Ex parte Selma & Gulf Railroad Company. the title, is to consider. Who is the county? Not the inhabitants of the county, but the municipal authorities— the court of county commissioners. How is a city to "consider"? Not by a vote of its inhabitants, but by the city authorities. The title does not give any indication that the act itself contains that most odious of all taxes-a tax voted by the many on the property of others, for the benefit, not of the State, but of individuals-railroad speculators. * * The constitution of this State, art. IV, sec. 30, provides, "The general assembly shall not have power to authorize any municipal corporation * to levy a tax on real or personal property to a greater extent than two per cent. of the assessed value of such property." The act of December 31, 1868, it is insisted, violates this clause of the constitution. It requires counties, if a majority so vote, to subscribe auy amount proposed to the stock of any railroad, if the county is situate upon, or adjacent to, the main or branch lines of such road. The amount to be subscribed to each road is unlimited. The number of roads to which subscription may be made is unlimited. The first section, after giving general authority to counties to take stock in railroads, provides how the railroad companies may make proposition to counties. The other sections provide what shall be done when one company makes a proposition. In fact, the sections, from two to seven inclusive, treat only of one proposition, from one company, to one county. The seventh section, after providing for a tax to pay interest on "said bonds," and to pay expenses of collecting "said tax" and of "issuing said bonds," enacts, Provided, That in no case shall such tax exceed one per cent. per annum upon the value of the real and personal property in said county, as yearly assessed and returned to the proper officer." This proviso limits the power to tax in each particular case; and the act requires a particular or special tax for each subscription. There can not be one tax, if there are two subscriptions by the same county; for, by the seventeenth section, the tax collector is required to give the tax-payers a receipt, "specifying the amount received, and that it is for the railroad referred to," Ex parte Seima & Gulf Railroad Company. which receipt gives the tax-payer stock in that road. This could not be done, unless the tax levied for each road was separate. Then a county may subscribe for stock in ten roads, and levy a tax of one per cent. for each road. Again, the tenth section provides that the "coupons of said bonds' "shall be receivable at par in payment of 'said tax."" The words "said bonds" here mean the bonds issued to one road, and the words "said tax" mean the tax levied specially to pay the interest on bonds issued to one road. This law, then, authorizes counties to levy a tax exceeding two per cent. The bonds, this law requires, shall be payable in not less than ten nor more than twenty years. There is no tax specially authorized to pay the principal; but the law provides for creating this debt, and it would seem to follow, that if a county may create a debt, it mu-t pay it. So this would authorize a s ill larger tax. There is no limit in the law, as to the debt which may be created under it. Can the legislature have power to require a debt to be created, and yet not have power to require it to be paid? We insist that it can not. The power of a State legislature to delegate authority to counties or cities to take stock in railroad companies, or to levy taxes to build railroads, has been a matter of controversy ever since the attempt to exercise such power was first made. The controversy has continued in many of the States to this day. In reference to this controversy, Judge Cooley, in delivering the opinion of the Supreme Court of Michigan, in Detroit & Howell Railroad Company v. Township Board of Salem, in 1870, (Law Times of September,) says, "The best judgment of the legal profession, so far as I have been able to judge, has always been against this species of railroad aid, and there has been a steady and persistent protest, which no popular clamor could silence, against the decisions which could support it. This protest has of late been growing stronger, instead of fainter; and if the recent decisions alone are regarded, the authority is clearly with the protest." The same learned judge, in that opinion, states three absolute requisites, all of which must appear to render valid Ex parte Selma & Gulf Railroad Company. any burden imposed by a State legislature by virtue of the taxing power, as follows: 1. It must be imposed for a public, and not for a mere private purpose. Taxation is a mode of raising revenues for public purposes only; and, as is said in some of the cases, where it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.-Sharpless v. Mayor of Philadel phia, 21 Penn.; Grimm v. Weisenburg District, 57 Penn.; Broadhead v. Milwaukee, 9 Wis. 2. The tax must be laid according to some rule of apportionment; not arbitrarily, or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it should justly and equitably rest.- Weeks v. Milwaukee, 10 Wis.; Reyerson v. Utley. 16 Mich.; Merrick v. Amherst, 12 Allen. 3. If the tax is imposed upon one of the municipal subdivisions of the State only, the purpose must not only be a public purpose, as regards the people of that sub-division, but it must be local; that is to say, the people of that municipality must have a special and peculiar interest in the object to be accomplished, which will make it just, proper and equitable that they should bear the burden, rather than the State at large, or any more considerable portion of the State.- Wells v. Weston, 22 Mo.; Covington v. Southgate, 15 B. Monroe; Monford v. Unger, 8 Iowa. Judge Cooley declares, that "the three principles here stated are fundamental maxims in the law of taxation. They inhere as conditions in the power to impose any tax whatsoever, or to create any burden for which taxation is to provide." The construction of a railroad which is to be, when constructed, private property, owned, controlled, and managed, by a private corporation or a private individual, for the pecuniary benefit of the owner or owners, is not a public purpose, within the meaning of these maxims governing the taxing power. Such a road is sometimes called a public highway, and is so, in a certain qualified sense. It accommodates public travel. But it is not a highway in the same sense that roads, made, used, and owned, by the Ex parte Selma & Gulf Railroad Company. people, and open to the public, are highways. It is not a public highway, in the sense that a street or navigable river is a public highway. The street is made and owned by the public, for the benefit of the public, and free to be used by all men. The railroad is built by a private corporation, and for the benefit of a private corporation. That it is of benefit to many of the people, is a mere incident, not the purpose of its construction; that purpose is private gain. A hotel is in one sense a public house; it accommodates, and is used by, the public. But it is not built for a public purpose, in the sense of the rules regulating the power to tax. It is not a public house, in the sense that court houses and jails are public houses.- Weeks v. Milwaukee, 10 Wis. A grist mill is a public house, and of much benefit to the public; but if owned by a private individual or corporation, it is not built for a public purpose, but for private profit. Steamboats are of great public utility, but when built and owned by private individuals, no court has ever declared their construction a public purpose. Steamboats are used for the identical purposes for which railroads are constructed, to carry freights and passengers. Why not build steamboats for private individuals, by taxation? Are railroads the only public purpose in which the public has no property? Are courts to be "moulded to the purposes of speculators," as the Supreme Court of Pennsylvania say "grand juries and county commissioners were moulded"? Does every petty railroad king hold Aaron's rod in his hand? If not, why is it that railroads are the only species of private property which was ever declared to be "public works?" We are aware that the decisions of our Supreme Court, made on this subject, prior to the adoption of our present constitution, are in conflict with what we have urged on this point. But if this court does not believe that these cases shut the door, so as to keep out "light and reason," we ask consideration of the opinions delivered in the following cases: Detroit & Howell Railroad Company v. Township Board of Salem, decided in the Supreme Court of Michigan in 1870, and reported in Law Times for September, 1870, p. 230; Hanson v. Vernon, 27 Iowa; Ex parte Selma & Gulf Railroad Company. State v. Wappello, 13 Iowa; Griffith v. Crawford, 20 Ohio, 609; Slack v. Maysville & L. R. R. Company, 13 B. Monroe, 1; City of Lexington v. McQuillan's Heirs, 9 Dana, 516; Stewart v. Board of Supervisors of Polk County, in the Supreme Court of Iowa, October, 1870, dissenting opinion of Judge Beck. In these cases others are cited on this point. The argument by which the power of a State legislature to delegate authority to cities and counties to take stock in railroads is mainly supported, is, "That the State having the constitutional power to create a State debt by a subscription, on behalf of the whole people, to the stock of a private corporation engaged in making a public work, it follows from what has been before said, that she may authorize a city or district to do the same thing, provided such city or district has a special interest in the work to be aided." This is the argument in the words of Chief Justice Black, in the leading case, Sharpless v. Mayor of Philadelphia, 21 Penn. 175. The very foundation of that argument is destroyed by the 33d section of the 4th article of our State constitution, by which it is declared, "The State shall not engage in works of internal improvement." This is a new provision, introduced into our State constitution in 1868. Under its provisions, the former adjudications of our Supreme Court on this question cease to be of authority; and all those cases which have followed Sharpless v. Mayor of Philadel phia, supra, "for no better reason than because they had a case to follow," are destroyed in this State, even as precedents. This court is now, as a new question, to decide the force and meaning of these new words of the constitution. "The State shall not engage in works of internal improvement." This is the language of command. The mood is imperative. Not even a latitudinarian sophist would attempt to prove these words to be "merely directory." What does this command mean? The evil designed to be remedied was the imposition of onerous and oppressive taxes on the people. Other States had engaged "in works of internal improvement," by which heavy loads of debt had been piled upon the people, mainly |