I do not concur in the conclusion reached by the foregoing opinions, because,
I. I deny that this court possesses any power or right to declare an act of the legislature unconstitutional, except it is in conflict with the written Constitution of our State. I think the doctrine, which is very clearly enunciated in the first two, and expressly stated in the last, of the foreging opinions, to wit: that we have an unwritten Constitution upon which courts may plant themselves to overturn and annul an act of the legislature, is unsound, without precedent and dangerous. For myself, I still adhere to and affirm the oft-repeated rule, that a State legislature may exercise all rightful legislative power not denied by the State Constitution; but the federal legislature can only exercise such powers as are granted by the federal Constitution. In determining the validity of an act of the State legislature, the question is, Has the power to make the enactment been expressly, or by necessary implication, denied ? and, in the case of a federal enactment, Has the power to make it been expressly, or by necessary implication, granted ? If denied in the one, or not granted in the other, the acts are invalid; otherwise, they are valid.
II. I deny that this court has ever decided that the legislature did not possess the power to clothe counties or cities with authority to subscribe for stock, or to aid in the construction of railroads or other works of internal improvement in or through them. It is not necessary or proper (in view of the space already occupied by *Page 79 this case) for me to review the numerous cases. Up to the case of Stokes v. The County of Scott (10 Iowa, 166), the legislative power, and that it had been exercised, was uniformly affirmed. In that case, WRIGHT, Ch. J., expressly declined to examine the question of legislative power; STOCKTON, J., declared that there had been at no time any doubt in his mind as to the power; and WOODWARD, J., very clearly affirmed the power. In his opinion in that case, WRIGHT, Ch. J., arranges the points for discussion in their natural order, under three distinct divisions:First, did the counties possess the inherent power?second, had the legislature clothed them with the power ? and,third, had the legislature any constitutional authority to clothe the counties with such power ? As to the first, he holds, in accord with the current of authorities, that counties do not possess the inherent power. As to the second, he shows by the legislative history, not only that the counties had not been clothed with the power, but that the legislature had twice expressly and by direct action refused so to clothe them — once, by striking from the report of the Code commissioners a clause conferring the power; and again, by voting down, upon reconsideration, a bill for an act giving it. Having thus decided that the legislature had not clothed the counties with the power, it became unnecessary (as stated by him in his opinion) to examine the question of the constitutional authority of the legislature to confer it, and this question is not discussed. The subsequent cases (without referring to them) have held the same doctrine and rested their decisions upon the same grounds. If any thing has been said in any of the opinions in respect to the constitutional authority of the legislature to confer the power, it was but the dictum of the judge writing the opinion, and not necessary to the determination of the case. And it is reasonably apparent that no such *Page 80 question has been decided or so regarded, from the fact that no such head-note or syllabus has ever been set to any case decided by this court. Some of the cases use the language that under our Constitution and laws counties and cities do not possess the power to subscribe stock, etc. But this is very different from saying that under the Constitution the legislature has no authority to pass a law giving the power. There can be no doubt, either upon principle or authority, that counties, cities or towns may not subscribe stock to a railroad, except they are authorized so to do by legislative enactment. Nor can there be the least possible doubt, in view of the legislative history on that subject, that no such authority has ever been given by our legislature, until the act now in question. Upon these two propositions, the later decisions of this court upon county and city railroad bonds are rested, and thereon are abundantly supported by the authorities. In every decision by this court, denying the validity of county bonds, it has been held that thelegislature had not passed any law authorizing their issue. If no such law had been passed, why discuss the constitutional authority of the legislature to pass one ? For whether the authority existed or not was immaterial, since the legislature had not attempted to exercise it. How, in view of these facts, our learned chief justice can say that "this court has held just such a law invalid," is beyond my comprehension. Upon any principle of interpretation of judicial opinions, there can be no escape from the conclusion that the question of the constitutional power of thelegislature to clothe the counties, cities or towns with authority to take stock in railroad corporations, or levy a tax in aid thereof, has never been decided by this court.
III. No clause of the Constitution of our State is cited or relied upon as denying to the legislature in express *Page 81 terms, or, indeed, by necessary implication, the authority to confer the power upon counties, cities or towns, to subscribe stock in, or aid by taxation the construction of, railroads. Nor do the foregoing opinions rest upon, or claim that there is any such clause; they go upon the theory, that the right of private property is paramount to all legislative authority, and the two clauses of the Constitution referred to, are quoted to strengthen the argument, rather than as a basis upon which to rest the conclusion.
These two clauses are substantially, and almost literally, in every State Constitution of this Union; and the question of the power of the legislatures, under the State Constitutions, to confer such authority upon counties, cities and towns has been before the Supreme Courts of at least twenty-one other States, and inevery instance the legislative power has been affirmed. See, among many others, the following cases, viz.: Sharpless v. TheMayor, etc., 21 Penn. St. 147; Commonwealth v.Perkins, 43 id. 410; The People ex rel. v.Mitchell, 35 N.Y. 551; Clark v. City of Rochester, 28 id. 605; Gould v. The Town of Venice, 29 Barb. (N. Y.) 442; Slack v. The City of Maysville, 13 Ben. Mon. (Ky.) 1;Maddox v. Graham, 2 Metc. (Ky.) 56; Nicoll v. Mayor,etc., 9 Humph. (Tenn.) 252; Goddin v. Crump, 8 Leigh 120; City of Bridgeport v. Housatonic R. R. Co.,15 Conn. 475; Society for Savings v. New London,29 Conn. 174; Cincinnati R. R. Co. v. Commissioners,etc., 1 Ohio St. 77; State, etc., v. Commissioners, 12 id. 596; Shoemaker v. Goshen, 14 id. 569; Prettyman v. Supervisors, etc.,19 Ill. 406; Butler v. Dunham et al., 27 id. 474, and cases cited; Gibbons v. Mobile, etc., R. R. Co.,36 Ala. 410; Robinson v. Bidwell, 22 Cal. 379; TheCommissioners etc. v. Bright, 18 Ind. 93; The City ofAurora v. West, etc., 22 id. 88; Augusta Bank v.Augusta, 49 Me. 507; Clark v. Janesville, *Page 82 10 Wis. 136; Mills v. Geason,11 Wis. 470; Caldwell v. Justices of Burke, 4 Jones' Eq. (N. C.) 323; Powers v. The Inf. Ct. of Dougherty Co.,23 Ga. 65; The St. Joe, etc., R. R. Co. v. Buchanan Co.,39 Mo. 485; City of St. Louis v. Alexander, 23 id. 483; Strickland v. Miss. R. R. Co.,27 Miss. 209-224; Cotton v. Com. of Leon Co.,6 Fla. 610; Police Jury v. Succession of McDonough,8 La. Ann. 341; San Antonio v. Jones, 28 Tex. 19.
It has also been repeatedly affirmed by the Supreme Court of the United States, certainly in more than twenty cases. SeeGilman v. Sheboygan, 2 Blackf. 510, and cases cited. And Judge Redfield, in his treatise on the Law of Railways, says: "It has been considered that a railway is so far in the nature of an improved highway, that the legislature may empower towns and counties to subscribe for stock in such companies whose roads pass through such towns or counties, and even where they tend to increase the business of roads which do pass through any portion of the territory of such towns or counties." * * * "The decisions in the several States seem all to have been in favor of the power of the legislature to build railways, at the public expense, of which there is, perhaps, no great question; for it seems to be a species of internal improvement, or intercommunication, which is, in a measure,indispensable to public interests and public functions in many ways. * * * It seems to us that, if these public works require public patronage, it would more appropriately come from the State than from the municipalities, which are created for limited purposes, and with no appropriate facilities for the management of pecuniary investments in such extended enterprises. But the weightof authority is all in one direction, and it is now too late tobring the matter into serious debate." 2 Redfield on Railways, 396, § 230 *Page 83 and note. (3d. ed.) So much then for the authorities, which, as stated by Judge Redfield, are all one way; and number near two hundred cases; the majority opinions in this case are in the face of, and contrary to, all of them.
IV. The first clause of our State Constitution, quoted to give strength to the argument of the majority, is section 9 of the bill of rights: "No person shall be deprived of life, liberty or property without due process of law." Now, it is as clear upon principle, as it is well settled by the authorities, that this clause of our Constitution, which is common to every State in the Union, has no reference whatever to the taxing power; nor has the term, "due process of law," any bearing or limitation upon that power. This is clear. For, if the taking of property by taxation, is the taking of it "without due process of law," then this clause inhibits the legislature from all taxation, and it would be powerless to authorize by law, directly, the levy and collection of any tax. The argument of the Chief Justice, derived from this section, then, is too strong and proves too much; for if, under it, the act in question is unconstitutional, then every revenue law upon our statute book is unconstitutional also; since every tax law now in force provides for the collection of taxes without any process of law, that is, judicial process. The next clause quoted is section 18 of the bill of rights: "Private property shall not be taken for public use without just compensation being first made, or secured to be made, to the owner thereof." * * * But this section, which is also substantially the same in every State, as has been repeatedly held, and as is clear from its very terms, is not a limitation on the taxing power, but on the right of eminent domain. See Gilman v. Sheboygan, (2 Blackf. 510, and cases cited). If this clause did apply to the taxing power, it would be fatal to its exercise in *Page 84 every instance. For, if just compensation to the owner must be made before his property can be taken for taxes for thepublic use, then the public treasury would be drained to make compensation just as fast as it would be replenished by the taxes, and no revenue could possibly be derived by taxation. There can be no question, then, it seems to me, that neither of these sections apply to the case under consideration, and hence they do not and cannot afford any strength to the argument made by the Chief Justice.
But the majority opinions are grounded upon what is not inthe Constitution, but which is supposed to have an existence somewhere, and to be referred to in the last section of the bill of rights by the words "this enumeration of rights shall not be construed to impair or deny others retained by the people." For myself, I think that this section of the Constitution does not provide or establish any additional or further limitation upon the legislative power. And, indeed, I think that if this section had been omitted entirely from the Constitution the fact it declares would have had just as potential an existence as it now has. In other words, that by a uniform rule of interpreting constitutions, they are construed as not denying or impairing rights retained by the people other than those enumerated in them.
But I deny, most confidently, that, under this provision, whether expressed or implied, courts of law may rightfully declare an act of the legislature unconstitutional and void, as being in conflict with it. To so hold, is to place the legislative department at the feet of the judicial, and to render the immediate representatives of the people powerless to protect them in their rights, or from the encroachments of judicial power. If the views of the majority are sound, then it is certainly true, that our Constitution does not define the powers *Page 85 of the respective departments of our government, but leaves them to the necessarily uncertain, and everchanging measurement ofjudicial discretion. And this, I think, fairly illustrates the two fundamental errors of the majority: First, in supposing that there is an unwritten Constitution by which courts may measure the legislative power; and second, in supposing that the courts are the only protectors, though not in any just sense the representatives, of the people; that the people must look to the courts and not to the legislature to relieve them from actual or supposed unwise legislation. It is well settled that a statute cannot be declared void on the ground of its violating fundamental principles of republican government, when it does not come in conflict with written constitutional provisions. People v.Mahony, 13 Mich. 481; People v. Gallagher, 4 id. 244. V. Taxation is an attribute of sovereignty, which is, under our form of government, intrusted exclusively to the legislature; and as was said by Chief Justice MARSHALL, in the case of Brown v. McCulloch, 4 Wheat. 428: "The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative to guard them against its abuse." And again, the same pre-eminent judge said, in Providence Bank v. Billings, 4 Peters, 51: "This vital power may be abused; but the interest, wisdom and justice of the representative body, and its relation with its constituents, *Page 86 furnish the only security against unjust and excessive taxation, as well as against unwise taxation."
The legislature, being thus intrusted with the unlimited power of taxation, which, it may be conceded, is only rightfully or wisely to be exercised for public purposes, is necessarily made the sole and final judge of the fact whether the purpose is public or not; and the courts cannot, without arrogating to themselves powers with which they are not constitutionally intrusted (as I think), undertake to overrule the legislature and declare that the purpose is not public. If the courts may do this, even in a doubtful case, then they may do it in every case, and thereby become the ultimate judge, thus assuming a power which by the Constitution has been confided alone to the legislature.
But, if it should be conceded, as is claimed by some text writers and countenanced by some courts, that, if the legislature should enact the raising of a sum of money by taxation, for a purpose whereby no possible public benefit, direct or indirect, could be derived therefrom, then the courts might interfere to declare the law invalid, still this is not such a case. And it was said by the Supreme Court of Wisconsin, inBrodhead v. The City of Milwaukie, 19 Wis. 652, that: "To justify the court in arresting the proceedings, and in declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear andpalpable; so clear and palpable as to be perceptible by everymind at the first blush." This is the extent of the doctrine as it is claimed by those text writers and courts who assert the ultimate judicial authority to revise and set aside the legislative action, upon a subject matter within its unquestioned constitutional authority.
The question then is, whether there is a total "absence of all possible public interest in the purposes for which" *Page 87 the act in controversy authorizes the tax to be levied ? The majority mistake the real question in the case; and the chief justice, in his labyrinthian argument, makes his exit at the precise point of entrance without having reached the very point in contest. He supposes that the railroad company is a private corporation, and, since the proceeds of the tax are to be ultimately received by such corporation, that the use must, therefore, be private. The distinction between a private corporation and apublic use does not seem to have been apprehended by the majority. It seems to be claimed, that because the money raised by the tax is finally to come to the coffers of a private corporation, the tax is, therefore, not for a public use. But this argument would nullify every tax law, since it is true, I presume, that every dollar raised by taxation does also finally come to the coffers of private corporations, or the purses of private individuals, in payment of claims they hold upon the treasury for thepublic use they have severally served.
Let us look at this argument a little more closely. Private property can only be taken for public use, and then only upon compensation being paid, or secured. (Cont. art 1, § 18.) But property, to wit: real estate of the citizen, may be taken at the instance of a railroad company, a private corporation if you please, for its use, either for right of way, depot grounds, wood and water stations, or the like. No court or judge has been bold enough to deny, or even question, this latter proposition. How is it taken then for a public use when it is taken, as my Brother Dillon says, for the use of a private corporation ? The answer is plain, though the majority cannot see it. The public use is most economically and efficiently accomplished and enjoyed through the instrumentality of a corporation. But, the use is none the less public because it is secured and effectuated by the aid of *Page 88 a private corporation. But I deny that, in common parlance, a railroad corporation is a "private corporation;" although I admit that in technical legal definitions or classifications they are called "private corporations," as distinguished from counties, cities, towns, etc., which are called "public corporations." See as to this, opinion of SMITH, C. J., in Barren v. Beatty,34 Miss. Rep. 227.
What answer, then, does or can the majority give to the question, by what Constitutional right does a "private" railroad corporation take the very homestead ground of a citizen, turning him and his wife and children out of doors, houseless and homeless, in order to make a way or depot ground for itself? They have already said that if the railroad company takes five cents from the citizen, under the law in question, and applies it to the construction of its road, such taking is unconstitutional, because it is the taking of private property and applying it to the use of a private corporation. But we have already seen, by the very letter of the Constitution, that it could not take the citizen's homestead or real estate for private purposes or use, and that only because it is for a public use can it be taken, and let it be remembered that when a railroad corporation takes the citizen's real estate, for a way or a depot, the title vests in a "private corporation," and is controlled by it and for its own advantage and profit; and further that it is used and controlled by the same corporation, in the same way and for the same purpose as it is proposed the five cents tax, under the law in question, shall be used and controlled, and yet, strange as it may seem, the majority are driven by their peculiar views to hold that the land or homestead is taken fora public use, and the five cents for a private use, although both are put to precisely the same use. To take the homestead is constitutional, valid and to be encouraged; but to take the five cents is unconstitutional, invalid and an unwarranted *Page 89 invasion of private rights. And in this connection it should be also remembered that compensation for property taken for public use is always to be made under our Constitution, because the Constitution requires it. But for this requirement the right of eminent domain could be exercised without making compensation.
Reference is made in the majority opinions to the unfortunate conflict now existing between this court and the federal Supreme Court upon the question of the validity of county and city bonds; and I confess that I cannot free myself from the conviction that this conflict has a controling influence upon the majority in their opinions. This court has held, in its later and unanimous opinions, that counties and cities, under the laws of this State, do not possess the inherent power to subscribe stock in railroad corporations and tax the people for the payment thereof, and that no law had been enacted in this State authorizing them so to do. Upon this latter proposition, and in view of the earlier and contrary decisions upon the question, the conflict has arisen. Now I have no doubt whatever that an enlightened public sentimentwill, as does the unbiassed legal judgment of the countrynow, fully sustain and vindicate our court.
But if our court shall deny the power of the cities and counties to take stock and levy a tax to pay the same, now that a law has been passed authorizing them so to do, and rest its decision, as the majority does, upon a principle of construction which has been distinctly and directly denied and repudiated by the Supreme Court of every State in the Union before which the question has been presented, as well as by the Supreme Court of the United States, it will, to a certain extent, deprive us of the moral power and respect we are entitled to receive, upon the question in conflict wherein we are so clearly in the right. For myself, I cannot allow my antagonism *Page 90 to a great wrong, even, sought to be visited upon the people of my State, to drive me to a hostility to the right, although the agent executing the wrong may agree thereto.
Doubtless the law in question might have been more skillfully drawn and carefully guarded; but it is not in the power of courts to set aside, as null, every unskillfully drawn or unguarded statute. The clear purpose of the statute is to allow the people of the several municipalities, at their own pleasure, to tax themselves, not exceeding five per cent, for the purpose of constructing a public improvement, a railroad, which has ever proved, where constructed, of great advantage to individuals and the community in proximity to it. I think the law is valid, and whether it is wise or unwise is not a matter for our determination. I entertain no doubt that the judgment should be affirmed, but the majority say it must be
Reversed. *Page 9