I fully concur in the conclusions, and the reasoning supporting them, of Chief Justice DILLON and Mr. Justice WRIGHT, as announced in their respective opinions, and would be content, in ordinary cases, with silen assent thereto. The importance of the principles involved in the case demands special care and patient attention in their consideration. I have endeavored to give them such an examination, and am brought thereby to a most clear and satisfactory conclusion as to the unconstitutionality of the law in question. I will briefly state some of the reasons upon which that conclusion is based.
It cannot be maintained that the Constitution confers upon the State government absolute and unlimited legislative power, authorizing all laws affecting the rights and property of the people, not expressly prohibited by that instrument. The people, in the formation of the Constitution, wisely reserved to themselves all rights unimpaired over which power is not delegated to the State government. Section 25 of the bill of rights provides that the enumeration of rights contained in the Constitution shall not be construed to impair or deny others retained by the people. There is, as it were, back of the written Constitution, an unwrittenConstitution, if I may use the expression, which guarantees and well protects all the absolute rights of the people. The government can exercise no power to impair or deny them. Many of them may not be enumerated in the Constitution, nor preserved by express provisions thereof, notwithstanding they exist and are possessed by the people, free from governmental interference. The rights of property, and rights arising under the domestic relations of husband and wife, parent and child, c., may not be preserved by express constitutional provisions, yet they exist in all their perfection, and no legislative enactment impairing them can be sustained. *Page 74
The nature of a constitution and the powers of government are forcibly and well expressed by Edward Bates, counsel inHamilton v. St. Louis County Court (15 Mo. 13), in the following words, quoted approvingly by Judge Cooley in his treatise upon Constitutional Limitations, p. 37: "What is a Constitution, and what are its objects ? It is easier to tell what it is not, than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power — the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the Constitution was made, it is but the framework of the political government, and necessarily based upon pre-existing condition of laws, rights, habits and modes of thought. There is nothing primitive in it; it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard them against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was written a republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent and incapable of definition."
The State has no power over the property of the citizen other than to regulate and secure its enjoyment, except that of taxation and of appropriating it to public uses, upon payment of a just compensation therefor. It is not claimed that the law in question is the exercise of the latter power; it must be sustained, if at all, under *Page 75 the taxing power. In considering its validity, the first and, in fact, the only question to be determined relates to the nature and object of the assessments therein provided for. Are they taxes ? This presents the very point and question of the case.
While the power of the State to tax the people may be unlimited, yet it cannot be claimed that every assessment of money, though it be denominated a tax by the law authorizing it, in fact partakes of that nature. Its object determines its character and nature, and the validity of the law authorizing its levy and collection. The law in question, under the name of taxes, authorizes the collection of money to aid in building railroads. These roads are built by private corporations for private purposes, and the profits thereof inure to the stockholders. The franchises and real and personal estate of these corporations, while held by them, are essentially private property, and are in no sense public. The fact that the construction of the railroads may be a public benefit, and of great advantage to the people, does not deprive them of the character of private property. A manufactory of any kind, a mill or a bank, the property of either an individual or a corporation, may be of like great public benefit and advantage, by increasing the wealth and adding to the convenience and prosperity of the community in which they are located, but they are essentially no more private property and private enterprises than railroads. All depend upon the public for patronage and support; all are of great convenience and pecuniary advantage to the public generally, and all are created and maintained for the purposes of the private gain of those who own them, and all are equally private property. It follows that, if on the plea of public benefit, the legislature can authorize taxation to build railroads, it may do the same for the purpose of building manufactories, and to provide capital for banks. *Page 76
But the object and purpose of taxation must be public.
I do not understand that a purpose which interests or benefits the public generally is of necessity public in its nature. Society is so constituted that the prosperity of any one of its members is, in a degree, of public interest and benefit. The public are often interested in and benefited by enterprises the most remote. The opening and development of the gold mines of California is a benefit to every community in the whole Union. A line of vessels from New Orleans to Liverpool, whereby the surplus grain of the Mississippi valley could be cheaply and expeditiously carried to a good and certain market, would be a great public benefit to every township in this State. It cannot be claimed that the opening of the gold mines of California, or the building of ships, are such public purposes as would authorize taxation of the people of Iowa therefor.
I confess the difficulty of giving a satisfactory general rule whereby it may be determined what is a public purpose for which taxes may be imposed on the people. It is sufficient for the present to determine that such railroads, as are contemplated by the law in question, do not possess that character. And this cannot be considered an open question in this State. InChamberlain v. The City of Burlington (19 Iowa, 402, 403), (Mr. Justice COLE delivering the opinion of the court,) it is ruled that the construction of a railroad, by a railroad corporation, is not a public purpose within the meaning of a statute — the charter of the city — which authorizes the borrowing of money for any public purpose.
The question does not arise, and I have not considered it, whether a railroad or a system of railroads may not be a public purpose in such a sense as to authorize the building thereof by the State, and that taxes therefor may not be collected from all the people of the State as *Page 77 other revenue. But that the people along the line of a railroad may be exclusively taxed to aid in its construction, as provided by the law under consideration, is, as I conceive, a very different question. That law provides for the assessment upon, and coercive collection from, the people of certain amounts of money which are in their nature a gratuity to a private corporation. Because such assessments are made upon the vote of a majority of the voters of the township, they are not thereby made valid, for the majority certainly cannot be clothed with power, which is not possessed by the State itself, to take from the minority their money or property.
If the plea of public benefit would authorize the assessment of taxes for the purposes of constructing railroads, it does not follow that those contemplated by the law in question can be sustained upon that ground. The theory is that the people may be taxed because they will be benefited by the railroad built in that way. If this be so, the taxation must be equal, all benefited being equally taxed. A railroad, as contemplated by the law, may pass through portions of a township wherein a majority of the voters reside, who may vote the assessment. The minority thus taxed may not be benefited at all, or less benefited than the inhabitants of adjacent townships who refuse to contribute to the road by voting a tax upon themselves. In such a case the law would not practically impose the burden of taxation upon all equally benefited. Other instances of taxation without benefits, and benefits without taxation, may be pointed out in the practical operation of the law.
While fully comprehending the delicate duty of declaring a law of the general assembly unconstitutional, and therefore void, and well knowing that this can only be done in the clearest cases, yet, in my opinion, the law in question so palpably and indisputably conflicts with *Page 78 the Constitution that I am constrained to unite with the majority of the court in holding the law void, and the judgment of the District Court must be
Reversed.