By the Court,
Cowen, J.It is objected by the counsel for the plaintiff, first, that the statute of 1835 sought to take the plaintiff’s property without his consent, and appropriate it to the payment of a private debt due from others; and that such a statute is unconstitutional and void. The consequence is not denied by the counsel for the defendants, who insists that the statute is, in effect, no more than any of our ordinary acts imposing local taxes for local improvements of a public character, such as highways and bridges. The object of the statute, and the share of individual or public concern in the tax, may be collected from the acts mentioned in the pleas, and more fully, when connected with the bond set forth in the replication to the second plea of the defendant Mason. . Some time previous to March *681834, *the canal commissioners, thinking that the Chenango canal [ *68 ] then in progress of construction, might be more economically connected with the great western canal at Whitesborough than at the city of Utica, had fixed on the former place for its termination. Then came the act of March 24th, 1834, authorizing the commissioners, on the extraordi. nary expense of a termination at Utica being provided for by those more immediately interested, to change the termination to the latter place. Here, upon several individuals, either from public spirit, or in respect to their own profit, joined in a bond to the people, conditioned to pay into the treasury, for the benefit of the canal fund, $38,615, the estimated excess, and so much more as should make good the contracts affected by the change. Thereupon the contemplated change was made. Afterwards, on the 11th May, 1835, the legislature deeming the debt thus contracted by individuals, unreasonably partial and onerous, passed the statute now in question, the object of which was to levy the tax on the owners of real estate in the city of Utica. The general purpose of raising the money by tax was, therefore, to construct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as such; and independently of the bond, the case is the ordinary one of local taxation to make or improve a highway. If such an act be otherwise constitutional, we do not see how the circumstance that a bond had been before given securing the same money, can detract from its validity. Should an individual volunteer to secure a sum of money in itself properly leviable by way of tax on a town or county, there would be nothing in the nature of such an arrangement, which would preclude the legislature from resorting by way of tax, to those who are primarily, and more justly liable. Even should he pay the money, what is there in the constitution to preclude his being reimbursed by a tax ?
But, secondly, it is said that, if the act had in view the construction of the canal, then it was unconstitutional, as seeking to take private property for public use, without just compensation, or any compensation. To sustain this ^argument it must be denied that the general profit [ *69 ] of the community to which we belong will warrant a tax affecting our property. One answer in the case at bar is, that the improvement in question was, in itself, a compensation to the plaintiff. Such, at any rate, was the theory of the proceeding, and we must intend that it was carried out in practice. Such was the view taken by the legislature; and they must be left to judge of the compensation.
But the argument proves quite too much. It would go to cut off entirely many acknowledged powers of taxations; such as that which raises money to relieve the poor, or establish and keep on foot common schools, to build bridges, or work the highway. It confounds two distinct legislative powers; a simple power of taxation, with the power of taking private property for *69tax to build a lunatic asylum, may be mentioned as one instance. If the power to impose such a tax were to be rested on the ground of individual pecuniary benefit to each one who should be called on to contribute, it is quite obvious that it would not be maintained for a moment. Yet who would doubt that such might be imposed on a local community, a county or even a town ? I admit that this power of taxation may be abused; but its exercise cannot be judicially restrained so long as it is referable to the taxing power. The only check lies at present in that power being usually exerted on considerable bodies of men, who possess a control in a greater or less degree over its agents.
Judgment for the defendants.