constitution prohibited a county from subscribing for stock in a railroad company, unless the money was paid at the time the subscription was made. We regard this decision as enti- tled to great weight in the case under consideration, for the reason that it furnished a cotemporary exposition of the sec- tion under discussion, and shows that the prohibition in said section was pot against a county subscribing for stock, but against issuing the bonds of the county, instead of paying the money as required by said section. The court held that the power conferred by the charter being upon a county, a INDIANA. 339 public corporation or civil institution of government did not constitute such a contract as is contemplated by the Federal Constitution, vrhich prohibits any State from passing any law " impairing the obligation of a contract." Vide Aspinwcdl et. al. V. Commissioners of_ Daviess County., 22 How., 374. We will next examine the adjudications of this court, and see what construction has been placed upon the section under consideration. In City of Aurora v. West, 9 Ind., Perkins, J., in delivering the unanimous opinion of this court, says : " The internal improvement of a State, by means of roads and canals, has always been a legitimate subject to call into exer- cise the legislative power of the State. It has been, and still is, thus in Indiana. Under the old Constitution, such im- provements could be carried on by means of loans, creating a State debt. Under the new, they cannot be carried on by -th&t particular means by the State, but must be paid for by taxes raised as the works progress. This is an express limita- tion on the exercise of the power by the State, inserted in the Constitution. The same limitation, is imposed upon the efxer- cise of a like power by the counties of the State. , Section 6 of Article X., by implication, concedes the right of counties to take stock, at all events by permission of the Legislature, in companies chartered to construct works of internal improve- ment — under the new Constitution, by making cash payment at the time ; under the old, as we have seen, without — it does not impose any limitation upon the power of cities touching the matter, while it shows that the subject of their taking stock in such companies must have been before the Constitu- tional Convention. The provisions in the new Constitution, then, on the question under consideration, amount to this: They admit the power of the State to construct works of internal improvement, but forbid her, in her State capacity, to create a debt for that purpose. They grant that the power may he conferred upon counties to take stock in companies chartered to construct such works, but require simultaneous payment." (A quotation is here made from the case of Droneherger v. Reed, 11 Ind., 422.) The foregoing cases have been referred to and approved by this court, in Moansville Bailroad v. City of Evansville, 15 Ind., 340 THE LAW OF MUNICIPAL BOSTDS. 395; The Board of Commissioners of Bartholomew County v. Bright, 18 Ind., 93, and The Qty of Aurora v. West,-22 Ind., 88. The following is an elaborate syllabus of tbe case of the Evansoille, ^e., JR. JR. Go. v. JEhansville. Suit against the city of Evansville, upon the subscription to the stock of the railroad company. The contract was executed on behalf of the city, by the Mayor thereof; pur- ported to have been made in pursuance of an order of the common council, and was conditioned : 1. That the company should receive the bonds of the city at par in payment of the subscription. 2. That the bonds thus issued were not to be convertible into stock, and were to be delivered concurrently with the delivery of the certificates of stock. 3.. That said certificates of stock should bear interest at the rate of seven per centum, until the completion of the ro^d to Indianapolis. 4. That the city might issue certificates for all taxes col- lected to pay the interest on said bonds, and that such certifi- cates should be convertible into stock, upon presentation by the holder in sums of $50, which should bear interest until the road was completed to Indianapolis. It was averred in the complaint that $100,000 of said bonds were issued by the city, and that said city voted by proxy in the elections of directors; that the city had failed, on demand, to deliver the residue of said bonds, and thereby became liable to pay the amount thereof in money, &e. By the charter of the city of Evansville, the common council are authorized " to take stock in any chartered com- pany for making roads to said city; provided, that no stock shall be subscribed or taken by the common council in any such company, unless it be on the petition of two-thirds of the residents of said city, who are freeholders of said city, distinctly setting forth the company in which the stock is to be taken, and the number and amount of shares to be sub- scribed ; and provided, also, that in all cases where such stock INDIANA. 341 ia taken, the common council shall have the power to borrow money, and levy and collect a tax on real estate for the pay- ment of said stock." •Held, that a railroad is such a " road " as. is embraced in the terms of the charter. Held, also, that the common council would have no power to subscribe at all, in the absence of the petition provided for in the charter ; but when the power to subscribe is conferred by the petition, the mode in which it is to be exercised, as to the time and mode -of payment, must necessarily be left, in a measure, to the discretion and judgment of the common council. Held, also, that if the city received more favorable terms, as to time of payment, than other subscribers, it does not lie in her mouth, in order to defeat the subscription, to say that other stockholders were thereby defrauded. Held, also, that as the city is expressly authorized to borrow money to pay for the stock subscribed, the power to deter- mine the time of payment, and to issue bonds and other evidences of indebtedness, is manifestly implied. Held,, also, that if the railroad company saw proper to re- ceive the bonds, as cash, in payment of the subscription, in- stead of requiring the city to negotiate and raise the money upon them herself, the transaction was entirely proper, and not beyond the corporate powers of either the city or the company. Held, also, that the power conferred by her charter upon the city to borrow money, carried with it the right to borrow wherever the money could be procured on the best terms, and, of course, the right to agree to pay where borrowed. Held, also, that in the absence of any provision in the charter of the city, as to the interest she may pay on borrowed money, her contracts would be governed, in this respect, by the general law of the State, and would not be void for usury; and no good reason appears to the court why she may not legally agree to pay the interest allowed by the law of the State where her bonds are payable, though this last point is not decided. ' Held, also, that there was nothing against the law, or pub- 342 THE LAW OF MUNICIPAL BONDS. lie policy, in the agreement of the railroad company to allow the city interest on the stock subscribed by her. Held, also, that as neither the railroad company, nor any of its stockholders, are complaining of . the agreement .by which the"stock was to be issued to the tax-payers of the city, for the amount of taxes paid by them respectively, to meet the interest on the city bonds, the city cannot avoid her sub- scription on the ground that she has obtained a stipulation which the railroad company were not authorized to make. Held, also, that if the stipulation be • regarded as void, it may be disregarded, and the contract enforced as far as it is valid. Held, also, that Section 8 of the general law for the incor- poration of railroad companies, (1 R. S., p. 412,) which pro- vides that the directors may make calls, &c., provid.ed that such subscriptions shall not be required to be paid except in equal instalments of not more than ten per cent, a monih, has no application to cases where the times of payment are agreed upon in the contract of subscription, and the contract con- templates immediate payment upon these terms. Held, also, that the city is estopped by her contract with the railroad company to deny the legal existence of the cor- poration. Held, also, that the city could not defeat the subscription, by setting up a parol condition inconsistent with the terms of the contract o'f subscription. Held, also, that though the contract of subscription, as made by the Mayor, may have deviated, in some particulars, from the directions of the common council ; yet the latter adopted and ratified it, as made, by ordering a portion of the bonds to be issued in performance of it. Held, also, that there was, in this case, no delegation by the common council, to the Mayor, of authority which, under the charter, the council only could exercise ; but that the council only acted through the Mayor as an amanuensis, and not as a sub-agent. They judged for themselves, and they acted through the instrumentality of the Mayor. Held, also, that it was the duty of the common council to determine whether the requisite number of the freeholders INDIANA. 343 of the city had petitioned for the subscription, no other tribunal having been provided for that purpose ; and having passed upon that question, their determination is conclusive, unless it may be set aside in some direct proceeding for that purpose. The following syllabus embraces the substance of the points in the case of the Oity of Aurora v. West, 22 Ind. An instrument of writing in the form following is, in legal effect, a promissory note, and governed by law-merchant : JSTo. 1. United States of America. ISo. 1. State of Indiana, |1,000. City of Aurora, $1,000. Ohio and Mississippi Railroad Compan3^ The citv of Aurora acknowledges itself indebted to the Ohio and Mississippi Railroad Company, or bearer, in the sum of 1,000 dollars, negotiable and payable at the Worth River Bank, in the city of E^ew York, twenty-five years from date hereof, upon the presentation and delivery of this certificate, bearing an interest of six per cent, per annum, payable annu- ally on the first day of January at said bank, in the city of New York, upon presentation and delivery of the proper coupon hereto attached, signed by the clerk of said city; and at all times the holder shall have a lien on the stock of said city in said company, for which this is received in payment, and may exchange the same for a like amount of said stock at any time before the first declaration of cash dividends, and be substituted as stockholder in place of said city, upon sur- render of this bond. This bond is issued in part payment of a subscription of 50,000 dollars by the said city of Aurora to the capital stock of the Ohio and Mississippi Railroad Com- pany, by order of the Common Council of the city of Aurora, on the 28th of September, 1850, in pursuance of the eighteenth section of an Act granting to the citizens of the town of Aurora, in the county of Dearborn, a city charter, passed by the General Assembly of the State of Indiana, and approved February 14th, 1848. 344 THE LAW OF MTTNICIPAL BOSTDS. Witness the seal of said city of Aurora, and the signature of the Mayor and Clerk of said city, the first day of January, 1852. Solomon P. Fumy, Mayor of the city of Aurora, Indiana. "Will. "W. Conway, Clerk of the city of Aurora, Indiana. [Seal.] No. 1. Ohio and Mississippi Railroad suhscription. $50,000. City of Aurora, Indiana, will pay the bearer 60 dollars at the North River Bank, in the city of New York, on the first day of January, 1858, being the annual interest on bond No. 1. 160.00 "Will. W. Conway, Clerk. Mercantile paper made void ab initio by statute, is void in the hands of a bona fide holder. A municipal corporation cannot, without special authority, subscribe stock and issue bonds in payment of it, iq, a railroad corporation. But such authority may be conferred upon a city, when it is expedient; and when it is given by statute, in any case, it must be executed as prescribed in the grant, if executed at all. The terms of the grant cannot be legally departed from or exceeded. When bonds, issued by a municipal corporation, bear a reference upon their face to the authority under which they are issued, all persons are bound to take notice of the extent of the powers of the agent who issued them. A railroad running through is a railroad running to a city; and if a city is authorized to subscribe stock to a railroad running to it, and it is not made a point in the charter of such road, it can only be made so by subsequent action of the directors of the railroad corporation, and .until such action has been had, no absolute subscription of stock in such cor- poration can be made by such city. A railroad corporation, as well as its directors, is chargeable with notice of time, place, and manner of the location of its road. The court continues : INDIANA. 345 This court, in the case of Thompson v. CHy of Peru, 29 Ind., 305, refers to and fully approves of the opinion and reasoning of Perkins, J., in The City of Aurora v. West, 9 Ind., 74, The Supreme Court of the United States, in Thompson v. Lee County, 3 Wallace, 330, says : "A county, or other municipal corporation, has no inherent right of legislation, and cannot subscribe for stock in a public improvement unless authorized to do so by the Legislature. Such a corporation acts wholly under a delegated authority, and can exercise no power which is not in express terms, or by fair implication, conferred upon it. But the Legislature of a State, unless restrained by the organic laws, has the right to authorize a municipal corporation to take stock in a railroad or other work of internal improvement,' to borrow money to pay for it, and to levy a tax to repay the loan. And this authority can be conferred in such a manner that the object can be attained either with or without the sanction of the popular vote." Section 6 of Article X., of our State Constitution, expressly prohibits a county from borrowing money to pay for stock subscribed for by such county, consequently so much of the above opinion as declares the right of a county to borrow money, will not apply in this State. The fourteenth section of the Act in question provides that said Board of Commissioners may, " after the assessment here- in provided for or any part thereof shall have been collected, take stock in such railroad company from time to time, in the name of the proper county or township, as the case may be, and pay therefor when the same is taken out of the money so collected as aforesaid," etc. Now it is plain,- from the above-quoted pro- visions, that this Act was not intended to bind a county for a dollar until the money shall be in the treasury from the special tax levied to pay for the stock, and no subscription is author- ized to be made until that time. This complies with the plain and undoubted requirements of the Constitution. "When the money is in the treasury, there is no limitation or restriction contained in the sixth section. We therefore hold, that the General Assembly possessed the power under the Constitution to authorize counties to 346 THE LAW OF MUITICIPAL BONDS. subscribe for stock in a railroad company, on the express condition that the stock is paid for in money at the time when the subscription is made, and that the means provided in the said Act to raise the money with which to pay for said stock were appropriate, plainly conduced to the end proposed, were not prohibited by the Constitution, and were not inconsistent with the letter or spirit of the Constitution. The case under consideration involves the right of a county to make subscriptions to a railroad. We only decide the real question involved in the case. There are other cases pending in this court involving the right of counties to make dona- tions to railroad companies, and of townships to subscribe for stock and make donations to railroad companies. As to these cases we withhold the expression of any opinion. It is next insisted by the appellees that the Act in question violates the twenty-fifth section of Article I. of our State Constitution. This section reads as follows : " llfo law shall be passed, the taking eft'ect of which shall be made to depend upon any authority, except as provided in this Constitution." It is claimed on the authority of the above section, 1. " That the Act in question is no law ; that it is not an expression of the legislative will as law, but only a proposition to make law. 2. That if it be law and an expression of the legislative will, still its taking effect is made to depend, not on the will of the Legislature, but on the will of the people." The point relied upon is, that the vote of the people gives vitality and validity to the Act. In other words, that it does not become a law until it has been ratified by a vote of the people. The precise question was raised on the case of the C W. ^ Y. Bailroad v. Commissioners of Clinton County, 1 Ohio St. E., 77. The question is discussed with great clearness, force, and ability by Eanet, J., and we fully concur in the views expressed by him. The above decision draws a distinction between the taking effect of a law and its execution or enforcement. The same distinction has been made by this court in several cases. In the case of The Board of Commissioners v. S;pitter, 13 Ind., 235, INDIANA. 347 this court says : " It is insisted the power to organize new counties has never been exercised by direct legislation, and cannot be delegated. The position thus assumed is not, in our opinion, well taken. The Act of March, 1857, is a general law of uniform operation, to be executed through the agency of the Board of Commissioners." And it seems to us that the power thus conferred, so far as it relates to their duties under the Act, is purely ministerial, and not legislative. Indeed, the Constitution itself declares that "the General Assembly may confer upon the Boards doing county business in the several counties powers of a local, administrative char- acter." (Article VI., Section 10.) Under this provision the Legislature seems to be plainly authorized to confer the power embraced in the Act before us. In cases like the present, the taking effect of the law is not the result of any action on the part of the Commissioners ; nor do they decide whether the Act is or is not in force, but simply whether it applies to the case made by the petition, which the Act prescribes. This is evidently not the exercise of delegated legislative power, but merely the application of the provisions of a general law to a given case, local in its character. This court, in the case of Thompson v. Gity of Peru, 29 Ind., 305, says : " The 25th section of the bill of rights provides that ' no law shall be passed the taking effect of which shall be made to depend upon any authority, except as provided in the Con- stitution.' The right of petition, as a condition precedent to the exercise of this power by the Common Council, if it existed as to subscriptions of stock, would not render this section void un- der this provision. The law is in force. The petition is only necessary to call into action the power conferred on cities." [A long extract is made from Cooley's Constitutional Limi- tations, to sustain this point. See Cooley's Constitutional Limitations, pp. 116-119, and Authorities there cited. If there is no well founded distinction between a law being in force and its execution, then a large number of the laws of this State are not in force, a number of instances of which the court gives at length.] It is maintained, with great earnestness, that the Act under 348 THE LAW OP MTTNICIPAL BONDS. consideration was not in force until the vote of the people of Tippecanoe County put it in force. If its being in force de- pends upon the vote of the people, then it never has and never can be in force. By what authority was the question subrdit- ted to the vote of the people ? It was under and by virtue of this Act. If it was not in force by virtue of having been passed by the Legislature and approved by the Governor, then the Commissioners of said county possessed no power or au- thority to submit the question to the vote of the people, and the vote would be nugatory and void. Surely, it will not be maintained that a nugatory and void vote can have the force and effect of putting a law in force. Such a principle can be maintained neither on principle nor by authority. That the vote of the people can have no such effect is settled by the decision of the Supreme Court of the United States in Aspinwall etalv. Commissioners of Daviess County, 22 Hine.,365. The Maize case — Maize v. The State, 4 Ind., 342 — is quoted by the appellee. The pi-inciple involved in the case under consideration is clearly distinguishable from that decided in the Maize case. In that case the law could not have been made general, while under the operation of the voting clause it might be prohibi- tory in one township, while in an adjoining township it would be lawful to retail intoxicating liquors — in one township a citizen was liable to be indicted and punished for an offence, while another citizen in an adjoining township for doing the same thing was guilty of no offence. The railroad law is general, and in force in every part of the State, open to any county or township to avail itself of its privileges upon complying with its terifis. It has no double aspect according to the views or consent of the voters in the several townships. There is no essential difference between the vote taken in the mode required, and a petition signed by the voters for the County Commissioners to ap- propriate the aid asked It is also claimed by the appellees that the Act in question violates Section 1 of Article X. of our Constitution, which provides that " the General Assembly shall provide by law for a uniform and equal rate of assessment and taxation," &c. INDIANA. 349 This section lias received a construction by this court which shows that it is not obnoxious to the objection urged. Bright Y. McGullough, 27Ind., 230. It was conceded in the argument that the above construc- tion of Section 1 of Article X. was correct; but it was main- tained that as the railroad extended from Muncie, in Dela- ware County, through the counties of Madison, Tipton, Clin- ton, Tippecanoe and Benton, in this State, that it was neces- sary that each and all of the counties must vote for an ap- propriation, and assess the same amount of tax in each county, to make it uniform and equal. This position is wholly untenable. We have already shown that Section 6 of Article X. of our Constitution has localized the subscrip- tion of stock by counties, and made it depend upon the sep- arate and independent action of each county, uninfluenced and uncontrolled by the action of any other county. If the tax assessed is equal and uniform in the county where assessed, it will be in strict accordance with the requirements of the Constitution. "We, therefore, hold that the law in question is not in conflict with any provisions of our Consti- tution. The alleged irregularity and the illegality of the proceed- ings of the Board of Commissioners are reduced to three. The first is that the Commissioners changed the place of voting in Fairfield township two days before the vote was taken for or against the appropriation to the railroad. The second is that the inspectors in two of the townships made no returns of the votes taken therein. The third is that the question submitted to the voters of thq county was for or against a subscription of stock by the county in said railroad, and thereby excluded from the voters the question of donating the money to aid in the con- struction of the said railroad. There is no allegation of fraud ; it is not alleged that any legal voter was prevented from voting or that any illegal voter was permitted to vote. It is stated in the complaint, admitted in the briefs, and was conceded in the oral argu- ment, that if all the votes in the two townships from which no returns were made were counted against the appropria- 350 THE LAW OF MUNICIPAL BONDS. tion, there would be a clear majority of all the votes cast in favor of the appropriation. It was said by this court, at the present term, in the ease of Olass ex rel. of the State v. Clark, that "it is settled by authority that statutes regulating the mere mode of conduct- ing elections are directory, and that any departure from a prescribed mode will not vitiate an election, if the regularity does not deprive a legal voter of his vote, or admit a dis- qualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of the party seeking to derive a benefit from it." Cooley's Constitutional Limita- tions, and authorities there cited, pp. 617-18. (The case of Taylor v. Taylor, 10 Minn., 106, is quoted as authority, as also that of the L. ^ N. H. H. Co. v. County Court, 1 Sneed, (Tenn.,) 696.) There is no doubt that the Board of Commissioners pos- sessed the power to designate the places of holding the election. The law does not prescribe the time when it shall be done, nor does it require any notice to be given when there is a change of places of holding the election. If the votes given in the two townships from which no returns were made would have changed the result, the consequences would have been different. The law regards the substance, and not mere forms. It is the duty of the courts to carry out the will of the people as expressed at the ballot-box, where the only ob- jections urged are mere irregularities. On the other hand, it is the duty of the courts to set aside an election whenever and wherever the will of the people has been defeated by unfair- ness and'fraud. In the case under consideration there was no unfairness or fraud. The vote polled was a large one. The majority of the votes cast was about six hundred. The votes cast for the appropriation did not fall much short of a majority of all the legal votes in the county. Under such circum- stances we cannot hold the election void for mere irregularities that in no manner effected the result. In doing so we would perpetrate a great wrong. , The. third and last objection has given us more trouble. "WTien the Commissioners ordered a vote to be taken, they adopted a resolution to the effect that if the vote of the county ^ INDIANA. 351 was in favor of an appropriation, they would subscribe for stock in said railroad for and in behalf of the county. This resolution was published in the election notice. The vote, however, was taken according to the law, " for the rail- road appropriation," and " against the railroad appropriation." The fourteenth section of the Act provides that after the vote, and after a part of the tax is collected, the Board of Commis- sioners may either take stock in or donate money to the company. The members composing this court have been unable to agree upon this question. Downey, J. , is of the opinion that the Board of Commissioners possessed no power to exercise the discre- tion vested in them until after the vote and after a part of the tax was collected, and the giving of notice to the voters that a vote on the subscription of stock only would be taken, may have prevented persons from attending the election and voting who would have done so if they had supposed that the money when collected would be donated to aid the railroad company. While concurring with the opinion of the court upon other questions decided, he feels constrained to dissent from the judgment of the court for the cause aforesaid. Pbttit, C. J., and "Worden, J., are of the opinion that the resolution of the Board declaring their purpose to subscribe for stock had no legal effect, and did not influence the action of the voters or in any manner change the result of the vote. They regard the resolution as merely advisory, and that it was adopted for the sole purpose of obtaining the wishes and the preferences of the voters and tax-payers to guide the Com- missioners in the exercise of the discretion vested in them when the proper time should arrive to make the decision. BuSKiRK, J., is of the opinion that, und^r the sixth sec- tion of Article X. of our Constitution, the Legislature pos- sessed no constitutional power to authorize the Board of Commissioners of a county to levy a tax and when collected to donate the money to a railroad company, and that there- fore the Commissioners submitted to the voters of the county the only proposition that they had the right to vote on. The judgment is reversed with costs, and the cause is remanded, with directions to the court below to sustain the demurrer to the complainant, and dissolve the injunction for further proceedings, in accordance with this opinion. CHAPTEE XIII. IOWA. The following are the constitutional provisions of this State : Section 30, Article III. — The General Assembly shall not pass local or special laws in the following cases : For the incorporation of cities and towns ; . . . . Section 3, Aeticle XI. — No county, or other political or munici- pal corporation, shall be allowed to become indebted in any manner, or for any purpose, to an amount in the aggregate exceeding five per centum on the value of the taxable property within such county or corporation ; to be ascertained by the last State and county tax lists previous to the incurring of such indebtedness. The only other provisions of the Constitution that are supposed to have any relation whatever to municipal bonds are such as have been heretofore considered :^ The first case that arose in Iowa was that of Dubuque Go. V. Dubuque and Pacific B. JR. Co., (4 G. Greene, 1,) in the year 1853, in which the constitutional right of a county to aid in the construction of a railroad within its limits was announced without dissent, although one of the judges declined to accede to certain minor points. This decision was followed the next year in State v. Bissell, (4 G. Greene, 328,) and continued to be the recognized law of the State until 1862, having been reaffirmed in six or more well-considered cases. {Glapp v. Cedar Co., 5 Iowa, 15 ; Ring v. County of Johnson, 6 Ibid., 265 ; McMillen v. County Judge of Lee Co., Ibid., 393 ; 1 See Chapters V. and XI. 852 IOWA. 353 McBElhn v. Boyles, Ibid., 304 ; Games v. Robb, 8 Ibid., 193 ; State v. Board of Equalization of Johnson Co., 10 Ibid., 157.) At the June Term, 1862, the case of The State v. The County of Wapello, (13 Iowa, 890,) came on to be beard, when the earlier cases were overruled, and a new rule laid down. The opinion of the court was, that the Legislature possessed no constitutional power to author- ize a municipal corporation to levy a tax in aid of a rail- road. The decision was unanimous, and appeared to be a complete and permanent resolution. But within a few months after its publication, a similar case from the State of Iowa was heard in the Supreme Court of the United States ; and, although the Wapello case was strenuously urged upon the attention of the court, a dif- ferent conclusion was arrived at. Indeed, the court pro- nounced the new rule as laid down in that case too uncer- tain to warrant a change on the part of the Federal ju- diciary, and, being contrary to the current of authority, entitled to but little weight. Mr. Justice Swayne, speak- ing for the court, said : " It cannot be expected that this court will follow every such oscillation, from whatever cause arising, that may possibly occur. The earlier decisions, we think, are sustained by reason and au- thority. . . . We shall never immolate truth, justice, and the law, because a State tribunal has erected the altar and decreed the sacrifice." 1 Wall., 206. Nevertheless, the decision in the Wapello case was substantially followed by the State court in a number of adjudications. It was affirmed in MeMillen v. Boyles, and prevailed as the law in a series of cases covering a period of about eight years, when the opinion in Stewart V. The Board of Supervisors of Polk Co., which we give below, announced a return to the earlier and popular view. 23 354 THE LAW OF MUNICIPAL BONDS. Perhaps in no State in the Union is there so near an approach to uncertainty as to the position of the courts as in Iowa ; but we hazard nothing in the statement that there is little probability of any departure from the rulings in the opinion last mentioned. Fortified as it is, the most that could be effected by a change would be to transfer the subject to the national courts, in which the present rule would be aj)plied as the law of the State as well as the nation. And we here consider a subject of no slight conse- quence, which is aptly illustrated in the State of Iowa, as well as in Michigan, and in a less degree in Wiscon- sin. As has been the case in respect to other judicial questions,- it became apparent that there was a conflict of opinion between the State and Federal judiciary, and, as we venture to state, must inevitably occur in every instance, the former was compelled to yield. The embarrassing condition of affairs is thus depicted by Mr. Justice Miller : (1 Wall., 208.) "They (the Supreme Court of the United States) have said to the Federal court sitting in Iowa, ' You shall disregard this decision of the highest court of the State on. this question. Although you are sitting in the State of Iowa, and administering her laws and constru- ing her Constitution, you shall not follow the latest, though it be the soundest, exposition of its Constitution by the Supreme Court of that State, but you shall decide directly to the contrary ; and where that court has said that a statute is unconstitutional, you shall say that it is constitutional. When it says bonds are void issued in that State, you shall say they are valid, because they do not violate the Constitution.' " Thus we are to have two courts, sitting within the same jurisdiction, deciding upon the same rights arising out of the same statute, yet always arriving at opposite results." IOWA. 355 The conflict after the Gelpecke case was direct and positive, the State adhering to its view with characteris- tic tenacity ; but the great weight of authority which it was seeking to overturn, coupled with the influence of the supreme national tribunal, proved to be irresistible, and it was virtually driven from its position to that which it now occupies. Apart from the important principle that has been made conspicuous in this controversy, — for it partook unmistakably of the nature of a controversy, — con- siderations of a practical character present themselves as having been demonstrated to a certainty. If the Wa- pello case had remained the law of Iowa de jure, with the United States courts governed by the Gelpecke and like adjudications, there would have been presented to the suitor a certain means of defeating the State view at at any time. The Federal courts, with their well-known precedents, practically open to any one, afforded an op- portunity to ignore the existence of the State judiciary. The bonds that were void de jure were de facto valid and enforceable. The same remarkable spectacle is now, perhaps, pre- sented in Michigan, where the State construction is unhesitatingly disregarded ; and the same is probably true of Wisconsin. Under such circumstances, it would appear that the language of Judge Vallentine, of Kan- sas, would be most appropriate, when he says that the decisions of the State courts, when thus contravened, are worth " no more than waste paper." The following is the opinion of the court in the case of Rogers v. Burlington, with the reporter's syllabus and statement of facts. This decision may probably be taken to be the final determination of the points which are considered, as far, at least, as the Federal judiciary is concerned. 356 THE LA W OF MUITICIPAL BONDS. Eogers v. Burlington. Power " to borrow money for any public purpose " gives authority to a municipal corporation to borrow money to aid a railroad company making ita road as a way for public travel and transportation. And as a means of borrowing money to accomplish this object, such municipal corporation may issue its bonds, to be sold by the railway company to raise the money. Power to issue the bonds being shown, municipal corpora- tions, as against bona fide holders of them for value, is estopped to deny that the power was properly executed. The Act of incorporation of the city of Burlington, in Iowa, vested the government and legislative power of the city in a city Council, composed of the Mayor and a Board of Aldermen. In addition to conferring various police powers, it authorized the city Council to establish and organize fire companies, and to provide them with proper engines, and such other in- struments as might be necessary to extinguish fires, to estab- lish and construct landing-places, wharves, docks, and basins within the city ; to cause all grounds within the city, where water should at any time become stagnant, to be raised, filled up, or drained ; and to cause to be opened, paved, repaired, or improved, any street, lane, alley, market space, public landing, or common. The Act then provides, in its twenty- seventh section, as follows : " That whenever, in the opinion of the city Council, it ia ■ expedient to borrow money for any public purpose, the question shall be submitted to the citizens of Burlington, the nature and object of the loan shall be stated, and a day fixed for the electors of the said city to express their wishes ; the like no- tice shall be given as in cases of an election. The loan shall not be made unless two-thirds of all the votes polled at such eleetion.shall be given in the afiirmative." Assuming to act under this section, the city Council, on the 23d of June. 1856, passed IOWA. 357 " Ordinance No. 44. " An ordinance to authorize a loan of city bonds to the Bur- lington and Missouri River Railroad Company, &c. " Whereas, at a meeting of the city Council, held on the 19th of May, 1856, a resolution was adopted, authorizing the Mayor to call an election, and to submit the question, whether or not the city issue and lend to the Burlington and Missouri River Railroad Company, $75,000, in the bonds of said city; said bonds payable in twenty years from date of issue, with an in- terest of ten per cent, per annum, and to be secured by the first mortgage bonds of said company, &c. And whereas, the said election was duly and legally held on the 2d of June, 1856, and the said question was legally decided in favor of the same, whereby said loan is duly authorized to be made, therefore, " Re it ordained by the city Council of the city of Burlington, " 1. The bonds of the city, to the extent of $75,000, and in such amounts as the Mayor may direct, bearing interest, and payable as aforesaid, and 'duly signed, sealed, and authenti- cated, and with coupons for interest, be issued by said city. " 2. That the Mayor execute, with the said company, a contract of loan thereof, taking therefor the obligation of said company, and as collateral security therefor the mort- gages aforesaid, and deliver said bonds to said company, and receive said mortgages." Under the authority of this ordinance, bonds of the city to the amount of $75,000 were issued. The bonds were coupon bonds, in the ordinary form; except in so far, perhaps, as they declared on their face that they were issued by the city of Burlington, under Ordinance 44, to authorize a loan of city bonds, to the amount of $75,000, to the Burlington and Missouri Railroad Company ; and they contained a copy of the ordinance printed at large upon their back. Certain of these instruments having got, after this, into the hands of one Rogers, a bonafde holder for value, and the in- terest being unpaid, he brought suit in the Circuit Court of Iowa to recover it. The defendant demurred, among other grounds, on the fol- lowing : 358 THE LAW OP MtrmCIPAL BONDS. 1. That the petition did not aver nor show that the city had any authority to issue the bonds therein described. 2. That the bonds on their face showed that they were not issued for any municipal purpose, but as a loan of the credit of the city to the Burlington and Missouri River Eailroad Company. 3. That there was no law of the State of Iowa authorizing the city to issue such bonds, or to lend her credit to any rail- road company. The demurrer was sustained, and judgment rendered for the defendant. To review this judgment, the case was brought here on writ of error. The substance of the defence in this case, upon the merits as presented in argument, may be stated in three proposi- tions : 1. That the defendants, under their charter, had no lawful authority to issue the bonds described in the declaration ; and that inasmuch as the bonds were issued without authority, they were null and void, and consequently the plaintiiF can- not in any point of view maintain the suit. 2. That municipal corporations are limited, as to their powers, by the objects to be accomplished by their creation, and to the sphere of action prescribed in their charters; and that the corporation defendant's, under a fair application of those rules, could not borrow money or issue their bonds for the object specified in the ordinance, because such an object was not a public purpose within the meaning of their charter. 3. That the defendants, even if they, have authority to borrow money for objects other than those pertaining to the good order and proper government of the city, could not issue the bonds in this case, because the contract under which the bonds were issued was a contract of lending, and not of borrowing, and that the power given to the defendants to borrow money did not authorize them to lend either their money or their credit. 1. Reasonable doubt cannot be entertained that the terms of the charter, if valid, are sufficiently comprehensive to confer upon the defendants the power to borrow money for such a public purpose as that described in the ordinance IOWA. 359 under whicli the bonds were issued, unless it be shown that those terms have in some way been shorn of their usual and ordinaty signification. Charter of the defendants was granted on the tenth day of June, 1845, by the territorial Legislature, acting under its organic act, (5 Stat, at Large, 235.) Subject to certain exceptions, not material to be noticed, the sixth section of the Act provided that the legislative power of the Territory should extend to all rightful subjects of legislation ; and there can be no question that the territo- rial Legislature, acting under that genial delegation of legislative power, had the authority to incorporate the de- fendants and confer upon them, as such corporation, the functions specified in their charter. ( Vincennes University v. Indiana, 14 Howard, 273.) Citation of authorities in support of the proposition seems to be unnecessary, as it is not denied ; and, therefore, it may be assumed, in the further consideration of the case, that the corporate powers vested in the defendants, as expressed in their charter, were legitimately conferred. Power to borrow money for a public purpose, within the meaning of the provision, is conferred by the charter in express terms ; and there is nothing in the Constitution of the State which limits the authority so conferred, or renders it invalid. On the contrary, the Constitution of the State, as originally adopted, provided that all laws in force in the Territory, which were repugnant to the Constitution, should remain in force until they expired by their owiji limitation, or should be repealed by the General Assembly of the State. (Code 1851, p. 558.) When the new Constitution was adopted, it contained no such provision; but the omission was afterwards substantially supplied by a general law re-enacting and reviving all Acts in force at the time it w.ent into effect, except such as had been repealed by the General Assembly, or were repugnant to its provisions. (Code 1860, p. 8.) Validity of the charter, therefore, is established beyond the possibility of a doubt, unless it be assumed that the particular provision authorizing the defendants to borrow 360 THE LAW OF MUNICIPAL BOKDS. money for a public purpose exceeds the constitutional au- thority of the Legislature. In considering this question, it will not he necessary again to advert to the fact that the charter was granted by the territorial Legislature, because it has already been shown that it has the same validity that it would have had if it had been re-enacted by the Legislature of the State. Municipal corporations are created by the Legislature, and they derive all their powers from the source of their crea- tion ; and those powers are at all times subject to the con- trol of the Legislature. Such powers, also, in the absence of constitutional regulation forbidding it, may be enlarged or diminished, extended or curtailed, or withdrawn altogether, as the Legislature shall determine. Construction and repair of highways or streets for public travel within their limits are among the usual purposes of their creation, and the ex- penses of accomplishing those objects are among their usual and ordinary burdens. Railways, also, as a matter of usage, founded on experience, are so far considered by the courts as in the nature of improved highways, and as indispensable to the public interest and the successful pursuit even of local business, that a State Legislature may authorize the towns and counties of the State, through which a railway passes, to borrow money, issue their bonds, subscribe for the stock of the company, or purchase the same with the view of aiding those engaged in constructing or completing such a public improvement; and that a legislative Act conferring" such authority is not in contravention of any implied limitation of the power of the Legislature. Decisions to that effect have very much increased in number within the last few years, and are constantly increasing both in the State and Federal courts, until it may be said that the rule here laid down pervades the jurisprudence of the United States. Exceptional opinions advancing the opposite doctrine may be found, but they cannot be regarded as sound, in view of the fact that the weight of authority is very greatly the other way. Printed argument of the plaintiff shows that the Su- preme Court of the State for a series of years held the same views, as appears in some seven or eight of their reported IOWA. 361 decisions ; and it is proper to remark, that the reasons given for the conclusion in those several cases are much more satis- factory than those assigned in the more recent decisions which adopt the opposite rule. Repeated determinations of this "court, embracing a period of ten years, have expressed the concurrence of the court in the general current of the decision upon the subject in the State courts; and it is vain for parties to expect that the court, in the face of those recorded judgments, can come to any different conclusion. Eecent as many of those decisions are, it seems unnecessary to incumber the opinion with the names of the cases, or to reproduce the reasons assigned as thd basis of the respective judgments. Irrespective of the State decisions, it is obvious that the decisions of this court control the question under considCTation, and, consequently, that no further remark upon the proposition is necessary, except to say that the decision in the ca^se of Gelpecke v. The Gity of 3ubuque, 1 "Wallace, 202, although the opinion of the coUrt contains a reference to other statutes, was chiefly founded upon the construction of a provision in the charter of that city expressed in the same words as the provision contained in the charter of the defendants. Decision, also, in the case of Meyer v. G,ty of Muscatine, 1 "Wallace, 385, is to the same effect. Unless, therefore, it be assumed that no prior decision of this court can furnish the rule in a subsequent controversy, it would seem that the present case is controlled by those de- cisions. 2. Second proposition submitted is, that the defendants could not borrow money or purchase bonds in aid of the im- provement specified in the ordinance, because such a work is not within the usual and ordinary objects to be accomplished by a municipal corporation, and consequently was not a public purpose within the meaning of that phrase as eiiiployed in the charter of the city. They admit that the construction of a railroad is a public improvement; and they insist that the phrase "public purpose," as employed in the charter, must be limited in its signification to such public purposes as fall within the usual ^d ordinary sphere of municipal corporations. Undoubtedly, there is much force in the latter suggestion, and 362 THE LAW OF MUNICIPAL BONDS, it would seem that, as applied to many improyements of great public utility, the proposition may well be conceded." STone of the decided cases which maintain the power of the State Legislature to authorize such material aid in the construction of railroads decide, or even intimate, that the power may be exercised without limit, or be extended to a public enterprise entirely foreign to the general objects which the corporation was created to subserve. Those adjudications are not obnox- ious to any such degree; but the theory maintained is, that a railroad is nothing more than an improved highway, and that it is as competent for the Legislature to authorize a munici- pal corporation to furnish material aid in the construction of a railroad connected with the same as to construct a highway. Regarded in that point of view, they are analogous objects, and experience shows that the railroad, as well as the high- way, is promotive of the highest and best interests of the corporation. (Hedfield on Railways, 533 ; Rom,e v. Rome, 18 New York, 38 ; Prettyman v. Tazewell Co., 19 Illinois, 406 ; Bushnell v. Beloit, 10 Wisconsin, 195; Reinhoth v. Pittsburg, 41 Penn. State, 278.) 3. Third proposition is in substance and effect that the de- fendants, even if they could borrow money for the object de- scribed in the ordinance, could not lawfully issue the bonds in this case, because the contract under which they were issued was a contract of lending and not of borrowing within the meaning of the charter. Evidently, the proposition ad- mits that the defendants might borrow money in aid of the imprpvement described in the ordinance ; but the argument is, that in issuing the bonds,, and delivering them to the com- pany, they did not exercise the power in the manner which the charter authorized. "Where a municipal corporation was authorized to subscribe to the stock of a railroad company, and to borrow money to pay for the stock subscribed, the Supreme Court of Pennsylvania held, in the case of Mid- dleton V. Alleghany Co., 37 Penn. State, 241,. that the issuing of their bonds as a means of making the payment, was bor- rowing money for that purpose, within the meaning of the provision conferring the power, especially as it appeared that the bonds had been received in payment of the subscription. IOWA. 363 Same court alsb helji in the case of Heinhoih v. Pittsburg, 41 Penn. State, 278, that where, an Act of the Legislature authorized a municipal corporation to subscribe for stock in a railway as fully as an individual, that the provision gave authority to the corporation to issue their negotiable bonds in payment of the stock, and this court, upon, a re-examina- tion of the case, came to the same conclusion. [Seybert v. Pittsburg, 1 Wallace, 272.) Common experience shows that the issuing of bonds by a municipal corporation, as material aid in the construction of a railroad, is merely a customary and convenient mode of borrowing money to accomplish the object, and it cannot make any difference, so far as respects the present question, whether the . bonds as issued by the defendants were sold in the market by their officers, or were first delivered to the company, and were by their agents sold for the same piirpose. Money was what the corporation wanted, to be expended in the construction of the railroad, and the bonds were issued by the defendants to enable the company to accomplish that purpose. Technically speaking, it may be said that the trans- action, as between the company and defendants, was, in form, a contract of lending, but as between the defendants and the persons who purchased the bonds in the market, it was un- deniably a contract of borrowing money ; and the same re- mark applies to the transaction in its practical and legal effect upon all subsequent holders of the securities who have since become such for value, and in the usual course of business. Yiewed in that light, it is unmistakably a contract of bor- rowing money in the open market, and the rule that a cor- poration, quite as much as an individual, -is held to fair deal- ing with -other parties, applies with all its force ; and we repeat, that corporations cannot by their acts, representations, or silence, involve others in onerous engagements, and be permitted to defeat, the calculations and claims which their own. conduct has superinduced. (Bissell v. Jeffersonville, 24 Howard, 300.) Perfect acquaintance in the action of the officers of the city seems to have been manifested by the defendants until the demand was ma,de for the payment of interest. They 364 THE LAW OF MUNICIPAL BONDS. never attempted to enjoin the proceeding, b!it suffered the bonds to be issued and delivered to the company, and when that was done, it was too late to object that the power con- ferred in the charter had not been properly executed. {Knox Omnty v. Aspinwall, 21 Howard, 554.) Precisely the same objection was made in the case of Meyer v. The City of Mus- catine, (1 "Wallace, 392;) but the objection was overruled by this court, upon the ground that the object of issuing the bonds was as effectually accomplished by their delivery to the company as they would have been if the defendants themselves' had sold them in the market, and that the obligors were not injured by the transaction. Judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings in conformity to the opinion of the court. Reversal accordingly. The following is the opinion of the court in the last case decided by the Supreme Court of the State : Stewart v. Supervisors of Polk County. Appeal from the order of the Judge of the Polk District Court. Petition in equity, by the plaintiff, a property owner, against the Board of Supervisors of Polk County, for an injunction to restrain the levy of a tax voted by the quali- fied electors of Des Moines and Lee townships respectively, in said county, under an Act of the General Assembly, ap- proved April 12th, 1870, entitled, " An Act to enable town- ships, incorporated, towns and cities to aid in the construc- tion of railroads." The petition was presented to the Judge of the District Court — Hon. H. W. Maxwell — in vacation. The de- fendants appeared and filed an answer, and, on a hearing, the injunction was refused, from which refusal the plaintiff appeals. MiLLEE, J. — The case before us raises the question of the validity of Chapter 102 of the lawff of the Thirteenth Gen- eral Assembly, granting local aid to railroads. IOWA. 365 No question 5f superior importance and gravity was ever presented to the courts for adjxidication than the one involv- ing the validity of an Act of the legislative department of the Government, and none demands more careful examina- tion and serious consideration in its determination. This is peculiarly true in this case, inasmuch as an Act of like character to the one under consideration was held void by a majority of this court in Hanson et al. v. Yernon et al., June Term, 1869, and that a subsequent General Assembly, by the passage of the Act of April, . 1870, reasserted the power denied them in that case. If this case but involved a second time the validity of the Act of 1868, annulled by this court in the case referred to, we might regard the question as to that Act settled by that case, but as the General Assembly has reasserted its au- thority, and re-enacted the law with important modifications, we have treated the question as still an open one, and have given it as full and careful examination and consideration ag we are capable of. The first section of the Act declares " that it shall be law- ful for any township, incorporated town or city to aid in the construction of any projected railroad in this State, as here- inafter provided." " Section 2. "Whenever a petition shall be presented to the council or trustees of any incorporated township, city, or trustee of any township, signed by one-third of the resident tax-payers of such township, city or town, asking the question of aiding in the construction of any railroad to be submitted to the voters thereof, it shall be the duty of the trustee, or council, or board of trustees, to immediately give notice of a special election, by publication in some newspaper published in the county, if any be published therein, and also by post- ing said notice in five public places in each township, city, or town, at least twenty days before said election, which notice shall specify the time and place of holding said election, the line of road proposed to be aided, the rate per centum of tax to be raised, and the township or townships, incorporated town or city, in which such tax shall be expended, at which election the question of ' taxation ' or 'no taxation ' shall 366 THE LAW OF MUNICIPAL BONDS. be submitted ; and if a majority of the votes polled be ' for taxation,' then, in that case, the township clerk, recorder, or clerk of said election shall forthwith certify to the county- auditor the rate per centum of the tax thus voted by such township, city, or town. The board of supervisors shall, at the time of levying the ordinary taxes next following said special election, levy all taxes voted under the provisions of this Act, and cause the same to be placed on the tax lists of the proper townships, cities, or towns; and said taxes shall be collected at the same time, in the same manner, and be sub- ject to the same penalties for non-payment, as other taxes : provided, that the aggregate amount of tax levied under the provisions of this Act, ih any township, city, or town, shall not exceed five per centum of the assessed value of the prop- erty of said township, city, or town. " Section 3. The funds collected under the provisions of this Act shall be paid out by the county treasurer to the treasurer of the railroad company, upon the orders of the president or managing director of the railroad company, whose road such tax has been voted to aid; which orders shall be accompanied by sworn estimates of the engineer' in charge of the work on ■such road, showing that double the amount of such orders has been expended for the construction of such road, in accord- ance with the terms of the notice provided for in section two of this Act, and also by a certificate, signed by the members of the council, or board of trustees, or a majority of the members thereof, of the township, city or town voting the tax for which said orders are drawn, to the effect that the pro- visions of this Act have been so complied with as to entitle said company to the amount called for by such orders; and it is hereby expressly provided, that no part of the funds raised under the provisions of this Act shall be expended in any other townships than those specified in the notice of election : provided, however, that should the taxes, not be drawn from the county treasury in accordance with the provisions of this Act, by the railroad company in whose favor the same may have been voted, within two years after the date of the collec- tion thereof, then the right of said railroad company to said funds shall be deemed forfeited, and the same shall be repaid IOWA. 367 by the county treasurer to the persons from ■« horn the same may have been collected, " Section 4. All railroads constructed by or with the aid of any taxes levied and collected under this provision of this Act, shall be subject to the control of the General Assembly, ,in regard to the management of the same, and the charges for the transportation of freight and passengers thereon." The authority and power of the courts to annul an Act of the Legislature in conflict with the fundamental law, has been repeatedly asserted, and is now universally acknowledged. While this authority is unanimously conceded, the cases, with entire uniformity, hold that it is never to be exercised in doubtful cases. The Supreme Court of New York, in Clark v. The People, "Wend., 699, says, that " the power of the courts of justice to declare the nullity of legislative acts which violate the prd- visions either of the Constitution of the United States, or of the State, while it is undoubted, should be exercised with ex- treme caution, and never where a serious doubt exists as to the. true interpretation of the provisions alleged to be re- pugnant." In Illinois, it is said that the true inquiry is whether " the will of the representatives, as expressed in the law, is oris not in conflict with the will of the people, as expressed in the Constitution ; and unless it is clear that the Legislature has transcended its authority, the courts will not interfere." {Lane et al. V. Dorman H ux., 3 Scam., 238.) See, also, in support of this rule, the following cases : Foster et al. v. The Essex Bank, 16 Mass., 245 ; The Farmers' and Mechanics' Bank v. Smith, 3 Serg. and E.., 6373. Many other cases might be cited, but I forbear, as this court has frequently declared the same doctrine. In Santo v. The State, 2 Iowa, 208, it is said by Mr. Justice "Woodward, that " although the power is universally ad- mitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to unless the case be clear, decisive and unavoidable. It is the duty of the court to give an act such construction, if possible, as will maintain it; " citmg Bice v. Foster, 4 Harring., (Del.,) 479; Fisher v. 368 THE LAW OF MUNICIPAL BONDS. McGin, ^c.,1 Gray, 1; Maize v. The State, '4 Ind., 342; Commonwealth v. Williams, 11 Penn., 61; State v. Cooper, 5 Blackford, 258; 2 Peters, 522; Ogden v. Saunders, 12 Wheat, 270; 19 Johnson* 58 ; 1 Conn., 550 ; Oilder v. JBuU, 3 DalL, 386; Fletcher y^. Peck, 6 Cran., 87. In the case of Morrison v. Springer, 15 Iowa, 304, this court held that it " will declare a law unconstitutional only when it is clearly, palpahly and plainly inconsistent with the provisions of that instrument ; " and Mr. Justice Wright, in his opinion in that case, cites a long list of authorities in support of the rule announced. See, also, McCormiek v. Rush, 15 Iowa, 127; Whiting ^ Whiting v. City of Mt. Pleasant, 11 Iowa, 482-485; McGregor V. Baylis, 19 Iowa, 43; Duncombe v.Prindle, 12 Iowa, 1. The same rule of. construction has been declared in Massa- chusetts, Pennsylvania apd other States. Adams v. Howe, 14 Mass., 347; Sharpkss v. The Mayor, etc., 21 Penn., 162; Thvrp V. P. P. Co., 21 Vt., 142; The People v. Draper, 15 N, Y., 543. Having seen that courts of justice are authorized to de- clare a legislative act unconstitutional and void only when it violates that instrument clearly, palpably, plainly, and in such manner as to leave no reasonable doubt, we proceed to inquire whether there is any checks on legislative power independent of, or in addition to, those which are to be found in the Constitution ; or, in other words, whether the courts possess the power to annul an Act of the Legislature for any other reason than that of its plain, clear and palpa- ble violations of the written Constitution. It is said that " the judiciary may arrest Acts of the Leg- islature on the ground that they are unjust and immoral; that there are certain principles of natural justice which not even the Legislature can be permitted to disregard." It ia conceded that the power of the Legislature must be confined to " making laws." It cannot administer or execute them. So the very words of the Constitution which vests the power of legislation in the General Assembly, exclude the judiciary from any share in it; and such share they will undoubtedly possess, if they are at liberty to refuse to execute a statute IOWA. 369 on tlie grounds that it is not in harmony with their notions of morality and justice. Mr. Sedgwick, in his work on statutory and constitutional law, says : " Constitutional pro- visions may be ambiguous ; the doctrine of interpretation is vague ; but these branches of judicial authority are subject to some tests, and can be eircumscribed within some limits. But who will undertake to decide what are the principles of eternal justice ? And who can pretend to fix any limits to the judicial power, if they have the right to annul the oper- ations of the Legislature on the ground that they are repug- nant to natural right ? There may be, there always will be, questions, not only as to the expediency but the justice of laws. But questions of public policy and state necessity are not meant to be assigned to the domain of the courts. The right of construction, the right of applying constitutional restrictions, are vast powers, which it will always require great sagacity and intelligence to exercise. Let the judi- ciary rest contented with its acknowledged prerogatives, and not attempt to arrogate an authority so vague and so dangerous as the power to define and declare the doctrines of natural law and abstract right," in the construction of statutes. Sedg. on Stat, and Con. Law, 182. These views of the learned author we approve and adopt. The same views are held by many of the soundest judges and legal writers. -Mr. 'Justice Cowen, of the 'Sew York Supreme Court, in Butler V. Pilmer, 1 Hill, 324, holds this language : " Strong expressions may be found in the books against legislative interference with vested rights; but it is not conceivable that, after allowing the few restrictions found in the Federal and State Constitutions, any further bounds can be set to legislative power by written prescription." And Chancel- lor Kent says : " Where it is said that a statute is contrary to natural equity or reason, or repugnant or impossible to be performed, the cases are understood to mean that the court is to give them a reasonable construction. They will not presume that every unjust or absurd consequence was within the contemplation of the law." 1 Kent's Com., p. 408. And Mr, Justice Baldwin, of the Supreme Court of the 24 370 THE LAW OF MUNICIPAL BONDS. United States, used this language. ""We cannot declare a legislative Act void, because it conflicts with our opinions of policy, expediency or justice. We are not the guardians of the rights of the people of the State, unless they are secured by some constitutional provision which comes within our ju- dicial cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fail, the people, in their sovereign capacity, can correct the evil; but the courts cannot assume their rights. There is no paramount and supreme law which defines the law of , nature, or settles those great principles of legislation which are said to control State Legislatures in the exercise of the powers conferred on them by the people in the Constitution." (Ben- nett V. Boggs, 1 Bald., 74, 75. See also, in support of the same views, Cochran v. Van Surley, 20 "Wend., 381 ; Kirhy v. Shaw, 7 Harris, Penn., 258 ; State v. Dawson, 2 Hill., S. C, 100 ; People V. Mayor of Brooklyn, 4 Corns., 423 ; Town of Guilford v. Cor- ndl, 18 Barb., 615 ; Sharpless v. The Mayor, ^a., 21 Penn., 147 ; Braddel v. Brownfleld, 2 Watts and Serg., 271 ; Harvey v. Thomas, 10 Watts, 68 ; Calder v. Bull, 3 Dallas, 386 ; Fletcher V. Peck, 6 Cranch, 87; Bloodgoodv. Mohawk and Hudson P. P. Co., 18 Wend., 9 ; Terrett v. Taylor, 9 Cranch, 43 ; Bonaparte v. Camden and Amboy P. P. Co., 1 Bald., C. C, 205.) There are authorities which hold the contrary doctrine; and, in doing so, usually take refuge behind that clause in the bill of rights which declares, " The enumeration of rights shall not be construed to impair or deny others, retained by the people." N"ow let us inquire what legislative rights, other than those contained in the Constitution, are " retained by the people." The second section of the bill of rights declares : " All politi- cal power is inherent in the people." Political power consists of the three great attributes of sovereignty, namely, legisla^ tive, executive and judicial authority. This is all inherent in the people. These powers, then, are supreme in the people, in the first instance. All the legislative as well as the execu- tive and judicial power is inherent in them. By Section 1 of Article HI. of • the. Constitution, we find that "the legislative IOWA. 371 authority of this State shall be vested in a General Assem- bly," &c. The people, then, have vested the legislative authority, in- herent in them, in the General Assembly. The people were the original possessors of all the legislative authority in the ■ State. By this section they vest it all in the General Assem- bly. Subsequently, in the same instrument, they withdraw *■ some portions of this authority, and impose certain restric- tions upon the exercise of the authority granted. It follows, therefore, as a logical sequence, that within these limitations and restrictions the legislative power of the General Assembly is supreme ; that it is bounded only by the limitations written in the Constitution. Wright, J., in Morrison v. Springer, 15 Iowa, 342, says : " The Legislature clearly has the power to legislate on all rightful subjects of legislation, unless expressly prohibited from so doing, or where the prohibition is implied from some express provision. This theory must never be lost sight of by the courts in examining the powers of the Legislature. It is elementary, cardinal, and frequently pos- sesses controlling weight in determining the constitutional validity of their enactments. The General Assembly possesses all legislative authority not delegated to the General Govern- ment, or prohibited by the Constitution. Thus it seems clear by logical deduction, and upon the most abundant authority, that this court has no authority to annul an Act of the Legislature, unless it is found to be in clear, palpable and direct conflict with the written Constitu- tion. We come now to inquire whether the Act of 1870, author- izing local aid to railroads, is so clearly, palpably and directly in violation of our State Constitution, as that it becomes the province, of this court to annul it. It is urged that the Act, in providing for the levy and col- lection of a tax, which, when collected, is to be paid over to a private corporation, is unconstitutional, on the ground that it conflicts with Section 17 of the bill of rights, which declares " private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof," etc. The argument is, that, by implica- 372 THE LAW OF MUNICIPAL BONDS. tion, the taking of private property for private use is forbid- den by this section. That the Legislature has no constitutional authority to take the private property of A and give it to B, there can be no reasonable doubt. The difficulty, however, seems to be in ascertaining what ia a public use and what a private use, within the meaning of this section. This clause is a restriction upon the right of emi- nent domain. But for this restraint, the Legislature would have power to authorize the taking of private property for public use without making any compensation. The right to exercise the power of eminent domain only exists when the object is a public one. Every State exercises this power in behalf of railroads, turnpikes, canals, and other internal im- provements ; and this is done without reference to whether the State holds any pecuniary interest in the improvement or not. Upon our statute-book will be found laws of this character. It has been the law of this State for twenty years without question, that "whenever any corporation or other person designs to construct a canal or railroad, a turnpike, graded, macadamized or plank-road, or a bridge, as a work of public utility, although for private profit, it may take such reasonable amount of private real property as may be requi- site for a right of way, etc., upon paying such sum as may be assessed," etc. Revision of 1860, Section 1278. See also the Act of 1853, granting the right of way to railroad companies alone. Revision, page 218. And it has been the law of this State for more than a quar- ter of a century, that any private citizen who will erect a mill to grind grain, for toll, may erect a dam, and have a writ ad guod damnum, for the condemnation of the land overflowed, as for a public purpose. Laws of 1843, Ch. 102 ; Laws of 1855, Ch. 92, (Rev. Sec. 1254 ;) Laws.of 1866, Ch. 119. The validity of these statutes, and that the purposes were public ones within the meaning of the Constitution, although, in the language of Section 1278 of the revision, it be " for pri- vate profit," has been too often and too uniformly recognized to be now disputed. (See Gammell v. Potter, 6 loWa, 548; Lummery v. Bradley, 7 Id., 33 ; see also Cowgill v. Essex MiU, 6 Pick., 94 ; Boston v. Newman, 12 Id., 466.) IOWA. 373 These Acts can be sustained only on tlie ground that the objects to be promoted by them were public ; that the exer- cise of the right of eminent domaii in behalf of railroads, canals, turnpikes, plank-roads, bridges, mills, etc., is upon the principle that, being of " public utility," although for " private profit," they are for " public use," within the meaning of the Constitution. The cases are numerous and uniformly in accord with this view. The right of the Legislature to exercise the power of eminent domain in behalfof railroads has always been upheld by the courts, on the ground that the use was a public one. Indeed, this is elementary and unquestionable. See 2 Kent's (Com., 339, 340 ; Beekman v. The Saratoga and S. B.B. Co., 3 Paige, 45.) The ease last cited is the leading American case upon this subject. The point was expressly made, that taking private property for the use of a railroad was not taking it for pub- lic use, and therefore forbidden by the Constitution of New York. The clear and conclusive language of the Chancellor has often been- quoted and followed, and never overruled. In speaking of the power of eminent domain, he says : " The right of eminent domain does not, however, imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such trans- fer. But if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the Legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to in- terfere with the private rights of individuals for that purpose. It is upon this principle that the Legislatures of several States have authorized the condemnation of the lands of individuals for mill-sites, where, from the nature of the country, such mill-sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned. Upon the same principle of public benefit, not only the agents of the Government, but also individuals and corporate bodies, haye been authorized to take private property for the purpose of making public highways, turnpike-roads and canals; of 374 THE LAW OF MUNICIPAL BOKDS. erecting and constructing wharves and basins ; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages. In all such cases, the object of the legislative power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agents of the Grovernment, or through the medium of corporate bodies or of individual en- terprise." Chief- Justice Marshall, in the case of WilsonY. The Blackbird Greek Marsh Co., 2 Peters, 251, says : "Measures calculated to produce such benefits to the public, though effected through the medium of a private corporation, are undoubtedly within the powers reserved to the States." In Swan v. Williams, 2 Mich., 427, the question before the court was whether " property taken by a railroad company was a taking for public use within the meaning of the Con- stitution," audit was decided in the affirmative. Mr. Justice Martin, in that case, says : " Moat certain it is, that, as to all their rights, powers and responsibilities, three grand classes of corporations exist : " 1. Political or municipal corporations, such as counties, towns, cities and villages, which, from their nature, are sub- ject to the unlimited control of the Legislature. " 2. Those associations which are created for the public benefit, and to which the Government delegates a portion of its sovereign power, to be exercised for public utility, such as turnpike, bridge, canal and railroad companies. 3. " Strictly private corporations, where the private interest of the corporators is the primary object of the association, such as banking, insurance, manufacturing and trading companies." " The object defines the character of these associations, by whatever name they may be styled." The learned judge further says that, in the creation of that class of corporations to which railroad companies belong, " the public duties and public interests are involved, and in the discharge of these duties and the attainment of these in- terests are the primary objects to be worked out through the powers delegated to them. To secure these, the right of pre- eminent sovereignty is^ exercised by the condemnation of IOWA. 375 lands to their use — a right which can never be exercised for private purposes. How, then, can they be regarded as pri- vate associations ?" " Nor can it be said that the property, when taken, is not used by the public, but by the corporation for its own benefit and advantage. It is unquestionably true that these enter- prises may be, and probably always are, undertaken with a view to private emoluments on the part of the corporators ; but it is none the less true that the object of the Government in creating them is public utility, and that private benefit, in- stead of being the occasion of the grant, is but the reward • springing from the service. If this be not the correct view, then we confess we are unable to find any authority in the Govern- ment to accomplish any work of public utility through any private medium, or by delegated authority ; yet all past his- tory tell us that governments have more frequently efiected these purposes through the aid of corporations and companies than by their immediate agents ; and all experience tells us that this is the most wise and economical method of securing these improvements." In support of these views, see the following cases : Blodgett V. Ifohawk and H. R. R. R. Co., 18 Wend., 1 ; 7 Pick., 496 ; 2 N. IL, 25; 20 Johns., 442, 443; Stewart y. Laud, 1 Cranch, 299; Amboy Turnpike, 5 Johns. Ch., 112 ; Pratt, v. Brown, 3 Wis., 612 ; Robbins v. R. R., 6 Id., 636 ; Locus v. Racine, 10 Id., 280 ; Corporation of N. Y. v. Coates, 7 Cow., 585. The right to exercise the power of eminent domain in be- half of railroads and other improvements of public utility is recognized by all courts and denied by no one. While admit- ting this right, it is said that the Legislature has no constitu- tional power to levy a tax on the property of the citizen in aid of a railroad corporation, because it is a mere private enterprise. It has been abundantly shown that the object for which the right of eminent domain is exercised is a public one, for public utility, for " public use," within the meaning of the Constitution; that this right can be exercised in behalf of these corporations upon no other ground. If, then, the building of a railroad is a public object so as to authorize the 376 THE LAW OP MUNICIPAL BONDS. taking of the private real property of the citizen — the highest species of property — for a right of way, is it any less a public object, for the purpose of receiving aid through the medium of taxation, to assist in building the road upon such right of way ? The right of eminent domain and the taxing- power are both sovereign powers." The former is limited to public uses by express words in the Constitution. The latter is not, nor is it limited at all, except that the Legislature shall not pass any law to compel any person "to pay tithes, taxes or other rates, for building or repairing places of worship, or the maintenance of any minister or ministry." Conceding, however, that the taxing-power ought not to be • exercised except in behalf of a public object, it is unques- tionable that it may be exercised for public purposes — for any object that will justify the right of eminent domain. If the State can for any purpose take the land of a citizen, it may tax him for a like purpose. The object or purpose should be a public one in either case. But it would be absurd to say that the right of the citizen to prevent his property from being taken for other than public uses, which is secured by express constitutional limitation, may be overridden ; but that his right to save his money from being applied, through the process of taxation, to other than public uses, which right is not embodied in the Constitution, must be respected. And yet such absurdity is involved in the position that the citizen's real property may be taken absolutely to aid in the construc- tion of a private enterprise — a railroad — while his money cannot be taken by the process of taxation to aid in the same enterprise. The proposition that you may not tax the property holder to aid the construction of a railroad, although the taxing-power is not limited in the Constitution, yet you may take his land for the same purpose, notwithstanding the right to thus take is limited to " public purposes." If the taxing- power cannot be constitutionally invoked in aid of railroads, neither can the power of eminent domain. If the Act under consideration is in conflict with the Constitution, in that it taxes the people in aid of the construction of railroads (or rather allows the people to tax themselves), then all the legis- lation of this and every other State, invoking the power of IOWA. 377 eminent domain in behalf of railroads and other like inter- nal improvemAta, is unconstitutiopal; and all the adjudica- tions of the courts for more than a century, sustaining such exercise of the right of eminent domain, are based upon false premises, and are erroneous. To be consistent, we must hold these corporations, and the object and purpose of the creation, to be private, and that neither the power of eminent domain, nor the power of taxation, can be invoked to aid in their construction, or that they are created for public utility, to promote the public interest and convenience, and that both of these powers may be constitutionally exercised to aid in • their construction. If they are private interests for the one purpose, they are also for the other ; if they are public for one, they are for the other. If the taking of private property for the right of way of a railroad is taking for " public use," so also is the imposition of a tax to aid in the construction of the road an exercise of the taxing-power for a public pur- pose. This view is in accord with the whole course of legis- lation of all States in regard to internal improvements, and is sustained by a current of judicial decisions that cannot be consistently repudiated. Every railroad, canal and turnpike-road in the TTnited States has been built by the aid of such legislation — grant- ing to them a right of way — based upon the principle that the object was a public one, justifying the invocation of sovereign power in their construction. This species of legislation, whether in the nature of grants of right of way to railroads, canals and turnpikes, or by authorizing local aid, through the process of taxation, in their construction, has been sustained by the highest courts of almost every State in the Union, upon this ground and upon none other. In addition to cases already cited herein, see the following : Livingston v. Mayor of New York, 8 Wend., 35 ; In Matter of opening Famum Street, 17 "Wend., 649; Sutton's heirs v. Louis- ville, 6 Dana, 30; City of Lexington v. McQuilkn's heirs, 9 Dana, 513. , ■"While the right to take private property for public use is conditioned upon making compensation, the taxing-power is not thus limited. Indeed, the very idea of taxation implies 378 THE LAW OF MUNICIPAL BONDS. the power to collect levies of money from the people without making any direct pecuniary compensation. * The only rev- enue possessed by the State is derived from taxation ; and it would be absurd to say that she should compensate the citizen for taxes collected. It is well settled' that this clause of the Constitution, requir- ing compensation to be made where private property is taken for public use, is not a limitation upon the taxing-power. See the following cases : The I'eople v. Mayor of Brooklyn, 4 Corns., 413 ; Town of Guilford v. Cornell, 18 Barb., 615 ; Town of Guilford v. Supervisors of Clienango County, 3 Kern., 147; Kirby v. Shaw, 19 Penn., 258; Williams v. Mayor of Detroit, 2 Mich., 560; McMasters v. Commonwealth, 3 Watts, 292; In the Matter of the District of Pittsburg, 2 "Watts & Serg., 320 ; In Mat- ter of Fenlon's Petition, 7 Penn., 173; Extension of Hancock Street, 18 Id., 26 ; Sharpless v. City of Philadelphia, 9 Harris, 147; Shenly and Wife v. Alleghany City, 25 Penn., 128 ; Nichols V. Bridgeport, 23 Conn., 189; Griffin v. The Mayor, 4 Corns., 419; Commonwealth v. Alger, 7 Cush., 53; Cummings v. Police Jury, 9 La., 503 ; 3foers v. City of Beading, 21 Penn., 188; Slack V. Maysville and Lex. B. B. Co., 13 B. Mon., 1 ; Justices of Clarke Cb. v. P. W. ^ B. B. Turnpike Co., 11 Id., 143. The taxing-power being one of the sovereign powers vested in the General Assembly by the people, and not being limited, either expressly or by clear implication, in the Constitution, to the condition of making compensation, the judicial power possesses no authority to thus limit it. The conclusion therefore is, that as the Legislature may con- stitutionally exercise the right of eminent domain, which is limited by the Constitution, in aid of the construction of rail- roads and other internal improvements of public utility, so, also, may it exercise the taxing-power, which is not limited, in aid of the same objects. It is objected that a railroad differs from other public high- ways, such as turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their own produce in their own vehicles. Chancellor Wal- worth, answering this objection, says : " If the making of a railroad will enable the traveller to go from one place to IOWA. 379 anotlier witTiout the expense of a carriage and horses, he de- rives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike- road at the same expense. And if a mode of conveyance has been discovered by which a farmer can procure his produce to be transported to market at half the expense which it would cost him to carry it there with his own wagon and horses, there is no reason why the public should not enjoy the benefit of the discovery. " The public have an interest in the use of the railroad, and the owners may be prosecuted for damages sustained, if they refuse to transport an individual or his property with- out reasonable excuse, upon being paid the usual rater of fare." {Beelcman v. The Saratoga ^ S. JR. E. Co., 3 Paige, 45.) And in Swan v. Williams, 2 Mich., 427, the court says: " The fact that upon railroads individuals do not travel or transport property in their own vehicles, furnishes no argu- ment in this particular from the fact that the nature of the road as well as the personal safety of individuals, renders it impossible that it should do so." It is also said that the last clause of the ninth section of the bill of rights, which declares that " no person shall be deprived of life, liberty or property without due process of law," is infringed by the Act of 1870. "Due process of law" means ordinary judicial proceed- ings in court.- Boyd v. Ellis, 11 Iowa, 99 ; ex parte Grace, 12 Id., 214; Taylor v. Potta-, 4 Hill, 140. So that if this clause of the Constitution is held to apply to the taxing-power, then no tax whatever for the support of the Government can be legally levied and collected except through a means of judi- cial proceedings in the courts; whereas, it is well known that the sovereign power of taxation belongs exclusively to the legislative department of the Government, and that all taxes are levied and collected in pursuance of legislative enactments, without the aid of the courts. This clause has no reference whatever to the taxing-power ; it is not taken " without due process of law." {Alien v. Armstrong, 16 Iowa, 512; McCarroll v. Weeks, 2 Tenn., 215; Harris v. Wood,Q B. Mon., 643 ; Livingston v. Moore, 7 Pet, 669.) 380 THE LAW OF MUNICIPAL BONDS. It was said by Chief-Justice Dillon, in Hanson v. Vemrm, that this court, in the Wapello County case, 13 Iowa, 388, had held that " The Legislature could not, under any circum- stance, pass an Act which will make it lawful for a county or city, in its corporate capacity, to subscribe stock in a rail- road company," and that it was impossible " to hold the Act of 1868 to be valid, and yet stand by the decision " in that case. When it is remembered that, until the passage of the Act of 1868, the Legislature of Iowa had never passed any Act purporting to authorize anything of the kind, and that no such question was before the court in the Wapello County case, or in any other of the numerous cases involving the validity of city and county railroad bonds, it will be plain enough that whatever may have been said about the constitu- tionality of an Act authorizing the issue of bonds by munici- pal corporations was only dictum. The real decision in the case in 13 Iowa was, that the Legislature had never author- ized .the municipal corporations of this State to subscribe stock to railroads, issue bonds, and levy and collect taxes to pay the same, and that those municipal corporations pos- sessed no power independent of express legislative authority to subscribe to the stock of railroad companies, issue bonds therefor, and levy and collect local taxes to pay the same. To that decision, and to the whole series of decisions of this court holding invalid county and city bonds, issued for that purpose, we give our unqualified approval. But it is given on the groun.ds that the General Assembly had never passed any Act conferring the power^ and that without such legis- lation it did not exist. This question of the constitutional power of the Legislature to authorize municipal corporations to aid by local tax in the construction of railroads, within the territory of such municipal corporations, has been before the' highest judicial tribunals of at least twenty-one of the States, and the Supreme Court of the United States, and in every instance the power has been confirmed, until quite recently in the .Supreme Courts of Michigan and Wisconsin, and in this court, in the case of Hanson v. Vernon. See the following cases : IOWA. 381 Sharpless v. The Mayor, ^c, 21 Penn. St., 147; Common- wealth V. Perkins, 43 Id., 410 ; The People ex rel. v. Mitchell, 35 K. Y., 550 ; Clarke v. aty of Bochester, 28 Id., 604 ; GouU v. The Town of Venice, 20 Barb., 442; Slack v. City of Maysville, 13 B. Mon., 1 ; Maddox v. Graham, 2 Metcalf (Ky.), 56; iV?cAoZ V. Mayer, 9 Humph. (Tenn.), 252 ; Goddin v. Cramp, 8 Leigh (Va.), 120; City of Bridgeport y. Mousatonie P.P. Co., 16 Conn., 475; Society for Savings Y. New London, 29 Id., 174: ; Cin.P.P. Go. V. Commissioners, 12 Ohio St., 77 ; State, '^c. v. Commis- sioners, 12 Id., 596; Shoemaker v. Goshen, 14 Id., 569; Pretty- man V. Supervisors, 19 111., 406 ; Butler v. Dunham, 27 Id., 474, and cases cited; Gibbons v. Mobile, §-c., P.P. Co., 36 Ala., 410; Pobinson v. Bidwell, 32 Cal., 379; y/ie Commissioners -v. Bright, 18 Ind., 93; TAe C?!^ o/ J.MTOro v. Wesi;, 22 Id., 88; Augusta Bank v. Augusta, 49 Me., 407; C?ar/<; v. Janesville, 10 Wis., 130 ; Ellis V. Glason, 11 Id., 470 ; Caldwell v. Justices of Burke, 4 Jones' Eq. (]^. C), 223 ; PoMJers v. The Inf. Ct. Dougherty Co., 23 Geo., 65 ; The St. Joe and C. P.P. Co. v. Buchanan Co., 39 Mo., 485; City of St. Lends v. Alexandria, 28 Id., 183; Strick- land V. Miss. P. P. Co., 27 Miss., 209-224; Coltmy. Com. of Leon Co., 5 Fl., 610 ; Police Jury v. Succession of McDonough, 8 La., 341 ; San Antonio v. Jbwes, 28 Texas, 19 ; Gilman v. She- boygan, 2 Black, 510, and cases cited. "We find, then, that upon principle and reason there is the same authority for the exercise of the sovereign power of taxation, in aid of the construction of railroads, that there is for the exercise of the right of eminent domain, and that this view is sustained by an overwhelming weight of authority. Our plain duty, therefore, is to sustain the Act in question ; and the question whether its enactment was dictated by a wise State policy or not, we must leave to the General As- sembly, where it exclusively belongs, under the Constitution. Order refusing injunction affirmed. The following case, Ux parte Holman et al., is of . marked importance, as being one of the first cases -that came before the courts under the Act of Congress of March 2, 1867, (14 United States Statutes, 558,) in which 382 THE LAW OF MUNICIPAL BONDS. the citizen of another State than that in which , suit is brought, may, if the other party be a citizen of the State, file an affidavit, whether he be plaintiff or defendant, " stating that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court." The probabilities are that the existence of this neces- sity had its force in the passage of the above Act ; and, although this decision is based on the Act of Congress of February 28, 1839, (5 U. S. Stat, at Large,) the subse- quent Act removes all doubt as to the rights of the parties. The following are the statement of facts and decisions of the court. The petitioners for this writ are the supervisors of the county of Lee, in the State of Iowa. The defendant in the petition for the writ is the Deputy United States Marshal for the District of Iowa. The defendant appeals from an order discharging the plaintiffs from his custody. The facts out of which the legal questions arise are un- disputed, and are as follows : Thompson obtained judgment upon coupons attached to bonds issued by the county of Lee in payment for stock in certain railroad corporations. His action was commenced in the United States court for Iowa, and for sufficient reasons was duly transferred, under the Act of Congress of February 28, 1839, (5 U. S. Stat, at Large,) to the proper United States court of Illinois. The county defended, and among other defences pleaded the injunc- tion proceedings in the State courts of Iowa, which will be presently mentioned. The defences were held insuffi- cient, and Thompson recovered judgment against the county October 19, 1864, in the United States Circuit Court for the Northern District of Illinois. IOWA. 383 Afterward, in 1868, such proceedings upon this judg- ment were had in the court last mentioned that it issued a peremptory mandamus, requiring the supervisors of the county to levy and collect a tax to pay the judgment. To this proceeding of mandamus the supervisors were par- ties, and again pleaded unsuccessfully the State court injunction and decree. This order by the United States Circuit Court of the peremptory writ of mandamus is in full force. The writ of mandamus being served, the supervisors refused ' to obey ; and the court which issued it, being apprised of the disobedience, issued an attach- ment, directed to the Marshal for the District of lov/a, commanding him to bring the supervisors before the court to- answer for a contempt against its authority. The Deputy-Marshal, Fulton, arrested the supervisors on this writ of attachment. Whereupon the supervisors, the plaintiffs in the present proceeding, applied for a writ of habeas corpus, claiming that the United St3,tes court for Illinois had no jurisdiction of the subject-matter of the mandamus proceeding, or of the persons of the plaintiffs. The reason given by the supervisors why they did not levy the tax as commanded by the United States court is, that prior to the commencement of the suit of Thomp- son in the United States court, they or their official pre- decessors had been enjoined by a decree of the Supreme Court of Iowa (entered in June, 1863, as of December 1, 1862), from levying and collecting any taxes to pay cer- tain railroad bonds and coupons issued by the county, among which are those upon which Thompson recovered his judgment. This injunction suit was commenced by certain tax-payers, and the county judge and county treasurer were made defendants. Neither Thompson nor any of the bondholders was a party to that proceeding. A writ of habeas corpus was ordered by Mr. Justice Beck, and the Deputy-Marshal, Fulton, under the prac- 384 THE LAW OF MUNICIPAL BONDS. tice in his State, answered, stating th.e recovery of judg- ment by Thompson, the mandamus proceeding, and the attachment for contempt, under which he admits he holds the supervisors in custody. He refuses, in his answer, to surrender them to the jurisdiction of the State court, and asks to be discharged from further answer to the writ of habeas corpus. Upon the above facts, Mr. Justice Beck, sitting at chambers, was of opinion that the supervisors were illegally restrained of their liberty by the United States Marshal, and he entered an order discharging them from his custody. The grounds of this judgment were stated with great care, force, and clearness in the opinion which he then prepared, and which forms the. basis of his dissenting opinion in this court. The Marshal appealed from the order of Mr. Justice Beck to this court, and the question, and only question, argued by counsel, and which they united in desiring to have decided, is whether the supervisors are, or are not, entitled to be discharged from the custody of the Mar- shal. The ruling upon this statement of facts, being most ably prepared by the Chicago Legal News, we give it in full as the ruling of the Court : " When a return is made to a writ of habeas corpus that the defendant holds the party under the authority of the United States, the truth and good faith of such claim may at least be inquired into by a State tribunal. "A State tribunal may determine on habeas corpus whether there is any enlistment in fact, or one legally binding upon the petitioner. " Held, that the supervisors were not entitled to their discharges on habeas corpus, because the question whether the U. S. Circuit Court had jurisdiction in the mandamus IOWA. 385 proceeding was a question for that court to decide, whicli it did decide, and the supervisors were parties to it, and did not appeal therefrom. " When a court, having jurisdiction of a cause, is pro- ceeding to arrest a party for contempt, no. other court can intermeddle with or stay the proceeding, or on habeas corpus or in any other way discharge the party who is being proceeded against. " Held, that a haheas corpus cannot be converted into a writ of error, and that there can be no inquiry in the present case into the validity of the judgment which Thompson obtained against the county in the United States court, nor into the validity of the order for the writ of mandamus, nor into the regularity of the order for the attachment for contempt, if that court had juris- diction. "That the decisions of the Supreme Court of the United States upon questions arising under the national Consti- tution and the laws of Congress are binding upon the State courts and conclusive upon all persons. " That the Supreme Court of the United States is the final arbiter respecting the nature and extent of the judi- cial power of the United States, and respecting the nature and extent of the jurisdiction which the courts of the United States possess under the constitutional legislation of Congress. " That the mandamus proceeding in the United States court must be regarded as ancillary to the judgment originally entered in that court, and in the nature of j)ro- cess to enforce its collection. "That in the exercise of the jurisdiction confided respectively to the State courts and those of the United States, neither have any right to interfere with or control the operations of the other. 25 386 THE LAW OF MUNICIPAL BONDS. " That the bondholders not being parties to the proceed- ing in the State court are not bound by it. " That the State court proceeding cannot be held to operate to deprive the United States court of jurisdiction in the mandamus proceeding, because the Supreme Court has so decided, and that decision is conclusive. "It is alone for the United States court, in which Thompson's judgment was rendered, to decide how it may be enforced ; and no State court can in any manner or at any time interfere with its collection, or revise or control the methods or process adopted to make such col- lection. " The United States court in Illinois, to which this case was transferred, as to jurisdiction, power, and process, stands in the place of the court in Iowa from which the transfer was made, and may order an attachment, in like manner as that court might have done. . " Held, that the arrest of the supervisors, under the process of the United States court of Illinois, was not illegal, and that they cannot be discharged therefrom on habeas corpus by any State judge or court." Ex parte Holman et. al., 28 Iowa Eep., 88. Dillon, C. J. — Treating the questions arising in this appeal in a manner befitting their gravity and importance, it is pro- posed to refrain from the discussion of all topics which do not necessarily lie in the pathway of the judicial determination of the precise case presented by the record. That the writ of habeas carpus is of transcendent value; that it is the keystone of American as of English liberty ; that the people of this State enjoy and have always enjoyed, without denial or abridgment, the right to this writ ; and that it is- an efficacious remedy against all illegal imprisonment, are propositions respecting which there is no dispute, and which command universal assent. Any person within the limits of the State who is illegally restrained of his hberty may apply to a State court IOWA. 387 or judge for the writ; and it is not enougli to deprive such court or judge of the right to act that the return is made that the defendant claims to hold the party under the authority of the United States. The truth and good faith of such a claim may at least he inquired into. Following the decisions in Massachusetts, New York and other States, I held in ex "parte Anderson, 16 Iowa, 698, that the State courts had jurisdiction concurrent with the national courts to inquire whether the petitioner's enlistment into the army of the United States was valid. ' 1 was not then, nor am I now, disposed to restrict the right to this beneficent remedy; and if it appeared to me in this case that the petitioners were illegally restrained, I should unhesitatingly agree to an affirmance of the order for their enlargement, the more readily because our judgment in such a case (being one to which the appellate power of the Supreme Court of the United States extends the judiciary act), if erro- neous, would be subject to be reviewed and reversed by that tribunal. A case in which a party is detained by an army officer of the United States, who simply claims that he is regularly en- listed as a soldier, is one which convenience requires should be examined into by the State tribunals ; and I see no objec- tions to these tribunals determining, on habeas corpus, whether there is any enlistment in fact, or one legally binding upon the petitioner. " It was foreseen," says Mr. Justice Story, in the course of his masterly opinion in Martin v. Hunter, 1 Wheat., 304, " that in the exercise of their ordinary jurisdiction. State courts would incidentally take cognizance of cases arising under the Constitution, the laws and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Constitution, is to extend." 1 Wheat., 342. The case of an inquiry into the validity of an enlistment, where the party is detained by no order or judgment of a court, military or civil, is readily distinguishable from one where the detention is under the order or by virtue of the process of a judicial tribunal. Tn the one case, the court or judge is in the exercise of an ordinary jurisdiction in the usual manner, and may decide upon the rights of the parties, even though 388 THE LAW OP MUKICIPAL BONDS. these require a construction of an Act of Congress ; but such decision is subject to the revisory power of the Supreme Court of the United States should it be against the right claimed, or authority exercised, under the national Constitu- tion or some law of Congress. But it yet remains to be decided by the Supreme Court of the Union (as it did when Judge Story wrote his commentaries upon the Constitution, see Vol. 2, Sections 175-7), whether even such an authority can be maintained. In the other case, viz., where the petitioner for the writ of habeas corpus seeks to be delivered from- a United States of- ficer, having a writ issued by a court of the United States, it is obvious there would be an end of all effectual authority on its part, if another court could arrest and thwart its proceed- ings by taking from the hands of its officers those whom it had, in the regular course of procedure, commanded to be ar- rested and brought before it. It would be a very extraordinary case which would justify a State court in thus interrupting the exercise of authoriiy by another similar court ; and surely a State court has at least no more right to interfere with the proceedings and process of a court of the United States over which it has not the slightest control, supervision or otherwise. In ex parte Watkins, (3 Pet., 193,) the Supreme Court of the United States was applied to for a habeas corpus by a party who had been convicted of an offence in the Circuit Court of the District of Columbia, the ground of the application being that the indictment charged no punishable offence. In refusing the writ, Chief-Justice Marshall assigned rea- sons which equally apply to the cause before us. He says : "With what propriety can this court look into the indict- ment ? "We have no power to examine the proceedings on a writ of error; and it would be strange, if, under color of a writ to liberate an individual from unlawful imprisonment, we could substantially reverse a judgment which the law has placed beyond our control. An imprisonment under a judg- ment cannot be unlawful unless that judgment be an absolute nullity;andif itisnotanullity the court has a general juris- diction over the subject, although the judgment should be IOWA. 389 erroneous. If the judgment be obligatory, no court can look bebind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment. "Would the counsel for the prisoner attempt to maintain this position ?" And so here : how extravagant would be the proposition that an action for false imprisonment could be maintained by the supervisors against the Marshal — a logical result of the position that the United States court could not order the at- tachment. The doctrine of ex parte Watkins was acted upon by this court in Piatt v.%Harrison, 6 Iowa, 79. In my judgment, the supervisors are not entitled to be dis- charged on habeas corpus, because the question, whether the United States Circuit Court had jurisdiction in the manda- mus proceeding, was a question for that court to decide. It did decide it, and the supervisors were parties to the proceed- ings in which the decision was made. That decision is in full force and unreversed. If that decision was erroneous, they could appeal to the Supreme Court of the United States. If there decided for them, they need no other remedy. If de- cided against them, it is final, and they are entitled to no other remedy. Now is it not undeniable, if a State court can on habeas corpus release the supervisors from the custody and control of the United States court, that it does, in the language of C. J. Marshall, above quoted, under the color of a writ to liberate from unlawful imprisonment, substantially reverse a judgment which the law has placed beyond its control ? But, without resting on this ground or on this chiefly, I proceed to examine the question whether or not the United States court in Illinois did have jurisdiction in the manda^ mus proceeding. The petitioners in the case now in judgment were arrested by the defendant, the Deputy-Marshal, for an alleged con- tempt of the United States court. They were arrested under the process of that court. It is admitted on all hands that every court is sole judge in matters of contempt of its orders or authority. It is also admitted to be the law, as it undoubt- edly is, that when a court, having jurisdiction of a cause, is proceeding to arrest a party for contempt, no other court can 390 THE LAW OP MUNICIPAL BONDS. intermeddle with or stay the proceeding, or on habeas corpus, or in any other way, discharge the party who is being pro- , ceeded against. This is famihar law, and it has been so long settled that it is not necessary to refer to the many authorities establishing it. Equally familiar and equally undisputed is the doctrine that a habeas corpus proceeding cannot be converted into a writ of error ; hence, in the present case, no inquiry is admissible into the validity of the judgment which Thompson obtained against the county in the United Sta|es court ; nor into the validity of the order for the writ of mandamus ; nor into the regularity of the oi'der for the attachment for the contempt, if that court had jurisdiction of the cause, i. e., of the persons and the subject-matter. The counsel in the cause, and all the members of this court, concur in the proposition that, if the United States court had jurisdiction in the cause or pro- ceeding in which the attachment was issued, whereon the supervisors were arrested, they were not entitled to be dis- charged on habeas corpus. So that there is but one ultimate inquiry, but one controverted question in the case, and that is whether the United States court had jurisdiction of the caij^e or proceeding in which the attachment was issued. The counsel for the supervisors make no other point than the one denying in ioto the jurisdiction of that court in the mandamus proceeding. Before proceeding to exaniine the soundness of this posi- tion, it is proper to advert to another principle of law re- specting which there can be no dispute, and which has an important relation to the questions in controversy. It is this : thatthe decisions of the Supreme Court of the United States upon questions arising under the national Constitu- tion and the laws of Congress, are binding upon the State courts, and conclusive upon all persons. The Constitution of the United States in terms provides : "Article VI. — This Constitution, and the laws which shall be made in pursuance thereof, . . . shall be the supreme law of the land; and the judges in every State shall be bound thereby, and anything in the Constitution or laws of any State to the contrary notwithstanding." IOWA. 391 "Article m., Section 1. — The judicial power of the United States shall be vested in one Supreme Court," &c., &e. " Section 2. -^ The judicial power shall extend to all cases of law or equity arising under this Constitution, the laws of the United States, ... to controversies between citizens of different States," etc., etc. It is the result of these various provisions, that the Su- preme Court of the United States is the final arbiter respect- ing the nature and j^tent of the judicial power of the United States, and respecting the nature and extent of the jurisdiction which the courts of the United States possess under the constitutional legislation of Congress. The jurisdiction of the courts of the United States has been conferred in some instances with exclusive reference to the character of the case or controversy, and in others with exclusive reference to the character of the parties ; but whether it has been conferred by reason of the one consid- eration or the other, the express determination of the Su- preme Court of the United States as to the extent of siich iurisdiction, what cases are embraced within it, what persons are subject to it, what judgments may be rendered, by what process and in what manner they may be enforced, is final, authoritative, absolutely binding upon all persons and all tri bunals, including " the judges in every State, anything in the Constitution and laws of any State to the contrary not- withstanding." If the proposition just stated had not frequently been solemnly affirmed to be- true by the Supreme Court of the United States, our reason and judgment would teach us that they ought to be true, for otherwise, with our complicated system of national and State governments, united and yet separate, we should have perpetual discord and unending con- flict. No other doctrine could secure harmony or uniformity. With this statement of some of the leading and undisputed principles of law having direct relation to the case, we pro- ceed to the inquiry whether the Circuit Court of the United States for the Northern District of Illinois had jurisdiction of the cause or proceeding in which the process of attachment 392 THE LAW OF MUNICIPAL BOKDS. issued. The point made by counsel is, that the court " had no jurisdiction over the appellees (the supervisors) in the mat^ ter of the said cause in mandamus." That it had jurisdiction of the suit of Thompson against the county, on the coupons, is not denied ; nor can it be denied. That suit was commenced by Thompson, a citizen of Penn- sylvania, in the proper United States court for Iowa. The county was duly served and in court. Under the Act of Congress of February 28, 1839, (5 U. S. Stat. 322,) the cause was transferred to the above-mentioned court in Illinois. This Act provides for such transfers in certain cases, and that the court to which the transfer is made shall " take cognizance thereof in the same manner as if such suit had been rightfully and originally commenced therein, and shall proceed to hear and determine the same ; and proper process for the due exe- cution of the judgment or decree therein rendered shall run into and be executed in the district from which said suit was removed." That this Act of Congress is still in full force was expressly ruled by the Supreme Court of the United States at its December Term, 1868, in the case of the Supervi- sors of Lee County v. United States ex rel. Rogers, 7 Wall., 175. The first ground of objection taken by counsel to the juris- diction of the Illinois court is that the mandamus proceeding therein was a new and original action, and should have been brought in Iowa, and could not be commenced in Illinois against persons resident in the District of Iowa, and that in such case the appearance of the parties would not operate to confer jurisdiction. It' will be remembered that the judgment in favor of Thompson, and against the county of Lee, was rendered in the Illinois court, the action having, under the Act of Congress just referred to, been duly transferred thereto; that this judgment was made the basis of the man- damus proceedings therein designed to enforce its collection ; that the county appeared, defended, was unsuccessful, and the mandamus ordered, and that this order remains in full force. It is now insisted that these proceedings and orders are all void because the mandamus proceeding was an original action ; and if so, then it ought to have been commenced in the United States court of Iowa, the defendant (petitioner in habeas corpus) being resident of that district IOWA. 393 To this position .there are two answers, both good, and are conclusive : 1. If this objection (which, it will be perceived, relates to the character and residence of the parties, and not to the sub- ject-matter,) was not made when the mandamus proceedings were pending and in that court, it is waived, and comes too late after judgment, unless it be urged in error. If made and improperly overruled, it would not render the order for the mandamus void and liable to be collaterally impeached, but the order would be valid and binding until reversed by a writ of error. Than this nothing can be plainer on principle. See Huff v. Hutchinson, 14 How., (U. S.,) 586; Kennedy y. Georgia State Bank, 8 Id., 686, and cases cited ; ex parte Watkins, 3 Pet., 193, 207; Voorhees v. The Bank, 10 Id., 449. 2. "Whether the mandamus proceeding is new and original, or supplemental and ancillary, is a question not to be deter- mined with reference to previous rules, but (to use the lan- guage of Mr. Justice Miller, in which he states the true cri- terion with his accustomed perspicuity) "with reference to the line sanctioned by this court, (the Supreme Court of the United States,) which divides the jurisdiction of the Federal courts from that of the State courts." {Minnesota Co. v. St. Paul Co., 2 Wall., 609, 633.) In cases like the present, where a public corporation is the debtor, the Supreme Court of the United States have had the question before it as to the nature of the mandamus proceedings ; and it has, in several instances, and upon full consideration, expressly decided that such pro- ceedings are not in the nature of a new or original action in the jurisdictional sense, but supplementary to, and in contin- uation and aid of, the original judgment. On this precise point the leading case is Biggs v. Johnson County, 6 "Wall., 166. The conclusion of the court is thus expressed by Mr. Justice Cliffoed : " The Circuit Court in the several States may issue the writ of mandamus in a proper case when it is necessary to the exercise of their respective jurisdictions, agreeably to the principles and usages of the law. "When such an exigency arises, they may issue it, but when so employed, it is neither a prerogative writ nor a new suit in the jurisdictional sense. 394 THE LAW OF MTJKICIPAL BONDS. On tlie contrary, it is proceeding ancillary to the judgment which gives jurisdiction, and when issued becomes the sub- stitute for the ordinary process of execution to enforce the payment of the same as provided in the contract." Id., 198. To .the same effect, treating the mandamus as process subse- quent to judgment, see also United States, ^c. v. Council of Keokuk, 6 Wall., 514, 518, 520; Weber v. Lee County, Id., 210. This language may be open to verbal criticism for inaccu- racy, but its meaning and force are unmistakable. This authoritative and repeated declaration of the law is an end of controversy, at least in everj' court except the one in which it was commenced. Its correctness may be doubted or denied, but its authority must be admitted and obeyed. For, as above shown, the decision of the national Supreme Court, as to the jurisdiction and process of the courts of the Union, is final and conclusive upon all persons and all tribunals. ( Wayman V. Southard, 10 Wheat., 1, 23 ; United States v. Peters, 5 Cranch^ 115, 136; Bank v. Halstead, 10 Wheat., 86.) When the United States court treat the mandamus as mere process — a substitute, in this class of cases, for the ordinary execution — can any other court decide that they are mistaken, and therein base a right to interfere with the execution of the writ ? Clearly not. A State court, as respects causes and judgments therein, may decide that this is not the law ; but a State court cannot decide that such is Hot in the courts of the United States. It being settled, then, that the mandamus proceeding must be regarded as merely ancillary to the judgment, and in the nature of process to- enforce its collection, another principle of law well settled, reasonable in itself, and universally acted on, and absolutely essential to the harmonious working of our duplex system of government, has here a most important place. Reference is here made to the principle of reciprocal non-interference by the national and State courts with each other. On this subject the effect of the decision, down to the period when he wrote, is well stated by Mr. Justice Story, in his Commentaries on the Constitution. He says : "In the exer- cise of the jurisdiction confined respectively to the State courts, IOWA. 395 and those of the United States (where the latter have not appellate jurisdiction), it is plain that neither can have any right to interfere with or control the operations of the other. It has accordingly been settled that no State court can issue an injunction upon any judgment in a court of the United States ; the latter having an exclusive authority over its own judgments and proceedings. {McKim v. Vorhees, 7 Cranch, 279.) Nor can any State court or any State Legisla- ture annul the judgments of the courts of the United States, or destroy rights acquired under therii ( United States v. Peters, 5 Id., 115); nor in any manner deprive the Supreme Court of its appellate jurisdiction [Wilson v. Mason, 1 Id., 94); nor in any manner interfere with or control the process (whether mesne or final) of the courts of the United States (United States v. Wilson, 8 Wheat, 253); nor prescribe the rules or forms of proceeding, nor effect of process in the courts of the United States. {Wayman v. Southard, 10 Id., 1, 21, 22; Bank of the U. S. v. Halstead, Id., 51.) .... Indeed, where the judicial power of the United States is to be exercised, it is for Congress alone to furnish the rules of proceedings, to direct the process, to declare the nature and effect' of the pro- cess, and the mode in which judgments consequent thereon shall be executed. No State Legislature or State court can have the right to interfere On the other hand, the national courts have no authority (in cases not within the ap- pellate jurisdiction of the United States) to issue injunctions to judgments in the State courts {Diggs v. Walcotf, 4 Cranch, 178 ; see also 1 Stat, at Large, 335 ; Randall v. Howard, 2 Black, 585), or in any other manner interfere with their jurisdiction or proceedings, ^x parte Calvesa, 1 "Wash. C. C, 232." Story's Com. Const, Sections 1757-1759. The same principle has since been applied in holding that a sheriff cannot replevy property from the United States Marshal. {Freeman v. Howe, 24 How., 450, 455; and see Buck V. Colhath, 3 Wall., 334.) And the same doctrine has been specifically applied by the Supreme Court of the United States in cases identical with the present. {Biggs v. Johnson Co., 6 Wall., 166, 198 ; Weber V. Lee Co., Id,, 210 ; United States v. Council of Keokuk, Id., 514.) ■ 396 THE LAW OP MUNICIPAL BONDS. In ttie case last cited the facts were these : Suit on railroad coupons and judgment in the United States court for the plaintiff, October 19, 1864. He subsequently applied for a mandamus to compel the city to levy a tax to pay it. Return to writ, that on October 9, 1863, before relator obtained his judgment, the city was enjoined by the State court, to which proceeding, however, the creditor was not a party. The TJnited States Circuit Court held this return suflBcient; but its judgment was reversed by the Supreme Court of the United States, which placed its reversal upon the distinct ground that, in such a case, mandamus is the proper remedy of the creditor to collect his judgment, and " that a State court cannot enjoin the process of the Federal courts," fol- lowing Riggs V. Johnson Co., supra. In another case between the same parties, the court observes : " Suffice it to say, that we adhere to the rule that the injunction issued by a State court is inoperative to control, or in any manner affect, pro- cess or proceedings in the Circuit Court of the United States." United States v. Keokuk, 6 Wall., 520, per Clifford, J. The suggestion that it makes a difference if issued before judgment, and not after it, as in the Eigg's case, is immate- rial, as shown by the facts of the Keokuk case just cited, in which the State court injunction was prior in date to the judgment in the United States court. The doctrine is, that the one court shall not interfere with the operations of the other at any time, whether before or after judgment. It is the fact of interference, under a claim of right, and not the time when this right may be actually exercised, that is objectionable, and which leads to conflict and difficulty. This the law avoids by the doctrine that one court cannot interfere with the process or operation of the other. But the ground mainly relied on to show that the Circuit Court of the United States had no jurisdiction in the manda^ mus proceeding is, that the subject-matter thereof had long before been adjudicated by the State court, which made per- petual the injunction against the county officers, restraining them from levying any tax to pay railroad bonds or coupons. That such an order was made by the State court in a suit IOWA. 397 by certain tax-payers against tlie county officers, is an admitted fact. It is also an admitted fact that not a single bondholder, whose* rights it is now claimed have been judicially cut off, was a party to the proceeding in the State court. For two reasons, the effect of the proceeding in the State 'court cannot be that which is claimed for it by the supervisors. 1. Because it is a fundamental, vital principle of the law that no man can be affected by any judicial proceeding to which he is not a party. JSTo person can be convicted unless he has had a day in court. The law, before it decides against any man or any man's rights, gives him an opportunity to be heard. It is no answer to say that the validity of these bonds was a question of law, and that the decision would have been the same had the bondholders been before the court. If the plaintiff in this case had been a party to the injunction suit in the State court, his counsel might have been able to prevent that decree by satisfying the court that it ought not to render it, or by removing the cause, if grounds existed, to the court of the United States. I do not say that the bondholders are absolutely necessary parties to such a suit, but I do hold that, if not parties, they are not bound, and the proceedings and decree are, as to them, res inter alios acta. On this point I have no doubt, nor never had. I so decided on the bench of the District Court, in -1863, in the case of Barrows v. The City of Davenport, and my opinion remains still the same. 2. The second reason why the State court proceeding can- not be held to operate to deprive the court of the United States of jurisdiction in the mandamus proceeding is, that the Supreme Court of the Union has so decided, and that decision is conclusive. This is the very point ruled in Biggs v. Johnson County, 6 Wall., 169, followed and reaffirmed in Weher v. iee County, Id., 210, and United States v. Council of Keokuk, Id., 514; Same v. Same, Id., 520. These cases, applied to the one under consideration, declare these principles, to wit: The Constitution of the United States and the constitutional Leg- islature of Congress are the supreme law, paramount over all and binding on all. These give Thompson, a non-resident of Iowa, a constitutional right to sue the county of Lee in the 398 THE LAW OF MUNICIPAL BONDS. courts of the United States. Of this right no State Legisla- ture nor court can deprive him without his consent. If he should be made a party to a proceeding in the State court, he might remove, if he saw fit, the cause to the proper court of the United States. In pursuance of his constitutional right, he did sue in the United States court on his coupons, and obtained his judgment. That this judgment is valid, and that the court rendering it had jurisdiction, are undoubted propositions not denied by the counsel for the supervisors. And, in passing, it may be remarked that this court has, in the most solemn manner, affirmed the validity of judgments rendered by the United States courts on railroad bonds, by deciding that such judgments may be the basis of a recovery in the State courts, and that they conclude all defences on the merits. {Thompson v. Lee County, 22 Iowa, 206, 1867.) If, then, as counsel concede, and as both the Supreme Court of the United States and of this State have decided, Thomp- son's judgment in the cause at bar is valid, it is alone for the court of the United States in which it was rendered 'to de- cide how it may be enforced, and no State court can, in any manner, or at any time, interfere with its collection ; and that since the court which rendered it holds that he is entitled to a mandamus as a substitute for an ordinary execution, a State court can no more interfere with this process than with an ordinary writ oIl fieri facias. The mandamus, in this light, is a mere incident to the judg- ment. It is illogical to assert that the court had jurisdiction to render the judgment, but none to award the process to en- force it. It would be a strange doctrine to declare that Thompson has a valid judgment, but that the court has been deprived of all effectual power to cause to be rendered to him the legitimate fruits of such a judgment. That the foregoing views do not mistake the decision of the Supreme Court of the United States will be apparent from a brief extract from its judgment in Biggs v. Johnson County, be- fore cited. " Jurisdiction," says Clifford, J., " is defined to be the power to hear and determine the subjec1>matter in con- troversj' in the suit before the court ; and the rule is univer- sal, that if the power is conferred to render the judgment or IOWA. 899 enter the decree, it also includes the power to issue process to enforce such judgment or decree. "Process subsequent to judgment is as essential to jurisdic- tion as process antecedent to judgment, else the judicial power (of the United States) would be incomplete and entirely in- ■ adequate to the purposes for which it was conferred by the Constitution." 6 Wall., 187. The result is that the writ of mandamus " is a proceeding ancillary to the judgment which gives the jurisdiction, and when Issued becomes a substitute for the ordinary process of execution to enforce the payment of the same." Id., 198. It results that, if ihe injunction proceedings did not oust the court of the United States of the jurisdiction to render the judgment, it did not oust it of the inseparable and inci- dental power to issue process to enforce it. If it had this jurisdiction, then it is admitted on all hands that it might proceed to punish for contempt of its authority, and that where so proceeding, its process or operations cannot be interfered with by any other court, and certainly not by one which does not exercise supervisory power. The United States court in Illinois, to which the cause was transferred, as to the jurisdiction, power, and process, stands in the place of the court in Iowa, from which the transfer was made, and may order an attachment in like manner, and the Act of Congress is express that " proper process for the due execution of the judgment and decree rendered therein shall run into and be executed in the district from which the suit was removed." (5 Stat, at Large, 322 ; Supervisors of Lee Co. V. United States ex rel. Rogers, 7 Wall., 174.) Here it will be perceived that the decisions of the Supreme Court of the United States cover the whole ground of controversy, ana admit of no possible escape from the conclusion that the arrest of the supervisors was illegal, and that they cannot be discharged therefrom on habeas corpus by any State judge or court. This is the supreme law of the land, binding upon the judges of every State. This result will disappoint many of our people, and per- haps gratify but few. But it is the law, and must be so de- clared, nc^twithstanding the sympathy of the tribunal declaring 400 THE LAW OF MUNICIPAL BONDS. it with those cities and counties which incautiously incurred large ohligations, increased in many instances by large ' ar- rearages of interest to an amount beyond their present ability to meet. But there are evils greater than banlo-uptcy, and among these should be classed judicial conflict between the State and national authorities. If, in a matter to which its appellate jurisdiction did not extend, the Supreme Court of the United States should at- tempt to invade the constitutional rights of the court, it would be its duty, and one which I trust it would discharge with becoming dignity, manly firmness and lofty independence, not to allow the attempt to succeed. But in a matter to which its appellate jurisdiction does extend, and such is the present case, it is the superior and supervising tribunal, and this court has but one duty to perform, and that is to obey its judgments, whether they deem them right or wrong. Because the national Supreme Court decides that the bond- holders may enforce their bonds in the courts of the United States, this court is not bound to follow that decision, and hold that they may also recover thereon in the State courts. This court may believe, as I do believe, that that court mis- took precedent and duty, in affecting to consider the decisions in this State on the subject to be unsettled, and in not follow- ing the latest adjudications of this court, in a matter wholly arising under the State Constitution and laws, and in follow- ing prior and overruled decisions of the Supreme Court of this State ; but if so, this mistake cannot be rectified by an. interference on the part of the State tribunals with the judg- ments and operations and officers of the courts of the United States. That this is so, all thoughtful and reflecting citizens will readily admit. Each court must keep within its own orbit ; each must respect the rights and the feelings of the other. On these conditions, and not otherwise, can conflict and discord be avoided. I cannot more appropriately conclude, perhaps, than by follow- ing Chancellor Kent, (1 Com.,) in using the fine language which Sir William Blackstone applied to the people of Eng- land, and, applying it to the people and the courts .of Iowa IOWA. 401 in their subordinate relations to the Constitution, laws and Government of the United States, declare that they are "Loyal, yet free; obedient, yet independent." Weight, J. — I need not in words express my firm and decided conviction that, in the unfortunate and unpleasant conflict of opinion existing between the Federal and State courts touching " county railroad bonds," the State tribunals have ever had the law, the Constitution and precedent on their side. This proposition I announced, in effect, as long ago as 1857, [Clapp v. Cedar County, 5 Iowa, 15,) and in all the opinions of this court on the subject since, whether writ- ten by myself or others, I have adhered with the utmost and, as I believe, most consistent tenacity to its truth, in all its length and breadth. I believe the bonds are void ; that there was no semblance of power to issue them ; that there can be no such thing as an innocent holder of such paper; that this is the settled adjudication of this court, having be- fore it, as a court of last resort for the State, and giving a construction to, the Constitution and laws of the State, and that, by all the well settled Federal judicial history, this ruling became, by comity, by necessity, and upon the clear- est principle, the rule to guide the national judiciary. Of the sincerity and firmness of this belief and these convictions, I repeat, I need give no assurance; since my connection with the question what I have said or approved almost every term for the last twelve years furnish all requisite demonstration. And just here I stand yet ; and however much I. may feel constrained, from a sense of duty and an appreciation of what is due to the judgment of a tribunal having jurisdiction, to bow to its commands and orders, I shall do so, having more respect for the axe than the executioner. But I trust I shall remember my obligations to the law, my duty to obey settled rules of adjudication, and that neither a feeling of deep wrong to the State, nor a disregard of legal principles by others, shall ever lead me to depart from those rules and fundanjental principles essential to the protection of every citizen of the land in life, liberty and property. If others violate the law, I must not. And however strong my feel- 26 ♦ 402 THE LAW OF MUNICIPAL BONDS. ings ; however earnest my desire as an individual to defy the power that strikes almost without hearing ; however deep my conviction of the wrong perpetrated upon thousands of inno- cent tax-payers ; however earnest my anxiety to avert the ap- parently unfeeling blow, I must and will declare the law as I understand it ; esteeming that I am thereby in the only safe line of duty, and also preserving the State and its tribunals from that reproach which ever and justly follows a departure from principle. It will never do from any motive to over- turn fundamental and well-settled legal principles. Having said this much generally, I come to what, to me, is the question in this case, and what, to my mind, is of even too easy solution. Conceding all that has been said by Justice Beck in his most elaborate and well-considered opinion in the hearing before him (and so ably fortified by what he has said in this court), as to the power of a State court, or judge, to relieve one illegally held under pretence of Federal authority, judi- cial or otherwise ; I say, conceding all this, the very question is whether petitioners were thus illegally held. And I am not mistaken in saying that this depends upon whether the court ordering the attachment and arrest had jurisdiction of the subject-matter and parties, so that the power existed t© make the same. To ray mind, it is immaterial whether the mandamus pro- ceeding is a " new suit," or " ancillary," Irierely, to the judg- ment — taking the place of the ordinary process of execution to enforce its payment, and this because there was a judgment, by a court having undeniable jurisdiction over the parties and subject-matter, that the creditor (Thompson) should re- cover so much against the county. Whatever views are entertained of the correctness of this judgment, none are urged, as I understand, against its absolute verity and validity. In that action, as also in the mandamus proceeding, the pro- ceedings in the injunction suit were pleaded as a defence, and held insufficient in the Federal court, and this holding remains unreversed and undisturbed. And just here, I am constrained to believe, is the impassable barrier to plaintiff's relief in this proceeding. The argument in their favor is I IOWA. 403 based upon the mistake, as I humbly conceive, of confounding the erroneous conclusions of the court in overruling the de- fence, with its want of power to so hold. And yet, if payment of the judgment since its rendition had been set up and held unsustained by the evidence offered, the power to so hold and the conclusiveness thereof would scarcely be denied. Or, suppose the holding had been that such' a defence was not good at, or as matter of, law, however erroneous, would it be void ? So, too, if the supervisors had set up a release to the county — a levy upon property and its abandonment under such circumstances as were 'claimed to satisfy the writ . and dema^id ; or other matter in bar of the writ, or in excuse, for not obeying the ultimate mandate, and any such defences, either upon these facts, or in law, were held insufficient, I confess it would be a new doctrine, and as dangerous as new, that in a proceeding of this character, the correctness of such holding or ruling could be reviewed. It matters not that the State tribunals first obtaining jurisdiction, first determined ever so correctly that the tax should not be levied ; it matters not then as an original question, I would determine that the order excused the petitioners from the discharge of a duty which might otherwise have resulted from their office or trust The difficulty is that a competent tribunal having these very questions before it has determined in effect that the priority of the order or jurisdiction makes no difference ; that the injunction proceedings constituted no defence. The reason- ing that the object of the injunction suit was to prevent the collection of the taxes, that of the mandamus action to enforce the collection, that hence the same subject-matter was involved in both, and that as our courts first obtained jurisdiction and restrained the collection, therefore the order of the levy and the following attachment against the plaintiffs for contempt for disobeying the order is void in my humble judgment omits one most important and elemental consideration. It leaves out the thought or fact that a court of competent juris- diction has determined that the State proceedings constitute no defence. Upon what ground it was so determined, I do not know. Whether because the evidence did not sustain the defence, or because it was held ^insufficient in law, I do 404 THE LAW OP MUNICIPAL BONDS. not know, nor to my mind does it make the least difference; nor does it make any difference that I may esteem it, as I do, ever so erroneous. It is no part of my duty or right to review that action and purpose in this proceeding. It stands there an unimpeached verity. Upon appeal to the proper tribunal, it of course could be re-examined, but I hardly think that this can be done here. So a direct attack to set aside the levy of the tax after made would, if any course will avail, be more regular and better than this proceeding, which resists, by habeas carpus, a judgment or order made by a tribunal, which I repeat, though ever so erroneous, is none the less binding. The principle is clear enough. It has been settled again and again, almost as long as courts have had an existence. How- ever unwilling, I cannot do otherwise than apply it in this as in other cases, where it is applicable, if its application is involved. CoLEj J. — I think this judgment should be reversed. But the space already occupied by the opinions of my brothers seems to requii-e that I shall only state concisely the leading ground on which my judgment is based. The writ of habeas corpus is not a writ of error, under which the court or judge issuing the habeas corpus may correct errors of judgment made by another court or judge. If the court or judge ordering the arrest or commitment of the prisoner had jurisdiction to so order, the error, if any, in making the order, must be corrected by some other proceeding. The only ques- tion, then, to be determined is, did t^^e Federal court have jurisdiction to order the arrest of the petitioners in this habeas corpus ? Upon this I remark, it is conceded that the Federal court had rightful and complete jurisdiction over the parties and subject-matter of the suit in the action upon the coupons wherein the judgment was rendered. Nor is it in the least controverted that that court has jurisdiction to issue the writ of mandamus in proper cases to enforce its judgments ; nor that it had jurisdiction to issue the alternative writ of manda- mus in this case. The real and precise point upon which the IOWA. 405 petitioners were discharged being that, since the State and Federal courts had original concurrent jurisdiction of the subject-matter of ordering a levy of taxes to pay the bonds and coupons, and the State court having first acquired or ex- ercised its jurisdiction, and prohibited the levy by its judg- ment and process of injunction, therefore the Federal court was ousted of its jurisdiction, and this pursuant to the hitherto well- recognized rule that, where two courts have concurrent jurisdiction, of the same subject-matter, the court first exer- cising its jurisdiction thereby excludes the other. But the Federal court having jurisdiction to issue the alternative writ of mandamus, must, of course, have jurisdic- tion to hear the return to that writ and to judge of its sufii- ciency. Now, although that court may err in its judgment as to the sufficiency of the return, such error would not oust it of its jurisdiction. That return to the alternative writ of mandamus having stated, as I understand it, that the State court had first acquired or exercised jurisdiction of the sub- ject-matter of the levy, and enjoined the defendants in the Writ (these petitioners) from levying any tax to pay said cou- pons, it was, in my opinion, the duty of the Federal court to hold such return sufficient, and to refuse to make the writ peremptory. But the court held otherwise. JThat court had jurisdiction to determine, and it was its duty to determine, the sufficiency or insufficiency of that return ; and although, in my opinion, it determined it erroneously, such error could not oust the court of its jurisdiction, nor authorize any other court, except the proper appellate tribunal, to relieve the defendants therein from obedience to its judgment. In other words, the Federal court having had jurisdiction to decide the question before it, its decision was final and conclusive upon the defendants, and also upon all other courts, until reversed; and a reversal cannot be obtained under a writ of habeas corpus, but only in the proper appellate tribunal. The question presented by the habeas corpus proceeding is simply one of jurisdiction, and, of course, my opinion is limited to that single question. What may be the rights of 406 THE LAW OP MUNICIPAL BONDS. the tax-payers in relation to enjoining the treasurer from col- lecting the taxes, if any should be levied, or to any other remedy, I do not indicate or decide. But it may be observed that other questions than that of mere incidental jurisdiction may underlie those rights, and exert a controlhng influence in their adjudication. The order discharging the prisoner must be reversed. CHAPTEE XIV. KANSAS. It appears to be almost unnecessary to present any ex- tended discussion of the law as it obtains in Kansas. The rule in the State is as clear and certain as language could make it, and the constructions are of a very liberal charac- ter, asserting unequivocally the most modern views. The following are the constitutional provisions which are pertinent : Section 4, Aeticle VII. — The respective counties of the State shall provide, as may be prescribed by law, for those inhabitants who, by reasons of age, infirmity or other misfortune, may have claims upon the sympathy and aid of society. Section 5, Article XII. — Provision shall be 'made by general law for the organization of cities, towns and villages ; and their power of taxation, assessment, borrowing money, contracting debts, and loan- ing their credit shall be so restricted as to prevent the abuse of such power. Appreciating the great advantages that are necessarily ensured to the public as well as the municipality, the State of Kansas has been the second to adopt a registra- tion law, which in addition contains provisions which amount to an enactment in the nature of a special code. We give the Act in full. Sections 1 and 2 contain general provisions. Sections 3, 4, 5, 6, 7, 8 and 9 relate to election. Section 10 affects contracts. Section 11 relates to the subscription. 407 408 THE LAW OP MUNICIPAL BONDS. Sections 12, 13, 14, 15, 16, 17, 18, &c., provide for reg- istration, and define the duties of the officials through whom it is to be eflfected. An Act to authorize counties, incorporated cities, and municipal tovm- ships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, water-power, or other works of inter- nal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith. Be it enacted by the Legislature of the State of Kansas : Section 1. That the Board of County Commissioners of any county, the Mayor and Common Council of any incorpo- rated city, and the trustee, clerk, and treasurer of any muni- cipal township in this State, are hereby empowered to issue the bonds of such county, city or township, in any sum neces- sary, not greater than ten per cent., inclusive of all other bonded indebtedness, of the taxahle property of such county city or township, for the purpose of building bridges, free or otherwise, or to aid in the construction of railroads or water- power by donation thereto, or the taking of stock therein, or for other works of internal improvement. Provided, That all counties may issue, in addition to the 'amount authorized by this section, bonds not to exceed one hundred thousand dollars ($100,000), and all counties having property of ah assessed valuation of three million dollars ($3,000,000) or more, may issue in addition thereto two hundred thousand dollars ($200,000). Provided further. That Under a proposal for aid to any railroad, any township having less than two hundred thousand dollars ($200,000) taxable property, may issue in addition to the ten (10) per cent, authorized in this section, ten per centum of an amount equal to the number of miles of railroad (agreed under such proposal' to be con- structed within such township) multiplied by six thousand (6,000); and. Provided further. That to the limit prescribed in this section shall not apply and be considered to restrict or prevent the issuing of any bonds heretofore voted, or vote now pending, in any. county or township in this State, and which bonds may not have yet been issued, but that the limit KANSAS. 409 terein shall only be considered as applying to the issuing of bonds to be hereafter voted under this law. Section 2. Such bonds shall be issued in denominations of not less than one hundred dollars (f 100), and shall be payable at such place in the city of l^ew York as the officers issuing the same may direct, in not less than five or more than thirty years from the date thereof, with interest not to exceed ten per centum per annum, all in the discretion of the officers issuing the same, which said interest shall be payable semi-annually, at such place where the principal sum is made payable, and for which said interest said bonds shall have coupons attached. Such bonds, if issued by a county, shall be signed by the chairman of the Board of County Commis- sioners, and attested by the county clerk ; if issued by a city, shall be signed by the Mayor, and attested by the city clerk; and if issued by a township, shall be signed by the township trustee, and attested by the township clerk. Section 3. Before any bonds shall be issued as herein provided, the same shall be ordered by a vote of the qualified electors of such county, city or township. Section 4. When a petition, signed by at least one-fifth of the voters of any county, incorporated city, or municipal township, said one-fifth to be determined by reference to the returns of the last preceding general election, shall be pre- sented to the Board of County Commissioners of such county, the Mayor and Common Council of such city, or the trustee, clerk, and treasurer of such municipal township, asking that a vote be taken upon the question of building a bridge, or in aid of the construction of a railroad, or water-power, by donation thereto, or by the taking of stock therein, or for other works of internal improvement, such officers shall, within ten days after the presentation of such petition, call an election, to be held within thirty days thereafter, in such county, city or township, and shall give notice of such elec- tion by publication, for at least three consecutive weeks, in each newspaper published in such county, city or township, if any be published therein ; and if none be published therein, by posting up written or printed notices in at least five public places in each voting-precinct in such county city, or town- 410 THE LAW OF MUNICIPAL BONDS. ship, for at least twenty days preceding such election, which notice shall set forth the time and place of holding such elec- tion, the bridge proposed to be built, and for which bonds are to be voted, or the railroad, or water-power, in the construc- tion of which it is proposed to aid; whether such aid is to be by donation thereto or the taking of stock therein, or other work of internal improvement, and for which bonds are to be voted; Provided, That a second special election upon any question or proposition under the provisions of this Act may and shall be had upon a petition of two-fifths of the legal voters of said county, city or township, and such question or proposition shall not again be submitted excepting at the spring or fall general election, and upon the petition and notice herein first provided for. Section 5. Such elections shall be held at the usual place of holding elections in any such county, city, or township, and shall be conducted by the officers or persons provided by law for the holding of elections in any county, city or town- ship in this State ; such election to be, in all respects, gov- erned and the result declared according to the rules and regulations provided by law for holding elections in any such county, city or township. Section 6. The vote at such election shall be by ballot, the tickets having written or printed thereon the words, "for the bridge and bonds," or " against the bridge and bondg," or " for the railroad donation and bonds," or " against the railroad donation and bonds," or " for the railroad stock and bonds," or " against the railroad stock and bonds," or for or against other works of internal improvement, as the case may be. Section 7. All persons, qualified voters at any general election, held under the laws of this State, shall be entitled to vote at such election. Section 8. Whenever any two counties, cities or town- ships are separated by a stream of water which it is desirable to bridge, such counties, cities or townships may join in the construction of the same, and the officers aforesaid of such counties, cities or townships shall determine the proportionate share of bonds to be issued by each, and each county, city or KANSAS. 411 townsbip shall bear the same proportionate expenses, and cost of constructing and maintaining said bridge; and if the same be a toll-bridge, shall receive the same proportion of tolls collected therefrom ; but each county, city or township shall vote separately on the issuing of bonds. Section 9. If a majority of the votes cast at any such election be in favor of the proposition and the issuing of bonds, then the officers of such county, city or tovimship, if the proposition be for the building of a bridge, or for other works of internal improvement, except railroads, for which bonds were voted, shall, without delay, give notice by publi- cation in some newspaper of general circulation, published in the county, for at least twenty days, or, if there be no such newspaper published in such county, such notice shall be given by posting up written or printed notices for the same length of time, in at least three public places in the county, city or township wherein such bridge is to be built, or other work of internal improvement, as aforesaid, is to be con- structed, and by giving such other notice as such officers may direct, that sealed proposals will be received until a certain hour of the day named in such notices, not to exceed thirty days thereafter, for the building of such bridge or the con- struction of such other work of internal improvement, which notices shall set forth the location of the proposed bridge, or oJ:her work of internal improvement, with such particularity that an inspection of the premises may be had without diffi- culty; proposals for the building of any such bridge, or other work of internal improvement, shall be accompanied with complete plans and specifications of the same ; the price to be charged therefor in the bonds of such county, city or town- ship, at par value; together with a bond or [of] undertaking, with good and sufficient security, in double the amount of the proposed cost thereof, conditioned for the faithful execution of the work proposed, and the carrying into effisct of any con- tract made in reference thereto. That if the proposition voted for be to aid in the construction of a railroad (either by donation thereto or the taking of stock therein) or other work of internal improvement, then the proper officers of such county, city or township shall at once subscribe upon 412 THE LAW OF MUNICIPAL BONDS. the books of such raih-oad, specifically setting forth the con- ditions upon which such subscription is made, the annount of such donation thereto, stock taken therein, or bonds voted therefor. Section 10. The said officers ef any county, city or town- ship are hereby fully authorized and empowered to enter into any and all contracts necessary to carry into efiect the pro- visions of this Act. Section 11. That if the proposition for which bonds were voted be to aid in the construction of a railroad, or any bridge or other work of internal improvement, either by donation thereto, or the taking of stock therein, then upon the sub- scription being made therefor, as hereinbefore provided, the officers of such county, city or township for the amount of such subscription, shall forthwith deliver the same, together with the original, or a copy of tbe subscription, setting forth its terms in full to the Treasurer of the State, which said bonds shall be held by the said Treasurer of State in escrow until the conditions in the terms of the said subscriptions to such railroad or other work of internal improvement, shall be in all things fully complied with, that upon the conditions of the said subscription being in all things fully complied with, then the Treasurer of State shall deliver such bonds to the parties entitled thereto, who shall have the same registered as hereinafter provided; Provided, That such bonds shall not bear interest or be negotiable until after the delivery and reg- istration thereof; and. Provided-, further, That in case of a failure to comply with the conditions in the terms of such subscription, then such bonds shall be, by the said Treasurer of State, cancelled and re-delivered to the county, city or township issuing the bonds; and, Provided farther. That this section shall not apply where the people may have named some party as trustee in their vote on the proposition, and the contractor may thereafter agree to the same. Section 12. The officers of any county, city or township issuing such bonds, shall make registration thereof in a book to be kept for that purpose, showing the date, amount, num- ber, maturity, and rate of interest of such bonds, and if issued for the building of a bridge, what bridge, or if to aid in the KANSAS. 413 construction of a railroad, or other internal improvement, of what railroad or other work of internal improvement, and whether the same be a donation or for stock therein, and shall at the time of the issuing of any such bonds, make out and transmit to the Auditor of State a certified statement of the number, amount and character of bonds so issued, to whom issued, and for what purpose, which statement shall be attested by the clerk of the county, city or township issuing the same, together with the corporate seal of such county, city or township, if any such there be. Section 13. It shall be the duty of each county, city or town- ship in this State, within sixty days from the taking effect of this Act, and thereafter on the first (1st) day of January and July of each year, and at such other time as the Auditor of State may request, to make out, certify and transmit to the Auditor of State, a full and complete statement of the bonded indebtedness of every description of such county, city and township, at the date of such statement, and particularly set- ting forth the nature of such bonds, and for what the same were issued. That the Auditor of State, upon the receipt of any such statement, shall, in a book to be kept by him for that purpose, make a faithful record of the bonded indebted- ness of the several counties, cities and townships, in this State, and shall, note therein all bonds subsequently issued, paid or cancelled as the sum may be reported to him as afore- said. . Section 14. "Within thirty days after the delivery of such bonds the holder thereof shall present the same to the Auditor of State for registration, and the Auditor shall, upon being satisfied that such bonds have been issued according to the provisions of this Act, and that the signatures thereto of the officers signing the same are genuine, register the same in his office in a book to be kept for that purpose, in the same man- ner that such bonds are registered by the officers issuing the same, and shall, under his seal of office, certify upon such bonds the fact that they have been regularly and legally is- sued ; that the signatures thereto are genuine, and that such bonds have been registered in his office according to law, for which registration and certificate, the Auditor shall be en- 414 THE LAW OF MUNICIPAL, B0KD3. titled to a fee of one dollar ($1) for each bond so registered, to be paid by the holder thereof. Section 15. That the holder of bonds heretofore issued or that may hereafter be issued in pursuance of any contract heretofore" made, under any law of this State, may have the benefit of this Act by having such bonds registered in the office of the said Auditor of State, as provided herein for th« registration of bonds issued by virtue hereof. It shall be the duty of the Auditor -of State, upon the registration of any bonds not issued under the provisions of this Act, within ten days thereafter, to notify the officers issuing the same of such registration, which fact shall be entered by such officers in a book wherein the record of such bonds is kept, and such bonds shall thereafter be considered registered bonds. Section 16. The Auditor of State shall, annually, on or before the fifteenth day of August, in each year, ascertain the amount of interest accrued and to accrue before the tax for the next succeeding year shall be levied and collected (for the final redemption of the same) upon all bonds registered in his office, and shall certify the amount thereof to the clerk of the county in which such bonds were issued, specifically setting forth the amount thus due, and whether from the county, or a particular city or township therein. Provided, however, that no tax shall be levied for the creation of a sinking-fund until one-half of the time for which the bonds were issued has expired; and Provided further, that this shall not be construed as to prevent any county to levy a tax for a sinking-fund if the Board of County Commissioners so desire. Section 17. The clerk of any county, upon receiving such certified statement from the Auditor of State, shall proceed to ascertain from the assessment-roll of the county, the amount of taxable property in such county, city or township, and what percentage is required to be levied thereon .to pay the said interest, and to create a sinking-fund in compliance with the certificate of said Auditor ; and when so ascertained shall levy such percentage upon the taxable property of such county, city or township, and shall place the same upon the tax-roll of the county in a separate column or columns, designating the purpose for which said taxes are levied, and the said taxes KANSAS. 415 shall be collected by the County Treasurer in tbe same man- ner that other taxes are collected. Section 18. The County Treasurer of each county in this State shall, at the time of making, his settlements with the State Treasurer, in each year, as may be provided by law, pay over to the State Treasurer all moneys collected under and in pursuance of the provisions of this Act, and shall take the State Treasurer's duplicated receipts therefor, one copy of which shall be filed with the Auditor of State, and the other retained by such County Treasurer. Section 19. Upon the receipts of such moneys by the State Treasurer he shall, out of the same, at once proceed to pay off the interest accrued upon such registered bonds. That said Treasurer shall take up the coupons for all interest thus paid, which coupons shall be filed with and canc'elled by the Auditor of State, and theAuditor's receipt taken therefor, and retained by said Treasurer. That the monej's thus collected and remaining in the hands of the said State Treasurer, after the payment of the said interest, as herein provided, except a sufficient amount to pay th« [interest] accruing upon such bonds for the current year, shall be retained as a sinking-fund for the final redemption of such bonds, and shall be, by the said State Treasurer, at once invested as follows, to wit: First, in redeeming the bonds of the county, city or township issuing the same ; second, in the bonds of the State of Kan- sas ; third', in the bonds of the United States. Provided, That the bonds thus purchased shall in all cases be purchased at the lowest market price. Provided, however, that no tax shall be levied for the creation of a sinking-fund until one-half of the time for which the bonds were issued has expired. Section 20. The State shall be deemed the custodian only of the taxes so collected, and credited to such county, city or township, and shall not be deemed in any manner liable on account of any such bond ; but the tax and funds so collected shall be deemed pledged and appropriated to the payment of the interest and principal of the registered bonds herein pro- vided for, until fully satisfied, and the State Treasurer shall be liable on his oflicial bond for the faithful disbursement of all moneys so collected or received by him. 416 THE LAW OP MUNICIPAL BONDS. Section 21. That when any registered bonds shall mature, the same shall be paid off by the State Treasurer out of any money in his hands or under his control for that purpose, and when so paid the same shall be endorsed by the State Treasu- rer on tlie face thereof, in red ink, " cancelled," together with the date of such payment, and thereupon be filed with the Auditor of State, who shall enter satisfaction of such bonds in the record where the same are registered. Section 22. The Treasurer and Auditor of State shall annually, on the 30th day of I^ovember of each year, publish a detailed statement of the business transacted by them during the preceding year, under the provisions of this Act. Section 23. All laws or parts of laws of this State, incon- sistent with the provisions of this Act, are hereby repealed. Section 24. This Act shall take effect and be in force from and after its publication in the Kansas Weekly Common^ wealth. Approved March 2, 1872. A feature of this law of notable consequence is the unqualified recognition of the right to make donations in aid of any public work. Upon well-settled rules this recognition must be taken to be conclusive of the consti- tutionality of laws of this character. Its leading object, however, is to provide a means of registration, which has been demonstrated to be the surest prevention of fraud and litigation that has yet been devised. In addition, it cannot fail to enhance the value of the security by affording ' third parties that pro- tection to which they are entitled by making, public what must be taken to be conclusive evidence of the regularity of the issue of the bonds, if not of their validity. The instrument is put in circulation with all the proofs upon its face that are necessary to give it every quality of nego- tiability. It passes from hand to hand without question, all uncertainties being dissipated by the fact that it has passed the test of the State authorities; and, whether KAilSAS. 417 originally valid or not, is good in the hands of the inno- cent holder for value. To fully apprehend the great importance of registra- tion, it is only necessary to note the difference that exists in the circulation and market value of registered and other municipal bonds.* It is clear that the purchaser of the latter is bound to make some inquiry, or at least that it is -to his interest to so far examine as to save any legal doubt. In an ordinary bond, to do this may entail so great labor and loss of time as to affect the price of the security, if not to deter purchasers from taking what may seem to be in some degree uncertain. Thus the innocent holder cannot recover if there never existed any authority to issue the obligation,^ and to this 'extent he is put upon inquiry as well as to other possible circumstances. But if the face of the instrument bears the word " registered," he takes it discharged of every original equity that might be a valid, defence in the former instance. There is no possibility of fraud that does not exist in respect to every class of paper known to the commercial world. Illinois and Kansas are th^ only States that have as yet adopted a plan of registration. As a consequence, their municipal securities are the best in the market, while the people who are deriving the benefits are saved from vexatious litigation as well as pecuniary loss. But so obvious are the advantages of the system, and so conclusively have they been demonstrated, that, to any one at all familiar with the subject,' they appear to be axiomatic, and at no distant period will be universally adopted as a public necessity, concerning the operation and eflPeet of which there can be no room for doubt. Like every important reform, it will require time to force itself upon the attention of the nation at large, but hav- 'See Chap. XXIII., Missouri. 27 418 THE LAW OP MUNICIPAL BONDS. ing once become generally understood, it will be incorpo- rated in the law of every State. The case of The Board of Commissioners of Leaven- worth V. Miller is the only adjudication of the State that . has direct relation to the law of Municipal Bonds. It was decided in May, 1871. The question involved was the validity of a subscription in aid of a railroad ; but the court discusses numerous collateral subjects, all tending to enlarge the theories upon which the legislative rule is based, and to disclose the impossibility of any retrogres- sion of the State. The following is the syllabus of the court : 1. The question whether the Legislature possess the power to authorize counties to grant aid to railroad com- panies by subscribing for stock therein, and issuing boiids in payment therefor, when it comes to the courts is purely a legal question, and the courts have nothing to do with the wisdom or policy of such legislation. 2. The Legislature have no inherent power, but all their power is derived from the people through the Con- stitution of the State. 3. The people, in their primary capacity, possess all the political power of the State, and may themselves authorize counties to grant aid to railroad companies ; or they may, if they choose, delegate this power to the Legislature, and allow the Legislature to grant such authority to counties. 4. The Legislature cannot exercise any power retained by the people, or not delegated by the, people to the Leg- islature. 5. Where the provisions of an Act are designed for the whole State, and every part thereof, such Act has, in contemplation of Section 17, Article II., of the Constitu- tion, a uniform operation throughout the State, notwith- standing the condition or circumstances of the State may KANSAS. 419 be suqIi as not to give the Act any actual or practical operation in every part thereof. 6. Section 8, Article XI., of the Constitution, which prohibits the State from ever being a party in carrying on any works of internal improvement, applies to the State in its sovereign corporate capacity, and not to the t subordinate political subdivisions thereof. It prohibits the State as a State, and not counties, from being parties in carrying on any works of internal improvement. 7. There is no express provision of the Constitution which prohibits the Legislature from authorizing counties to become stockholders in railroad companies, and issuing their bonds in payment for such stock. 8. All presumptions are in favor of the constitutional validity of a statute, and before the courts can declare it invalid, it must clearly appear to be unconstitutional. 9. The power of the Legislature to pass an Act grant- ing municipal aid to railroad companies, must be found in the general grant of legislative power under Section 1, Article II., of the Constitution, which provides that the legislative power of the State shall be vested in the Leg- islature, or not at all. 10. At the time the Constitution was framed, the term " legislative power," had a definite and precise significa- tion with reference to this question, established by legis- lative, executive, and judicial construction, practice and usage, and the general understanding of the people throughout the United States; which general under- standing and signification was that the term " legislative power," included the power to grant municipal aid to railroad companies, and, therefore, in the absence of any- thing to the contrary, it must be presumed that the people of this State, when they framed their Constitution, used said term with the signification generally given to it, and therefore, that they intended to give to the Legisla- 420 THE LAW OP MUNICIPAL BOXDS. ture the power to pass Acts granting municipal aid to railroad companies. 11. If such was the intention of the people, the Con- stitution must be so construed hy the courts, and the courts have no power to amend it, or change any of its 'provisions, or insert any new provisions in it, through the means of judicial construction or interpretation. 12. The aid given to a railroad company is not strictly for a private purpose, nor wholly for a public purpose, though the object intended by the Legislature is a public purpose. 13. The Government may accomplish a public pur- pose through the means of a private agency, a private individual or individuals, or a private corporation. 14. It is the ultimate object to be obtained which must determine whether a thing is a public or a private purpose. 15. The ultimate object of the Government in grant- ing municipal aid to railroads, is to increase the facilities for travel and transportation frona one part of the country to the other, which object is in its nature a public •purpose. 16. And if a railroad is made absolutely free for every one who chooses to ride and transport goods upon it, it is still a public purpose, notwithstanding the Govern- ment may allow a (in other respects) private corporation to own and operate it, and to receive a compensation therefor, provided it is a road for which the Government exercises the right of eminent domain, and retains the right to fix the compensation. 17. Taxation is the most universal power possessed by governments, being an incident and auxiliary of every other power, and may be resorted to whenever it is ne- cessary to accomplish a public purpose, or to carry out any other power granted to the Legislature. 18. The localities along the line of a railroad may be KANSAS. 421 taxed to aid its construction and operation, if they choose to take stock therein and issue bonds thereto, and a fair rule of apportionment of which the tax-payers cannot complain, is to allow the localities to be taxed, the privilege of saying how much the benefit of the improve- ments is worth to them, and for what amount they are willing to be taxed. The following is the opinion of the court in full : Valentine, J. — This action was commenced by the defend- ant in error, in the court below, to recover from the county of Leavenworth a sum of money claimed to be due upon a cer- tain bond of said county. This bond is for the sum of $250.00, but is one of a series of bonds amounting in the aggregate to the sum of $250,000.00, issued by said county to the Union Pacific Railway Company, E. 1)., in payment for a hke amount of the capital stock of said company. This bond was issued August 1st, 18'65, under an Act of the Legislature au- thorizing counties to subscribe to the capital stock of railroad companies, and to issue bonds in payment therefor, approved February 10th, 1865 (Laws of 1865, page 41). And the prin- cipal question fti this case, is whether the Legislature had the constitutional authority to pass said Act. This case was submitted to this court with but very little argument concerning the constitutional validity of said Act ', but since its submission, two other cases, (The State ex rel., St. Joseph ^ Denver Railroad Cpmpany v. The Commissioners of Nemaha County; and Morris et al. v. The Commissioners, ^c, of Morris County,) supposed to involve the same question, have been submitted to us, in which able and exhaustive arguments were made by able counsel on both sides. We shall, there- fore, not only consider the points made by counsel in this ease, but will also consider the points made by counsel in the other two cases, so far as they have any application to this case. Li the first of said cases, which is an application for a writ of mandamus, we have this day delivered an opinion and allowed an alternative writ of mandamus to issue. In that case we affirm the constitutionality of said Act, but leave all 422 THE LAW OF MUNICIPAL BONDS. other questions to be decided upon the return of the alterna- tive writ. This is beyond all comparison the most important decision that has ever been rendered in this court. While it is true that the amount involved in this particular controversy is comparatively small, yet the decision, in its ultimate conse- quences, involves millions of dollars. Fabulous amounts of county and municipal bonds have already been issued, and thrown upon the market with a profusion and a prodigality bordering on to recklessness and culpable and reckless extrava^ gance, " and the end is not yet." And this decision in its consequences determines the validity or invalidity of all these bonds. But our duty is plain. The question presented to us for our consideration is purely a legal question. We have nothing to do with the wisdom of the policy of issuing such vast amounts of county and municipal bonds. That belongs to the Legislature, and the fJeople, who voted to issue them. We simply determine whether the Legislature had the power to authorize their issue ; and not whether they acted wisely or unwisely in granting such authority. We are not the guar- dians of the Legislature in this respect, nor of the people who voted to issue the bonds; nor are we responsible for their acts, whatever the consequences may be. • We suppose that it will be conceded by everybody that the Legislature have no inherent power of any kind; that they possess no power except such as is delegated to them by the people ; and that unless the Constitution of the State author- izes them to enact such a law as the one now under consider- ation, they had no authority to do so. On the other hand, we suppose it will be conceded that the people are the original source and fountain of all civil and po- litical power ; that in their primary capacity they are supreme ; and that they had ample authority to delegate all this power exclusively to the Legislature if they so chose. In short, we suppose it will be conceded that the people had full power and authority to delegate to the Legislature all the power neces- sary to pass said Act. The question, then, is not whether the people had the power to authorize the Legislature to pass said Act, for that is conceded ; but it is whether the people actually granted such authority to the Legislature. KANSAS. 423 The counsel wlio claim .that said Act is unconstitutional, have seen fit to call our attention to certain sections of the Constitution with which (and these only, as we understand) they claim that the Act is in direct contravention. We shall, therefore, first examine said sections before we proceed to ex- amine the main question in the case, which is whether the people have, through the Constitution, granted sufficient power to the Legislature to pass said Act. The sections of the Constitution which are supposed to pro- hibit this species of legislation, are as follows : Section 20, Bill of Rights. — " This enumeration of rights shall not be construed to impair or deny -others retained by the people ; and all powers not herein delegated, remain with the people." Section 17, Article II. — "All laws of general nature shall have a uniform operation throughout the State." Section 8, Article XI. — ""The State shall never be a party in carrying on any works of internal improvement." We have no provision in our Constitution, as' there is in the Constitutions of most of the States, requiring' that private property shall not be taken except by " due process of law," or by " due course of law," or by the " law of the land," or " for public use without just compensation." The nearest that anything in our Constitution comes to it is as follows : Section 18, Bill of Eights. — "AH persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." , Section 4, Article XIL — " 'So right of way shall be ap- propriated to the use of any corporation until full compensa^ tion therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation. We do not suppose that these omissions from our Constitu- tion affect in the least any question involved in this case ; but their omission explains the reason why counsel for plaintiffs in error have failed to make any point on them. (See Sedg- wick on Statute and Constitutional Law, (1 Ed.,) 501; et seq.) We can see no possible application that can be made in this 424 THE LAW OF MUNICIPAL BONDS. case of Section 20, Bill of Eights. It will be admitted that without that section the Legislature cannot exercise any power retained by the people or not delegated by the people to the Legislature, and that is all that can be claimed with the sec- tion. And it is impossible for us to see that said section in any way enlarges the powers of the court in nullifying acts of the Legislature. We scarcely think it necessary to say anything with refer- ence to Section 17, Article II., of the Constitution. The Act under consideration is so obviously in harmony with this section that the question attempted to be raised upon its sup- posed incongruity needs no elucidation from us. All the provisions of said Act are expressly enacted for the whole State, and for every part of the State ; and it is no more neces- sary, that the same amount of stock be taken in each and every county of the State, in order that the Act shall have a uniform operation therein, than that the same number of men shall be hung in each county of the State, in order that the law punishing murder in the first degree shall have a uniform operation throughout the State. Scarcely any of " our laws have had any actual or practical operation out in the buflalo region, and yet it will hardly be contended that they are unconstitutional for that reason. "We will now consider the point made on Section 8, Article ■ XL of the Constitution. It is contended by counsel for plain- tiff in error that as the State is prohibited from ever being a party in carrying on any works of internal improvement, that each subordinate political subdivision of the State, such as counties, cities, towns, etc., must also necessarily be so prohibited. This construction of said sectioil we think is erroneous ; and arises from a misconception of the meaning of the word " State " as used in this connection. "We think* the word " State" as here used means the people of the State as a sovereign corporation, and not the people of the State con- sidered as individuals or minor and subordinate corporations. That it does mean property or the territory of the State all will admit; for such inanimate objects could not be a party in carrying on any work of internal improvement, or anything else. And that it does not mean the people considered as KANSAS. 425 individuals or subordinate corporations, we think we can show. K it be claimed that said word means the State in all its parts, it will lead to inextricable difficulties and prove en- tirely too much. The people as individuals are the original elements out of which the State is composed, and each indi- vidual is as much a part of the State as any corporation, public or private, is. And we suppose it will hardly be con- tended that the people of the State, as individuals, could not engage in any work of internal improvement. But a dis- tinction may be made between the people as individuals and as organized into corporations. The people as individuals do not obtain their power from the State ; their power is original and inherent ; while the power of corporations is obtained entirely from the State, and is purely derivative and delegated. But whenever this distinction is resorted to, it is a virtual abandonment of the claim, that the State is prohibited in all its parts from engaging in works of internal improvement, and it is setting up another claim, that the State is thus pro- hibited only in such of its parts as it itself creates. And this claim is equally untenable. A private corporation is wholly created by the State, as much so as a public corporation. It has not inherent power and does not exist of itself. It is an artificial being, invisible, intangible, and existing only in contemplation of law. It is the mere creature and the crea- tion of the State in which it exists, and has no power of its own. And cannot a private corporation engage in works of internal improvement ? l!f obbdy will say they cannot ; and hence this claim must also be abandoned. But it may be claimed that there is a distinction between public and private corporations ; that public corporations are created solely for governmental and public purposes, and that private corpora- tions are created merely for private purposes ; and that while the State may effect purposes through the agency of private corporations which it could not effect directly through its own agency, yet that it cannot effect any object through the agency of a public corporation which it could not effect directly through its own agency ; that it can perform just such acts and no more, through the agency of public corporations, as it could perform directly through its own agency. 426 THE LAW OP MUNICIPAL BONDS. The argument drawn from this distinction is equally as fallacious as the others. The State as a State is absolutely prohibited from engaging in any works of internal improve- ment. We will concede that this prohibition does not extend to the building of a State-house, penitentiary, State university, and such other public improvements as are used exclusively by and for the State, as a sovereign corporation, but it does extend to every other species of public improvement. It certainly extends to the construction of every species of public improvement which is used, or may be used, by the public generally — by any and every private individual who may choose to use it, such as public roads, bridges, &c. iN'ow notwithstanding this prohibition upon the State ; notwith- standing that it is prohibited from opening up or constructing any roads, highways, bridges, ferries, streets, sidewalks, pave- ments, wharves, levees, drains, water-works, gas-works, or the like, yet we find it authorizing public corporations to do so. And although it is prohibited from exercising the sovereign power of eminent domain in its own favor in opening up and constructing roads, highways, bridges, ferries, &c., yet we nevertheless find it exercising said sovereign power in favor of public corporations. Hence we find that those who claim that the prohibition upon the State is also a prohibition upon all the public cor- porations of the State, are driven from every position they may assume. If they claim that it is a prohibition upon the State in all its parts, then they prohibit individuals from con- structing internal improvements. If they claim that it is a prohibition upon such of its parts only as are created by the State itself — artificial persons — corporations — then they prohibit private corporations. And if they claim that the prohibition applies to public corporations and to them only, then they prohibit counties, townships and road - districts from constructing roads, bridges, &c. ; and cities, towns and villages, from constructing streets, sidewalks, drains, &c. But the end is not yet ; there are still further and perhaps greater difiiculties in the way. Sections 5 and 6 of the same Article, which prohibits the State from ever becoming a party to any works of internal KANSAS. 427 improvement, also provide that the State shall not contract debts to exceed one million of dollars, unless the same be authorized by a direct vote of the people. Will it be con- tended that this prohibition embraces within its scope and operation, the subordinate political subdivisions of the State, as well as the State in its sovereign corporate capacity ? It has* never been so understood. The State has already gone to the full limit of one million of dollars in contracting public debts. Leavenworth County has probably gone as far. Many other counties and cities have also contracted large amounts of public debts, and if counties, townships, school- districts, road-districts, cities, towns and villages, are all em- braced within this prohibition — if the public debt of the Slate, including all its subdivisions, cannot, in the aggregate, exceed one million of dollars, then a vast amount and number of illegal debts have already been created in Kansas. J^ow if the political subdivisions of the State are not to be embraced in this prohibition, how can it be said that they are embraced in the other prohibition ? Several other States have similar provisions in their Consti- tutions as the one we are now considering, which prohibit the State from engaging in works of internal improvement. And several courts have already construed such provisions. The decisions are uniform with the exception of one decision in Iowa, {State v. Wapello Co., 13 Iowa, 388,) all sustaining the construction that we have given to said provision. Cass V. mUon, 2 Ohio St., 607, 612 to 616 ; Pattison v. Board Supt, Yuba Co., 13 Cal., 175, 182 ; Clarke v. Gty of Janes- ville, 10 Wis., 136, 170; Bushnell v. Beloit, 10 Wis., 165, 221; Slack V. R. R. Co., 13 B. Monroe, 1 ; Dubuque v. R. R. Co., 4 G. Greene, (Iowa,) 1, 3 ; Ch'pp v. Cedar Co., 5 Iowa, 15 ; Stewart v. Supt. Polk Co., 30 Iowa, 15 ; Prettyman v. Super- visors, ^c, 19 111., 406, 411 ; Robertson v. Rockford, 21 111., 451, 457; Gty of Aurora v. West, 9 Ind., 74, 77 to 79; Cooley, Const. Lim., 216 to 219. In closing this branch of our opinion, we would say that the Constitution means just what it says. It says the State shall never be a party in carrying on any works of in- ternal improvement, and it means the State and not Leaven- 428 THE LAW OF MUNICIPAL BONDS. worth County, and to hold tliat this restriction upon the State is also a restriction upon counties, cities, etc., is to put words in the Constitution 'which its framers omitted, and to over- turn a well-settled rale of constitutional and statutory con- struction. Slxpressio unius est exdusio alterius. On the side of the defendant in error, we have been re- ferred to the following sections of our Constitution : Section 21, Article II. — "The Legislature may confer upon tribunals transacting the county business of the several counties, such powers of local legislation as it shall deem ex- pedient." Section 5, Article XII. — " Provision shall be made by general law for the organization of cities, towns and vil- lages, and their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, shall be so restricted as to prevent the abuse of such power." We do not suppose that these sections can in any way affect the decision of this case. 'No legislative power was 'exercised by the people or the County Commissioners of Leavenworth County. {L. M. ^ B. R. B. Co., et al. v. Geiger, 34 Ind. ; C. W. ^ Y. E. R. v. Commissioners of Clinton Co., 1 Ohio St., 77 ; Cooley, Const. Lim., 116 to 119, and authorities there cited.) And Section 5, Article XII., referred to, does not authorize counties to contract debts, loan their credits, etc., and it does not authorize either counties or cities, towns and villages, to contract debts, loan their credits, etc., in carrying on any works of internal improvement. "We now have disposed of the preliminary questions which were probably thrown in only as make-weights, and find that there is no express provision of the Constitution with which the said 'Act is in contravention. "We therefore now come to the main question in the case, which is whether the Con- stitution of the State authorizes the Legislature to pass such an Act as the one under which the bond in controversy was issued. All there is of importance in' this case we are now about to decide. The question of whether an Act of the Legislature is constitutional or notj is now really before us. All presumptions are in favor of the validity of this stat- ute. It was not passed through the hurry and bustle of KANSAS. 429 'tasty legialation, nor through inadvertence or oversight, nor through whim or capricious fancy, nor through the influences of party drill or party machinery, nor- through chicanery, fraud or corruption-; but it was passed after due deliberation and discussion. Besides, it is not an isolated statute, stand- ing alone in questionable solitude, upon the statute-books of Kansas. Two-thirds of the Legisl%tures of the Union have passed similar statutes, and two-thirds of the highest judicial tribunals of this country have declared them to be constitu- tional. And further, this statute in substance, though in some respects modified, still remains upon our statute-book, although, it has passed the scrutiny of six subsequent Legisla- tures since its first adoption. It has, of course, been de- clared, and repeatedly declared, constitutional by the Legisla^ ture and the executive branches of the State G-overnment, for it has repeatedly obtained their sanction and approval.^ This is at least some evidence of the validity of said Act, but we shall not claim that it is the strongest kind of evi- dence, for neither the executive nor the Legislature are elected with special reference to their ability to expound the laws or the Constitution. Considering it, then as a new question in this court (which it is not), we should not declare the Act unconstitutional, unless the reasons against its con- stitutionality at least preponderate over the reasons in favor of its validity. If the reasons are equally balanced, we should certainly declare in favor of its validity. The rule governing courts in this respect is usually expressed in much stronger terms. It is generally said (and this is probably the true rule) that before an Act of the Legislature can be de- clared unconstitutional, its unconstitutionality must clearly appear. [State ex rel., Crawford v, BoUnson, 1 Kas.», 18, 27; Atchison v. Bartholow, 4 Kas., 124, 141.) But some courts have gone further, and said that its unconstitutionality must clearly appear beyond all reasonable doubt. [Sears v. Cot- tell, (per Cheistiancy, J.,) 5 Mich., 257, 261.; Twitchell v. Bhdgett, (per Coolby, J.,) 13 Mich., 162 ; Peaple v. Mahoney, (per CooLEY, J.,) 13 Mich., 501.; Cooley, Const. Lim., 182, and cases there cited.) If we should adopt this stronger rule, however, it would virtually cut off all further inquiry into 430 THE LAW OP MUNICIPAL BONDS. the constitutionality of said Act, for this court would hardly assume to declare, in the face of 24 or 25 Legislatures that have enacted similar statutes, and 24 or 25 executives that have approved the same, and 24 or 25 Supreme Courts — State and Eecferal — that have declared such statutes to be constitu- tional, that this Act is clearly unconstitutional beyond all reasonable doubt, or eveji that it is clearly unconstitutional. It will be conceded that the Constitution does not any- where in definite and precise terms authorize the passage of said Act, and it will.be conceded that unless such authority is given by Section 1, Article 11., of the Constitution, it is not given at all. Said section reads as follows : " The legislative power of the State shall be vested in a House of Representa- tives and Senate." The question then resolves itself into this : Was the passage of said Act the exercise of legislative powers ? If it was, the Act is of course constitutional ; but if not, then the Act is certainly unconstitutional. It is claimed that the passage of the Act was not the exercise of legislative power, and therefore that the Legislature tran- scended their authority in passing the same, and that the Act is void. It is not claimed, as we understand, that the Legisla- ture invaded the province of one of the other departments of the Government, but that they usurped power which had not been delegated to any of the departments, but was re- tained by the people. As the people have by the Constitution clothed the Legis- lature with all the legislative power of the State, the first great question is, "What is legislative power ? This may be answered by saying that it is the power to make the laws. But then the question, equally difiicult arises. What is a law ? This may be answered by saying that it is a rule of civil con- duct prescribed by the supreme power of a State, which, under the Constitution, and for this purpose, is the Legislar ture; and still we are left as much in the dark as we were before. Some things we know come within the scope of legislative power. Other things we know do not. But we have no rule by which we can always determine accurately and precisely whether a given thing comes within the scope of legislative power or not. Hence the difference of opinion we find among eminent jurists. KANSAS. 431 The whole question in this case depends* npon the con- struction that is given to the words " legislative power." We shall not attempt to give a definition of these words, nor pre- scribe a rule whereby it may be determined in all cases what falls within, and what falls without, the scope of legislative jurisdiction; but our inquiry shall be devoted entirely to ascertaining whether the aiuthority granted to counties and municipal corporations, to aid railroad companies by way of subscription to the capital stock thereof, and to issue bonds in payment therefor, falls within or without the scope of legis- lative authority. That the people of the State had the authority to delegate to the Legislature all the power that the Legislature attempted to exercise in the passage of said Act, we have already as- sumed as conceded. The only question then is whether the people, when they framed the Constitution, understood that the power to grant municipal aid to railroad companies came within the scope of legislative power or not. What did the people, when they framed the Constitution, understand the words '" legislative power " to mean ? That words have no positive or absolute signification in and of themselves — no inherent meaning — is a proposition too well unflerstood by educated men to need exemplification or citation of authority. That they are only conventional signs adopted by common consent and common usage to express certain ideas, and mean just what the people using them choose by common consent to miake them mean, is too well settled to be disputed. And that they must always be pre- sumed to mean, in the absence of anything to the contrary, just what they were generally understood to mean when they were used, is too near axiomatic to be controverted. E'othing has been shown or can be shown that will tend in the least to prove that these words were intended by the framers of the Constitution to have any different signification from that ordinarily given to them. The question then is narrowed down simply to this : What were those words generally under- stood to mean at the time the Constitution was framed ? That they had a general signification with reference to the question now under consideration, cannot be questioned; for about 432 THE LAW OF MUNICIPAL BOXDS. two-thirds of tfie States, as well as the TTnited States, and the then territory of Kansas, had already acted in the matter. The Constitution of Kansas was framed in 1859, and the State was admitted into the Union under it in 1861, January 29th. At this time, the meaning of these words, and the general scope and authority of legislative power with refer- ence to this question, had hecome well settled hy legislative, executive, and judicial construction, practice, and usage. And while no room is left to doubt that these words had a general signification, no room is left to doubt what that signification was. All the decisions of the courts were one way, and in favor of the power of granting municipal aid to railroad com- panies, and not a sohtary decision was the other way; As early as 1837, the question was settled, or at least decided, by a court of last resort in Virginia. Goddin v. Orump, 8 Leigh., 120 ; see also in 1846, — — 3 Grattan, 247. In 1843 in Connecticut, Bridgeport v. Housatonic JR. JR. Co., 15 Conn. 475. In 1846, in Pennsylvania, Harvey v. Lloyd, 3 Penn. 331 ; see also in 1849, Commonwealth v. Mc Williams, 11 Penn., 62, a turnpike case ; in 1853, the great case of Sharpless v. The Mayor of Philadelphia, 21 Penn., 147; Moers v. The City of Bead- ing, 21 Penn., 188; in 1858, Commonwealth v. Com'rs Alle- ghany Co., 32 Penn., 218; in 1861, Commonwealth v. Pittsburgh, 41 Penn., 278; in 1862, Commonwealth v. Perkins, 43 Penn., 400. In Tennessee, 1848, Nichols v. Nashville, 9 Humph., 252; see also in 1854, JL. ^ N. R. B. Co. v. Davidson, 1 Sneed, 637. In Mississippi, jn 1849, Strickland v. Miss. B. B. Co., 21 Miss., 209. In Kentucky, in 1849, Talhott v. Dent, 9 B. Monroe, 526 ; see also in 1850, Justices, ^c. v. P. W. ^ K. B. Biver Turnpike Co., 11 B. Monroe, 143 ; in 1862, Flack v. M. ^ L. B. B. Co., 12 B. Monroe, 1 ; in 1859, Maddox v. Qraham, 2 Mete, 56. In lUinois, in 1851, Byder v. A. ^ S. B. B. Co., 13 III, 516; see also in 1858, Prettyman v. Sup. TazeweU Co., 19 111., 406 ; in 1859, Bobertson v. Bockford, 21 111., 451; in 1860, Johnson v. Starke Co., 24 HI., 75; Perkins v. Lewis, 24 111., 208; in 1861, Butler V. Dunham, 27 HI., 474; in 1862, Clarke v. Hancock Co., 27 111., 305 ; Piatt y. People, 29 111., 54. In Delaware, in 1852, Price V. Poster, 4 Harrington, 479. In Florida, in 1852, Cotton V. Cminty Com'rs, 6 Fla., 610. In Ohio, in 1852, C. N. §• Z. B.B. KANSAS. 433 Oo. V. Com'rs Clinton Co., 1 Ohio St., 77 ; B. W. v. Treasurer K. Tp., 1 Ohio St., 105 ; see also in 1853, Chss v. BUlon, 2 0. St, 607; Thompson v. KeUey, 2 0. St., 647; in 1857, State v. Van ■Horn, 7 0. St., 327; in 1858, State v. Union Tp., 8 0. St., 394; in 1861, State v. Com'rs Hancock Co., 12 0. St., 596; in 1863, Knox V. Nichols, 14 0. St., 260; Fosdick-v. Perryshurg, 14 O. St., 472. In Iowa', in 1853, D. ^ P. P. R. Co. v. Dubuque, 4 !&. Q-reene, 1 ; see also in 1854, State v. Bissell, 4 G. Greene, 328 ; in 1857, Chpp v. Cedar Co., 5 Iowa, 15 ; in 1858, King V. Johnson Co., 6 Iowa, 265 ; McMillan v. Boyles, 6 Iowa, 304; McMillan v. iee County, 6 Iowa, 391 ; in 1859, Whitaker v. Johnson Co., 10 Iowa, 161. In Alabama, in 1854, *Sfem v. JJfej/or of Mobile, 24 Ala., 591. In North Carolina, in 1855, Taylor v. Newbwm, 2 Jones' Eq., 141, a navigation case. In Louisiana, in 1855, K 0. 0. ^ Q. W. R. W. Co. v. McDonough, 8 La. An., 341 ; see also in 1858, Parker v. Scogin, 11 La. An., " 629 ; V.S.4- T. R. W. Co. v. Parish of Ouachita, 11 La. An., ^49. In Missouri, in 1856, City of St. Louis v. Alexander, 23 Mo., 483. In Ifew York, in 1857, Grant v. Carter, 24 Barb., 232 ; Benson v. The Mayor of Albany, 24 Barb., 248; Clark v. City of Rochester, 24 Barb., 446 ; see also in 1858, Bank of Rome V. Village of Rome, 18 1^. Y. 38 ; in 1861, Starin v. Genoa, 23 K Y, 439; in 1866, People v. Mtchell, 35 K Y., 551. In South Carolina, in 1857, Coper v. Charleston, 10 Kich., 491. In Georgia, in 1857, Wyman v. Macon, 21 Ga., 275 ; in 1858, , 23 Ga.,65. In Indiana, in 1857, J.Mrorav. Wes^,9 Ind., 74; see also in 1860, Mvansmlle, ^c, R.R. Co. v. Evansville, 15 Ind., 395 ; in 1862, Bartholomew Co. v. Bright, 18 Ind., 93 ; in 1864, Aurora v. West, 22 Ind., 88. In the United States Supreme Court in 1858, Commissioners of Knox Co. v. Aspinwall, 21 Howard, 539 ; Same v. Wallace, 21 Howard, 547 ; see also in 1860, Bissell v. City of Jefferson, 24 Howard, 287 ; Amey v. Al- leghany County, 2i Howard, 365 ; Com'rs Knox Co. v. Aspinwall, 24 Howard, 376; in 1861, Woods v. Lawrence Co., 1 Black, 386 ; in 1862, 2 Black, 722; in 1863, 1 Wallace, 83, 175, 272, 291, 384, five cases; in 1865, 3 Wallace, 93, 227, 294, 654, four c^ses; in 1866, 4 Wallace, 270, 275, 535, three cases; in 1867, 6 Wallace, 166, 210, 504, 518, four cases; in 1868, 7 Wallace, 18^, 313, two cases; in 1869, 9 Wallace, 477. There 28 434 THE LAW OF MUNICIPAL BONDS, are too many to give the titles to all of these. In Wisconsin, in 1859, Clark v. Janesville, 10 Wis., 136; also see in 1860, Bush- nell V. Beloit, 10 Wis., 195. In California, in 1859, Pattison v. The Board of Supervisors of Yuba Co., 13 Cal., 175 ; also in 1860, Hobart v. Supervisors of Beetle Co., 17 Cal., 23 ; in 1863, , 22 Cal, 379 ; in 1864, IVench v. Teschmaker, 24 Cal., 518 ; People v. Coon, 25 Cal., 635 ; in 1865, People v. Super- . uisors of San Francisco, 27 Cal., 655. In Maine, in 1860, Augusta Bank v. Augusta, 49 Me., 507. But we are not left alone with the construction given to the term legislative power, by the legislative, executive and judicial departments of other States and of the United States, hut we have a construction of our own given to said term by the legislative and executive departments of the territory, before and during the time the Constitution was being framed. In 1858 the Legislature and the Grovernor of the then terri- tory of Kansas authorized the city of Atchison to subscribe for stock in and issue bonds to railroad companies. Private Laws of 1868, page 182, Sections 30, 31. In 1859 the next Legislature and the Governor of said ter- ritory authorized Leavenworth County to make similar sub- scriptions and to issue bonds in payment therefor, (Genl. Laws of 1859, p. 69,) and on the same day (February 11, 1859,) they took the initiatory steps in frajning the present Constitu- tion of the State of Kansas. On that day they passed the Act under which the Constitution was framed, (Genl. Laws, 1859, p. 292 ;) and on that day they gave a construction of what is legislative power with reference to municipal aid to railroad companies. And this construction the people have never overruled or repudiated in framing their Constitution, or anywhei'e else. ' In 1860, after the people had adopted the Constitution, but while it was still pending before Congress and before the State was admitted into the Union under it, another territorial Legislature and another territorial Governor again deter- mined in favor of the power of the Legislature to pass Acts granting municipal aid to railroad companies. They passed three Acts recognizing this power — one for Leavenworth County, (Genl. Laws, 1860, p. 29,) one for Leavenworth city, ' KANSAS 435 (Genl. Laws, 1860, p. 32,) and one for the city of Atchison. Private Laws, 1860, p. 53. We suppose that nobody will claim that the territorial Leg- islature had more power in this respect than the State Legis- lature have. The territorial Legislature had nothing but leg- islative power, and that is just what the State Legislature have. The territorial Legislature held their authority under thet " organic act," which provides " that the legislative power and authority of said territory shall be vested in the Governor and legislative Assembly," (Section 22.) The State Leg- islature hold theirs under the State Constitution. The organic act was framed by Congress, the Constitution was framed by the people of the State. The territorial Legisla- ture had all the legislative power in this respect that Congress had power to give them. The State Legislature have all the legislative power that the people of the State have power to give them. Then whose power is the greatest ? — that of the territorial Legislature or that of the State Legislature ? — that of Congress or that of the people in tlfeir primary capa- city? It has generally been supposed, and we presume it will be so conceded, that the power of the people in their pri- mary capacity is unbounded and unlimited. Is it so with Congress ? Has any jurist ever said that it was so ? Will any lawyer of any respectability hazard his professional reputation by declaring that it is so ? "We think' not, and yet we shall not in the least question the power of Congress upon this particular subject. In fact this court has already decided that Congress possesses all the power necessary upon this particu^ lar subject. JBumes v. Atchison, 2 Kas., 454 ; Atchison v. Butcher, 3 Eas., 104. With all this before us, is it possible to come to any other conclusion than that the people knew what was generally understood by the term legislative power, and that they adopted the Constitution with that construction. This conclusion must also follow, because this general under- standing before and after the adoption of our Constitution, was a contemporaneous construction of said term, (Cooley, Const. Lim., 67, et seq., and cases there cited,) and also because whenever a provision of law is adopted by one State from another, as this constitutional provision of ours was, the ju- 436 THE LAW OF, MUNICIPAL BONDS. dicial construction given to it in the State where it originated, follows it to the State of its adoption. Bends v. Becker, 1 Kas., 226, 248, M9 iStebbins v. Guthrie, 4E:as., 353, 364. Since the adoption of the Constitution of this State, two other States, besides those that we have already mentioned aa having decided the question before our admission, have de- clared in favor of the constitutional validity of Acts granting municipal aid to railroad companies. Kansas, Bumes v. Atchi- son,-2 Kas., 454, decided in 1864; Atchison v. Butcher, 3 Kas., 104, decided in 1855 ; and , The State ex rel. Hurd v. The Mayor and Council of the City of Leavenworth, not reported — decided in 1868 ; and Texas, San Antonio v. Jones, 28 Texas, 19, de- cided in 1866 — making in all about 24 States, and the Uni- ted States. All of these States have, impliedly at least, declared that the general grant of legislative power carries with it the power to pass Acts authorizing county anti municipal aid to railroad companies, and in some of the States the courts have expressly so decided. 2 Kas., 454, 486 ; 3 Wallace, 327, 654 ; 35 K Y., 551 ; 24 Barb., 232, 248, 446. The real question in this case : is whether the Legislature has the constitutional power to authorize counties and muni- cipal corporations to subscribe for stock in railroad compa- nies, and to issue their bonds in payment therefor, and not whether the Legislature has power to authorize counties and municipal corporations to make donations to railroad compa- nies. In favor of the power to make subscriptions, etc., we have the decisions of about 24 States.' Against the power we have the decisions of one State alone, and that is Iowa. The principal decisions in Iowa against this power are — The State ex rel Wapello Co., 13 Iowa, 388; ChamherMn v. Burlington, 19 Iowa, 395 ; and McClure v. Owen, 26 Iowa, 243. But the Supreme Court of the United States have overruled all these decisions, and they are worth no niore now as precedents than waste paper. Gelpecke v. City of Dubuque, 1 Wallace, 175; Meyers y. Musca- tine, 1 Wallace, 384; Thompson v. Lee Co., 3 Wallace, 327; Eodgers v. Burlington, 3 Wallace, 654 ; Riggs v. Johnson Co., 6 Wallace, 166; Weber v. Lee Co., 6 Wallace, 210; U. S. v. KANSAS. 437 Council of Keohik 6 Wallace, 514, ' 518 ; Bmhow v. Iowa Qity, 7 Wallace, 313 ; Lee Co. v. Eodgers, 7 Wallace, 181. And in Iowa the same court in a more recent decision have swept clep,r every vestige of the principle upon which these former decisions of the Supreme Court of Iowa were founded. Stewart v. The Supervisors of Folk Co., 30 Iowa, — ; King v. Wilson, 3 Chicago Legal News, 137 ; Dillon's C. C. Eeports, — . Hence no court of last, resort in all the civilized world can now be found that holds that county and municipal aid to railroad companies, by way of subscription to the capital stock thereof, is not a legitimate subject of legislation. There are however, now, just four decisions in the United States against the validity of donations to railroad companies ; one in New York, Stewart v. Huhhert, 51 Barb. 312 ; one in Iowa, Hanson v. Vernon, 27 Iowa, 36; one in Wisconsin, Whitney y. The Sheboygan JR. R. Co., 25 Wis., — ; and one in Michigan, The People ex rel. v. Salem,. 20 Michigan, — . The first of these decisions is entitled to but little consideration as a pre- cedent, as it was not rendered by a court of last resort. The second has since been overruled by the same court, Stewart v. The Supervisors of Polk Co., 30 Iowa, — . This leaves two de- cisions only — one in Wisconsin and one in Michigan, stand- ing solitary and alone in opposition to even this species of legislation, and these are not authorities, as we shall presently see, against subscriptions to the capital stock of railroad com- panies. The Supreme Court of Wisconsin is composed of three judges, one of whom dissented. The Supreme Courifof Michigan is conaposed of four judges, one of whom dissented. The court of appeals in New York, the court of last resort in that State, decide in favor of the validity of svhseriptions. Bank of Borne v. VUhge of Borne, 18 N. Y., 38; Starin v. Genoa, 23 K Y., 439; Clark v.- Gty of Rochester, 28 N. Y., 605 ; People v. Mitchell, 35 K Y., 551, and the court render- ing the decision reported in 51 Barb., 312, acknowledge the binding force of the decisions made by the court of appeals, but claim that there is a material difference between dona- tions and subscriptions; that they are not both governed by the same principles; that one may be valid and the other in- valid. 438 THE LAW OF MTTNICIPAL BONDS. The Supreme Court of Wisconsin decides in favor of tliJ validity of subscriptions. Clark y. Janesville, 10 Wis., 136; Bushnell v. Beloit, 10 Wis., 195, and against the validity of donations, Whiting v. Sheboygan B. JR. Co., 25 Wis. — . In the latter case, the court made two decisions, and in each de- cision the court made a labored argument to show the dis- tinctions between subscriptions and donations, and to show that the former are valid and the latter invalid. ,See also note of Mr. Chief-Justice Dillon, who wrote the opinion in the case of Hanson v. Vernon, 27 Iowa, 35, pub- Ushed in the 9th Am. Law Reg., JST. S., 172, 175. We supposed that it will be admitted that it is a duty in- cumbent upon all governments to provide suitable and suffi- cient facilities for the travel and commerce of the country. Canals, roads, bridges and other artificial means of passage and transportation from one part of the country to the other, have been made by the sovereign power, and at the public ex- pense, in every civilized State of ancient and modern times. And to-day this State constructs, through the agency of sub- ordinate public corporations, all the common roads, bridges and thoroughfares of the country. In many parts of the civilized world, and particularly on the continent of Europe, (and in every part it might be done,) the railroads of the country are constructed, owned and operated by the Govern- ment. Many of -the States of this Union have constructed and owned and operated both railroads and canals, and their right to do so, so far as we are informed, has never been ques- tioned. Some of the States are doing this very thing to-d^y, without the least suspicion that they are transcending the legitimate bounds of governmental jurisdiction. It must, therefore, be admitted, that in the absence of conjr stitutional restriction, this State might construct, own and operate all the railroads within the boundaries of the State. It must also be admitted that whatever the State may do in providing artificial means of travel tod transportation, it may do through the agency of subordinate public corporations, such as counties, cities, towns and villages, which may be locally benefited by such improvements. We have already seen that there is no constitutional restriction upon constrnctr KANSAS. 439 ing works of internal improvement through the agency of subordinate public corpoi'ations, such as counties, cities, towns and villages. Hence it logically follows that the State may, through the agency of counties, towns and villages, construct, own and operate all the railroads of the country. It will also be admitted that the State may construct railroads through the agency of private corporations, or of private individuals. l^ow, if the construction of a railroad is a public duty which the State may either cause to be done entirely through the agency of public corporations, and at the public expense, or entirely through the agency of private corporations or private individuals, it seems to follow as a logical consequence that such a work may be made partly through the agency of a public corporation, and partly through the agency of a pri- vate corporation or of private individuals. If private enter- prise will take hold of such public improvements and con- struct them, aU experience has shown, that it is better to let private enterprise do it. But if private enterprise will only perform a part, is it not better to let private enterprise per- form that part, and the public perfoi'm the other part, than that the public shall be entirely deprived of all the benefits of such needful and valuable improvements ? And further, if a county should purchase all of the stock in a railroad company, the county would then own the entire road, and might, we presume, operate the same without any grave constitutional objection being urged against such a transac- tion. Then why may not the county purchase a portion of the stock, and operate the road in conjunction with the other stockholders, who are private individuals, and who own the remainder of the stock? While there is an obvious distinction between subscriptions and donations, still we do not suppose that the "Wisconsin and Michigan decisions are founded entirely -upon the doctrine that donations to railroad companies are illegal simply be- cause they are donations. The power of governments and governmental organizations to make donations has been ex- ercised ever since governments were instituted, and, we pre- sume, always will be. Swords, -banners and other mementos for meritorious conduct have always been, and, we suppose, 440 THS! LAW OF MTTNICIPAL BONDS. always will be, donated by goyernments and municipal organi- zations. Two hundred thousand dollars in money and a township of land were donated in 1824 by the General Govern- ment to General La Fayette. Millions of dollars as pensions, and millions of acres of land, have been donated to the sol- diers of the Republic since its organization. And the Govern- ment is now generously donating artificial limbs to disabled soldiers who lost limbs in the war of the rebellion. During the rebellion, the General Government, and almost every loyal State, county, city, township and hamlet, gave bounties to soldiers enlisting in the army. Bounties have been every-? where given for the destruction of wild beasts and other pub- lic pests. This State is now giving bounties to those who grow forest-trees, plant hedges and build stone fences. Schools are made free for the poor as well as for the rich. Asylums are established for the deaf, dumb, blind and insane. Hospi- tals are opened in many parts of the world for the sick and the diseased. The poor and the destitute are fed and clothed at the public expense. Homesteads are given by the General Government to actual settlers upon the public land. And many millions of acres of the public lands have been doTUCted to the railroad companies by the General Government within the last thirty years. If the Wisconsin and Michigan courts had simply said that donations to railroad companies were illegal because they were donations, their decisions would not affect this case in the least; but they have gone farther, and have said that they are illegal because they are given to railroad companies. The reasons given why donations to railroad companies are illegal are that railroad companies are private. coxT^ov&t\ovL.s, and the donations are given for a private use. Now, whatever may be the case in "Wisconsin or Michigan, we think we have already demonstrated that such is not the case in Kansas. That the people of Kansas, in their primary capacity in fram- ing their Constitution, determined otherwise, and,- as we shall attempt to show, determined rightly. But whether rightly or wrongly, from the people in their primary capacity there is no appeal. Their decision is final. Whatever they have determined in and by their Constitution, we must determine. KANSAS. 441 "We are not above the Constitution. "We as judges are the mere creatures of it, and hold our authority under it, and must decide as it decides. Any other course would he usur- pation. If we do not carry out the provisions of the Consti- tution as the people understood it when they framed it, we are unworthy to hold the places we fill. It has heretofore been supposed by statesmen and jurists, that the Constitution was a permanent and inflexible instru- ment, that it was the photograph of the people's vMl indelibly stamped, and could only be amended by the people them- selves in- the prescribed form. It has heretofore been sup- posed that if a new truth, however valuable, should be dis- covered, the courts, however strong the temptation might be to startle the world with the announcement of it, would have no right to insert it in the Constitution by judicial construc- tion, but must wait and let the people in their own time make the desired amendment. And even where a society has outgrown its Constitution, it has never before been supposed that the courts could, through the means of judicial construc- tion, so amend it as to bring it up to the wants and needs of the more improved and further advanced condition of society. We deny both the grounds on which it is claimed that municipal aid to railroad companies is unconstitutional. We deny that railroad companies are strictly private corporations, although we do not claim that they are strictly public cor- porations ; and we deny that municipal aid to railroad com- panies is strictly fcyr a private use; although we do not claim that it is strictly for a public use, though the object intended by the Government is a public purpose ; and we further say that it makes no difference, so far as this case is concerned, whether a railroad company is a private corporation or not. The whole question depends upon the ultimate object, use or purpose intended by the Government in granting the aid to railroad companies, whether that object or purpose is public or private, and not upon the nature or character of the means used in effecting or accomplishing that object. * This whole question has been argued as though it depended entirely upon the sovereign power of taxation. We do not think that it does, but as it has been so argued, we cannot well 442 THE LAW OF MUNICIPA.L BONDS. escape discussing the question to some extent in the same manner. The argument. for plaintiff in error in substance ia this : 1. The dividends on the railroad stock which the county gets for its bonds, together with the stock itself, and all other resources of the county aside from taxation, will not pay the interest and principal of said bonds as the same become due. Therefore the county will have to resort to taxation in order to pay said interest and principal. 2. Taxation can only be resorted to for a public purpose. 3. A railroad company is a private corporation, and sub- scribing for stock therein and issuing bonds thereto is a private purpose. 4. Therefore such subscriptions, &c., are unconstitutional. Now we admit the first and second of these propositions, and deny the third and fourth.. And we might here say that we admit what are claimed to be the three fundamental prin- ciples of taxation. 1. Taxation must be for a public and not merely a private- purpose. 2. The taxes must be properly apportioned. 3. The district taxed must have a special interest in and be specially benefited by the thing for which the taxes are levied. Taxation is not an independent power to be exercised aside from the other powers of the Government. No society of men ever organized into a government, or into a municipal corporation, for the mere purpose of taxing themselves. The ■power of taxation can never be invoked except in aid of one of the other powers. It is not of itself a sufficient foundation upon which to build any other power or action of the Govern- ment. It is. only a servant of the other powers, and can only be exercised in their support. And if the right to make county and municipal subscriptions to railroad companies is founded upon no other power except the power of taxation, we admit it has no foundation whatever, and must of course fall. But, on the other hand, if it be conceded that every other objection to the making of said subscription is removed — that nothing else stands in the way, that everything else KANSAS. 443 is favorable, that tlie right of the Government is otherwise perfect — then everything is virtually conceded, for the power of taxation can never be in the way of the exercise of any of the other powers of government, but must always, when necessary, contribute thereto. The power of taxation is the most universal power possessed by governments. It is coex- tensive with every- other power, — it is an incident, a con- comitant, an auxiliary of every other power. Whenever the Government can act at all, it can resort to the power of taxation, if necessary, to make its action effective. And although the Government has no right to interfere in private affairs at all, yet whenever the public interest, the public honor, the public gratitude or public charity requires it, the Government may resort to its sovereign power of taxation without limit, until its interest, its honor, its gratitude or charity is entirely satisfied ; then it is that the power of the Government and the power of the Legislature acting for the Government becomes unbounded,- for the courts, who have no power, except to determine what the laws are, have no scale* by which to determine the amount of the public interest, the amount of the public honor, the amount of the public grati- tude, or the amount of the public charity. That these views are correct, we refer to the following authorities : Cooley, Const. Lim., 219, et s'eq., and cases there cited; 479, et seq., and cases there cited; Booth v. Woodbury, 32 Conn., 128; Broadhead v. City of Milwaukee, 19 Wis., 652; S])eer v. School Directors of Blairsville, 50 Penn., 150; Waldo v. Portland, 33 Conn., 363; Bartholomew y. Horwinton, 33 Conn., 408; Lowell V. Oliver, 8 Allen, 247; McGulloch v. Maryland,'*^ Wheaton, 425 to 436. We_shall now proceed to examine into the character of railroad companies, so as to determine whether they are public, quasi public, or private corporations. For more than eighteen years, from 1852 up to 1870, when the case of The People v. Salem was decided, the doctrine of the Supreme Court of Michigan was that railroad companies were public or quasi public corporations. In the case of Swan V. Williams, 2 Mich., 427, -decided in 1852, that Supreme Court says : " Most certain it is, that as to all their rights, powers, 444 THE LAW OF MUNICIPAL BONDS. and responsibilities, three grand classes of corporations exist. First. Political' or municipal corporations, such as counties, towns, cities and villages, which, from their nature, are subject to the unlimited conti-ol of the Legislature. Second. Those associations which are created for public benefit, and to which • the Government delegates a portion of its sovereign power to be exercised for public utility, such as turnpike, bridge, canal, and railroad companies ; and, Third. Stiictly private cor- porations, where the private interest of the corporators is the primary object of the association, such as banking, insurance, manufacturing, and trading companies." P. 434. " The object defines the character of their associations by whatever name they may be styled." (P. 434.) " The object which determines the character of a corporation is that designed by the Legislature rather than that sought by the company. If the object be primarily the private interests of its members, although an incidental benefit may accrue to the Government therefrom, then the corporation is private ; but if that object be the public interest, to be secured by the exercise of powers delegated for that purpose, which would otherwise repose in the State, then, although private interests may be incidentally promoted, the corporation is in its nature public. It is essentially the trustee of the Government for the promotion of the object desired — a mere agent to which authority is delegated to work out the public interests through the means provided by government for that purpose, and broadly distinguishable from, and created for the attainment of no public end, and from which no benefit accrues to the community except such as results incidentally and not neces- sarily from its operation. In the creation of this class of cor- porations, public duties and public interests are involved, and the discharge of those duties and the attainment of those inter- ests are the primary objects to be worked out through the powers delegated to them. To secure these, the right of pre-eminent sovereignty is exercised by the condemnation of lands to their use, a right which can never be exercised for private purposes. ITow then can they be regarded as private asso- ciations from the acts of which an incidental benefit only springs to the public ? " " Ifor can it be said that the property, when KANSAS. 445 taken, is not used by the public, but by the corporations, for their own profit and advantage. It is unquestionably true that their enterprises may be, and probably always are, under- taken with a view of private emolument on the part of the corporations; but it is nevertheless true that the object of the Government in creating them is public utility, and that private benefit, instead of being the occasion of the grant, is but the reward springing from the service." 2 Mich., 434 to 436. In the case of the Miner's Ditch Company v. Zelerbach, 37 Gal., 543, Chief- Justice Sawtee says: " There are several classes of corporations, such as public municipal corporations, the leading object of which is to promote the public interest; corporations technically private, but yet of a quasi pvhlie char- acter, having in view some great public enterprise, in which the public interests are directly involved to such an extent as to justify conferring^ upon them important government powers, such as an exercise of the right of eminent domain ; of thi^ class are railroad, turnpike, and canal, companies and corporations strictly private, the direct object of which is to promote private interests, and in which the public has no concern, except the indirect benefit resulting from the promo- tion of trade and the development of the general resources of the country." P. 577. In the case of Osbcfm v. The United States Bank, 9 Wheaton, 738, three important questions were decided : First. That Congress had no power to create private corporations, — the Federal Government being a government of delegated powers, and the power to create private corporations not being among the powers delegated. Second. That Congress had power to create corporations as instrumentalities by which to carry out a delegated power, and that such corporations were to be classed as public corporations. Third. Tliat a banking corpora- tion created for such a purpose, although four-fifths of ita capital stock was owned by private individuals, and it was engaged, in part, in private banking business from which private and individual profit was derived, was nevertheless a public corporation. Chief- Justice Marshall, who delivered the opinion of the court, said : " The bank is not considered as a private corporation whose 446 THE LAW OF MTJNICIPAL BOUrBS. principal object is individual trade and individual profit, but as a public corporation, created for public and national purposes. That the mere business of banking is, in its own nature, a private business, and may be carried on by individuals and companies having no political connection with the Government, is admitted ; but the bank is not such an individual company. It was not created for its own sake or for private purposes. It has never been supposed that Congress could create such a corpo- ration. It is not an instrument whic'h the Government found ready made, and was supposed to be adapted to its purposes, but one which was created in the form in which it now appears, for national purposes only. It is undoubtedly capable of transacting private as well as public business. While it is the great instrument by which the fiscal operations of the Government are effected, it is also trading with individuals for its own advantage. The appellant endeavors to distinguish between this trade and its agency for the public, between its banking operations and those qualities which it possesses in common with every other corporation, such as individuality, immortality, etc. 9 Wheaton, 860, 861. In this State, the register of deeds accepts his ofiice for pri- vate gain and emolument. His business is with and for private individuals. He is paid by the individuals for whom he does the work, and not by the State or county. Is he a puhlic officer or strictly a private individual ? In this connection, we would refer to the following authori- ties : 18 Wend., 1, 16; 3 Paige, 75; 1 Cranch, 299; 5 Johns., ch. 112 ; 7 Cow., 585 ; 8 Dance, 295 ; 3 Wis., 612 ; 6 Wis., 636 ; 10 Wis., 280; 2 Dev. & Bait, {N. C.,) 468; 61 Penn., 27; 2 N. H., 25; 20 Johns., 442; 7 Maine, 229, 245. It is undoubtedly true that railroad companies, in contradis- tinction to municipal corporations, .are always classed as pri- vate corporations; and with this classification we find no fault ; but to class them with other private corporations, is a .great mistake. They differ materially from all other private corporations in many respects, and, with reference to them, ought to be classed as public. The sovereign power of eminent domain, which is always conferred upon Tailroad companies, has never been, and could not be, conferred upon a strictly pri- vate corporation. And the Government exercises a control oVcr PANSAS. 447 railroad companies in compelling them to carry passengers and freight, and in regulating the prices of the same to an extent never exercised over strictly private corporations or private persons. The power exercised by municipal corpora- tions in regulating the fares of hackmen and draymen comes nearest to that exercised by. the Legislature in regulating fares and freights of railroad companies. But the former is only a police regulation in cities, while the latter is the exercise of a sovereign legislative power, founded upon the doctrine that a railroad company is a public agency of the Government. It will be admitted that a strictly private railroad corpora- tion might be organized under the authority of the Legislature ; and while such a corporation would, of course, be free to carry any kind of freight it chose, or any class of passengers it chose, when it chose, or exclude all, and carry freight only for itself, yet it could not exercise the right of eminent domain as a public or quasi public railroad corporation does. It would have to purchase the land over which it should construct its road ; but if the owner of the land would not sell, it could not build its road. But, as we have before stated, it makes no difference whether we call a railroad company a public, quasi public, or a strictly private corporation. It is the ultimate end, object and purpose that must determine the power of the Legislature to act in the premises, and not. the nature or char- acter of the corporation or person through whose intermedi- ate agency, this end, object or purpose is expected to be accomplished. ]!^early all the public works of this State, and of counties, cities, towns and villages, have been accomplished through the agency of private corporations, or of private in- dividuals. The work was let by contract to the lowest bidder, and no one has ever yet supposed that it was illegal, because it was not done by a public' officer or a public corporation. The most of the public printing of this State has been done by private persons; for up to 1869 we had no public printer. The public buildings are erected, mails carried, goods trans- ported, and many other things we might mention, are done for the public by private corporations or private persons. And it has never before been contended, nor with reference to any other class of cases, that lie Government could accomplish a 448 THE LAW OF MUNICIPAL BONDS. public purpose only througli the agency of a public servant. For the purposes, then, of this argument, we may well admit that a railroad company is a private corporation, "We have the combined authority of every Legislature, of every executive and of every court in the United States, that the construction and operation of a railroad, even in the hands of a (usually called) private corporation, is a public purpose, for if it were otherwise, every lawyer in the land knows that the sovereign power of eminent domain could not be exercised in its favor. This ought to be conclusive of the questions, but it is said it is not such a public purpose as will support taxation. Strange indeed ! The power of eminent domain is limited in its scope and operation to but few sub- jects. At every step it is traversed and opposed. Everywhere the plea of inexorable necessity must be interposed in its favor, or its progress is ended. Not so with taxation. As we have already seen, taxation is the most universal, broad, sweep- ing and unlimited power possessed by governments. It is the power to destroy, and has no limit except in the will of the sovereign. (Per Makshall, C. J., in McOuUough v. Maryland, 4 Wheat., 316, 425 to 436.) No instance has been shown, nor can be shown, where the Government may aid a thing by the power of eminent domain, where it cannot also aid it by the power of taxation, l^o instance has been shown, nor can be shown, where the Government may aid a thing by the exercise of any of its sovereign powers, where it may not also aid it by taxation. A railroad is a public purpose because it increases the fa- cility for travel and transportation from one part of the country to another. In this respect it is a great and inesti- mable public benefit, which may be better described by others than by the courts. And yet there are other public benefits incidentally springing from thq construction and operation of railroads. The increased value of all property within their vicinity is one ; but this is probably only a measure of the value of the increased facility for travel and transportation. The increase of the public revenue is another, and this, or rather the decrease of the public burdens, cannot well be overestimated. As railroads progress, agriculture, trade and commerce, with KANSAS. 449 ■ all the arts and sciences of an enlightened civilization, follow in close proximity and with a celerity that would astonish the inhabitants of fairy-land. Cities, towns and villages spring up with a marvellous growth that would rival the fabulous creation of Aladdin and his wonderful lamp. And in dis- tricts where the- tax-collector was never before known, im- mense revenues flow into the public treasury with a copious- ness and profusion that would astonish the wealthiest of the sovereigns of ancient or modern times. In Wisconsin it seems to be considered that the mere tak- ing of stock in a railroad company, by a municipal corpora- tion, is sufficient of itself to make the railroad a public purpose, such as will sustain taxation and render the act of the legislature authorizing it valid. {Whiting v. Sheboygan It. S. Co., 25 Wis. — .) 'Sow while we do not wish to controvert this doctrine, still we do not wish to found such a broad super- structure upon such a narrow basis. If a railroad coimpany is purely a private purpose, neither the Government nor any municipal corporation has any right to become a stockholder therein. Governments were not organized for the purpose of engaging in private enterprises or private business, but only for the transaction and promotion of public aflairs. Even if the purchase of stock in a railroad company should be a pay- ing transaction as an investment, (which, unfortunately for counties and municipal corporations, it is not,) still a govern- mental organization would have no right, for that reason alone, to engage in it, for governmental organizations are not created for purposes of speculation, nor are they created for the purpose of enriching the organization as such, but only for the purpose" of promoting the general welfare of their in- dividual members as citizens. The increased facility for travel' and transportation is the main object in the creation of rail- roads, and this it is which constitutes a railroad a public pur- pose. All other benefits, though belonging of right to the public, are simply incidental. When this facility is made absolutely free by the Gov- ernment, all will admit that it is then a public purpose, and such a public purpose as will support both the right of eminent domain and taxation. When it is absolutely 29 4.')0 THE LAW OP MUNICIPAL BONDS. free, except that tlie Government demands and receives a compensation for its use, all will admit that it is still a public purpose, and such a one as will support both the right of eminent domain and taxation. When it is abso- lutely free, except that a railroad corporation receives the compensation instead of the Government, but which is fixed by the Government, all will admit that it is still a public pur- pose, and one that will support the right of eminent domain; but it is denied by the plaintiff in error, that it will still sup- port the right of taxation. Why this distinction is made in favor of the right of eminent domain and against the right of taxation has never yet been shown, and cannot be shown. If any distinction is to be made, it should be (as we think we have heretofore shown) the other way — against the right of eminent domain and in favor of taxation. It is admitted that a railroad is a great public purpose, in one sense, because it adds vastly to the facilities for travel and transportation ; but it is claimed that it is also a great private purpose, in another sense, because it adds to the pri- vate wealth of a private corporation. All admit that the Government may deal with the railroad in its public sense, until the Government has exercised the right of eminent do- main in favor of the railroad ; but then it is claimed that the Government must forever afterwards, and in all other cases, close its eyes upon the railroad as a public purpose, and see the railroad only in its private character. Is this logical ? As a railroad is a public purpose in one sense, and a private pur- pose in another, who shall dictate to the Government in which sense it shall regard the railroad ? Many parallels have been drawn between railroads and va- rious other kinds of business. N^ow, analogical reasoning does not always lead with unerring certainty to the right con- clusion, and in this case it wholly fails. It has been sug- gested that the right of eminent domain may be exercised in favor of mills, (or rather mill-dams,) bridges, ferries, &c., as well as in favor of railroads, and that the right of taxation cannot be exercised in their favor ; and, therefore, it is in- ferred that taxation caniiot be exercised in favor of railroads. But the premises are false, and, therefore, the conclusion KANSAS. 451 must be false. If these are merely private mills, private bridges, and private ferries, neither the right of eminent do- main nor the right of taxation can be exercised in their favor ; but if they are public, or quasi public, as a railroad is public, then there can be no sufficient reason given why both the right of eminent domain and the right of taxation may not be exercised in their favor. The supposed parallel between railroads and hotels, stage- coaches, hacks, drays, etc., fails in more particulars than the parallel atteriipted to be dravrn between railroads and mills, bridges, ferries, etc. The opening of hotels, the running of stage-coaches, hacks, drays, etc., has never been considered as incumbent upon governments. Governments have never undertaken to keep hotel, run stage-coaches, etc., and it has never been considered that there was any moral or legal obli- gation resting upon them to do so. But the duty of opening highways, canals, and other like improvements for the ac- commodation of travel and commerce, has always been con- sidered most binding upon all governments. In favor of rail- roads and public mills, bridges and ferries, the right of emi- nent domain has always been exercised, but in favor of hotels, stage-coaches, hacks and drays, never. But if hotels, stage-coaches, hacks or drays should ever become of such public importance as to authorize the exercise of the right of eminent domain in their favor, there can be no question but that the right of taxation may also be exercised in their favor. It is also supposed that a parallel exists between railroads and physicians, printing establishments, and various other kinds of private business. ~Sow the similarity between a railroad and a physician, or a railroad and a printing-press, is not very striking or obvious, and what there is of resem- blance is in the wrong place for the benefit of the inference sought to be drawn therefrom. It will be noticed that all of the examples given to prove that a railroad cannot be aided by taxation are of a purely private character, and not one of them of a public or quasi public character, such as a railroad undoubtedly is. Now, in order to make the argument drawn from these examples of 452 THE LAW OF MUNICIPAL BONDS. any value whatever, it must be shown that if these occupa- tions referred to were made public, like a railroad, and sub- ject to all the restraints of a railroad, still they could not be aided by taxation. This has not been shown, nor attempted to be shown. And again : If a perfect equality exists between railroads and all the different kinds of business and occupations, such as stage-coaches, hacks, drays, printing-presses, physicians, etc., so that taxation cannot be exercised in favor of the one, unless it can also be exercised in favor of the other, then it must necessarily follow that the right of eminent domain cannot be exercised in favor of the one unless it can also be exercised in favor of the other; for instance, that the right of eminent domain may be exercised in favor of stage- coaches, hacks, drays, printing-presses, physicians, etc., which is contrary to all opinion, or that it cannot be exer- cised in favor of railroads, which is equally opposed to all opinion. And suppose there is in fact, as is claimed, no distinction between railroads and stage-coaches, hacks, drays, etc., and that it is inconsistent and illogical for the law to make a distinction, will that absolutely prove that railroads cannot be aided by , taxation ? If consistency is all that is needed, why not say that stage-coaches, hacks, drays, etc., may he aided by taxation, and then the consistency would be perfect ? But every law- yer knows that the law is not always consistent or logical. The men who make the laws are not always profound states- men or logicians. Chief- Justice Coolby, in the recent Michigan case, {People v. Salem, 20 Mich., — ,) attempts to lay down a rule whereby we may know what may be aided by , taxation and what may not. His language is as follows: " The term ' public purpose,' as. employed to denote the ob- jects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification to distinguish objects for which, according to settled usage, the Government is to provide, from those which, by a like settled usage, are left to private in- clination, interest, or liberality." If this rule is correct, the KANSAS. 453 whple question depends u^on what is tlie settled usage, and not upon any rules of consistency or logic. It seems to us clear beyond all doubt that railroads fall within this rule. Has it not been settled usage in this country, for the last thirty years, to aid railroads by taxation ? And are they not classed with the objects — the public purposes — for which the Gov- ernment will provide ? There can be no question as to what the law is upon this subject. It has been settled by an almost universal usage, and by a long list of judicial de- cisions, back to a time when this State was a wilderness, a part of the " Great American Desert." If this law is incon- sistent or illogical, it is no fault of the courts. The courts do not make the laws, and neither can they change or amend them. If the law or the Constitution has been so inconsis- tent and illogical as to take up one class of objects and aid and foster them, and leave another precisely like them unprovided for, the courts cannot so amend the law as to make it consistent and logical. And if they attempt to so amend it, will they repeal the law authorizing aid to rail- roads, or will they amend the law so as to give aid to stage- coaches, hacks, drays, etc. ? Either would make the law consistent. We do not admit, however, that there is any inconsistency in the law in this respect. Cti the contrary, we claim that ' there is a broad distinction between railroads and any otheV business of purely private character. We can suggest a more exact parallel, a closer analogy, than any that has yet been suggested, and still it will not be claimed that it proves anything. Of all the different kinds of strictly private businesses that exist or may be imagined, that of a strictly private railroad corporation, such as we have heretofore supposed might be organized under the authority of the Legislature, would come nearest in similitude to that of a quasi public railroad corporation such as are actually or- ganized ; and yet the dissimilarity between the two corpora- tions would be just great enough to destroy the desired inference sought to be drawn from their resemblance. We will admit that the strictly private corporation would not be entitled to receive public aid, but that does not at all prove 454 THE LAW OF MUNICIPAL BONDS. that the quasi public corporation would be in the same con- dition. There has been a half- expressed, half- suppressed, claim that the right'of eminent domain is not exercised in favor of railroad corporations because of their public character, but that it is exercised under the maxim, Sic utere tuo ut alienum non Icedas. This is comic as well as novel. Because a man must so use and enjoy his own property as not to injure the rights of others, it is claimed that he nmst be totally deprived of its use, and must allow a strictly private corporation (as is claimed) to take possession of it, and use and enjoy it. It is also claimed that the taxes must be duly apportioned, and the district taxed must have a special interest- in, and be specially benefited by, the thing for which the taxes are levied. This is admitted ; but still the Government has a very broad and extensive discretion' in the matter. The most that the Legislature can do is to adopt the best rules within their power for the apportionment of the taxes. And these rules, however good they may be, will be found sometimes to work injustice and hardship. No system has ever yet been devised, and the wisdom of man will probably never be able to devise a system of apportionment that will do exact justice to every individual and to every locality. In cases of local improvements, or improvements that confer local benefits, the best system for securing the rights of the locality to be taxed that has yet been tried, is to let the locality itself say how much the benefit is worth, and how much it is willing to be taxed for it. Under such a rule the locality taxed can certainly have no right to cornplain. This rule has been adopted in the present case, and the county of Leavenworth has declared how much she thinks the benefit is worth to her, and the amount for which she is willing to be taxed. In cities where street improvements are made, a street anywhere in the city is considered of such a public benefit to the whole city that the whole city may be taxed for any improvement made thereon. And it is also considered of such a special and local benefit to each individual owning • property adjacent thereto, that he may be taxed for the entire cost of the improvements made in front of his own property. KANSAS. 455 A railroad built anywhere in the State is a public benefit to the whole State ; and upon the same principle as taxation for street improvements,' in the absence of any constitutional restrictions, the whole State could be taxed for its construc- tion ; and as each locality is also specially benefited by the improvement, there seems to be no good reason why it, in- stead of the State, should not be taxed to the extent of that benefit. On the continent of Europe, where railroads are generally constructed and owned by the Government, we un- derstand that both systems of taxation are considered legal. The whole State may be taxed to build the road, or the locali- ties through which it is located may be taxed to build it. The question in this case is presented in its simplest form. It is not proposed to overrule, but to enforce the will of those to be affected. The road passes through the county, though it also passes beyond the limits of the county and through many other counties. The aid is not a donation, but it is a subscription to the stock of the road, giving to the county an interest in, and a share of, the control of the corporation. The tax is not imposed by others upon the county, nor by the county upon others than its members, nor by the county on a portion only of its community; but it is imposed by the county oh itself. In the case of The City of Aurora v. West, 9 Ind., 74, 82, the Supreme Court of Indiana, speaking upon the point now under discussion, and the power of a city to aid a railroad extending beyond its limits, used the following language : It is true the water-works may benefit nobody but the citizens of the city, while the railroad may benefit the surrounding country to some extent, at the same time it confers a great local benefit on the city — one, perhaps, greater than the water-works. But where such is the case, should the city be deprived of the right to benefit itself locally, because it cannot do so without also benefiting others ? And if the argument is a good one, that cities are necessarily incapable of aiding any improvement that may extend beyond the corporate limits, will it not apply with equal force to States? May it not be said that a State is created to govern within its terri- torial limits ; and hence that it is unconstitutional for it to 456 THE LAW OP MUKICIPAL BONDS. aid any work extending beyond those limits ? That Indiana, therefore, could not aid in the construction of the "Wabash and Erie Canal because it extended into Ohio ; that she could not, with the consent of Ohio, construct that portion of the Whitewater Canal lying in that State because it was without her territorial limits ; that South Carolina could not aid in the construction of a railroad to Memphis, in Tennessee, or to ISTew Orleans, in Louisiana. But is this the doctrine ? A State can do what its Constitution does not, by positive pro- vision or reasonable implication, prohibit. The United States and city corporations can do only what their Constitutions permit. If the Constitution of the United States expressly authorized the Government to construct, with the consent of the States, roads within their limits, would there be any doubt of their power to do so ? If a State, then, can construct by permission — if South Carolina can, with the consent of Ten- nessee, construct a road in that State — cannot a city of a State be authorized by the State to take stock in a road ex- tending beyond her corporate limits ? We have conceded that taxes can only be levied for a pub- lic purpose. But who is. to determine what a public purpose is, or when the public exigencies require that a tax shall be levied, we have not discussed, and do not propose to discuss in this case. That it rests largely in the discretion of the Legislature, and that the courts have but little to do with the question, we think must be clear beyond all doubt. Judge CooLEY says that " Taxes should only be levied for those pur- poses which properly constitute a public burden. But what is for the public good, and what are public purposes, and what does constitute a public burden, are questions which the Legislature must decide upon its own judgment, and in respect to which it is vested with a large discretion, which cannot be controlled by the courts, except, perhaps, where its action is clearly evasive, or where, under pretence of a lawful authority, it has assumed to exercise one that is unlawful." Cooley, Const. Lim., 129; see also 488. As to what is such a public benefit that it may be aided by the public, seems to be a question of public policy — of political economy — which must almost exclusively be determined by the Legislature. KANSAS. 457 And when the Legislature have determined the question, — when they have determined that a certain thing is of such great public benefit that it is public policy to aid it by taxa- tion, — ^if the courts may still say that such is not public policy, and for that reason declare the act of the Legislature uncon- stitutional, the courts must possess almost despotic power. If such is correct doctrine, then there is an appeal from the Legislature to the courts on mere questions of policy. The ancient and venerable rule of stare dicisis also requires that we should declare in favor of the power of the Legisla- ture to grant municipal aid to railroad companies. Twice this court has already so decided, and each time by a unan- imous court. These decisions have been published by legal authority, and have become precedents for future decisions. In the first case, which was decided in 1864, the present Chief Justice delivered the opinion of the court. [Bumes v. Atchison, 2 Kas., 454.) Tn the second, which was decided in 1865, Chief- Justice Ceoziek delivered the opinion of the court. {Atchison V. Butcher, 3 Kas., 104.) Several other cases have been decided in this, court, in which it seems to have been assumed that such Acts were valid. "We might also state here, that not only the great weight of authority in the United States is in favor of the validity of such Acts as the one we are now considering, but also the more recent decisions are likewise in favor of the validity of such Acts. The Michigan case, already referred to, is the last decision against such validity, while the following cases, de- cided 8,ince the Michigan case, are in favor of the same : Stewart Y. Supervisors of Polk Co., Iowa, The Lafayette, Muneie ^ Bloomington R. R. Co., et al. v. Qeiger, 34 Ind., — ; King. v. Wilson, 3 Chicago Legal News, 137; Dillon's C. C. Report; Stockton ^ Versalia R.R. Co. v. The Common Council of Stocktoh, decided by the Supreme Court of California, May 12, 1871. There are three other questions attempted to be raised in this case : First. It is claimed that a vote of the people of Leaven- worth County on the question, (in substance,) whether the commissioners of said county should issue $250,000 of the bonds of said county, to be expended in the stock of the 458 THE LAW OP MUNICIPAL BONDS. Union Pacific Kailroad Company, Eastern Division, which was carried in the affirmative, was not sufficient to authorize the said commissioners to make said subscription and to issue said bonds, as they did, in payment therefor ? "We think it was. Second. It is claimed " that such bonds shall be issue^d only in payment of assessments made upon all the stock of such railroad company." This is admitted. And while it does not appear that any formal order was made upon the records of said railway company making any assessments, yet all the stock that was issued by the company to any person or county was full-paid stock. This answered substantially the require- ments of the law. Third. It is claimed that the commissioners on the part of the county had done all they could do to pay this bond ; and therefore that the county was not liable. The reverse of this is true, and therefore this question is not in the case. The judgment of the court below is affirmed. Kingman, C. J., concurred. Bkewbk, J., did not sit. CHAPTEE XV. KENTUCKY. The Constitution of Kentucky contains no direct al- lusion to Municipal Bonds, the subject being left wholly within the discretion of the Legislature. The rule of law of the State is, however, very conclusively settled, no substantial variation having taken place at any time. The first case that arose was that of Talbot v. Dent, which was decided in 1849. The leading question was whether an Act authorizing the city of Louisville to subscribe to the stock of a railroad, one of the termini of which was within the corporate limits of the city, was constitutional. In a remarkably clear and intelligent opinion, the court arrived at the conclusion that the Act was fairly within the power of the Legislature, and that' the object was a corporate as well as a public purpose. After disposing of several incidental points, the court says: "We pass, then, to the fundamental question, whether the Legislature could constitutioiially authorize the public au- thorities of Louisville, with the consent of a majority of the voters of the city, to subscribe for stock in the Louisville and Frankford Eailroad Company, and to pay for it by increased taxation upon the citizens. And as the right of the Legisla- ture to delegate the power of taxation for local purposes to the regularly constituted local authorities is too well estab- lished, both by legislative precedents and by judicial de- cisions, to be now denied, and is in fact conceded on all sides in the present case, the question stated resolves itself into th# 459 460 THE LAW OF MTTNICIPAL BOXDS. I inquiry, first : Wlietlier, in the present instance, the power is delegated and exercised for a purpose properly 'local, or within the legitimate ohjects of the local corporation ? and second : "Whether, if it be so, any invasion of the constitu- tional risrhts of individuals is involved, either in the cireura- stances under which the power was delegated, or in those which have attended its exercise ? Upon the first question, we do not deem it necessary to make any labored argument or discussion. Substantially the same question has been discusse,d and decided by the Su- preme Court in the States of Virginia, Connecticut and Tennessee; and each of these courts has affirmed the power of the Legislature, in their respective States, to authorize a subscription for stock involving the power of taxation for its payment, by the corporate authorities of a city, under special legislative sanction, for the construction of a work of inter- nal improvement, by which the facility of access and of transportation to and from the city is to be increased, Ooddin v. Cmmp, ^c, (8 Leigh's Report, 120 ;) The City of Bridgeport Y. The Housatonie Railroad Company, {lb Connecti- cut Reports, 475 ;) and Nichol, ^c. v. T/ie Corporation of Nash- ville, in the Supreme Court of Tennessee, 1849, (Pamphlet Report.) These eases decide what must, we think, be conceded, that in order to characterize a particular work or expenditure as being within the legitimate local purposes of a local munici- pal corporation, it is not necessary that the work of expendi- ture should be confined to the local limits of the corporation ; but that in the case of a road or canal leading to or near the city, and obviously tending to facilitate its commerce and secure or increase its commercial business or prosperity, as well as in the case: of an aqueduct or a sewer tending to pro- mote the health' and comfort of the city, it is sufficient that the object to be accomplished be so connected with the city and its interests as to conduce obviously and in a special manner to their prosperity and advancement. That a railroad having one of its termini on the Ohio River, within the limits of the city of Louisville, and ex- tending indefinitely into the interior of the State, is a work of this character, we may well assume. KENTUCKY. 461 After disposing of the main question, the learned judge proceeds to discuss, in a masterly manner, some of the incidents that pertain to taxation, and especially a tax that is authorized by a popular vote. The view that is taken of the effect of the vote is the only true one, and if it be extended to its legitimate scope, would seem to go far to remove any doubts that might arise as to the nature of the object of special legislation of every kind when the people act. The theory is, that whether or not an object is public is purely a question of fact ; and that the solemn expres- sion of the peaple that they desire the imposition of a tax to consummate an object, is conclusive as to its nature. It cannot be supposed that the people are other than vir- tuous, or that they would willingly subject themselves to imposition or fraud. On the contrary, it must be held that their act is intelligent, just and expedient — that it has all the qualities that attach to the act of the people as the real sovereign of the republic, who can do no wrong. It must be taken to be the best evidence of the fact passed upon, if such fact be a proper one to be deter- mined. To assert that the people are incapable of discriminat- ing between a private and- public object is to deny the accepted truisms of popular government, and to overthrow its most important doctrines. It is to make the voxpopuU something so dangerously uncertain that it is likely to command the destruction of every community at any time. It is, in brief, to make republicanism a species of govern- ment that is based upon incapacity, with unlimited power to effect the grandest evils. Unless the people are pre- sumed to be both intelligent and virtuous, the theory of popular government is a monstrous inconsistency. In voting in the matter of any improvement, the ques- tion presented to every voter is clearly this : Will the 462 THE LAW OF MUNICIPAL BONDS. proposed action he beneficial to us ? If a proper majority answer aye, the most conclusive evidence of the nature of the object of the action is afforded. It is the positive averment of the public that the action will be for the public good. It is a tacit and solemn assertion by the public that the proposed action will be for the public benefit. It is an individual and collective verdict that the action will be to the advantage of every individual, and to the whole number as a corporate body. To escape its bind- ing force, it is obviously necessary to deny the capacity of the voters to judge; for if they are capable of judging, their finding, especially as to what is purely fact, is ab- solutely final. In the case last above mentioned, the court says : The taxj as levied, being equal upon all, in proportion to the property of each within the city, we do not understand how the rights of any citizen can have been infringed by the delegation of the exercise of the power, unless it be assumed either, that each citizen has a right to decide authoritatively whether the tax is levied for a legitimate purpose, and, there- fore, whether it is valid or not, or that the rate of taxation as existing when he became a citizen, cannot be afterwards in- creased so as to aft'ect his property, without his consent. The argument for the plaintiff does not, it is true, specifically urge either of these positions, but appeals to the judiciary as being invested with the power, and bound by sacred duty, to protect the citizen from unjust and oppressive legislation, though not coming within any of the prohibitory clauses of the Constitu- tion. But though, while acknowledging no power or duty in the judiciary, above or beyond the Constitution and the laws which accord with it, we feel bound so to cdnstrue both the Constitution and the laws, as, if possible, to prevent any injus- tice or oppression to individuals, we perceive no basis for the charge of injustice or oppression in the present case, or for the claim of protection against the operation of the laws of the State and city, now brought in question, unless upon the ground that some right, which, under the Constitution, KENTUCKY. 463 should be deemed sacred, has been violated. There is no in equality producing injustice or hardship to the plaintiff, nor do we understand that there is any real complaint, except that his tax has been increased, without his consent, to an amount greater than was previously authorized by law, and for a purpose which he either disapproves or considers not to be within the legitimate object of local taxation. But if the obvious relation of the railroad, for which the tax was levied, to the city of Louisville, is not sufficient to bring it within the discretion of the Legislature and of the city government to determine whether it be a proper object for expenditure and taxation by the local authorities, no cri- terion has been furnished of such a character as would authorize a judicial tribunal to reject the concurrent opinions which have been referred to, and pronounce the local tax illegitimate, and therefore unjust and oppressive. The question is one essentially of fact and of expediency. There is, in the nature of the thing, no injustice, and but little danger of oppression, in authorizing the local authorities, elected by the local community, to incur expense, and levy an equal local tax for the accomplishment of an object of local interest, and which they may deem of sufficient importance to justify the additional burden which they will impose upon themselves and their constituents. If it be an object of local interest tending to promote the local prosperity, it comes within the object of the local corporation ; and the propriety of promoting it by local taxation must be determined by the corporation, so far as the Legislature authorizes its action on the subject, and it is not dependent upon the opinion or con- sent of each individual. From the nature of the association, the will of the individual is merged in that of the majority upon all subjects on which the body, as a corporation,* has a right to act. And it can only be in a flagrant case of excess of power, if in any, that the judiciary could determine, on its own judgment, in opposition to that of the Legislature and of the city authorities, and of the majority of the individual corporators, that the purpose for which a tax is levied under such authority is not within the legitimate objects of the cor- poration, or not a purpose for which a local tax may be im- 464 THE LAW OF MUNICIPAL BOXDS. posed. The safety of the individual consists in the limit upon the power of taxation, as uniformly imposed- bj' the Legislature upon the local government, and in the com- mon interest and judgment of the corporators or their local representatives. We refer to the opinion of this court in the case of Cheany v. Hoover, (9 B. Monroe, ante, 338,) upon the subject of local taxation, as having an important bearing on the objection which has been stated. With re- gard to the rights of the individual to oppose otherwise than by his vote the increase of taxes beyond the rate existing when he became a citizen, or acquired his property, nothing need be said. All experience is against it ; and it is repudi- ated by the exigencies of every growing town in this and other countries. .And as the right of taxation or of increas- ing the taxes for any special purpose, so far as either is legiti- mate, does not depend upon the individual will of each citizen who is to be subjected to it, — and even a majority can- not impose a tax upon the minority, except as authorized by the Constitution and laws, — we have referred to the vote of the majority in this ease, not as giving authority to the Legis- lature, but as demonstrating, with other facts, the existence of a peculiar local interest in the object to be affected by the tax. The rule laid down in Talbot v. Dent was adhered to in a number of subsequent cases, {Justices, &c. v. Turn- pike Co., 11 B. Monroe, 143 ; Slach v. Maysville, 13 lb., 1,; Maddox v. Graham, 2 Mete, 56, and Co. Judge of Shelby Co. v. Shelby B. B., 5 Bush,) and is the well set- tled law of the State. The case last above cited we print in full. In addition to being the latest case upon the subject, it contains a re- affirmance of the important doctrine that a tax may be imposed upon a particular district created by the Legis- lature for the purpose of such tax without regard to existing civil or political divisions. The following is the opinion of the court delivered by KENTUCKY. 465 Justice Eobertson, and concurred in by the other judges : Robertson, J. — The Shelby railroad, chartered in the year 1852, after being partially graded by the exhaustion of funds subscribed by the stockholders entitled to conditional interest on their stock, the work was hopelessly suspended until an amended charter was granted in January, 1860, at the in- stance of citizens of that portion of the county in which the road is located. The amendment authorized a subscrip- tion of as much as $300,000 additional stock by the citizens within a defined boundary of the southern section of the country through which the road runs. A majority voted for a subscription of $300,000. The county judge, in that event, was directed by the amended charter to subscribe the amount voted for, to be collected by a tax on the tax-payers within the prescribed boundary, to be levied as their revenue taxa- tion is levied. The judge, deeming it prudent not to sub- scribe without the sanction of this court, appealed from a judgment of the circuit court requiring him, on mandamus, to make the subscription, and now presents two questions for our consideration : 1. Is so much of the amendment as requires the former sSfeockholders to waive interest constitutional ? 2. Is a tax on only one section of the county constitu- tional ? Upon full consideration, our answer to each question is af- firmative — 1. As it sufficiently appears, that, without the aid of the subscription under the amended charter, the stock of the for- mer subscribers would be worthless, they cannot lose, but teitist gain, by the provision complained of; and it is cer- tainly just that all subscribers, old and new, should stand on the same platform of equality ; and moreover, the legislative power to repeal the old charter siirely included the subordi- nate power to modify it, as done by the amended charter, for fulfilling the end of the old one. 2. Taxation is a peculiarly flexible and indefinite subject Eirery citizen is equally bound to support his government and 80 466 THE LAW OF MUNICIPAL BONDS. help to promote its beneficent ends. All must submit to. the inherent sovereignty of eminent domain, limited only by the fundamental right to just compensation for private property taken for public benefit, and all should contribute in the form of taxation, direct or indirect, to burdens resulting from the administration of the Grovernment and its laws. The tax- payer's compensation is in his reciprocal benefit. Equality is the great object of the Constitution ; but mathematical equal- ity is practically impossible. The history of sustained taxation in every form always shows actual inequality. A tax may be constitutionally im- posed on one class of property only, and many may own no such property; or it may be specific, and therefore arbitrary, and necessarily unequal ; or it may be on all property ad valorem; and even then those owning no taxable property will contribute nothing, even though they derive personal benefit from the appropriation of the taxes ; and in whatever form, or for whatever purpose, taxes may be imposed, and however nearly they may seem to approximate equality, they are necessarily unequal when tested by the only true princi- ple of taxation, and that is, the degree of benefit to each person in the use made of the tax. There is no human process by which" this relative degree of interest can be precisely graduated. Thus, while it is undeniable that all the citizens of a county have not the same interest in a local road or bridge, the exact interest of each is unascertainable, and may, therefore, be disregarded in taxing for the construction and repair of such necessary improvements ; and although the people of other counties are benefited by all such local improvements, con- tributing to social and commercial intercommunication far beyond the limits of the county making them, yet they are not taxed to make them ; and the general and approved practice in making and , repairing county roads has been to impose the burden of each road, not on the whole county, but only on a prescribed section nearest the road. Prescrip- tion alone would legalize all these usages ; and their justice is commended by the principle of equality. That principle does not require that all the citizens of a county, any more than a State, should contribute to the construction of any KENTUCKY. 467 kind of road through the county, although the whole county, as well as State, may use it, and, in some degree, be benefited by it. But the pi-inciple would be most nearly effectuated by imposing the burden, as in this case, and in other cases of county roads, on a prudently defined section nearest the road, and apparently most interested in it. But however this may be, we can see no good reason or constitutional principle re- quiring, in such case as this, the subscription to be coexten-. sive with the county lines ; but we do see some reason why the same principle might be more justly illustrated by a more circumscribed responsibility, as prescribed in this case. And in this view we feel sustained; not only by principle, but by authority, without any admitted principle or known authority . to the contrary. See 0,ty of Lexington v. McQuillan's heirs, 9 Dana, 513; Cheany v. Hooser, 9 B. M., 345; Louisville and Bardstown JR. JR. Co. v. Hays, unreported, in which this court sustained a tax on three constables' districts alone for con- structing that road in l^^elson county; and these Kentucky cases are corroborated by decisions in other States, only three of which we will now cite. See Burnett v. Sacramento,12 Cal- ifornia R. ; 27ie People v. Lawrence, 36 Barb. ; and the exhaus- tive case of The People v. Mayor, ^ , of Brooklyn, 4 Com- stock's, &c. In the case supra in Barbour, the court said of local taxa- tion : " The Legislature is not confined in such taxation to existing political or civil districts. They may create a dis- trict for the purpose of taxation or assessment." And in the California case the court said : " The burden may be levied upon the whole county or town, or on those more immedi- ately benefited." We might cite other concurrent cases in Massachusetts, Pennsylvania, Connecticut, Ohio, Indiana, New Jersey, Vir- ginia, South Carolina, Louisiana, and many other cases in New York. Thus prescription and authority settle this ques- tion 80 conclusively as not to allow further doubt or debate. The result in this case is, that the tax, as imposed, is not only constitutional, but even more just and equal than it would have been had it been laid on the whole county of Shelby, the people of the northern and exempted portion of 468 THE liAW OF MtJJSriCIPAL BONDS. which, near the Louis\dlle railroad, having little or no appar- ent interest in the more southern road. But this «ourt cannot adjudicate on the policy or justice of taxation. The security against injustice is in the structure of the Government and the sympathy of the Legislature with the people, and its responsibility to its constituency. It is now too late to question the constitutionality of the charter in this case. Wher^ore, the judgment of the Circuit Court is affirmed. KND OF VOL. L