dissenting. From the best examination which I have been enabled to give to the subject matter now before the court, I have not been able to bring my mind to the same result to which my brethren have come, and I feel called upon to state the grounds of my opinion as briefly as the importance of the case will admit. The whole question in issue, is, I apprehend, involved in this single inquiry, has Mann, by reason of his appointment as the agent of the town of Randolph, by the county commissioner, under the act of 1852, passed “to prevent the traffic in intoxicating liquors,” a valid authority to bind the town? If he had not, it is clear, judgment should be for the defendants. Before proceeding to consider the main question in the case, it is important to dispose of some preliminary ones.
It is too late to question that the statute of 1852 is a matter of police regulation, and the courts of this State have already held the main provisions of that law to be constitutional, and it need hardly be said, that if the main provisions and the whole scope of a law are of a police character, the minor provisions, which were designed to carry out the main provisions of the law, and to remove all temptation or occasion for violating the prohibitory part of the law, are equally of a poKce character with its main provisions.
It was the right and the duty of the legislature, not only to provide proper penalties for the violation of its prohibitory provisions, but to throw around the law such guards as were calculated to prevent its abuse; and hence the legislature sought to regulate the traffic in cases where it was allowed by tire statute to keep and sell intoxicating liquors ; and if they have exercised that right in a constitutional manner, no one can complain of a want of power, even though he may differ from the legislature as to the expediency of the provision. It can not be claimed, and *241I do not put the case upon any such ground, that the town of Randolph and Mann stand in the relation of principal and agent, as that relation exists at common law; but he is to be viewed in the light of a government agent, appointed by the county commissioner, whose election is given to the freeman of the county, and under whose immediate control the town agent is placed, and subject to removal by the commissioner. Both the county commissioner and the toivn agent act officially, and by virtue of their appointment, under the act of 1852, and it is only in this sense that Mann can be called an agent for Randolph, and in this view we are to consider the question, whether it was within the pale of the constitutional powers of the legislature to invest Mann with authority to bind the town to pay for liquors bought by him for the legitimate purpose of carrying out his agency. The fact must not in this case be lost sight of, that the legislature have not undertaken to compel towns to go into a traffic in ardent spirits, or become accessory thereto for the purpose of private gain and advantage, and there is no blending of the public purpose, which the government had in view, with a private one. By the statute, the liability of the town is only made co-extensive with the public purpose and necessity. The government agent is only supposed to purchase liquors upon the credit of the town for the special purposes designated in the public act of the legislature, the traffic in which they have deemed it wise to put under the control of their immediate agents.
It is not to be presumed that the agent may or will abuse his trust, and we can not, from an abuse of the trust, infer a want of power in him to do the things which the statute fairly contemplates he should do. Though the towns are to have the avails of the sales, after paying the agents, and this is but a matter of justice, still, the idea that this was a business gone into for the private profit of the towns, has not entered the head of any one. The liability upon the towns was imposed by the legislature purely for a public pivrpose, and to carry into execution a police regulation, but the question still returns, had the legislature the constitutional power to carry out this police regulation in the manner in which they have attempted to do it ?
The federal government has only such powers as are delegated *242to it expressly by the United States constitution, or such as are .impliedly given, as being necessary to carry out those which are expressly given. The State constitution contains a general grant of all powers, not excepted, and in our bill of rights it is declared “ that the people of this State, by their legal representatives, have the sole, inherent and exclusive right of governing and regulating the internal police of the same.” It may be, and is, I think, true that the State government would possess such power independent of this provision in the bill of rights, and that its design was to express a positive denial that the general government should possess any such power, but this does not seem material to the question in issue. That the internal police of the State is a matter for the State legislature exclusively to manage, is a point conceded by all, and I am not aware of any provision in the State constitution which is impugned by the third section of the act of 1852. The question before us is not a question of policy, but of constitutional poiuer, and no court should presume to declare an act of a co-ordinate branch of the government void, except where the act is a clear and a palpable violation of the constitution, in fact, so clear and palpable as to leave no doubt or hesitation on the minds of the court.
This is the rule as expressed by Chief Justice Marshall, in the case of Fletcher v. Peck, 6 Cranch 128, and the same thing has been said in substance by courts, as often as a question of constitutional law has come before them. If neither the United States constitution, nor that of this State, contain a denial of the power in the legislature to enact the provision in question, I hardly think it will be claimed by any constitutional lawyer that the provision in the act under consideration is void, as being against the principles of natural justice, Objections to a law, resting upon principles outside of those instruments, should be addressed to the legislature, or to the peoplq, and not to courts. Courts can not correct an' abuse of power in the legislature, so long as they keep within the general scope of the powers given them by the constitution of the United States, and not denied them by the State constitution. Under the constitution of the United States, nothing can be done but what is authorized expressly, or by clear implication by that instrument; but the legislature, under *243the State constitution, may do whatever is not prohibited. The powers, not given to the government of the Union, are conferred upon the government of the State, with those limitations and exceptions expressly contained in the State constitution.
Inasmuch as it must be conceded that the statute of 1852 is a matter of police regulation, and within the province of the legislature, it must be admitted they had the right to provide a mode by which liquors might be kept and sold for certain lawful purposes, with the design of thereby removing both the temptation, and any fancied necessity of violating the prohibitory parts of the law, and may do it in such a way as they shall think proper, if they keep within the pale ' of their constitutional powers.
We do not claim that the legislature can pass a law taking the property of one man and giving it to another, whether with or without compensation. Such a proceeding would not have the character of a law. It would be nothing more nor less than a sentence or edict, but that, as it appears to me, is not this case. This act does not attempt to divest the towns of any property, but simply confers upon the town agent the power to purchase liquors upon the responsibility of the town, not for the purposes of an ordinary traffic, but to carry out a police regulation; and though it may be true “ that the power of making bargains for individuals has not been delegated to any branch of the government,” as was said by Bronson, J. in 4 Hill 143, yet, as I conceive, the towns are not bound by force of any contract, but a duty is imposed upon the towns, as municipal corporations, to pay for the liquors, and this for political purposes and to carry out a police regulation.
Upon the creation of towns for political purposes, the State does not part with any legislative power over the inhabitants of the town or their property, and the inhabitants, as corporators, can claim no exemption from the general legislation for police purposes. The reasons are obvious. They are not made corporators by the organization of the town, so as to have any interest in the property of the territory which they had not before, and no such exemption is made in the charters; and certain it is, that none should be implied which would be calculated to weaken the *244legislative power of the State ; and it may be added, that if such an interest existed, it would be an individual right which a majority could not vote away.
It is the duty of the State to make police regulations, guarding the property, health and morals of its inhabitants, and none can question their right to regulate the sale of medicine, food, powder, intoxicating liquors and the like, so as to prevent an indiscriminate sale and use of the same. If the State can not appoint agents to bind the towns, without their assent, because of a vested right in the inhabitants of the towns, which should exempt them from such legislation, it would follow that the legislature could not authorize a majority to bind a minority without their consent. If this provision in the law of 1852 is void, for want of constitutional power, the State could not direct that the towns should appoint agents to bind themselves without their consent. What the State can not do directly, they have no power to do indirectly. If the State has no power to impose a legal obligation or duty upon another, they can have no power to require such person to take upon himself such legal obligation or duty without his assent. The manner in which the agent is appointed is not the point upon which the question turns. The point is, I apprehend, the liability of the towns to be taxed against their will. In illustration of the principles which should govern this case, we may instance the case of highways. As a police regulation, the towns are required to build and maintain roads and bridges, and the State appoint a board whose duty it becomes to lay out and establish roads, and the towns are legally charged with the expense of paying land damages, and building and maintaining the roads, though aE is done against the consent and wül of the towns, and none can question that the right exists in the towns to tax the inhabitants to meet the expenditures.
Suppose the legislature should pass a law making it the duty of each town in the State to build poor houses, of such a plan and at such an expense, as an agent of the government should deem suitable, and clothing him with powers to build the same at the expense of the towns, could it be claimed that the legislature had transcended their constitutional powers, and that the right of taxation did not exist in the towns ?
*245There does not appear to he anything particularly unjust in the provisions of this law, as they strike me.
The town agents are made by the law trustees for the town, and hold the avails of the sales of the liquor sold, for the benefit of the town. But is is said, all this is without the consent of the town. Be it so, and though this might be a sound objection if it was the object of this law to authorize an ordinary traffic in ardent spirits, as a means of business, yet, this objection has no force in my mind, when we consider this duty is imposed upon the towns as part of a police regulation.
It may be, that the statute of 1852 does not sufficiently guard the towns against abuse, but we are not to presume an abuse by the town agents, and from that, argue a want of constitutional power to pass the law.
I do not see how this law can be considered obnoxious to that provision in the constitution which makes private property subservient to public uses, only on condition that the owner shall receive an equivalent in money. No property in this case is taken, nothing which can be estimated, and it has been well settled that consequential damages arising to a man’s real estate, from the construction of a railway across the lands of another, does not entitle the party to damages under this provision of the constitution, for the reason that nothing is taken for public use, within the provision of the constitution. I see no absolute necessity that the towns should have a right to appoint the agent, or should have a right to control him in order to render the act valid. He is to be treated as a government agent, and though, as matter of prudence, the legislature might well have limited the amount for which the agent could bind the town, and also require of him a a bond, with sureties, for the faithful performance of his duty, as Was done in the subsequent year, yet this does not go to show a want of power, it only affects the manner of its exercise.
The third section of the statute provides, that the town agent may purchase the liquors “ at the expense of the town.” The liability imposed upon the town is a statute liability, not resting in contract, expressed or implied,. and the privity between the vendors of the liquors and the towns, is a statute privity, and in *246no way dependant upon the ordinary principles of the common law relative to contracts. I do not claim that the legislature has power to make a contract between two persons, whether natural or artificial. An act attempting it, would not possess any of the attributes of a law, and besides, as the essence of every contract is the assent of the parties, it would not be practicable in the nature of things. But I do claim that a person, and especially a municipal corporation, may be bound without their consent, to perform their share of what may justly be deemed a public obligation or duty. Those duties and obligations which affect a person, not as an individual, but only as a member of the community in which he resides, and in the same way that his fellow citizens are affected, must necessarily be prescribed by the supreme power of the State. The legislature deemed it wise to keep the control of the traffic in intoxicating liquors, to be used for medicinal, chemical and mechanical purposes, in the hands of government agents, the design of which was, to prevent a violation of the prohibitory parts of the law.
To carry out this public provision in the law, it became necessary that the government agents should be possessed of the liquors, and in my view, that provision in the law, which empowers the town agent to purchase the liquors at the expense of the town, does impose a public duty upon the town in no way depending upon contract for its vitality.
It is objected to this law, that the town, nominally as a corporation, but in fact the inhabitants of the town liable to taxation, may be subjected to pay for the liquors bought by the agent proportionally to their grand lists.
Suppose it be admitted in a particular case, that the sum paid into the town treasury from the sales of the liquor be insufficient to pay the first cost of it, and it becomes necessary that the town vote a tax to make up the deficiency, the answer is, if this duty is imposed upon the town in pursuance of a law passed by the legislature of the State, and within the pale of their constitutional powers, it must be borne. The taxing power is in the legislature, and it is said by Chief Justice Marshall, in the case of McCullough v. State of Maryland, 4 U. S. Cond. 486, “ this power *247may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it.”
We do not claim that the power of taxation can be exercised for a private purpose, nor do we claim that the whole of a public burden can be thrown upon a single corporation or individual, under the pretence of taxing him, nor can one county or town be taxed to pay the debt of another. If this was attempted, the act of the legislature would not be a law, but would be no more than an edict or a judicial sentence. It is no doubt the theory of republican governments that there shall be an equality in taxation, but it has been well said “that a just and perfect system of taxation is yet a desideratum in civil government.” The rule as laid down by the supreme court of Kentucky, 9 B. Monroe 345, is “ that a tax law must be considered valid, unless it be for a purpose in which the community taxed has palpably no interest, where it is apparent that a burden is imposed for the benefit of others, and where it would be so pronounced at the first blush.” This rule we think judiciously laid down. We admit that the legislature could not authorize a municipal corporation to lay a tax in order to raise funds for a mere private purpose. This would not be taxation, which implies the raising of money for public purposes.
The right to tax depends upon the ultimate use and object for which the fund is raised, and not upon the channel through which it is to be applied. A tax for a private purpose is not authorized, though the funds pass through the hands of a public officer, and if the tax be for a public purpose, it is none the less valid because it may be under the direction of an individual. If the legislature were to pass a law appointing an agent to erect a pest house in each town in the State, and clothing him with authority to erect the same at the expense of each town, I apprehend no one would contend this was not a valid law, yet the purpose would be no more public, than the purpose under the law in question, which is to carry out a police regulation. If the legislature could create a debt against the State for the liquors that might be purchased by the several town agents, and lay taxes on the whole people to pay for them, may they not create a debt against each town for the *248liquors purchased By its own agent, and allow the town to tax themselves to promote the execution of a police regulation in their own town, in which all have a common interest. It is true, no doubt, that the inhabitants of a town cap not by vote impose a tax for an object entirely foreign to their political or municipal duties, but I do not deem this such a case. This is not to embark the town in a private business, or to make the people pay for something in which they have no interest. Towns are municipal corporations, creatures of the legislature, and I do not see how the constitutional powers of the legislature over them are to be limited, Unless there is an attempt to compel them against their will to go into a privóle business, or make them pay for a thing in which they have no interest.
It is, I apprehend, no objection to the validity of this law that the towns have no control over the government agents in regard to the discharge of their duties ; indeed, the whole policy of the law of 1852 is to put it in other hands.
It might have been wise to require the agents to give security for the due and faithful discharge of their duties, and to limit the amount for which they could pledge the credit of the town; but a want of this does not affect the question of constitutional power. We can not argue a want of constitutional power from the abuse of a law.
The legislature seeing no doubt that the third section of the act of 1852 might be exposed to abuse, in their act of 1853 guarded against it by limiting the powers of the town agents to bind the towns in any case to the sum of five hundred dollars, and not for any amount, even under that sum, unless by the direction or permission of the selectmen of the town, or unless the agent should deposit with the selectmen of the town a good and sufficient bond m the sunn of five hundrred dollars, conditioned for the faithful execution of his agency. See statutes of 1853, p. 20. This act of 1853 does not go upon the ground that the legislature treated the third section of the act of 1852, as unconstitutional, but simply to guard it against abuse. If the agent deposited the bond, he could bind the town, nolens volens, to the amount of five hundred dollars.
This involves the same constitutional principle as is involved in the act of 1852.
*249It can hardly be made out that the third section of the act of 1852 is within the prohibition of the constitution of the United States, which forbids the passage of a law impairing the obligation of contracts.
The law in no way acts upon a contract already made, but it attempts simply to impose a duty upon the towns for a public purpose, and this I think is within the constitutional power of the legislature if they see fit to use it. It may safely be assumed that the constitution of this State allows to the legislature every power which it does not in terms, or by necessary implication, prohibit, or which have not been delegated to the federal government. To oust the jurisdiction of the legislature, the prohibition must be express, or a necessary implication. As I can find nothing in the constitution of this State, or of the federal government, to forbid the provision in question, I think it should be held valid, and that the legislature should not be charged with having transcended their constitutional powers.