delivered the following dissenting opinion:
Differing with the majority of the court in their views expressed in this case, I proceed to give the reasons that operate with me for holding the adverse opinion. The county of Leon has imposed a tax to pay a subscription of stock to this company, which is complained of as unconstitutional. By express provision of the Constitution, the principles established in regard to State taxation are made to apply to the counties when imposing [taxes. Art. 8, sec, 4, Cons.
Those principles are declared to be “ equality and uniformity in the mode of taxation.”—Sec. 1. 2ndly, “ That no other or greater amount of tax or revenue shall at any time be levied than may be required for the necessary expenses of government.”•—Sec. 2. 3dly, “ETo money shall be drawn from the treasury but in consequence of an ap. propriation by law, and a regular statement of the receipts and expenditures of all public monies shall be published and promulgated annually with the laws of the General Assembly.*—Sect. 3, 4thly, “The General Assembly shall not pledge the faith and credit of the State to raise funds in aid of any corporation whatever.”—Act 13, sec. 13. 5thly, “Private property shall not be taken or applied to public use unless just compensation be made therefor.”—Art. 1, sec. 14. 6th. “ The General Assembly shall have power to authorize the counties and incorporated towns of this State to impose taxes for county and corporation purposes respectively, and all property shall be taxed upon the principles established in regard to State taxation.”—Art. 8, sec. 4.
These obviously provide a system and mode of action for the government, and regulation as well of the Legisla*641ture as of cities and counties. They impose upon them a duty of imperious and important character. They are> in the first place, before imposing a tax, to ascertain the “pecessary expenses ” to which the State, city or county may be subjeet, so as not to levy u any other or greater amount than may be required.” When collected, the money is not to be withdrawn from the treasury except by appropriation; and, as a still farther security, they are all to publish a statement of their receipts and expenditures.
It is not required of me, I trust, to define the terms necessary expenses. They are clearly restrictive to an authority confided. They are terms of art, phrases well known in law in their application to trustees (the relation and capacity which the Legislature and these city and county officers hold to the people) as well as to executors, guardians and other officers. And their familiar use is in strict accordance with their legal acceptation. No one confined to necessary expenses regards himself at liberty to expend as largely as.he would if relieved from such restraint.
Passing by the general question of the right of a county to construct a railroad, to be discussed hereaftlS^he question arises whether the construction of this railroad is a necessary expense of the county of Leon ? If it be so, then the law is in strange conflict with itself. It leaves to the option of a majority of the citizens to say whether the expenses shall be encountered—not that they are necessary. Now, this very option and choice is irreconcilable with the idea of necessary expense. If it was a fair expense, a necessary expense of the county, there was no option about the matter, and the Legislature should have directed peremptorily the discharge of the duty, and, indeed, without a special law, the county authorities should have provided foy it under the general authority confided *642to them. If a necessary expense, there was no permission required, no sanction needed. Can a trustee refuse to meet a necessary expense of the trust confided to him; an executor of his estate; a guardian or parent a necessary expense of his ward or child ? Is it at the option of any of these to refuse to meet a necessary expense, to provide for or reject it at jfieasure? It may be requisite, in case of unnecessary expenses, to ask such permission. In case of necessary-expenses there is none, and courts invariably compel their allowance and payment.
A still more definite enquiry is presented on this point.
By referring to the original charter of this Company passed in 1853, we find that they have authority to construct a road “ from the city of Pensacola or any other point or points on the waters of the Pensacola Bay in Florida, and running thence in an easterly direction to the western or southern boundary line of the State of Georgia.” By an amended charter in 1855, they have “ power to build an extension of their road to a junction with the Florida, Atlantic & Gulf Central Railroad, at or in the vicinity of Alligator, Columbia County,, and in case of their failure to construct their road to Alligator by the time the Pensacola and Georgia Railroad constructs its to that point, then to a junction East of Alligator, or to the Florida Railroad on the most practicable route to Jacksonville on the St. John’s river with an extension from a suitable point in Columbia ■County in a southern or southeasterly direction, to a suitable point of junction with a road which may be built ■from Amelia Island, on the Atlantic to the waters of Tampa Bay in South Florida. Also an extension to Crooked Riv<er at White Bluff on Apalachicola Bay in Middle Florida, .and an extension to the waters of St. Andrews Bay in west Florida, also travel roads to the County Sites of JefiSerson, Gadsden, and Jackson Counties, and to the Alabama *643line from suitable points West of the Alabama river.”— How will it be said that the construction of a road between the points here designated, (for this is the true question in the case,) is a necessary expense of the County of Leon.—■ It is not perceived what necessity there is of a citizen of the County of Leon to have a road to and from these various points to Pensacola, to the Georgia line, to Alligator, to Jacksonville, to Tampa, to St. Andrews Bay, to Apalachicola Bay, and to the Alabama line. Could he desire to transport himself or his cotton or other produce over such routes ? A road without a.ny beginning or encl—a road •with its work commenced in the middle, pointing by its charter for its termini to-the four points of the compass, hut with no distinct indication where it is to go, where to begin, or where to end. And this is a necessary expense to a County having already without taxation, a railroad of only 20 miles in extent to the Gulf, giving her immediate- and direct connection at all seasons of the year by steam boats and ships with every part of the- civilized world.— Having unexampled advantages tor transportation already secured, it is yet a necessary expense- to get other communication, more expensive and more distant.
The expense of the construction of this road to these points, will probably reach 10 millions of dollars, yet to meet this necessary expense, the County has subscribed1 $100,000, a hundredth part of the sum required.
If a necessary expense of the County, why is- it that she-does not execute-the work through her own officers? Why is it not her enterprise? Why does she not control, direct* supervise and manage it ? Why not employ agents and workmen, pay and discharge them? If a necessary expense-of the county, there is a commensurate liability. The very fact that others own- the road and its appendages, have the superintendance,- control, management and- direction with-**644out responsibility to the county authorities for disbui sement of the funds, or failure to accomplish the work, or for employing incompetent agents, shows that it is an expense of others and not [a necessary expense of the County of Leon,
To sustain the constitutionality of the law, the majority of the Court quote from Kents commentaries an interpretation of the word “ necessary.” This is not the logic of Chancellor Kent. The whole passage is taken almost verbatim from the opinion delivered by the Supreme Court of the U. S. in the case of McCullough vs. the State of Maryland. There, the question was as to the constitutionality of the act of Congress establishing the Bank of the United States, which depended upon the grant made by the Constitution of the power to Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing laws,” such among others as to regulate commerce with foreign nations—to declare war, maintain a navy, &c. It was in reference to this grant, the Supreme Court held that Congress was not confined in the choice of means, and that the words necessary means such as they thought proper to adopt. But the Chief Justice qualified the opinion with the. following remarkable language to which we invite particular attention : “ The clause is placed among the powersof Congress not among the limitations on these powers.” “ Its terms purport to enlarge not to diminish the powers vested in the Government. It purports to be an additional power not a restriction on those already granted.’’ Again, “ if their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place and would have been expressed in terms resembling these, “ In carrying into execution the foregoing powers, and all others, dee., no laws shall be passed but such as are necessary and proper! Hari the intention *645been to make this clause restrictive it would unquestionably have been so in form as well as in effect.” McCullough vs. State of Maryland, 4 Cond. Rep. 481.
Except an express decision upon the case itself no language could have been more appropriate, none more decisive of the very points at issue. Here we have limitation, restriction and dimiunition. The Elorida Convention seems indeed to have assumed this identical position as if acting on the very suggestion, only presenting it in more definite, explicit, and emphatic shape. Eor whilst the Chief Justice admits that if the words “ no laws shall be passed but such as are necessary” had‘been used, they would have limited and controlled the power, the constitution uses language more decided even, “ no greater amount of tax shall be levied than may be required for the necessary expenses of government;” thus designating in precise language, not only the power to be used, but the special object in reference to which it shall be used, to which object it is strictly limited and confined.
I next proceed to enquire as to the operation of the clause of the constitution marked as the4th, “ that the General Assembly shall not pledge the faith and credit of the State to raise funds in aid of any corporation whatsoever.” '
The object of this is very clear, and its design very evident. By preventing the State from creating debts or giving its credit in aid of a corporation, the necessity of imposing taxes on the citizens to pay such debts and thereby redeem its pledge and sustain its credit is avoided. This principle is clearly established as to State taxation, and we have already seen, expressly applied to the counties and cities. If the question of the execution of bonds and pledging the resources of the counties were for adjudication, it would be difficult to escape the operation of *646this provision. As it, however, does not arisé and is not presented by the record, I decline the expression of an opinion, content to wait until judicial action may render this an appropriate and lawful duty.
The fifth provision, “ that private property shall not be taken and applied to public use, unless just compensation be made therefor,” has great weight with me, and but for "the authorities holding a different view, I should regard it as conclusive. That the property of the citizen is taken by force of this law is very clear. It is also to be applied to some use, either public or private. It is to be given to the corporation, so that the question arises whether the corporation is public or private. The distinction between public and private corporations is well established, and has reference to their powers and the purposes of their creation. “They are public when created for public purposes only, connected with the administration of the government, and where the whole interests and franchises are the exclusive property and domain of the government. Over these the Legislature has power, not limited by the Constitution, to impose such modifications, extensions or restraints as the general interests and public exigencies may require, without infringing private rights. All corporations invested with subordinate powers for public purposes fall within- this class and are subject to legislative control. All other corporations are private. They exist by legislative grants, conferring powers, rights and privileges for special purposes. These grants are essentially contracts which the Legislature cannot impair or change without the consent of the corporation.” Ang. & Ames’ Corp., 927-’28; Dart. Col. vs. Woodward, 4- Wh., 578.
This corporation is then a private one, and money or property of the citizen taken and applied to its use is appropriated to a private use, and thus a question of most *647serious import arises, whether the property of the citizen may be taken by the State and applied to the use of some other private party. On this subject the higest tribunals of the country and most eminent jurists have expressed themselves in emphatic language. The Supreme Court of the United States say “ that government can scarcely be deemed to be free where the rights of property are left solely to the legislative body without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this countiw would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.” 2 Peters, 656. It has never been allowed (says a distinguished member of the Court of Errors of Uew York) to be a rightful attribute of sovereignty in any government professing to be founded on fixed laws, bow-, ever despotic the form of government might be, to take the property of one individual or subject and bestow it upon another. The possession and exertion of such a power would be incompatible with the nature and object of all government; for, it being admitted that a chief end for which government is instituted is that every man may enjoy his own, it follows necessarily that the rightful exertion of a power by the government taking arbitrarily from any man what is his own, for the purpose of giving it to another, would subvert the very foundation principle upon which the government was organized and resolve the political community into original chaotic elements.” 18 Wendell, 56.
Now, what greater enormity, under the pretext of legal *648authority, can be imagined than that of convpelling this complainant to buy the stock of the railroad company at their own price, extorting from him a hundred dollars of his money for that which has no existence but on paper, which is of no use to him, which he does not want and which he regards of not the slightest value. Is he not equally entitled, upon principles of reciprocity, to have this company forced to buy his property at his own price, although it be of no use or value to them? .But this they would say is clearly illegal and manifestly unjust. Be it so ; then indeed the corporation and citizen do not stand on equal grounds. The Constitution expressly protects the citizen against monopolies—the injustice and oppression of granting to favored individuals the “sole buying, selling, making or using a thing.” Yet, it is insisted that this company have not alone the exclusive right to sell, but to force their stock, at their own price, upon unwilling purchasers, pretending to make contracts, to give certificates of sale, whilst every principle held sacred between citizen and citizen in making such arrangements is violated and disregarded. Consent between them is regarded as a main and indispensible ingredient. Here it is quite indifferent, and a bargain is made for the citizen, with no option on his part but to pay his money or have his property sold by the sheriff.
“ All freemen are declared equal by our Constitution and to have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation.”
Can it be that the right of possessing and protecting property does not exist as against a corporation ? Is a proposition to be tolerated, or course of reasoning to be sanctioned which either in its terms or in its conclusions *649would secure to a corporation superior privileges, or guaranty to it greater rights than those enjoyed by the citizen ? Assure protection to a corporation which is denied to the citizen—a protection not of natural persons but of fictitious beings, not of individuals, but of a class—create not merely aristocratic distinctions, but an oligarchyof wealth, the most odious of all influences and the most antagonistic to the essence of free institutions.
In connection with this it may be appropriate to refer to the action of the constitutional convention to shew the disposition of that body, and the importance attached by it to the provisions as to taxation.
The report made by Judge Thompson as chairman of the Committee on Taxation and Revenue, section two, (being the 5th of the report,) was in these words : that “no other or greater amount of tax or revenue shall at any time be levied, than may be required for the necessary current expenses of government.” Journal, p. 29. “ Mr. Wyatt moved to strike out the word current and the ayes and nays were ordered, and were, ayes 29, nays 27, the motion therefore prevailed.” P. 65.
“?Mr. McCants moved to amend section 5 by inserting at its close “ unless by two thirds of the General Assembly,” which was lost.” P. 66.
“ Mr. Baltzell moved to strike out the 5th section which was decided by yeas and nays, as follows;
“ Teas—Messrs. Allen, Anderson, Baltzell, Bartlett, Bellamy of Jackson, Blount, Brown of Monroe, Brown oí Leon, Cabell, Duval, Fitzpatrick, Hunter, Long, Malone, Marvin, Mays, McKinnon, McLean, McGhee, Meachem, Morton, Parkbill, Stephens, Taylor, Ward and Woodward—26.
Hays—Mr. President Gov. Reid, Messrs. Bellamy of Jefferson, Bird, Brooks, Bunce, Cooper, Crichton, Gary, Garrison, Haddock, Hooker, Jenks, Levy, McClelland, *650McCants, Partridge, Read of Leon, Robbins, Roache, Sanchez, Semines, Thompson, Watts, Webb, Westcott, White, Williams, Wood, Wright and Wyatt—30.
So it was not stricken out,” p. 66.
Mr. Read of Leon gave notice that on the third reading of this article he should propose to amend the 5th section by adding “ unless by the concurrent vote of two-thirds of the General Assembly.”
“ Mr. Thompson moved to amend the Lth section, (now section 4 of article 8,) by striking out in the 4th line, the words “ according to its value” which was concurred in; page 60. The section stood in the report, “ all property shall be taxed according to its value, upon the principles established in regard to State taxation.” ”
The necessity of such action on the part of the Convention is to be found in the history of the times, showing conclusively that it did not originate in a mere abstract theory of government, but from imperious necessity, induced by the results of bitter experience.. The years 1835,-6,-7,-8, were periods of unparalleled suffering, embarrassment and distress throughout the United States. The several States of the Union with scarcely an exception, were involved through extravagant appropriations, wasteful and improvident expenditures, augmented by the aid afforded through Legislative action to individual and corporate enterprise. Their indebtedness on this account amounted to millions of dollars, threatening bankruptcy to them and ruin to individuals. The territories did not escape the common calamity. Florida, with her limited means, sparse population and limited resources, having scarcely the semblance of a treasury had issued bonds in favor of Ranks to the amount of near four millions of dollars, pledging her faith, credit and resources for their redemption.
All these events and consequences had occurred before *651the convention assembled, had been the subject of discussion through the press, in the Territorial Legislature and before the people, and had entered largely into the canvass for delegates to the constitutional convention. Its journals show that that body was occupied with this subject, which more than any other engrossed its attention. To prevent by timely precaution, directed to the evil, the recurrence of such consequences is the manifest spirit, purpose and design of the provisions we have cited. Whether the object has been effected by the remedy proposed depends upon the just construction of these provisions, some of which remain yet to be considered.
It has already been seen, that by the Constitution “the General Assembly had power to authorize the several counties and incorporated towns in this State to impose taxes for county and corporation purposes respectively, and all property shall be taxed upon the principles established in regard to State taxation.” Article 8, sec. 4.
This clause is peculiar in its provisions—special, not general'—-is not a grant of power merely, but a grant connected with a designation of the mode and manner of its exercise and of the very object and purpose for which it is to be used. “The Legislature shall authorize the counties to impose taxes”—not borrow money—not issue bonds—■ not pledge the faith and resources of the county. Nor is this grant deficient in affording the means to accomplish all the purposes for which it was designed. It was fully adequate and undoubtedly sufficient, through economy and prudence in the administration of the local affairs of the county, to attain the end desired, and, beyond this, a further object off great concern'—to prevent waste, extravagance and profligacy in expenditures. This economy and prudence may be ensured by strictly confining the power of taxation, t© necessary expenses; but to authorize or permit debts to be *652incurred or loans to be contracted would inevitably lead to the very result which it was the anxious wish of the Convention to prevent and avoid.
ITor can the power to borrow money be fairly inferred from a grant to impose taxes. This latter power “to lay and collect taxes, duties, imposts and exeeises, to pay the debts and provide for the common defence and general welfare of the United States ” was expressly, given to Congress by the framers of the American Constitution, yet the power “ to borrow money on the credit of the United States ” was added. See. 8, Con. U. S.
If not admitted, or even regarded as doubtful, in the case of a government of the vast powers of the United States, how can such a power he implied for a mere corporate functionary, intrusted with subordinate duties only, almost wholly ministerial and executive in their character, indeed but slightly elevated beyond those of a commissioner of public roads. That the power would result as an incident—as in the case of the Legislature of a State, unrestricted in its high duties by constitutional regulation—is certainly unsupportable on any ground of right, í’eáson, principle or authority. The right to borrow and make obligations is the act of a principal, not of an agent. To give to these functionaries such power by implication, is to alter and change at once the structure and character of their office and its functions. The wand of a necromancer scarcely effects greater, more wonderous and marvellous results. Instead of being charged with the raising a few hundred dollars annually, for repairs of court-houses, jails, bridges, &c., these authorities at once become, a manufactory of bonds creating debts to the amount of hundreds of thousands of dollars, for which the property of the citizens is mortgaged for payment. Surely there is no hazard in saying that the Convention never contemplated *653nor authorized such action, and the language used by them gives neither warrant nor authority for its exercise»
Passing from this position, we perceive that the tax imposed by a county must be for a county purpose. Is the construction of this road a county purpose of the county of Leon ? The court very frankly admit that the term “county purposes,” as understood by the Convention, had reference to “ the erection of court-houses and jails, the opening and maintaining of thoroughfares, by opening roads, building bridges and causeways, and keeping the same in repair, licensing and regulating ferries and toll-bridges,” &c., &c., yet say “ that the counties should not be precluded from availing themselves of the benefits resulting from the most magnificent discovery of the age.” Conceding that on the score of utility, they should have this power, this by no means establishes the constitutional right to it. If the Convention did not give the power, how is it derived, the Convention alone being competent to grant it and the Constitution the authority under which it must be exercised? Can it be that the Legislature is authorized to confer the power and the court to sustain it, under the vague allegation that the counties should “ not be precluded from its exercise ?”
To allow the power, is indeed to amend the constitution so as to give the counties in addition to their ordinary functions the right to tax “ to secure the benefits resulting from magnificent discoveries.” But» there is not plausibility even in such position. Railways and roads were in existence in the early part of the seventeenth century. The application of steam with success to carriages, which is the important matter as far as this case is concerned, was conceived at a later period, in 1181. Previous to this time animal power had been used 011 such roads. The Railroad rom Tallahassee to St. Harks had been in operation some *654time before the session of the Convention. There is a consideration beyond this. How can it be maintained that a discovery in mecbanics, repeals and overturns an important constitutional principle, nay a positive and peremptory restriction and denial of power ? This would be in effect to make discoverers in science or mechanics, the framers of the fundamental law, and invested with the large power of its amendment. The Court does not see why if a county can construct a common road “ this particular species of thoroughfare,.is withdrawn from the .interpretation of the phrase county purposes.” With due deference, this presents a very imperfect view of the subject. It is not the power to make a road that is complained of. This is but one of very many means to an end and object, that object being the transportation of freight and passengers for pay, not by the county, but by private individuals using tbe money of tbe people of the county. The county authoizes this company to use the means raised by taxation, for the construction of the road, the making of warehouses, &c., the purchase of cars for passengers and freight, the employment of agents and superintendents, to make the road and use it afterwards for freight &c. A city may pave her streets with boards, iron, or stone, so that tbe transportation of freight or passengers may he as easy as on a Railroad. She may even make a railroad in all her streets Can she purchase and own cars and locomotives and wag! ons to carry and transport freight and passengers for pay ? When the Cumberland road was constructed by Congress no one dreamed of proposing to have agents to run stages and wagons by government. Obviously this is a private occupation, and a franchise and right as dear and as much entitled to regard as any other under the constitution. The duty of the government is to protect the citizen in his oceupationj mot destroy it by sotting up a rival interest.. A *655planter having cotton or other jtroduce to export, a merchant with goods, has a clear and indisputable right to his own mode of transportation, to his own wagons, and cannot be forced under the pretext of taxes, assessed in support of government, to buy other means of conveyance to belong to others, and to be used to the exclusion of his and maintained at his cost and expense.
FTo man in our free country, however limited his means, would withhold his proportionate contribution from the support of government. This sum is paid by him with cheerfulness and pride as the price of personal security, the protection of liberty, property and life—a tribute freely rendered in evidence of the high estimation in which the citizen'holds constitutional rights and the benefits and blessings of free government. This sentiment it is certainly the policy of all governments to cherish as the surest guaranty of the loyalty of the citizen and of its own stability.
The subject of county purpose has yet another aspect. The direction in which the road is to be constructed agreeably to the charter has already been adverted to. Fairly considered, it would seem to be the work and purpose of the State, and not of a county, and especially of the county of Leon. Its extent, in its boundary, is only about thirty miles—through the State not less than five hundred. Its cost from four, five to ten millions—utterly beyond the means of the county—the direction, of the road utterly at variance with any purpose of the county of Leon. If her commerce is desired to go to Fernandina, a road will not be wanted to the Georgia line. If to Pensacola, not to the Alabama line, and so as to other points. There may be design to build a road somewhere—to some of these points—in some direction—but I cannot feel myself justified in asserting that the road indicated by the charter is *656a purpose of the county of Leon, in the sense contemplated by the Constitution. IsTor is it sufficient, in the view I take of the subject, that some part of the road may be constructed, or that a road may be constructed within the limits of Leon county. The subscription is for the building of the road authorized by the charter, and there is no restriction upon the power of the directory to use the money of the people of Leon at one place more than another. They can apply it at Pensacola, at St. Marks, at some point on the Alabama or Georgia line, at St. Andrews Pay, or elsewhere, as they please.
Put it is contended that the majority of the county, having by their vote sanctioned this assessment, this should be held conclusive. If the law is prohibited by the Constitution, as we think has already been established, the sanction of all the people and all the authorities of government, except in the mode prescribed by this instrument, will not avail. This is the very essence of a constitutional form of government. (t A Constitution is a form of government instituted by the people in their sovereign capacity, in which just principles and fundamental law is established. It is the supreme will of the people, permanent and fixed in their original, unlimited and sovereign capacity, and in it are determined the conditions, rights and duties of every individual of the community. Prom the decrees of the Constitution there is no appeal; for it emanates from the highest source of power, the sovereign people. Whatever condition is assigned to any portion of the people by the Constitution must necessarily be inevitably fixed, however unjust in principle it may be, until revoked by the same sovereign power. A legislative act is the will of the Legislature, and the Constitution is their commission, and they must act within thg pale of their authority.” Smith Com. on the Con., 313.
*657To say that the people of Leon county, even in a matter of their own exclusive interest, can, by mere vote, alter and change or disregard the paramount law is to give to them a power which the people of the entire State do not possess when exercised in this form.
It was admitted in argument, and the majority of the court in their opinion do not contest the concession that the Legislature of the State cannot rightly exercise such power, cannot issue bonds for such purpose, nor impose a tax of the kind. It is said to be different with the counties and cities. If the provisions of the Constitution on the subject were referable alone to the State, this would of itself, in my mind, raise an insuperable objection ■to the exercise of the power by the counties. What! the State may not tax and yet the counties may ! The State may not issue bonds, yet may impart a power she does not possess ! The grand council of the whole State—• entrusted with the high powers of sovereignty, of life and death—with the protection of life, liberty and property— cannot approach the citizen with a demand in the shape of a tax for such purposes, but a county commissioner may, and so may a corporation! The State cannot use her sovereign power through her sheriff and posse comitatus, her military with the sword and musket, to collect for such purpose—cannot punish the citizen for resisting the collection of such tax—but a county and city officer may! A whole may not do an act, but a mere fragment may! An inferior may be trusted, the superior may not! It is thus a power is given to the less which was denied to the greater, virtually making the parts superior to the whole. Extravagance, waste, oppression and corruption, perversion of the fundamental law of the principles of justice and good government may be tolerated in the one, but not ■in the .other. Such is the very insecure and unstable *658foundation upon which such propositions rest for their support.
I will not offend the memory of the departed, nor depreciate the worth of the living, by presuming that whilst the convention imposed the most rigorous constitutional restraints upon the legislative department of the government in the assumption of unlimited sovereignty, of which that body might otherwise have been the repository, that yet they reposed this high prerogative in subordinate authorities, in nearly a hundred petty sovereignties to exerrcise this very power in a far more exceptionable and dangerous form and thereby to involve the community in the very injmúous consequences which they had so anxiously endeavored to avoid. No ! 'having been a member of that body and a witness to the patriotism and intelligence of my contemporaries, far be it from me to say that they failed, utterly and entirely in the accomplishment of one of their chief aims—a main object and end of their exertions. Although opposed at the time to the action of the majority, I will yet do justice to their sagacity and foresight by admitting my own mistake in the correct application of the great principles they established.
The only possible ground upon which. such power can he supported is, that the provisions quoted in reference to State taxation, are not principles of the constitution.—• Tet how utterly baseless is such position. "Why were they inserted in the constitution unless as rules of government, .as guides, as the fundamental law? They are in the very terms, and in the language of provisions, designed for -the protection of the liberty and property of the citizen from the earliest dawn of civil liberty. “ No freeman shall be deprived of his life, liberty or property hut by the law .of the land,” and the bill of rights of the constitution, the great Magna Charta of the State, has twenty-five of these *659provisions, mostly negative and restrictive in their character, like the clauses under consideration.
I| is very obvious that the Court has considered itself bound by decisions made in other States which they designate as “ an imposing array, indeed, as overwhelming authority.” A more careful consideration of these would, I respectfully submit, have relieved the case from this difficulty. The decisions quoted are based upon the absence of’ restrictions in the Constitutions of the States to impair or' lessen the general grant of legislative power.
The decision in Connecticut is a sample of them all.—■■ The Court says “ we have been cited to no express constitutional provision with which the resolution tinder consideration is supposed to conflict, except it be article 1, section-2, of the State Constitution, the property of no person shall be taken for public.use without just compensation therefor;” 15 Connecticut, 501. So in Kentucky, “it would be difficult, perhaps impossible to define the extent of the Legislative power of the State unless by saying, that so far as it is not restricted by the higher law of the State- or Federal Constitution, it may do any thing which can be' effected by means of a law,” p. 22. Again, “ we find no-clause or principle in the Constitution which can be brought to bear directly in restraint of this power, (the Legislative,) but that which declares that no man’s property shall be taken-for public use, without his consent, unless just compensation be made, &c.” Nor is this without qualification. “The limit imposed to this clause of the Constitution can only consist in the discrimination to be made on what may with reasonable plausibility be called a tax, and for which it may be assumed that the objects of taxation are regarded' by the Legislature as forming a just compensation, and that which is palpably not a tax, but in the form of a tax or in some other form the taking of private property for the use" *660of the public or of others without just compensation. That there must be a palpable and flagrant departure from equality in the burthen as imposed upon the persons or property bound to contribute, or, it must be apparent that persons or their property are subject to a local burthen for the benefit of others, or for purposes in which they have no interest, and to which they are therefore not justly bound to contribute, and that the case must be one in which the operation of the power will be at first blush pronounced to be the taking of private property without compensation, and in which it is apparent that the burthen is imposed without any view to the interest of the individual in the object to be accomplished by it.” Slack vs. Maysville R. R. Co., B. Mon. 32.
With this admission, it may be contended with great propriety that plaintiff’s case is made out, as fully demonstrated in this opinion. If this is not “ the case—of a local burthen for the benefit of others and for purposes in which he, the complainant has no interest”—it will be difficult to find one.
Yery obviously the cases cited are applicable to constitutions having no restrictions upon legislative power. The fact is, there could not by possibility be an authority elsewhere in point to a case arising under our Constitution, as no Constitution of any other State of the Union has the same restrictions upon legislative power. Arkansas approaches nearest to it, as by a vote of two-thirds of the Legislature they may avoid the effect of the provision of our Constitution as to necessary expenses. With us the provision is absolute and unconditional, and with this difference, was borrowed from the Constitution of that State, made a few years previously. It is a remarkable fact, that after the year 1850 the Constitutions of all the new States were framed in express reference to this very subject—to pre-*661vent an abuse of the taxing power. The very courts sustaining the power admit its tendency to wrongful and injurious exercise. Thus the Court of Appeals of Kentucky, in the case quoted, say “ we avow, as this court has hereto, fore done, that we regard the power of local taxation, and especially when exercised or controlled by the local majority, as one eminently subject to abuses involving injustice and oppression.” 13 B. Mon., 33.
The new States. Michigan, Wisconsin, Texas, Arkansas, Iowa and California, made their constitutions, and the older States, Ohio, New York, Kentucky, Mississippi, In-' diana and Illinois, amended theirs with most stringent restrictions, principally to attain this end. New York, earlier even than this, amongst others, made a provision of this kind. “The assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill appropriating moneys or property for local or private purposes!” Great must have been the incentive, urgent and irresistible the necessity which induced this successive and almost simultaneous movement of the people in so many different States to remedy a mischief, not transient and temporary, but so fixed and deep-seated as to require so radical a change in their fundamental law. It establishes beyond a doubt the important principle that this assumption of unrestricted sovereignty in the imposition of taxes and disbursement of public money, has no foundation in American institutions, and is not fitted to American soil.
When it is admitted that these provisions of our Constitution are so important in their character, so operative as to prevent legislative action—when it is seen that they are expressly applied to the • counties and cities—yhere can there be rational or even probable room for doubt? If the Klorida Convention had no such design in the adoption of *662these provisions, it is respectfully asked what was the end sought by their introduction? Have they no meaning— no purpose—no object? Is our Constitution like that of Connecticut or Kentucky, Pennsylvania or Louisiana, or Ohio, so that a decision made by their courts is an authority for us ?
The words used possess a profound significance and meaning. The space they occupy is not a mere blank, nor are they to be rejected as a dead letter, ineffective and inert, having no existence—a mere sound, signifying nothing. To disregard them, I submit with deference, is to exert a power of repeal and not of construction ; and this opinion of the court will inevitably effect what a respectable minority of the Convention failed, after repeated efforts, to accomplish by direct motion, to strike out these very provisions.
Great stress is laid upon a decision made in Tennessee, because the Constitution of that State is said to be like ours. Let us determine this. “The General Assembly shall have power to authorize the several counties and incorporated towns in the State to impose taxes for county and corporation purposes xespectively, in such manner as shall be prescribed by law; and all property shall bo taxed upon the principles established in regard to Stato taxation.” 29 sec., 2 art., Cons. Tenn.
“All property shall be taxed according to its value. That value shall be ascertained in such manner as the Legislature shall direct, so that the same shall be equal and uniform throughout the State, and no one species of property shall be taxed higher than any other species of property of equal value.” Sec. 28, same Constitution.
How, the only resemblance here is that of equality, nuL formity and according to value; and the tax of counties and cities is-to be for county and corporate purposes. There *663is no restriction as to necessary expenses—none as to aiding corporations. Unless, thou, an adjudication upon a Constitution without restriction upon the legislative power, which, according to the doctrine of its courts, is unlimited, bo applicable to a State Constitution having restric> tions confining the Legislature in this very respect, then indeed, the authority is inapplicable. It is lamentable to observe the slight influence of words to abridge power or to restrain and prevent its doubtful exercise. Let there be line upon line and precept upon precept, yet some means of evasion will be devised, and this tendency prevails in direct ratio and proportion to the interests -involved. Not so, however, with a grant of power, which, though ever so vague and indefinite, yet from its inherent propensity of aggrandizement, never tails to discover the most plausible and authoritative pretexts and excuses for any desired extension.
The power of the judiciary to disregard an unconstitutional law is declared in the opinion of the majority to be aggressive, as having been used for mischievous purposes. It is even . characterized asa deadly weapon. The authority for so grave an assertion, so serious a charge, is not given. I am confident none exists. I am not aware that any one even in the heat of party excitement has ever before carried his views to such an extreme. What court has committed this grave offence? Certainly not the Supreme Court of this State, that has exerted this power hut on one occasion, as far as I recollect. Is it the Supremo Court of the United States that has had greater occasion to bring-itself within the reach of the charge than any other ?
But is there the slightest pretext or color for any such notion ? If the idea of aggression was ever entertained in-the wildest dream of any judge, a simple survey of his.position would effectually extinguish such sentiment. •
*664A Court makes no law, controls no means, no monied resources, has no patronage, (in this state does not appoint its own clerks.) The disposition of all these is by the oth. or departments of government. It cannot initiate action in the slightest case ; like an arbitrator it acts only as questions are brought before it, and grants or refuses only on such application. Sometimes the legislature or executive obtains its aid to enforce a law, or punish for disobedience to one.
At other times the citizen claims its interposition, insisting that legislative or Executive action is to bis injury and that the supreme law of the land, the Constitution, is his shield, and constitutes a protection to him. In such case, the Court performs the simple office of deciding which is superior, and when an act of the legislature or the executive is in conflict with the Constitution, it announces the fact and gives efficacy to the supreme law. It is then perfectly clear that the action of the Court cannot be aggressive except where it fails' to interpose for the protection of the citizen against an unconstitutional invasion of bis rights. In such event the court makes itself au accessary by the aid rendered, and to this extent will its action be aggressive. The present case will be an apt illus-t:ation if we are right in1 our views as to the unconstitutionality of the law.
How this action can be justly characterized as a deadly weapon is beyond my powers of conception. If there be serious and fatal consequences attendant upon the exercise of such power by the judiciary, they will arise from the imbecility or want of independence and integrity of its members in the discharge of the important functions confided to them. They can never attach to a faithful and conscientious and independent discharge of judicial duty, for if liberty is to be crushed and-freedom to find its grave, an *665honest and undaunted judiciary will bo found unflinchingly maintaining its post in defence of the Constitution, and perishing only amid its ruins. The deadly weapon will then be found in the hands of its foes, and the fatal wound inflicted by its enemies—tbe enemies of constitutional liberty and free government.
The importance of a proper exercise and discharge of this duty is illustrated in the impressive language of the sages and patriots of the Revolution, the fathers of the Constitution of the United States, and by eminent jurists and statesmen.
The late Daniel Webster in a debate in the Convention of Massachusetts, thus happily and forcibly expressed himself: “ Ho conviction is deeper on my mind than that the maintenance of the judicial power is essential and indispensable to tbe very being of this government. The Constitution without it would be no Constitution, the Government no Government. I am deeply sensible, too, and I thinlc every man must be, whoso eyes have been opened to what has passed around him for the last twenty years, that the ndicial power is the protecting power of the whole Government. Its position is on the outer wall.”
The great Patrick Henry, than whom no one was more jealous of power, and who opposed with all his might the Constitution of the United States on account of the large power grants in it, thus expressed himself in the Virginia Convention : “The honorable gentleman did our judiciary honor in saying they had firmness enough to counteract the Legislature in some cases. Ves sir, our judges opposed the acts of the Legislature. Wo have this landmark to guide us. They had the fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary so well constituted and so inde*666pendent of the other branches as our State judiciary^ Where are your landmarks in this government? I will be bold enough to say that you cannot find antr. I take it as the highest encomium on this country that the acts of the Legislature, if unconstitutional, are liable to be opposed by the judiciary.”
Chancellor Kent says, “there can be no security for the minority in a free government, except through the judicial department. In free governments, the independence of the judiciary becomes far more important to the security of the rights of the citizens than in a monarchy, since it is the only barrier against the oppression of a dominant faction, armed for the moment with power, and abusing the influence acquired under accidental excitement to overthrow the institutions and liberties of the people.” 1 Kent. Com.
Mr. Madison, justly styled the father of the Constitution of the United States, speaking as to the position of the judiciary and the necessity for strengthening it, says : “Experience in all the States had. shown a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitution, and suggested the necessity of giving every defensive authority to other departments consistent with republican principles.” Debates in Convention, p. 1163.
Governeur Morris said, “he concurred in thinking the -public liberty in greater danger from legislative usurpations than from any other source.” P. 1165.
“As the Constitution is the supreme law of the land, in a conflict between the law3 either of Congress or the States, it becomes the duty of the judiciary to follow that only which is of paramount obligation. This resulta from the very theory of a republican constitution of government; for otherwise the acts of the legislature and execu*667tive would in effect become supreme and uncontrolable, naturally, notwithstanding any prohibitions or limitations in the Constitution, and usurpations of the most unequivocal and dangerous character might be assumed without any remedy within the reach of the citizen. The people would thus be at the mercy of their rulers in the State and national governments, and an omnipotence would practically exist like that claimed for the British Parliament.” 3 Story, 428-9.
Such are the views I have entertained on this subject, derived from these eminent sources. They have governed me to the extent of my limited capacity in their application to the present subject. The maintenance of the Constitution, of the great fundamental principles of free government is, in my view, pre-eminently superior to any mero question of expediency or regard for improvements, however important they may be to the welfare of the State. I might lament a restriction which would bo detrimental to this enterprise, but for such I am not responsible; tlio remedy is in other hands. My duty is to declare the law as it is; and, having a clear conviction in my own mind, free from any doubt, there remains the questionable and imperious duty to announce it. I find no necessary expenso of the county of Leon—no county purpose, which justifies the levy of this tax. The law is, in my opinion, therefore, dalpably unconstitutional.