The opinion of the court rests upon three propositions to which I fully assent. These are, that there is nothing in the Constitution of Connecticut, nor in the Fourteenth Amendment to that of the United States, which either expressly or by implication requires that all taxation by this State shall be uniform or equal; that there is no fundamental principle of free government or natural justice that all taxation shall be uniform or equal; and that a citizen of another State who participates as a shareholder in the defendant corporation in the enjoyment of a special franchise, granted by this State, with a reservation of the power of amendment or repeal at pleasure, is not deprived, by the tax laws which are in question in this cause, of any privilege or immunity coming within the meaning of Art. 4, § 2 of the Constitution of the United States.
I dissent from so much of the opinion as asserts that if it were a fundamental principle of free government and natural justice that all taxation shall be uniform and equal, the judicial power would be incompetent to declare a statute which violated that principle to be no law.
The Constitution of Connecticut (Art. 2) declares that "the powers of government shall be divided into three distinct departments, and each of them confided to a separate magistracy, to wit, those which are legislative, to one; those which are executive, to another; and those which are judicial, to another." It then proceeds (Art. 3), to vest "the legislative power of this State" in the General Assembly, and (Art. 5) "the judicial power of the State" in this and *Page 284 other courts. This language assumes that a free State has a power of government known as legislative and another known as judicial.
The leading men among the framers of our Constitution were familiar with certain limitations of legislative power, described in the institutional works upon English law. That "if a statute be against common right or reason . . . the common law shall control it and adjudge it void," had been laid down in Bacon's Abridgment (Statute A, 12, 13, 14), repeating the words of Coke in his report of Bonham's Case (8 Rep. 118). So in Wood's Institutes (p. 10) it had been stated that "Acts of Parliament that are against common justice and reason . . . shall be judged void." These principles had been acted upon by American courts. In the SymsburyCase, in this State, it had been adjudged, in 1784 and again in 1785, that an Act of our General Assembly to confirm a patent of lands which it had granted, but which trenched upon the limits of a prior grant, was, so far as it did thus trench upon them, void, because it took the property of one man and gave it to another. Kirby, 447, 452. We had then no Constitution, unless it were the colonial charter, and that contained no particular provision affecting laws of such a character. In 1792 the Supreme Court of South Carolina had come to a similar determination, under like circumstances.Bowman v. Middleton, 1 Bay, 250, 252.
This doctrine had not been universally accepted. Blackstone, so far as the powers of the British Parliament were concerned, had thrown the weight of his authority against it. In a cause taken up from this court to the Supreme Court of the United States, and familiar to every Connecticut lawyer in 1818, it had been, twenty years before, the subject of a difference of opinion between the justices of that tribunal.
Mr. Justice Chase had maintained that "the nature and ends of legislative power will limit the exercise of it," adding the remark that "an Act of the legislature (for I cannot call it a law) contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative *Page 285 authority." Mr. Justice Iredell had taken the opposite view.Calder v. Bull, 3 Dall. (U.S.) 386, 388, 398.
The question was debated before this court shortly after the adoption of our State Constitution, and thoroughly considered, in an opinion by CHIEF JUSTICE HOSMER, which received the unanimous assent of the court. His conclusion was that should the General Assembly pass a statute authorizing a direct and palpable infraction of vested rights, too unjust to admit of vindication, it would be a violation of the social compact and within the control of the judiciary. Goshen v. Stonington, 4 Conn. 209, 225.
No Connecticut jurist has gone beyond CHIEF JUSTICE DAGGETT in upholding the plenary authority of the General Assembly prior to the adoption of our Constitution, but he, speaking for this court, defined it as "a legislative power capable of making all laws necessary for the good of the people, not forbidden by the Constitution of the United States, nor opposed to the sound maxims of legislation." Starr v.Pease, 8 Conn. 541, 548.
The power of this court to declare a statute void which clearly abrogated vested rights, because it would "stand opposed to the true spirit of the Constitution," was affirmed, though with cautious reserve, in 1843, in an opinion by CHIEF JUSTICE CHURCH. Bridgeport v. Housatonic R. Co.,15 Conn. 475, 497. In 1856 it was discussed by CHIEF JUSTICE STORRS, and the suggestion made that it could not exist when the power exercised was "properly legislative in its character." State v. Wheeler, 25 Conn. 290, 297, 298. That by the expression "properly legislative in character" was meant within the sphere of proper legislation, as that sphere may be finally determined, in case of controversy, by a consideration of the fundamental principles of civil government and natural justice, seems to me demonstrated by another case reported in the same volume, in which a legislative grant of a corporate monopoly was adjudged void, in these words: "And although we have no direct constitutional provision against a monopoly, yet the whole theory of a free government is opposed to such grants, and it does not require even *Page 286 the aid which may be derived from the Bill of Rights, the first section of which declares `that no man or set of men, are entitled to exclusive public emoluments, or privileges from the community,' to render them void." Norwich Gas LightCo. v. Norwich City Gas Co., 25 Conn. 19, 38.
In 1861 we again deliberately recognized the general doctrine that a statute directly and unjustly impairing vested rights is void, not because of any constitutional provision, but as in violation of "the fundamental principles of the social compact" which, as we then said, through CHIEF JUSTICE BUTLER, "underlie all legislation, irrespective of constitutional restraints." Welch v. Wadsworth, 30 Conn. 149,155. The same great judge soon afterwards stated, with his accustomed clearness and precision, the foundation of the judicial power thus to declare, in extreme cases, a statute not to be a legitimate act of legislative power. The question then before us was whether the General Assembly could allow towns to vote bounties to men volunteering for military service in the field. "It must be conceded," he said, speaking for a unanimous court, "that the people, if convened and organized as a whole, and acting upon the fundamental principle that what the majority prescribe shall be law, could be under no restraint except that imposed by the principles of natural justice; and the General Assembly in the exercise of that conferred legislative power, and irrespective of the bill of rights, are restrained by the same principles and no other. The first question, therefore, may be further narrowed to the inquiry, whether it is contrary to natural justice thatA and B and the rest of the inhabitants of the State, should be taxed for gratuities to C and D, when C and D are called upon to render military service to the general government."Booth v. Woodbury, 32 Conn. 118, 127, 128.
I believe that the doctrine of Goshen v. Stonington, since so often reaffirmed, is sound, and that the term "legislative power," as it is used in our American constitutions, refers only to what is "legitimate legislation." Bradley v. NewYork N. H.R. Co., 21 Conn. 294, 305; Wilkinson v. Leland, 2 Pet. 627, 657. This was the view which was finally *Page 287 adopted and acted on by the Supreme Court of the United States in the leading case of Loan Association v. Topeka, 20 Wall. 655, 662, 663. If such be not the law, then the inadvertent omission in a bill of rights of any of the guaranties against oppression which are usually enumerated, would leave the citizen in that respect subject to the uncontrolled pleasure of the legislature. Our liberties are not, in my judgment, held on so precarious a tenure.
The importance of the point which has been discussed has seemed to me to justify this full statement of the reasons which lead me to dissent from what is said in regard to it in the opinion of the court. So far as I can discern, however, it has no importance in the cause, and has simply become the occasion of an obiter dictum. We all agree that the statutes in question are not unfair nor unjust. The counsel for the defendant, in their argument, rested their case on the effect of certain provisions of the Constitution of the United States. In the disposition which has been made of the objections thus raised I fully concur. It seems to me, therefore, that it was quite unnecessary to consider whether, if the statute under examination had been flagrantly subversive of fundamental principles underlying our Constitution and characterizing all free governments, its operation could not have been controlled by that department of the government in which the people have reposed all their judicial power.