Sharpless v. Mayor of Philadelphia , 21 Pa. 147 ( 1853 )

On the 6th of March, 1852, an act was passed by the legislature, authorizing the corporate authorities of Philadelphia city to subscribe for shares in the stock of the Philadelphia, Easton, and Water-Gap Railroad Company, and to raise the money necessary to pay for such stock by a loan on the credit of the city. On the 9th of May, 1852, a similar act was passed for a similar subscription to the stock of the Hempfield Railroad Company. In pursuance of these acts, the Select and Common Councils required the Mayor, as the executive magistrate of the city, to subscribe for ten thousand shares in the Hempfield Company forthwith, and for the same number in the Water-Gap Company, upon certain conditions.

The Mayor has made one subscription accordingly, and intends to make the other as soon as the condition of the ordinance is complied with. The plaintiffs are residents of the city, owners of property therein, and tax payers. They complain that these subscriptions will add another million of dollars to the already heavy debt of the city, impair the public credit thereof, and greatly augment the taxes of the people. The object of the bill is to restrain the Mayor from carrying the ordinances into effect. The whole subject has been argued on the motion for a special injunction. Our decision now will terminate the controversy, and have all the effect of a final decree.

None of the facts are disputed. No question of construction is raised on the Act of Assembly, or on the ordinances. It is not pretended that anything has been done, or is likely to be done by the authorities of the city, except what the legislature meant to authorize. But the plaintiffs assert that the laws are unconstitutional and void. Whether the legislature can pass a valid act giving to a municipal corporation the power of subscribing to the stock of a railroad company, is the sole question before us.

This is, beyond all comparison, the most important cause that has ever been in this Court since the formation of the government. The fate of many most important public improvements hangs on our decision. If all municipal subscriptions are void, railroads, which are necessary to give the state those advantages to which everything else entitles her, must stand unfinished for years to come, and large sums, already expended on them, must be lost. Not less than fourteen millions of these stocks have been taken by boroughs, counties, and cities within this Commonwealth. They have uniformly been paid for, either with bonds handed over directly to the railroad companies, or else with the proceeds of similar bonds sold to individuals who have advanced the money. It may well be supposed that a large amount of them are in the hands of innocent holders, who have paid for them in good faith. We cannot award the injunction asked for, without declaring that all such bonds are as destitute of legal validity as so much blank parchment. Besides the deadly blow it would give to our improvements, and the disastrous effect of it on the private fortunes of many honest men, at home and abroad, it would seriously wound the credit and character of the state, and do much to lessen the influence of our institutions on the public mind of the world.

The reverse of this picture is not less appalling. It is even more so, as some view it. If the power exists, it will continue to be exerted, and generally it will be used under the influence of those who are personally interested, and who do not see or care for the ultimate injury it may bring upon the people at large. Men feel acutely what affects themselves as individuals, and are but slightly influenced by public considerations. What each person wins by his enterprise, is all his own; the public losses are shared by thousands. The selfish passion is intensified by the prospect of immediate gain; private speculation becomes ardent, energetic, and daring, while public spirit — cold and timid at the best — grows feebler still when the danger is remote. Under these circumstances it is easy to see where this ultra-enterprising spirit will end. It carried the state to the verge of financial ruin; it has produced revulsions of trade and currency in every commercial country; it is tending now, and here, to the bankruptcy of cities and counties. In England, no investments have been more disastrous than railway stocks, unless those of the South Sea bubble be an exception. In this country they have not generally been profitable. The dividends of the largest works in the neighboring states, north and south of us, have disappointed the stockholders. Not one of the completed railroads in this state has uniformly paid interest on its cost. If only a few of the roads projected in Pennsylvania should be as unfortunate as all the finished ones, such a burden would be imposed on certain parts of the state, as the industry of no people has ever endured without being crushed. Still, this plan of improving the country, if unchecked by this Court, will probably go on until it results in some startling calamity, to rouse the masses of the people.

But all these considerations are entitled to no influence here. We are to deal with this strictly as a judicial question. However clear our convictions may be, that the system is pernicious and dangerous, we cannot put it down by usurping authority which does not belong to us. That would be to commit a greater wrong than any which we could possibly repair by it. So on the other hand, the loss to the bond-holders — the ruin of the railroad companies — the injury to the commerce, and even the stain on the character of the state, are considerations which cannot be weighed for a moment, in any scale of ours, against the constitutional rights of the parties before us. We will therefore address ourselves to the serious business of ascertaining whether the laws in question do violate the constitution or not.

It is important, first of all, to settle the rule of interpretation. This can be best done by a slight reference to the origin of our political system. In the beginning the people held in their own hands all the power of an absolute government. The transcendant powers of Parliament devolved on them by the revolution (1 Bald. 220; 8 Wheaton 584; 2 Peters 656). Antecedent to the adoption of the federal constitution, the power of the states was supreme and unlimited (3 Ser. R. 68). If the people of Pennsylvania had given all the authority which they themselves possessed, to a single person, they would have created a despotism as absolute in its control over life, liberty, and property, as that of the Russian autocrat. But they delegated a portion of it to the United States, specifying what they gave, and withholding the rest. The powers not given to the government of the Union were bestowed on the government of the state, with certain limitations and exceptions, expressly set down in the state constitution. The federal constitution confers powers particularly enumerated; that of the state contains a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the government itself. The federal government can do nothing but what is authorized expressly or by clear implication; the state may do whatever is not prohibited.

The powers bestowed on the state government were distributed by the constitution to the three great departments: the legislative, the executive, and the judicial. The power to make laws was granted in section 1 of Art. 1, by the following words: "The legislativepower of this Commonwealth shall be vested in a GeneralAssembly, which shall consist of a Senate and House of Representatives." It is plain that the force of these general words, if there had been nothing elsewhere to qualify them, would have given to the Assembly an unlimited power to make all such laws as they might think proper. They would have had the whole omnipotence of the British parliament. But the absolute power of the people themselves had been previously limited by the federal constitution, and they could not bestow on the legislature authority which had already been given to Congress. The judicial and executive powers were also lodged elsewhere, and the legislative department was forbidden to trench upon the others by an implication as clear as words could make it. The jurisdiction of the Assembly was still further confined by that part of the constitution called the "Declaration of Rights," which, in twenty-five sections, carefully enumerates the reserved rights of the people, and closes by declaring that "everything in this Article is excepted out of the generalpowers of the government, and shall remain for ever inviolate." The General Assembly cannot, therefore, pass any law to conflict with the rightful authority of Congress, nor perform a judicial or executive function, nor violate the popular privileges reserved by the Declaration of Rights, nor change the organic structure of the government, nor exercise any other power prohibited in the constitution. If it does any of these things, the judiciary claims, and in clear cases has always exercised, the right to declare such acts void.

But beyond this there lies a vast field of power, granted to the legislature by the general words of the constitution, and not reserved, prohibited, or given away to others. Of this field the General Assembly is entitled to the full and uncontrolled possession. Their use of it can be limited only by their own discretion. The reservation of some powers does not imply a restriction on the exercises of others which are not reserved. On the contrary, it is a universal rule of construction, founded in the clearest reason, that general words in any instrument or statute are strengthened by exceptions, and weakened by enumeration. To me, it is as plain that the General Assembly may exercise all powers which are properly legislative, and which are not taken away by our own, or by the federal constitution, as it is that the people have all the rights which are expressly reserved.

We are urged, however, to go further than this, and to hold that a law, though not prohibited, is void if it violates the spirit of our institutions, or impairs any of those rights which it is the object of a free government to protect, and to declare it unconstitutional if it be wrong and unjust. But we cannot do this. It would be assuming a right to change the constitution, to supply what we might conceive to be its defects, to fill up every casus omissus, and to interpolate into it whatever in our opinion ought to have been put there by its framers. The constitution has given us a list of the things which the legislature may not do. If we extend that list, we alter the instrument, we become ourselves the aggressors, and violate both the letter and spirit of the organic law as grossly as the legislature possibly could. If we can add to the reserved rights of the people, we can take them away; if we can mend, we can mar; if we can remove the landmarks which we find established, we can obliterate them; if we can change the constitution in any particular, there is nothing but our own will to prevent us from demolishing it entirely

The great powers given to the legislature are liable to be abused. But this is inseparable from the nature of human institutions. The wisdom of man has never conceived of a government with power sufficient to answer its legitimate ends, and at the same time incapable of mischief. No political system can be made so perfect that its rulers will always hold it to the true course. In the very best a great deal must be trusted to the discretion of those who administer it. In ours, the people have given larger powers to the legislature, and relied, for the faithful execution of them, on the wisdom and honesty of that department, and on the direct accountability of the members to their constituents. There is no shadow of reason for supposing that the mere abuse of power was meant to be corrected by the judiciary.

There is nothing more easy than to imagine a thousand tyrannical things which the legislature may do, if its members forget all their duties; disregard utterly the obligations they owe to their constituents, and recklessly determine to trample upon right and justice. But to take away the power from the legislature because they may abuse it, and give to the judges the right of controlling it, would not be advancing a single step, since the judges can beimagined to be as corrupt and as wicked as legislators. It has been said of the ablest judge that ever sat on this bench, and one whose purity of character was as perfect as any who has ever lived or ever will live, that his opinions on such subjects are not to be relied on. If this be so, then transferring the seat of authority from the legislature to the Courts, would be putting our interests in the hands of a set of very fallible men, instead of the respectable body which now holds it. What is worse still, the judges are almost entirely irresponsible, and heretofore they have been altogether so, while the members of the legislature, who would do the imaginary things referred to, "would be scourged into retirement by their indignant masters."

I am thoroughly convinced that the words of the constitution furnish the only test to determine the validity of a statute, and that all arguments, based on general principles outside of the constitution, must be addressed to the people, and not to us.

A proposition which results as plainly as this does, from the reason of the thing, can scarcely need the aid of authority. But, if the doctrine I am denying could be allowed to prevail, it would decide this case in favor of the plaintiffs without looking into the constitution at all; for it must be admitted that such measures cannot be sustained on principles of moral justice and propriety. This consideration, together with the great ability and earnestness with which it was pressed upon us by the counsel, entitles it to the fullest refutation we can give.

It is true, that expressions favoring it, have incidentally fallen from several eminent judges: from Judge PATTERSON (2 Dall. 304); from Judge CHASE, (1 Cond. Rep. 173); from Judge SPALDING, of Ohio (20 Ohio Rep. 609); and from Chief Justice PARKER, of Massachusetts (2 Pick. 165). The first is contained in a charge delivered in the Circuit Court. But the whole case has several times been said by this Court to have been totally misapprehended(16 S. R. 179; 3 Watts 295). It was not followed by those who sat in the same Court afterwards. The others were mereobiter dicta.

On the other side, the weight of authority is overwhelming. I am not aware that any State Court has ever yet held a law to be invalid, except where it was clearly forbidden. Certainly, no case of a different character has been cited at the bar. In the many cases which affirm the validity of state laws, this principle is uniformly recognised, either tacitly or expressly. The Supreme Court of the United States has adhered to it on every occasion when it has been questioned there. In Satterleev. Matthewson (2 Peters 380), an act of the Pennsylvania legislature was censured as unwise and unjust; but, because it came within no express prohibition of the constitution, it was held to be binding on the parties interested; and in Fletcher v. Peck (6 Cranch 87), it was declared, that while the legislature was within the constitution, even corruption did not make its acts void. In Calder v. Bull (3 Dall. 386), Mr. Justice IREDELL said: "If a State Legislature shall pass a law, within the general scope of their constitutional powers, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard, the ablest and the purest men have differed upon the subject; and all the Court, in such an event, could say, would be that the legislature (possessed of an equal right of opinion) had passed an act, which, in the opinion. If the judges, was contrary to abstract principles of right." Judge WASHINGTON, in Golden v. Rice (3 W. C. C. R.), decides that the state legislatures may make such laws as they think fit, unless inconsistent with the powers exclusively vested in the government of the United States, or forbidden by some article of the federal or state constitution. Judge BALDWIN, in Bennet v. Boggs (1 Bald. 74), has expressed so clearly what I think is the true view of the subject, that I cannot do better than transcribe his words: "We may think," says he, "the powers conferred by the constitution of this state too great or dangerous to the rights of the people, and that limitations are necessary; but we cannot affix them, or act on cases arising under state laws, as if boundaries had been affixed by the constitution previously. We cannot declare a legislative act void because it conflicts with our opinions of policy, expediency, or justice. We are not the guardians of the rights of the people of the state, unless they are secured by some constitutional provision which comes within our judicial cognisance. The remedy for unwise and oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fails, the people, in their sovereign capacity, can correct the evil; but Courts cannot assume their rights." Chief Justice MARSHALL, in the Providence Bank Case, says: "The wisdom and justice of the representative body, and its relations with its constituents, furnish the only security, when there is no express contract, against excessive taxation, as well as against unwise legislation generally." When we come home and look into the precedents established by this Court, we find them uniformly and distinctly denying the right to go beyond the constitution. In Norris v. Clymer, 2 Barr 285, Chief Justice GIBSON, with characteristic directness of expression, declares that the constitution allows to the legislature every power which it does not positively prohibit." It was laid down in Commonwealth v. MCloskey (2 Rawle 374), that if the legislature pass a law within the scope of their constitutional power, the judicial tribunals have no right to pronounce it void. The Commonwealth v. McWilliams (1 Jones 61), decided that express prohibition or necessary implication is essential to oust the jurisdiction of the legislature. In the very last case that came before us (Hartman v. The Commonwealth, 5 Harris), it was decided that the Assembly had jurisdiction of all cases in which its legislation was not prohibited; that the law then in question was valid, because there was no syllable in the constitution to forbid it; and that if a law, unjust in its operation, and nevertheless not forbidden by the constitution, should be enacted, the remedy lay, not in an appeal to the judiciary, but to the people, who must apply the corrective themselves, since they had not intrusted the power to us.

There is another rule which must govern us in cases like this; namely, that we can declare an Act of Assembly void, only when it violates the constitution clearly, palpably, plainly; and in such manner as to leave no doubt or hesitation on our minds. This principle is asserted by judges of every grade, both in the federal and in the state courts; and by some of them it is expressed with much solemnity of language (6 Cranch 87; 4 Dallas 14;3 Ser. R. 178; 12 Ser. R. 339; 4 Binney 123). A citation of all the authorities which establish it 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.

We are to inquire then, whether there is anything in the constitution which expressly or by clear implication forbids the legislature to authorize subscriptions by a city to the capital stock of a company incorporated for the purpose of making a railroad. It is admitted that there is nothing in the constitution of the United States by which this power is taken away from the legislatures of the states, unless it be a single provision, which is also found in. that of Pennsylvania. (Art. 9, sec. 9). I shall consider every part of the constitution relied on, as prohibitory of these laws, by the counsel who have addressed us either in this cause, or in the others which involve the same question.

In section 13 of article 1, it is provided, "That each house may determine the rules of its proceedings; punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member, but not a second time for the same cause, and shall haveall other powers necessary for a branch of the legislature of afree state." The argument deduced from this is, that the legislature can make no law which is inconsistent with the freedom of the state; that is, with the just rights and liberties of the people. But it is very manifestly meant, not to limit the powers of the General Assembly, but to confer certain parliamentary privileges on the separate branches, so that each house, when in session, could, without the concurrence of the other, promptly protect itself against indecency, disorder, corruption, or other misbehavior of members or strangers. The word free is to be understood of the state in her corporate capacity, and in the sense of independent or sovereign, and not of her individual citizens. If it can be construed as a restraint of legislative power, it renders the Declaration of Rights useless, and reduces all the provisions for that purpose to a single phrase. Why should particular exceptions be inserted if everything was covered by this most comprehensive restriction?

It is objected that these laws create a contract for the people of the city; and as the legislature cannot impair a contract, neither can they make one between parties, who do not themselves assent to it. It must be remembered that the prohibition to pass any law impairing the obligation of contracts can avail nothing unless the case comes exactly within it. The Supreme Court of the United States in Satterlee v. Matthewson (2 Peters 414), held that an act, which was retrospective in its operation and took away vested rights, was nevertheless not void under that section in the federal constitution, because it did not literally impair the obligation of a pre-existing contract. I do not say, however, that a contract between two individuals, or between two corporations, can be made by the legislature. That would not be legislation. Besides, it would be impossible in the nature of things; for the essence of a contract is the agreement of the parties. But here is no contract made or attempted to be made by the legislature, but only an authority given to the respective corporations to make one between themselves if they see proper. This authority to make contracts for and in the name of the people is given in a greater or less degree to all public corporations. It is necessary to their existence. All other corporate functions would be nugatory without it. It is constantly exercised by the supervisors of townships, by county commissioners, and by the proper officers of boroughs, districts. and cities. Such contracts can seldom be made with the unanimous approbation of the people, but it has never been thought that a person may not be bound without his consent to perform his share of a public obligation. The contracts which affect a man, as an individual, must be made by himself: but those which affect him only as a member of the community in which he lives, and only in the same way that his fellow citizens are affected, must be made by the authorities which the law has set over him and them.

The eleventh section of the Declaration of Rights provides "that all courts shall be open, and every man for an injury done him in his lands, goods, person, or reputation, shall have redress by due course of law, and right and justice administered without sale, denial, or delay." This was clearly intended to insure the constant and regular administration of justice between man and man. To say that it is violated by refusing a judicial remedy for bad legislation, would be straining it sadly. Certainly, a contract, such as that which the defendants propose to make, however it may injure the plaintiffs, is not an injury for which they are entitled to redress if it be lawful to make it. To say that it is not lawful, and therefore injurious, is merely begging the question.

The first section of the same article enumerates among the natural rights of men, that of "acquiring, possessing, and protecting property." Undoubtedly this is a right which the legislature cannot take away. Our constitution makes property as sacred as life. But no man's right to his property can be so absolute as to exempt it from a fair share of the public burdens lawfully and constitutionally imposed. Of course we will not assume that the burden here apprehended is unlawful and unconstitutional, merely that we may make it conflict with this section. To do so, would be reasoning in a vicious circle.

It is further argued, that these laws authorize the taking of private property for public use, without just compensation, contrary to Section X. of the Declaration of Rights. It is certain that the plaintiff can expect no compensation in the proper sense of that word, as here used. It is also true, that if the railroad stocks which the city authorities are about to purchase, shall depreciate, or fail at any time to produce dividends equal to the interest on the bonds, the property of the citizens may be taxed to make up the difference. But property is not taken when it is merely subjected, on a future contingency, to the liability of being taxed higher than it is at present. The word take, is one of the commonest and plainest in the language, and cannot easily be misunderstood either by a lawyer or layman. As used in the constitution, it has universally, in this state and elsewhere, been interpreted to mean a taking altogether, a seizure, a direct appropriation, dispossession of the owner (6 Wharton 46;1 W. S. 225; 6 W. S. 116; 1 Barr 314; 1 Pick. 418; 7 Pick. 344). We would be disregarding its popular as well as legal signification, if we would declare property to be taken when it is merely depreciated in value, or encumbered, or incidentally injured. Least of all is it a taking, to tax it (3 Comstock 419). Inasmuch as compensation is made by the constitution a necessary concomitant of all taking for public use, if we say that taxation and taking are the same, we are reduced to the absurdity of deciding that no tax can be levied for the most important purpose of the state, without an immediate re-distribution of it among the people who pay it.

The IXth Section of Art. IX. declares, that the "citizen cannot bedeprived of his life, liberty or property, unless by the judgment of his peers, or the law of the land." The word "deprived" in this section, has received the same construction as the word "taken" in section X., and for reasons equally clear and strong. It cannot be said that a citizen is deprived of his property when he is left in the undisturbed possession of it, whatever taxation may be imposed on it.

It is said that this is a taking of private property forprivate use. If this be so, it is palpably unconstitutional. Perhaps there is nothing in the books which shows the tenacity with which this Court has adhered to the letter of the constitution in determining the extent of legislative power, more plainly than the doubt which was once entertained (10 Watts 63) whether the want of an express inhibition did not permit the Assembly to take one man's property and give it to another. The constitutiondoes prohibit it. It is not within the general grant of legislative power. It would be a gross usurpation of judicial authority, and would violate the very words of Section XI. Art. IX. The legislature could not make such a rescript (for it would not be a law), any more than they could order an innocent man to be put to death without trial. But do the Acts of Assembly before ustake private property for private use, or permit it to be done by the city authorities? I think I have shown that it is no taking at all.

The only substantial wrong complained of in the bill is that a public debt is about to be created for a purpose which the plaintiffs are unwilling to join in promoting; and that the debt may, and most probably will, involve the necessity of a tax, of which they must pay their share. Except for their liability to this tax, they would have no standing in Court. This is the head and front of the offending against them. But if it be imposed in pursuance of a law, passed by the supreme legislative authority of the state, and not in conflict with the constitution, it must be borne. This brings us to inquire what is the extent of the right to lay taxes.

The taxing power, being a legislative duty, is of course intrusted to the General Assembly. And it is given to them without any restriction whatever. They are to use it according to their discretion, and if they abuse it, and if public opinion is not just or enlightened enough to correct their errors, there is no remedy. I use the language of Chief Justice MARSHALL (4 Wheat. 316), when I say that it may be exercised to any extent to which the government may choose to carry it, and that no limit has been assigned to it, because the exigencies of the government cannot be limited.

But I do not mean to assert that every act which the legislature may choose to call a tax law is constitutional. The whole of a public burden cannot be thrown on a single individual, under pretence of taxing him, nor can one county be taxed to pay the debt of another, nor one portion of the state to pay the debts of the whole state. These things are not excepted from the powers of the legislature, because they did not pass to the Assembly by the general grant of legislative power. A prohibition was not necessary. An Act of Assembly, commanding or authorizing them to be done, would not be a law, but an attempt to pronounce a judicial sentence, order or decree.

It is the theory of a republican government that taxes shall be laid equally, in proportion to the nature of property; and when collected, shall be applied only to purposes in which the taxpayers shall have an equal interest. But this is impossible even in the simplest state of society, and becomes more and more difficult in proportion as a higher civilization diversifies the characters, circumstances, and the pursuits of the people. "A just and perfect system of taxation," says Chancellor KENT, "is yet a desideratum in civil government," (2 Com. 332.) No county or municipal tax ever came up to the theory, and the taxes now levied by the state are a grievous violation of it. The improvements made by the Commonwealth added largely to the fortunes of some, to others they did no service, and some were injured by them. Still, all are now compelled to pay for them. It is not, therefore, every inequality of burden or benefit — not every disproportion between the sum which a citizen pays, and the interest which he, as an individual, has in the purpose to which is applied — that can make a tax law void. I am of opinion with the Supreme Court of Kentucky (9 B. Monroe 345), that a tax law must be considered valid, unless it be for a purpose, in which the community taxed has palpably no interest; where it is apparent that a burden is imposed for the benefit of others, and where it would be so pronounced at the first blush.

Neither has the legislature any constitutional right to create a public debt, or to lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mereprivate purpose. No such authority passed to the Assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation, and becomes plunder. Transferring money from the owners of it, into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them.

But it has been argued (and here, perhaps, is the strain of the case), that this will be taxation for a private purpose, because the money levied will be in effect handed over to a private corporation. I have conceded that a law authorizing taxation for any other than public purposes is void; and it cannot be denied that a railroad company is a private corporation. But the right to tax depends on the ultimate use, purpose, and object for which the fund is raised, and not on the nature or character of the person or corporation whose intermediate agency is to be used in applying it. A tax for a private purpose is unconstitutional, though it pass through the hands of public officers; and the people may be taxed for a public work, although it be under the direction of an individual or private corporation. The question then, is, whether the building of a railroad is a public or a private affair. If it be public it makes no difference that the corporation which has it in charge is private.

A railroad is a public highway for the public benefit, and the right of a corporation to exact a uniform, reasonable, stipulated toll from those who pass over it, does not make its main use a private one. The public has an interest in such a road, when it belongs to a corporation, as clearly as they would have if it were free, or as if the tolls were payable to the state, because travel and transportation are cheapened by it to a degree far exceeding all the tolls and charges of every kind, and this advantage the public has over and above those of rapidity, comfort, convenience, increase of trade, opening of markets, and other means of rewarding labor and promoting wealth. In Bonaparte v. The Camden and Amboy Railroad Company (1 Baldwin 223), although the charter of the defendants had more features in it of a close monopoly for the mere private emolument of the stockholders, than any other similar company in the country, yet the road was held to be a public work, and the plaintiff's land, taken to build it on, was decided to have been taken for public use.

It is a grave error to suppose that the duty of a state stops with the establishment of those institutions which are necessary to the existence of government; such as those for the administration of justice, the preservation of the peace, and the protection of the country from foreign enemies; schools, colleges, and institutions, for the promotion of the arts and sciences, which are not absolutely necessary, but highly useful, are also entitled to a public patronage enforced by law. To aid, encourage, and stimulate commerce, domestic and foreign, is a duty of the sovereign, as plain and as universally recognised as any other. It is on this principle that the mint and post-office are in the hands of the government; for they are but aids to commerce. For the same reason we maintain a navy to keep open the highway of nations. It was a commercial restriction which caused the revolution, and injuries to our trade which produced the subsequent war against England, with all its expense of money and blood. Canals, bridges, roads, and other artificial means of passage and transportation from one part of the country to the other, have been made by the sovereign power, and at the public expense, in every civilized state of ancient and modern times. I need not say how much of this has been done in Pennsylvania; but if the works erected by the Commonwealth for the promotion of her commerce, are not public improvements, then every law relating to them is void; every citizen may repudiate his share of the state debt, if he pleases, and defend his property by force against a collector of state taxes.

It being the duty of the state to make such public improvements, if she happen to be unable or unwilling to perform it herself to the full extent desired, she may accept the voluntary assistance of an individual, or a number of individuals associated together and incorporated into a company. The company may be private, but the work they are to do is a public duty; and along with the public duty there is delegated a sufficient share of the sovereign power to perform it. The right of eminent domain is always given to such corporations. But the right of eminent domain cannot be used for private purposes; and therefore if a railroad, canal, or turnpike, when made by a corporation, is a mere private enterprise, like the building of a tavern, store, mill, or blacksmith's shop, there never was a constitutional charter given to an improvement company, and every taking of land or materials under any of them, was a flagrant trespass.

If the making of a railroad is a public duty, which the state may either do entirely at the public expense, or cause to be done entirely by a private corporation, it follows that such a work may be made partly by the state, and partly by a corporation, and the people may be taxed for a share of it, as rightfully as for the whole. The corporation may be aided by an exertion of the taxing power, as well as with the right of eminent domain. Accordingly we find that from the earliest times the Commonwealth has subscribed to the stock of such corporations, and paid over the money to them in pursuance of laws which no one ever doubted to be constitutional. Many millions of the state debt have been created in that way.

Now, if the legislature may create a debt and lay taxes on the whole people to pay for such subscriptions, may they not, with more justice and greater propriety, and with as clear a constitutional right, allow a particular portion of the people to tax themselves to promote in a similar manner a public work, in which they have a special interest? I think this question cannot be answered in the negative. It will surely not be pretended that all taxes are unconstitutional, which are not laid by the state directly, which are not general, or which do not go into the state treasury. If this could be maintained it would make our general road law unconstitutional from beginning to end. Counties and townships have always had the right given to them, and the duty cast upon them, of erecting their own public buildings, and making their own roads. Local taxes for local purposes, and general taxes only for purposes which concern the whole state, are a vital principle of our political system, and there is no feature in it which has attracted more unqualified admiration from those who understand it best. Its justice is too obvious to need explanation. I cannot conceive of a reason for doubting that what the state may do in aid of a work of general utility, may be done by a county, or a city, for a similar work which is especially useful to such county or city, provided the state refuses to do it herself, and permits it to be done by the local authorities.

The city's charter was granted by the legislature. It may be enlarged. The same power which gave them the privileges which they have, may give them others. It cannot be so enlarged as to enable the corporate authorities to embark the city in a private business, or to make the people pay for a thing in which they have no interest. But within these limits there is nothing to prevent an indefinite extension of their corporate powers.

But it is insisted that the right of a city or county to aid in the construction of public works, must be confined to those works which are within the locality whose people are to be taxed for them. The Water Gap Company stops its road north of Vine street, outside of the city limits, and the Hempfield road has its eastern terminus at Greensburg, three hundred and forty-six miles west of Philadelphia. I have already said that it is the interest of the city which determines the right to tax her people. That interest does not necessarily depend on the mere location of the road. Therefore the location cannot be an infallible criterion. If the city cannot have an interest in a road which stops in the Northern Liberties, then Dock Ward can have no interest in one which terminates in Upper Delaware Ward, and all the subdivisions of the city, which it does not actually enter, may be exempted on the same score. A railroad may run through a county without doing its inhabitants the least service. May such a county assist to make it, while a city which it supplies with bread and whose trade is doubled by it must not do so, merely because it ends outside of an imaginary line that limits the corporate jurisdiction? It seems very plain that a city may have exactly the same interest in a road which terminates outside of her borders, as if the depot were within them, and a great deal more than if it passed quite through. If she has an interest in any part, she has probably an equal interest in every part. Railroads are generally made to connect important trading points with each other. The want of a link at one place breaks the desired connexion as much as at another. Philadelphia has now a road to Greensburg. The Hempfield Company proposes to carry it on to Wheeling. I do not see that the city is not as much interested in the Hempfield road as she would be in making an independent road, starting at the corner of Schuylkill Fifth and Market streets, and running by way of Greensburg the whole distance to Wheeling.

But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers, and by the legislature. For us it is enough to know that the city may have a public interest in them, and that there is not a palpable and clear absence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency, not of law, much less of constitutional law. We would certainly be exercising a novel jurisdiction, if we would listen to an appeal from the councils on a point of local policy, and we would be giving a novel judgment, too, if we would decide a statute to be unconstitutional, because the corporate authorities of a city, in acting under it, mistook the true interest of their constituents.

We must take it for granted that the councils and the Mayor have fairly represented the majority of their constituents. It may operate with great hardship on the minority, but in this country it is private affairs alone, and not public, that are exempt from the domination of majorities. It may be conceded that the power of piling up these enormous public burdens, either on the whole people, or on a portion of them, ought not to exist in any department of a free government; and if our fathers had foreseen the fatal degeneracy of their sons, it can scarcely be doubted that some restriction on it would have been imposed. But we, the judges, cannot supply the omission.

I will conclude with a recapitulation of the points and principles which I think settle the case.

1. In determining whether an Act of the legislature is constitutional or not, we must look to the body of the constitution itself, for reasons. The general principles of justice, liberty, and right, not contained or expressed in that instrument, are not proper elements of a judicial decision upon it.

2. If such Act be within the general grant of legislative power, that is, if it be in its character and essence a law, and if it be not forbidden expressly or impliedly, either by the state or federal constitution, it is valid.

3. To make it void, it must be clearly not an exercise of legislative authority, or else be forbidden so plainly as to leave the case free from all doubt.

4. An Act of Assembly, authorizing a subscription by a city to the stock of a railroad corporation, is not forbidden by art. 1, sect. XIII. of the state constitution; that section not being a restriction upon the legislative authority of the two houses, but a bestowal of privileges upon the separate branches.

5. Such an Act does not impair the obligations of any existing contract, nor does it attempt the impossibility of creating a contract, but merely authorizes two corporations to make one if they. shall see proper.

6. This is not such an injury to the plaintiffs' lands, goods, or persons, that they are entitled to a judicial remedy for it, agreeably to sect. XI. of art. 9. It is no injury at all, except on the gratuitous assumption that it is forbidden in some other part of the constitution.

7. It does not violate the right of acquiring, possessing, and protecting property, secured by sec. I. of art. 9. The right of property is not so absolute but that it may be taxed for the public benefit.

8. This is not a taking of private property for public use, without compensation, contrary to sec. 10 of art. 9. When property is not seized, and directly appropriated to public use, though it be subjected in the hands of the owner to greater burdens than it was before, it is not taken.

9. It cannot be said that the plaintiffs will be deprived of their property, in violation of sec. IX. of art. 9. The settled meaning of the word deprive, as there used, is the same as that of the word take in sec. X.

10. An act of assembly to authorize the taking of private property for private use, would be unconstitutional, because it would not be legislation, but a mere decree between private parties. But this is no taking in any sense, for any purpose or for any uses.

11. The plaintiffs have no ground of complaint against the acts of assembly now in question, except because they authorize the creation of a public debt, of which they may be required hereafter to pay a part in the shape of taxes. By taxation alone can any harm ever come to them.

12. If it be within the scope of legislative power, with the con sent of the local authorities, to permit the assessment of a local tax, for the purpose of assisting the corporation to build a railroad bearing to the tax payers the relation which these railroads do, then the laws complained of are unobjectionable.

13. Taxation is a legislative right and duty, which must be exercised by the general assembly, or under the authority of laws passed by them.

14. The power of the assembly, with reference to taxation, is limited only by their own discretion. For the abuse of it, members are accountable to nobody but their constituents.

14. By taxation is meant a certain mode of raising revenue for a public purpose in which the community that pays it has an interest. The right of the state to lay taxes has no greater extent than this.

16. An Act of the legislature authorizing contributions to be levied for a mere private purpose, or for a purpose which, though it be public, is one in which the people from whom they are exacted have no interest, would not be a law, but a sentence commanding the periodical payment of a certain sum by one portion or class of people to another. The power to make such order is not legislative, but judicial, and was not given to the assembly by the general grant of legislative authority.

17. But to make a tax law unconstitutional on this ground, it must be apparent at first blush, that the community taxed can have no possible interest in the purpose to which their money is to be applied. And this is more especially true, if it be a local tax, and if the local authorities have themselves laid the tax in pursuance of an Act of Assembly.

18. If, therefore, the making of a railroad be a mere private affair, or if the people of Philadelphia have manifestly no interest in the railroads which run to and towards the city from Easton and from Wheeling, then these laws are unconstitutional.

19. But railroads are not private affairs. They are public improvements, and it is the right and duty of the state to advance the commerce, and promote the welfare of the people by making, or causing them to be made at the public expense.

20. If the state declines to make a desirable public improvement, she may permit it to be done by a company, and the fact that it is made by a private corporation, does not take away its character as a public work

21. The right of the company by which it is made, to be compensated for the expense of constructing it, by taking tolls for its use, though it gives the corporation an interest in it, does not extinguish the interest of the public, nor make the work a private one; because to say nothing of other advantages, the public can pay the toll, and still carry and travel on it very much cheaper than without it.

22. The state may, therefore, rightfully aid in the execution of such public works, by delegating to the corporation the right of eminent domain, as she always does, or by an exertion of the taxing power as she has done very often.

23. The right of the legislature, with the consent of the local authorities, to tax a particular city for a local improvement is as clear as the right to lay a general tax for any purpose whatsoever.

24. 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 so aided.

25. This is not a case in which we can determine as a matter of law that the city has no interest in the proposed railroad. That this is true as a matter of fact, has not even been asserted in the argument.

26. The legislature and the councils have decided that the city has an interest large enough to justify the subscription; we cannot gainsay this, without declaring all interest to be flatly impossible, and to do that would be absurd.

27. Finally: the authorities of the city, in accordance with the charter, and with certain laws supplementary thereto, are about to create a public debt for a public purpose in which the city has an interest. It will be as valid and binding as if it had been legally contracted to accomplish any other public purpose for the benefit of the city.

If the judgment we are about to give should be wrong, it will be our fault, for we have been well assisted. Three causes, involving the same question, were heard in immediate succession, and were argued with an ability fully proportioned to the immense magnitude of the interests, public and private, which were at stake. I do not propose to shift any part of the responsibility upon our predecessors, or upon the judges in other states, who have heretofore decided the question, and therefore I have examined it as if it were a case of the first impression; but it would be wrong to close without saying that the conclusion here reached is sustained by the highest tribunals in Virginia, (8 Leigh 120); New York, (24 Wendell 75); Connecticut, (15 Conn. 75); Tennessee, (9 Humph. 152); Kentucky, (9 B. Monroe 256); Illinois, (5 Gilman 405); and Ohio (unreported.) These cases are entitled to our highest respect. In most of them, and especially the later ones, the subject is very ably discussed, and they are a manifest triumph of reason and law over a strong conviction in the minds of the judges that the system they sustain was impolitic, dangerous, and immoral. Besides these, we have a case in our own books, (1 Jones 61), which cannot be distinguished from this, and which ought to have something more than respect. We owe it the deference due to a declaration of the law, made by ourselves, on the faith of which the people in this and other states have invested millions of money.

I am of opinion that the motion for a special injunction ought to be refused.