dissenting: The complaint alleges the illegality and invalidity of a tax, designated as “ the railroad tax,” levied to pay the interest on bonds to the amount of two hundred thousand dollars, issued by the commissioners of the county and delivered to the Dakota Southern Railroad Company.
The said bonds were issued and delivered in pursuance of the following: first, of an act of the Territorial Assembly, passed at an extra session, on April 21,1871, the illegality of which session is asserted; secondly, of an election held in September following, at which a majority of those then voting, voted to extend the aid of the county to the said railroad, by *268a donation to the amount aforesaid, in bonds of the county, payable in twenty years, with interest; and, thirdly, of an act of Congress, approved May 27, 1872, entitled “ An act in relation to the Dakota Southern Railroad Company,” which validated the provisions of the Territorial act, so far as the same authorized any vote of aid and subscription to said railroad.
In his complaint the plaintiff prays that said railroad tax, levied on his property, may be declared illegal and void, and that, the county and its agents may be perpetually enjoined from proceeding to collect such tax.
The defendants demurred to the complaint, for that it “ does not state facts sufficient to constitute a cause of action.”
The court below sustained the demurrer, and gave judgment that the complaint be dismissed. The plaintiff appealed.
By the Organic law of the Territory, of March 2, 1861, it was declared that the legislative power shall extend to all rightful subjects of legislation consistent with the Constitution ■of the United States and the provisions of that act; but no law shall be passed interfering with the primary disposal of the soil; ho tax shall be imposed upon the property of the United States; nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents; nor shall any law be passed impairing the rights of private property; nor shall any discrimination be made in taxing different kinds- of property; but all property subject to taxation shall be in proportion to the value of thé property taxed.
This law was formed upon the model of the famous ordinance of Congress of the 18th of July, 1787, which has ever since constituted, in most respects, the model of all our territorial governments.
On the 6th of January, 1868, the Legislative Assembly of this Territory at a regular and lawful session, passed a general incorporation act, entitled “'An act to regulate incorpo-rations,” which, among other things, provided for the incorporation of railroad companies. Under it, the Dakota South-*269era Railroad Company, in or about April, 1871, became organized, for the construction of a railroad from Sioux City, Iowa, to the city of Yankton, the capital of this Territory.
On the 21st of April, 1871, the Governor of the Territory approved an act, entitled “An act to enable organized counties and townships to vote aid to any railroad, and to provide for the payment of the same.”
In the following autumn, to-wit: on the 2d day of September, 1871, in pursuance of said last enactment, at an election then held, a majority of the voters of Yankton county voting on that day, decided to grant a donation of two hundred thousand dollars to aid the said railroad company, in bonds of said county, payable in twenty years, bearing eight per cent, interest, the interest payable semi-annually. But doubts arose as to the above legislation.
In the first place, although the Organic act had conferred on the assembly legislative power co-extensive with all rightful subjects of legislation, not inconsistent with the Constitution and that act, yet Congress on March 2, 1867, enacted that the Legislative Assemblies of the several Territories shall not grant private charters or especial privileges, with the exception, however, that they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate, for mining, manufacturing, and other industrial pursuits.
This last named act of Congress created the doubt as to the validity of the Territorial act of January 6, 1868, in relation to the incorporation of railway companies.
In the next place, the validity of the Territorial act of April 21, 1871, was questioned. The regular session of the Assembly was over. It had convened on the 5th of December, 1870, and had concluded its allotted term of forty days on the 13th of January, 1871. The members of that regular session had been chosen for the term of two years, and the sessions could only be biennial. The session in April was an extraordinary one; it had been called by a proclamation of the acting Governor; and his right to do so was doubted or denied.
*270In this juncture of affairs, Congress was appealed to, and its power invoked to ratify transactions performed under color of the said Territorial enactments. In other words, Congress was asked to make a law to cure all defects of power in said enactments passed by the direct or reputed representatives of tlie people, and to heal all irregularities.
Accordingly, Congress on May 27, 1872, enacted a law, entitled—
“An act in relation to the Dakota Southern Railroad Company.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act passed by the Legislative Assembly of the Territory of Dakota, and approved by the Governor on the twenty-first day of April, eighteen hundred and seventy-one, entitled “ an act to enable organized counties and townships to vote aid to any railroad, and to provide for the payment of the same,” be and the same is hereby disapproved and annulled, except in so far as is herein otherwise provided. But the passage of this act shall not invalidate or impair the organization of the company heretofore organized for the construction of the Dakota Southern railroad, leading from Sioux City, Iowa, by way of Yankton, the capital of said Territory, to the west line of Bon Homme county, or any vote that has been or may be given by the counties of Union, Clay, Yank-ton and Bon Homme, or any township granting aid to said railroad, or any subscription thereto, or anything authorized by and that may have been done in pursuance of the provisions of the aforesaid act of the Legislative Assembly of said Territory toward the construction and completion of said railroad; and the said Dakota Southern Railroad Company, as organized under and in conformity to the acts of the Legislative Assembly of said Territory, is hereby recognized and declared to be a legal and valid corporation; and the provisions of the act of the said Legislative Assembly first aforesaid, so far as the same authorize, and for the purpose of validating any vote of aid and subscriptions to said company for the construction, completion and equipment of the main *271stem of said railroad, 'between the termini aforesaid, are hereby declared to be and remain in full force, but no further, and for no other purpose whatsoever.
Sec. 2. That for the purpose of enabling the said Dakota Southern Railroad Company to construct its said road through the public lands between the termini aforesaid, the right of way through the said public lands is hereby granted to said company to the extent of one hundred feet in width on each side of said road: Provided, That nothing in this act shall relieve said Dakota Southern Railroad Company from constructing and completing said railroad in accordance with the conditions and stipulations under which the citizens of the counties therein named, voted aid to said railroad in accordance with the laws of said Territory, approved April twenty-first, eighteen hundred and seventy-one: Provided farther, That said Dakota Southern Railroad Company shall issue to the respective counties and townships, voting aid to said rail-* road, paid up certificates of stock in the same in amounts equal to the sums voted by 'the respective counties and townships.”
Very shortly thereafter, to-wit: on the 10th day of June, 1872, it passed another curative act, as follows: “ That the “first section of an act, approved March 2d, 1867, entitled “ An act amendatory of ‘An act to provide a temporary government for the Territory of Montana,’ approved May 26, 1864, so far as relates to incorporations which have been, or which may hereafter be, created and organized for the business of mining, manufacturing, or other industrial pursuits, or the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith, or for colleges, seminaries, churches, libraries, or any benevolent, charitable, or scientific association, and for all rightful subjects of legislation consistent with the Constitution of the United States, under the general incorporation laws of any Territory of the United States, shall be construed as having authorized, and as authorizing the Legislative Assemblies of the Territories of the United States, by general incorporation acts, to permit persons *272to associate together as bodies corporate for purposes above named.”
After the passage of these acts of Congress, i. e., on the first day of July, 1872, the board of county commissioners of Yankton county, acting in behalf of the county, executed bonds of the county to the amount of two hundred thousand dollars, payable twenty years after that date, bearing interest at the rate of eight per cent, per annum, payable semiannually, and which interest is represented by coupons attached to the bonds, which bonds were afterwards, and during that year, and the year 1873, issued and delivered to the railroad company, in pursuance of the said disputed Territorial enactment of April 21, 1871, and of the said legislation by Congress.
It is no where alleged that the election held on the second day of September, 1871, was not held or conducted in the 'manner, and according to the directions, prescribed in the enactment of April 21, 1871. There is no charge of unfairness, or fraud, as respects the election. It is admitted that a majority of the electors, voting at said election, did vote to extend the aid of the county, to that railroad company, by a donation, or gift, to the said amount, and that the bonds of the county should be issued therefor, the principal to be payable in twenty years, and the interest of eight per cent, payable semi-annually.
The enactment of April 21, 1871, was a general one, applicable to all organized counties and townships in the Territory, and the fifth section thereof declares that “ if a majority of the electors, voting at such election, vote for the issue of bonds, the board of county commissioners shall cause such bonds as may be required by the terms of said vote, to be issued and delivered in accordance with section second of this act, in the name of such county or township, to be signed by the chairman of the board of county commissioners, and attested by the register of deeds, under the seal of the county.” And the sixth section is this — “ whenever any bonds shall be issued in pursuance of the foregoing provisions, it shall be the duty of the board of county commissioners, annually to *273proceed to levy and collect a tax on all the taxable property •of the county or townships voting such tax, sufficient to pay the interest on said bonds: Provided, That no more than two per cent, of the assessed valuation of the property in any •county or township, shall be raised in any one year under the provisions of this law, either for the payment of interest or bonds.” The next sections provide for a sinking fund, and for the collection of the tax as county taxes are collected, and payment by the treasurer on presentation of the coupons, etc.
It is alleged that the session of the Assembly, at which the act of April 21, 1871, was passed, was wholly without authority of law; secondly, that the act itself was and is wholly illegal, nugatory and void: thirdly, that the vote of aid, and all proceedings thereunder, are and were inoperative and void; fourthly, that the said railroad company is a private corporation organized and operated solely for private gain; and, fifthly, that the act of Congress of May 27, 1872, so far as it •operates to validate or authorize the taking of property by taxation or otherwise, for the benefit of said corporation, is invalid and of ño binding force or effect.
A solution of these objections may be reached, by considering their main features. And in the first place, it is a well established principle that debts contracted by municipal corporations must be paid, if paid at all, out of taxes which they may lawfully levy; and that all contracts by them, creating debts to be paid in future, (not limited to payment from some other source) imply an obligation to pay by taxation. The right of a county, or township, to contract a debt, must, therefore, be limited by its right to tax.
If in the case before us, no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it. The validity of a contract which can only be fulfilled by a resort to taxation, depends on the power to levy a tax for that purpose. ..
It is settled, by a vast weight of authority, that the building of a railroad is for a public purpose. Debts created by counties and other municipalities, in aid of railroad companies, are held to be valid on the ground that- the purpose *274for which the taxes to pay them are'levied, is for a public use, and for a purpose or object which it is the right and duty of the government to assist, by money raised from the people by taxation. Railroad corporations have the power to obtain right of way; they are subject to the laws which govern common carriers; these roads are established as post-roads; and, therefore, they possess these and the like characteristics of a ;public nature.
If Congress authorizes counties in a Territory to contract debts in aid of a railroad, it must intend to authorize them to levy such taxes as are necessary to pay the debts, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference. These general views prepare the way for an inquiry into the chief objection urged — namely, has Congress the constitutional power to enact such a law as the act of May 27, 1872?
And first, what are the sources of the power of Congress to legislate for a Territory of the United States, and what is the extent of that power?
In the case of the American Insurance Co. v. Canter, 1 Peters, 511, the sources of the power of Congress to legislate for a Territory were referred to by Chief Justice Marshall. He said that “ the Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; consequently, that government possesses the power of acquiring territory either by conquest or treaty.” Again he remarked upon that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property of the United States, and leaving the true source of the power as between the two an open question, he remarked that “ perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily, from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the *275right to acquire territory. Which ever may be the source whence the power is derived, the possession of it is unquestioned.” That is to say, without specifying or deciding whether the power arises by necessary implication from the right to acquire territory, or whether it proceeds from the express words “ to make all needful rules and regulations respecting the territory,” the possession of the power is admitted and cannot be questioned.
In the case of Dred Scott v. Sandford, 19 How., 393, Taney, C. J., in reference to the case of the American Insurance Co. v. Canter, said: “ It is thus clear, from the whole opinion on this point, that the court did not mean to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in this we entirely concur, and nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court- — that is, as the inevitable consequence of the right to acquire territory A
Mr. Justice Curtis, on the contrary, deduced the power of Congress to govern the Territories, not from the right to acquire, but from the power expressly granted to make all needful rules and regulations. He put it on the ground that as “ this is a grant of power to Congress, that it is therefore necessarily a grant of power to legislate; and, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed., in my judgment, tend in any degree to restrict this legislative power. Power granted to a legislature to make all needful rules and regulations respecting the territory, is a power to pass all needful laws respecting it.” And again: “ The question whether a particular rule or regulation be needful, must be finally determined by Congress itself. Whether a law be needful, is a legislative or political, not a judicial question. Whatever Congress deems needful is so, under the grant of power.” And further: “I cannot dbubt that this is a power to govern the inhabitants of the Territory, by such laws as Congress deems needful, *276until they obtain admission as States. Whether they should be thus governed solely by laws enacted by Congress, or partly by laws enacted by legislative power conferred by Congress, is one of those questions which depend on the judgment of Congress — a question which of these is needful.”
But in the present case, the source of the power of Congress is unimportant. In the Dred Scott case, the majority of the court admitted that, under the implied authority, Congress has power to organize and govern the Territories until they arrive at a suitable condition for admission to the Union; they admitted, also, that the kind of government which shall thus exist should be regulated by the condition and wants of each Territory, and that it is necessarily committed to the discretion of Congress to enact such laws for that purpose as that discretion may dictate. And Taney, C. J., in his opinion — save as to property in slaves — points out no limits to that discretion, save only those which are found in the Constitution itself. (See article I, section IX; also Amendments to the Constitution.)
Mr. Justice Catron, in a vigorous review of the source of the power, held “that Congress is vested with power to govern the Territories of the United States by force of the third section of the fourth article of the Constitution. (Scott v. Sandford, supra; Cross v. Harrison, 16 How., 193.)
Mr. Justice McLean held likewise, declaring that the power to make all needful rules and regulations is a power to legislate, because Congress cannot make “ rules and regulations ” except by legislation. In referring to the criticism of Taney, C. J., on the opinion of Marshall, C. J., in the case of the Ins. Co. v. Canter (supra) Justice Me Lean said — “ I can see no want of precision in the language of the Chief Justice; (Marshall) his meaning cannot be mistaken. He states, first, the third section as giving power to Congress to govern the Territories, and two other grounds from which the power may also be implied. The objection seems to be, that the Chief Justice (Marshall) did not say which of the grounds stated, he considered the source of the power. He did not specifically state this, but he did say, “ which ever may be the source *277whence the power is derived, the possession of it is unquestioned. No opinion of the court could have been expressed with a stronger emphasis; the power in Congress is unquestioned. But those who have undertaken to criticize the opinion, consider it without authority, because the Chief Justice (Marshall) did not designate specially the power. This is a singular objection. If the power be unquestioned, it can be a matter of no importance on which ground it is exercised.”
And Mr. Justice Campbell, in same case, page 514, in illustrating the scope and operation of the third section of the fourth article of the Constitution, states that “ this clause in the Constitution does not exhaust the powers of Congress within the Territorial subdivisions, or over the persons who inhabit them. Congress may exercise there all the powers of government which belong to them as the Legislature of the United States, of which these Territories make a part. (Loughborough v. Blake, 5 Wheat., 317.) Thus the laws of taxation,” etc., “ are as operative there as within the States.” And again he says — “ I admit that to make the bounds for the jurisdiction of the government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the cognizance of the judiciary department of that government.”
Kent, in Vol. 1, page 421, of his Commentaries, declares that “ with respect to the vast Territories belonging to the United States, Congress have assumed to exercise over them supreme powers of sovereignty. Exclusive and unlimited power of legislation is given to Congress by the Constitution, and sanctioned by judicial decisions.” And again, “ the general sovereignty existing in the government of the United States over its Territories, is founded on the Constitution which declared that Congress should have power to dispose of and make all needful rules and regulations respecting the Territories, or other property belonging to the United States.”
Mr. Abbott, in his work on U. S. Practice, (Vol. 1, page 185) says that “ in legislating for the Territories, or the District of Columbia, Congress exercises an exclusive power of legisla*278tion, under the general authority given by the Constitution in respect to the territory belonging to the United States.”
In Story on the Constitution, (Vol. 2, § 1325) it is said that “ no oné has ever doubted the authority of Congress to erect Territorial governments within the territory of the United States, under the general language of the clause, “to make all needful rules and regulations.”. And in section 1328 it is further remarked, that “ the power of Congress over the public territory is clearly exclusive and universal; and their legislation is subject to no control, but is absolute and unlimited, unless so far as it is affected by stipulations in the cessions, or by the ordinance of 1787, under which any part of it has been settled.”
If then Congress possesses the power of exclusive legislation in and over the Territory of Dakota, it must follow that Congress also inclusively possesses the power of taxing the Territory. The grant to Congress of exclusive legislation ove'r a Territory, necessarily implies the power to impose taxes for the public purposes of the Territory. The power thus to tax needs not to be particularly specified or expressed. It is inherent in every sovereignty. No constitutional government can exist without it.
In the case of Providence Bank v. Billings, 4 Peters, 561, Marshall, C. J., said — “ the power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It resides in the government as part of itself, and need not be reserved where property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of any individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the Legislature. This vital power may be abused; but 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 taxation.” And again the same Judge says, in McCullock *279v. Maryland, 4 Wheat., 430, it is “ unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse, of the power.’’
In the case of Loughborough v. Blake, 5 Wheat., 317, a question was made whether Congress had constitutionally a right to lay a direct tax, according to the rule of apportionment, on the District of Columbia, under the prohibition in subdivision 4, of section IX of article I, — “ no capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”
After a clear and elaborate argument on the power of Congress as to this right, the following words are found in the opinion: “ If the general language of the Constitution should be confined to the States, still the sixteenth paragraph of the eighth section gives to Congress the power of exercising exclusive legislation in all cases whatsoever within this district. On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion.” What is this but declaring that any grant of exclusive legislation, carries with it the power to impose taxes? ■ What is this but saying that, apart from any interpretation by legal minds, the common sense of mankind so construes such a grant?
Exclusive legislation in the district, or in a Territory, must mean such legislation as is suitable or needful in the government of such particular portion, or locality, of the whole domain termed the United States, in contradistinction to that other kind of legislation which embraces the entire community thereof. In respect to the latter, “ Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States,” thus laying down the rule of uniformity, as well as that of apportionment above referred to, concerning direct taxation. But this power relates to general taxation throughout the Republic for purposes appertaining to its general welfare.
*280But whence is derived, and who has, the power to tax the District of Columbia, or the Territory of Dakota, for its local purposes, and for its local welfare? The answer is, that the people of the United States ordained and established a Constitution, in which, and by which, the power of exclusive legislation, and, consequently, the power to tax, were granted to Congress over this Territory, as well as over the district, for all local objects and purposes.
The people of the United States permitted their representatives to tax a part of the society, organized under the Constitution, which is in a state of infancy advancing to manhood, and looking forward to complete equality as soon as that state of manhood shall be attained — as well for municipal or Territorial purposes, as for strictly natural objects.
The history of the legislation of Congress over the District of Columbia, abundantly exhibits and proves this marked division of the taxing power. In the one case, for national purposes, under the general power, contained in section eight, article 1, Congress has laid the taxes in proportion to the census; and duties, imposts and excises, under the rule of uniformity. In the other case, for strictly Territorial or municipal purposes, apart altogether from national objects, Congress imposed taxation on the particular subdivision, by virtue of its power of exclusive legislation, thereby exercising a power parallel to that of a State government. And this may serve to show the meaning of Marshall, C. J., in the case in 1 Peters, above quoted, in which that eminent Judge said that “ in legislating for them ” (the Territories) i£ Congress exercises the combined powers of the general and of a State government.”
■ Congress asserted its undisputed sovereign power, when, in the legislative grant contained in the Organic act of this Territory, it put certain restrictions or limitations upon the power of the Legislative Assembly in reference to the subject of. taxation. And so likewise in regard to the District of Columbia. A Territory is, as it were, a vast municipal or public corporation, created by Congress, and deriving all its powers from the source of its creation. It is a great body politic and cor*281porate, invested with subordinate legislative powers, to facilitate the due and proper administration of its own internal aifairs, and to promote the general welfare of the municipality. Of itself it has no inherent jurisdiction to make laws, orto adopt governmental regulations; nor can it exercise any other powers in that regard than such as are expressly or impliedly derived from its charter or Organic act, or other act of Congress. And as with a mere ordinary municipal corporation in a State, so with a Territory, it is settled law, that the Legislature in granting the specific authority does not divest itself of any power over'the inhabitants of the district which it posséssed before the charter was granted, or the Organic act was passed. Unless the Constitution otherwise provides, the Legislature still has- authority to amend the charter of such a corporation, to enlarge or diminish its powers, extend or limit its boundaries, divide the same into two or more, and to overrule its action whenever it is deemed unwise, impolitic, or unjust. (Cooley on Const., 2d Ed., 192.) The charters bf such public corporations may be changed, modified, or repealed, as the public welfare may demand. (2 Kent Com., 305; 1 Greenl. Ev., 12th Ed., § 331; Russel v. Reed, 27 Penn. St., 170.)
This conclusion is reached, that as Congress has the power of exclusive legislation over this Territory, within which is necessarily included the right of taxation, therefore the Act of Congress of May 27, 1872, entitled “An act in relation to the Dakota Southern Railroad Company,” is valid and constitutional.
The next consideration is as to the scope and effect of this act of Congress. It begins by terming the body of men who passed the Territorial enactment of April 21, 1871, as “ the Legislative Assembly of the Territory bf Dakota.” As Congress was about to legislate on this Territorial act, they knew its origin and history, and had, of course, the whole body of it before them; and all its features, bearings and results were duly scanned and considered. Its title was “An act to enable organized counties and townships to vote aid to any írailroad, and to provide for the payment of the same.” It *282was, as has been remarked, a general act, applicable to all counties in the Territory, and to any railroad. In this shape, at least, Congress was averse to it; and it was accordingly disapproved and annulled, except in so far as Congress, in its wisdom, otherwise provided. The Territorial enactment thus became narrowed down to such transactions as had occurred, or might occur, between the voters of the counties of Union, Clay, Yankton and Bon Homme, and one railroad company, to-wit: the Dakota Southern. Contracts and engagements before that time made and entered into, between the parties specified, or that might thereafter be made, were sanctioned, approved and authorized. Any vote that had been given by the county of Yankton; granting aid to the said railroad, or any subscription thereto, or anything authorized by, and that had been done in. pursuance of, the provisions of tne Territorial act, toward the construction and completion of this particular railroad, was saved and reserved out of the general disapproval, and declared valid. And all the provisions of the Territorial act, so far as they authorize any .vote of aid and subscriptions to the said railroad company, were declared to be and remain in full force. The purpose is clearly expressed by Congress, i. e., to validate past transactions, done in pursuance of the Territorial enactment, between the said railroad and the specified vo'ters.
The act of the Legislative Assembly, thus denuded of its public or general character, became, by the ratification of Congress, a private statute, concerning only a particular railroad company and a few municipalities. And the Supreme Court of the United States has repeatedly recognized the validity of private, curative statutes, and given them full effect, where the interests of private individuals were alone concerned, and were largely involved and affected. In Satterlee v. Matthewson, 2 Peters, 380, it was asserted that retrospective laws, which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of the Constitution.
In Wilkinson v. Leland, 2 Peters, 627, it was admitted that the act was retrospective, and yet gave validity to a void *283transaction. (See, also, Watson v. Mercer, 8 Peters, 88; Leland v. Wilkinson, 10 ibid, 294; Charles River Bridge v. Warren Bridge, 11 ibid, 420; Stanley v. Colt, 5 Wall., 119; Croxall v. Shererd, ibid, 268.)
Cooley on Const. Limitations (page 374) says, that legislative acts validating invalid contracts have been sustained; and that when these acts go no further than to bind a party by a contract which he has attempted to enter into, but which was invalid by reason of personal disability on his part to make it, or through neglect of some legal formality, or in consequence of some ingredient in the contract forbidden by law, they cannot well be obnoxious to constitutional objection. The same author, under the head of “ Retrospective Laws,” in referring to contracts by municipal corporations, which, when made, were in excess of their authority, but subsequently have been confirmed by legislative action, states that “ if the contract was one which the Legislature might originally have authorized, the case falls within the rule we have laid down, and the legislative action is to be sustained. Some of the cases where municipal subscriptions in aid of railroads were held valid, were cases where the original undertaking was without authority of law, and was confirmed by retrospective act of legislation.” (Referring, inter alia, to Thompson v. Lee County, 3 Wallace, 327.)
But still more important is the case of Beloit v. Morgan, 7 Wallace, 619, in which it was held “ that in cases of bonds issued by municipal corporations, under a statute upon the subject, ratification by the Legislature is in all respects equivalent to original authority, and cures all defects of power, if such defects existed, and all irregularities in its execution.” (See, also, Bissell v. City of Jeffersonville, 24 How., 295; Ritchie v. Franklin County, 22 Wall., 68.)
The contract between the county of Yankton and the railroad company in question, was one which Congress might originally have authorized, and therefore the congressional action of May, 1871, ratifying the same, must be sustained. By the fifth section of the ratified act, it became the duty of, and it was obligatory on, the board of county commissioners *284to issue and deliver the bonds to the railroad company, if a majority of the electors voting at an election held in pursuance of the local act, had so decided; and to issue them in conformity to the amount specified by a majority of the ballots, and to the terms of payment, to the interest, extent of time, etc., thus voluntarily agreed upon. And in the view I have taken of this case there is no substantial difference between a vote of donation to aid a railroad, and a subscription to its capital stock.
But there is another point in the case which should receive consideration. The complaint shows that the bonds have been issued and delivered to the railroad company, with coupons attached representing the interest. It shows they were executed, issued and delivered in 1872 and 1873. And yet the railroad company has not been made a party defendant to this suit. The company is, so far as it appears, directly interested in the result; or, as is shown, the company has rights which must necessarily be affected by the judgment of this court. The opinion of the majority of the court ignores all claims of the company, and even of innocent holders. The absence of such party may be objected to, and taken at any time upon the hearing, or in the appellate court. Our local statute provides that “ the court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.”
Here is a case in which this court undertakes to decide upon the rights of a party acknowledged to possess bonds in question to the amount of two hundred thousand dollars, in the absence of such party, and without any allegation that he is beyond our jurisdiction.
What rights and equities the railroad company may have, apart from the present display of the case, we know not; but surely before deciding, a party like this should be heard, or his absence regularly accounted for. (1 Peters, 299; 17 How., 130; 19 How., 113.)
*285From the issuing of these bonds in 1872 until the bringing of this action in 1875, the county commissioners have annually levied a tax, designated as the railroad tax, for the purpose of paying.the interest — and in none of these years has the levy exceeded two per cent, of'the assessed valuation of the property. This has been done in pursuance of the sixth section of the ratified act of the Assembly. It would seem, therefore, that there has been acquiescence until this suit, which is one brought by a single taxpayer.
The plaintiff asks that the railroad tax levied on his property to pay the interest, may be declared illegal and void, and that the county and its agents may be perpetually enjoined from proceeding to collect such tax. The defendants, namely, the county itself and its treasurer, demurred to the complaint, for that the complaint does not state facts sufficient to constitute a cause of action. In other words, the county resists, by its pleading, the prayer of the plaintiff, and thereby, on this record, impliedly admits that the tax is lawful and valid, and, consequently, opposes the granting of the injunction.
I fully concur with the county and its financial agent in the view thus presented by their demurrer, and I hold, in accord-dance therewith, that the complaint does not state facts sufficient to give the plaintiff a cause of action.
The judgment of the District Court, which sustained the defendants’ demurrer, and dismissed the complaint, should, in my opinion, be affirmed.