Ex parte Selma & Gult Railroad Company.

the State itself, and not a prohibition upon the legislature to authorize counties, cities and towns to loan their credit, or contract debts, for works of internal improvement. 10 Wis. 137, 170.

The restriction upon the State, prohibiting it from engaging in works of internal improvement, does not apply to the political sub-divisions of the State.-13 Cal. and 10 Wis. supra; B. Monroe, 9; 2 Ohio, 607, 647; 39 Bar. (N. Y.) 444; 35 N. H. 131; 3 Wall. 327; 1 Wall. 2:0.

This question of implied prohibition of the power to delegate authority to tax, is put at rest by the constitution itself, by the article, to which we stated, in the opening of this argument, that the attention of the court would be directed. This article has two sections and two subjects:

Sec. 1. "All taxes levied on property in this State shall be assessed in exact proportion to the value of such property; Provided," &c.

Sec. 4. "No power to levy taxes shall be delegated to individuals or private corporations."

This last section pre supposes the authority to delegate the power to levy taxes, and in putting the restriction upon that power in respect to individuals and private corporations, leaves it unrestricted in every other particular. Inclusio unius, exclusio alterius. The subject being legislated upon, and the restrictions enumerated in express terms, it can not be assumed logically that another restriction to the exercise of this power was intended from the inhibition to the State to engage in works of internal improvement.

The weight of implication is against any such restriction, when the section of the constitution from which it is attempted to be educed is considered by itself, and more clearly and forcibly when regarded in the light of authority, and when construed in connection with the express provision of article 9, we are not able to see a plausible ground upon which it can stand.

Our constitution was framed under the guidance of a large and varied experience upon the subject of internal improvements and railroads, in the various States of the American Union, in the light of the law as it has been settled by the courts in Alabama and other States, and by

Ex parte Selm & Gulf Railroad Company.

the Supreme Court of the United States, and under the temperate but deliberate and decided glow of the spirit of progress. While, as a wise precaution, it prohibits the State from engaging in works of internal improvement, and forbids the delegation of the power to levy taxes to individuals and private corporations, it provided, in distinct terms, that the State might aid individuals and corporatious in expediting the construction of railroads within the State, by pledging its credit for that purpose; and that the legislature might delegate to local communities the power to levy taxes for such works of internal improvement as in the estimation of such communities would conduce to their good.

"The words of the constitution furnish the only test by which to determine the validity of a statute."-21 Penn. 162; 2 Pet. 330; 6 Cranch, 87; 1 Bald. 74; 2 Barr, 285; Smith's Com. § 478.

"The court can declare an act of the legislature void, only when it violates the constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation on the mind of the court." "A citation," says Black, J., in Sharpless v. Mayor of Philadelphia, 21 Penn, 164, “ of all the authorities which establish it, [this position] would include nearly every case in which a question of constitutional law has arisen. I believe it has the singular advantage of not being opposed even by a dictum."-6 Cranch, 128; 1 Cow. 550.

The validity of the tax, and the obligation to pay it, depends upon the right of the government to contract the debt or duty, and to discharge it by taxation, and can not be affected by the disposition which is made of that for which the debt was contracted.-Talbot v. Dent, 9 B. Monroe, 526; 13 B. Monroe, 9.

That the tax-payers are made stockholders, is not a valid objection. They incur no additional liability, and their taxes are lessened in the proportion which the value of the stock bears to the amount which they pay.-24 Ala. 620.

The validity of this law rests on the taxing power, and not on the right of eminent domain. The legislature had the power to delegate the power to the county to levy the

Ex parte Selma & Gulf Railroad Company.

tax in aid of the railroad, either with or without giving stock in the road, for the amount to be provided for by taxation; and if it gave the stock to the county and then provided, upon the payment of the tax, that each tax-payer should receive stock to the amount of the tax, this was only so much more than was necessary to the validity of the law, and was an equitable distribution of the stock among those who paid the subscription; it was a benefit conferred. The limitations upon the taxing power are prohibitions against taking from the citizen; this is limited by the public good. There are no inhibitions in the constitution upon the power of the legislature to give, unless it involves a taking from some other.

J. C. COMPTON, and PETTUS & DAWSON, contra.-The act of December 31, 1865, is in conflict with the second section of the fourth article of the State Constitution. That sction declares that, "each law shall contain but one subject, which shall be clearly expressed in its title." The act we are considering certainly contains at least two distinct, separate subjects. The title refers to railroads, and so does the act itself; but there are two provisions in the last section, having no sort of relevancy to the title or the body of the act. Provided, That the provisions of this act shall apply to aid navigation companies in opening and improv. ing the navigation of rivers in this State; and provided, that cities and towns receiving the benefits of trade from such rivers shall be allowed to aid in the opening and improving the same." Here are two subjects,-rivers and railroads. It is not material to inquire whether there are not more than two subjects, as the constitution commands that there shall be "but one."

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This clause of the constitution, quoted above, contains two commands. We are now considering the effect and meaning of the first, "each law shall contain but one subject." This command has no connection with the title of an act or law; it concerns only the body of the law. It matters not what the title of an act may be; the law "shall contain but one subject." Some confusion of ideas and

Ex parte Selma & Galf Railroad Company.

misapprehension of the authorities have arisen from confounding the two commands into one.

This clause of our constitution was construed by the venerable jurist who delivered the opinion of the court, in the case of Weaver v. Lapsley, 43 Ala. 224. The Chief Justice there says, in speaking of this clause of the constitution, "Can any reasoning or argument make this language mean, that any law may contain two or more distinct subjects, and yet not violate its meaning? The language is, 'shall contain but one subject.' We can not see how words can make the meaning plainer, or more direct. It is clearly the language of command."

The plaintiff relies on Ex-Parte Pollard, 40 Ala. 77, to show that this clause of the constitution was only intended to prevent any subject being inserted in an act, which was not indicated in the title of the act. That case is not inconsistent with the case of Weaver v. Lapsley, supra, and no reason or authority is given to sustain it. It is, in effect, overruled by that case.

The only cases cited in Ex-Parte Pollard, on this subject, are, 19 N. Y. 116, 21 Ga. 592, and 4 Selden, 241. Neither of these cases sustain that opinion in reference to two subjects; and in the case cited from 4 Selden, 241, the court decides, that "there must be but one subject."

It is attempted to sustain Ex-Parte Pollard, on this point, on the principle that when a part of a law is constitutional, that part shall be sustained, and that part which is unconstitutional shall be declared void. This is merely "begging the question"; for the very question is, whether any part of the act of December 31, 1868, is constitutional.

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If two subjects are contained in the title and law, all the authorities admit that this clause of the constitution would make the act void. The constitution does not provide that the title shall contain but one subject, but it does declare that the law shall contain but one subject." It is insisted that, if the title of an act contained two subjects clearly expressed, and the act itself contained but one of the subjects, the law would not be in conflict with this clause of the constitution. The command is, that there shall be but one subject in the law. And this clause makes a clear dis

Ex parte Selma & Gulf Railroad Company.

tinction between the title and the law. If the body of the law contained but one subject, how can it be said that it contains two?

The citation from Cooley's Const. Lim. page 148, made to show that where an act contains two subjects, and one only is expressed in the title, the one expressed is valid, and the one not expressed in the title is void, does not sustain that proposition. That learned writer, on the page quoted, was discussing the subject of the title of acts, and the effect of the clauses in State constitutions requiring the subject of an act to be expressed in the title. He says, "but if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated by the title, it must fail." Why must it fail? Not because there are two subjects, but because only one is expressed in the title. The construction of the second section of the fourth article of our constitution for which the plaintiff contends, makes the clause cited to mean that, "each law shall contain but one subject," if the title expresses more than one. In short, the construction contended for by the railroad company utterly ignores that plain command of the constitution,"each law shall contain but one subject."

The clause of the constitution we are considering is not merely directory; it is imperative.—11 Ala. 9.

We are next to consider whether the subject of the act of December 31, 1868, is "clearly expressed in its title." So far as it relates to counties, there are three objections to the title of this act: First, The title is to "authorize" the several counties, &c. But the act is to "require" the counties to subscribe under certain circumstances. Second, The title purports to authorize subscriptions to the stock of railroads, throughout the State; whereas, the act confines the subscriptions by counties "situate upon, or adjacent to, the main branch lines," &c. Third, The title purports to authorize counties to take stock in such railroads, throughout the State, "as they may consider most conducive to their respective interests." But the act does not allow the municipal authorities of the county to "consider" whether they will subscribe or not. The county, by