dissenting. — I propose to treat exclusively of the powers of the State government in the exercise of the rights of eminent domain and taxation, as modifií d and controlled by the State constitution, so far as they are applicable to the present cause. I shall endeavor *736to confine my argument to legitimate deductions from general principles of admitted truth.
A county, or other municipal corporation, has no inherent right of legislation, and can not subscribe for stock in a public improvement unless authorized to do so by the legislature.
But the legislature of a State, unless restrained by the organic law, has the right to authorize such subscription in a railroad or other work of internal improvement, and to empower the corporation to borrow money to pay for it, and to levy a tax to repay the loan. — Thompson v. Lee County, 3 Wall. 327.
A distinction, now more apparent than real, but of which every one retains a consciousness, between a county and a city, has had no inconsiderable influence in directing the legislation, and in construing the laws, applicable to them. The county has never been more than a civil division of a country for judicial and political purposes, or a circuit or portion of the realm; while the city was once a state or nation itself, as its name signifies. The memory of thi3 independence and greatness is traceable in the charters of cities and acts conferring legislative powers upon them. Their transition to complete subordination to a larger state has not effaced the notion of their sovereignty, or done away with the habit or practice of according to them a local and restricted legislative and judicial power. In Alabama, no such separate existence has ever been claimed for the counties. Their officers have been the executors of the State laws only, and frequently the most important of them have been chosen outside of their boundaries. At no time have they exercised even a semblance of independent authority, or any discretion in their acts. Their duties have been rigidly prescribed by the legislature, and the mode of their performance minutely appointed.
If they are municipal corporations in any sense separable from the State, then section 36, Article IV of the State constitution is without virtue. That section undoubtedly means that the real and personal property of the citizen shall not be taxed to a greater extent than two *737per cent, per annum of the assessed value for any municipal purpose whatever distinguishable from the State. If the legislature may include one such corporation within another, and authorize each to tax to the amount limited, what protection is afforded by that provision of the constitution ?
The act which authorizes the counties, cities and towns to subscribe for stock in railroads, empowers the counties to collect a tax of one per cent, on the value of real and personal property, and cities and towns to collect two per cent, on the same description of property. Where counties include within their boundaries cities and towns, here is authority given for taxation violative of the above section of the constitution. An act of the legislature is unconstitutional when its full operation would subvert any provision of the constitution. But these corporate bodies have already authority to collect a certain amount of tax indispensable for the proper purposes of their creation. Will it be-said that the limit of taxation is the extent to to which these corporations may subscribe? Does the proposition include both principal and interest of the amount agreed to be paid ? Is that portion which can not be paid at maturity void for want of authority to contract it, or will the creditor have to wait his turn? If he must wait, will the current expenses of the corporation have priority of his demand ? The number of roads .in which a county, city or town may take stock, is unlimited. If subscriptions in several are made at the same time, as may possibly be the case, shall the taxes, when scant, be apportioned amongst them ? I fear a construction so fraught with intricacies fatal to the credit, if not the peace, of the State.
The following are among the legitimate rules for construing statutes which are not modified by any others: First, In respect to remedial laws, the old law, the mischief and the remedy, are to be considered. Second, The intention of the law-giver, deducible from the whole and every part of the law, assigning to the words their natural and obvious signification. — 1 Kent’s Com. 462. The term “ State ” has such a variety of meanings, that the one *738intended in any particular use of it must be reasonably ascertained. "We are now speaking of it in the sense of its sovereignty, because only by its governing power can it exercise the authority claimed for it. Section 25, article 1, of the constitution, is conceded to be a regulation and restraint of the right of eminent domain. Under its protection, private property can not be taken for private use, or for the use of corporations other than municipal, without the consent of the owner. It should be observed that this is only an express guaranty of what has heretofore been recognized as an inalienable right. In all other cases just compensation is to be made. Even the right of way, and, for works of internal improvement, the necessary attendant right to establish depots, stations, and turnouts, so indispensable to the proper occupation of the country, and the enjoyment by each citizen of his own property, must be paid for, and are restricted to the particular uses' for which they are taken.
The right of taxation is a prerogative of sovereignty, no more extensive or exalted than that of eminent domain. Let it be admitted that its exercise may extend, in degree, to the confiscation of private property. Its full scope and meaning is tersely expressed in the popular aphorism, “ Millions for defense; not one cent for tribute.” It is the duty of the State tó exhaust the means of its citizens in the proper defense of dearer rights, or even their future accumulation of property. But no one will contend that it has any authority to do this, except in cases of imperative necessity. As well may it claim to dispose of their rights of life and liberty. The plain and obvious meaning of a tax is, a contribution imposed by government on individuals, for the service of the State.
The people of a county, in their collective capacity, pos■sess none of the attributes of sovereignty. No legislative power is committed to them. The whole is vested in the general assembly composed of the duly elected representatives of all the counties. So far as they engage in business distinct from the purposes of government, it is as individuals, or a private corporation. To such the legislature ■is forbidden to delegate power to levy taxes. — Const. Ala. *739art. 9, § 2. How can the State legislate the people of a-comity, individually or collectively, into the constituent membership of a private corporation ? Such a body is founded upon contract, and there can be no contract without the consent of each party to it.
It is only in its municipal character, that a county may contract debts and tax its citizens to pay them. In this sense, the State itself is a municipal corporation, and it is its powers of sovereignty that the county exercises, delegated as an imposition of the duties and burdens of government on particular localities, to be specially benefited thereby. If, in such cases, we say the county is a municipality distinet from the State, then we are nullifying section So, article 4, of the constitution, by embracing one such body in another, with the authority to each to tax the citizens the full extent allowed. If it be only a constituent part of the State, we violate the 33d section of the same article, which forbids the State to engage in works of internal improvement.
Decisions of the supreme courts of several of the Northwestern States, construing provisions of their State constitions, more or less like that contained in the 33d section, above referred to, are quoted in behalf of the applicant. It may be aptly remarked of these authorities, that judicial decisions on new questions are little more than the personal opinions of the judges delivering them. It is only when they survive the criticism of time, that they attain the dignity of precedents. Some of these opinions show the lingering influence of past predilections. For instance, the Ohio court sustained a delegation of power to a county to subscribe for stock in a railroad, in the face of a direct constitutional prohibition in terms against it, although no step had been taken in the exercise of the power when the constitution became operative. The Illinois court, in support of a similar construction, said by way of argument, that the State might authorize others to do what it could not do itself; for example, it could not try a suit, yet it might authorize a court to do so. In several of these cases, there were able dissenting opinions; and in Michigan, the court, through Judge Cooley, the distinguished comment*740ator on constitutional law, declared that such legislation infringed the reserved and inalienable rights of the citizens.
What is meant by section 33, article 4, of the constitution — “ the State shall not engage in works of internal improvement; but its credit in aid of such may be pledged by the general assembly, on undoubted security, by a vote of two thirds of each house of the general assembly ” — in view of the old law, the mischief and the remedy, and the intention of the convention ? The capacity of the State to engage in such works depends entirely on its command, as a sovereign, of the property of its citizens. It had engaged with them in the banking business, and, in 1836, had signally failed, engulfing the munificent donation of the Federal government for the education of its children, and accumulating a debt which thirty-five years of taxation has not diminished. These taxes were all collected by counties, through the instrumentality of their organization, executing directly the State laws. Debt, taxation, aud consequent discontent, was the mischief. The remedy was to avoid it in the future. Who cared how much the State engaged in business or trade of any kind, if no debts contracted were to be paid by taxation ? What is the basis of the credit which the general assembly is authorized to pledge on undoubted security ? Whether a debt is due by the county or the Slate, does it not strike directly at the credit of the State? Who would trust a State full of bankrupt counties ? Was it not the object of the convention to preserve unimpaired the credit of the State, that it might be used to the utmost advantage ? In view of the fact, that no act of legislation had ever before recognized the counties as distinct from the State, I am obliged to regard it as a forced construction of this section which would now separate them.
Which is most natural and obvious: that a State can create something which has no capacity in itself, and endow it with power to do that which its creator is unable to do ; or that it can not ? Every illustration given in favor of the first of these propositions fails, lecause of some inherent or acquired capacity in the creature to do what the legislature merely regulates, not confers the power of doing. *741Why construe this provision of the organic law, evidently intended for the protection of each individual citizen, against his right to dispose of and control his own as he pleases, and in favor of the power of irresponsible persons to drag him into reckless speculation, and reduce him to poverty? If a county be not a municipal corporation, in the sense of section 36, supra, as I think it is not, then the entire property of the people of any county in this State is at the mercy of any combination of capitalists who maybe able, by fair or foul means, to control the vote of the county. They may confiscate it to their own use in the construction of railroads which, though they pass through the county, run miles away from it. The present constitution of our State asserts pre-eminently the sacredness of individual rights. It seeks to exalt the person, and to find in the security given to each the best protection for all against the tyranny alike of the government and the community.
It is insisted that, by applying the restraint of section 33, article 4, to the delegation of sovereignty as well as to its direct exercise, we prohibit all those enterprises which are usually regarded as pertaining to the ordinary administration of government. This is an admission of the stern spirit of the restriction, suppressing all such issues as look like an evasion of its meaning. There is a difference easily defined between the undertakings of government and the callings of business, though the actor in both be the State. The building of court houses and prisons, and the construction of highways and bridges, are eminently within the province of government, because they are for the use of all, without property in them for any. Even the clearing away of obstructions in navigable streams, or the moderate improvement of their navigation, must devolve upon the State, for the same reason. It can not be left to private expenditure, because the duty of the State to all its citizens forbids the granting of such exclusive privileges as would afford adequate compensation. The boundaries of the duty of the government in this respect, are of course flexible, depending upon the culture and enlightened progress of the people. A wagon or stage coach on the com*742mon highway will no more answer instead of the railroad with its trains of cars, than the canoe or barge can take the place of the magnificent steamer on the river, when the advance of the people requires the change. The time may come when the railroad shall substitute the highway as the legitimate subject of State construction,- and when trains shall be run' upon them by individuals or companies, as public carriers, under a license sufficient to keep them in repair. But that is not now, and very different will it be from the State engaging in business as a banker, carrier, merchant, and the like, and then, as a government, seizing upon the means of the people to carry it on. Against this the constitution has provided throughout all the departments and divisions of the State, whether county, city, or town, save only that their credit may be pledged on undoubted security.-