Is Stewart v. Bd. of Super. of Polk County still good law?

Opinion · Supreme Court of Iowa

Stewart v. Bd. of Super. of Polk County

30 Iowa 9

Type: Opinion
Court: Supreme Court of Iowa
Jurisdiction: Iowa
Date: 1870-10-08
Topic: general

How later courts describe this case

stating the court will “declare a law unconstitutional only when it is clearly, palpably and plainly inconsistent with the provisions of that instrument” (quoting Morrison v. Springer, 15 Iowa 304 (1863))

Citator

UpLaw has not yet analyzed Stewart v. Bd. of Super. of Polk County. The absence of a flag is not a finding that it is good law.

Cited by: 81 opinions

STEWART v. BD. OF SUPER. OF POLK COUNTY,30 Iowa 9(1870)

STEWART v. THE BOARD OF SUPERVISORS OF POLK COUNTY.

Supreme Court of Iowa.

October 8, 1870.

PRESENT: HON. CHESTER C. COLE, CHIEF JUSTICE, HON. JAMES G. DAY, HON. WILLIAM E. MILLER, HON. JOSEPH M. BECK, JUDGES.

I. PER CURIAM.

1. Constitutional law: LEGISLATIVE ACTS. The power of courts to declare an act of the legislature unconstitutional should not be exercised in doubtful cases, but only in those where the constitutional infraction is clear and palpable.Page 10

2. TAXATION FOR CONSTRUCTION OF RAILROADS: ACT OF 1870. Chapter 102, laws of 13th general assembly, providing for the taxation of property by townships and incorporated towns and cities, to aid in the construction of railroads, is not thus in conflict with the State constitution.

3. The taxation in said act provided for is not a taking of property for private use. The use contemplated is essentially public, and not private, in its nature.

ARGU. 1.Eminent domain. The right to condemn property for the right of way for railroads under the power of eminent domain is based on the ground that the object is a public one, for public use, within the meaning of the constitution.

AMU. 2.Taxingpower. The taxing power may be exercised for any object that will justify the exercise of the right of eminent domain.

4. TAXING POWER NOT LIMITED. While the right to take private property for public use is conditioned upon making compensation, the taxing power is not thus limited.

5. JUDICIAL LIMITATION. The taxing power is one of the sovereign powers vested in the general assembly, and not being limited, either expressly or by clear implication by the constitution, to the condition of making compensation, the judicial power possesses no authority to thus limit it.

6. BILL OF RIGHTS. Nor is the act in question violative of section nine of the bill of rights, which declares that no person shall be deprived of life, liberty or property, without due process of law.

7. PRIOR DECISIONS. That the court has everdecidedthat municipal corporations could not, under the constitution, be empowered by the legislature to subscribe stock in railroad companies, to aid in their construction, denied.

II. Per BECK, J., dissenting.

8. The act in question is unconstitutional. The taxation therein provided for is the taking of individual property for private use. The reasonings and conclusions of the majority opinions inHansonv.Vernon,27 Iowa, 28, adhered to.

Appeal from Polk District Court.

SATURDAY, OCTOBER 8.

PETITION in equity by the plaintiff, a property owner, against the board of supervisors of Polk county, for an injunction to restrain the levy of a tax voted by the qualifiedPage 11electors of Des Moines and Lee townships respectively, in said county, under an act of the general assembly, approved April 12, 1870, entitled "An act to enable townships, incorporated towns and cities to aid in the construction of railroads."

The petition was presented to the judge of the district court, Hon. H. W. Maxwell, in vacation. The defendants appeared and filed an answer, and, on a hearing, the injunction was refused, from which refusal the plaintiff appeals.

Barorqft Gatchfor the appellant.Polk Hubbellfor the appellee.

MILLER, J.

CONSTITUTION LAW: legislative acts.

The case before us raises the question of the validity of chapter 102 of the laws of the thirteenth general assembly granting local aid to railroads.

No question of superior importance and gravity is ever presented to the courts for adjudication than one involving the validity of an act of the legislative department of the government, and none demands more careful examination and serious consideration in its determination.

This is peculiarly true in this case, inasmuch as an act of like character to the one under consideration was held void by a majority of this court inHanson et al.v.Vernon et al.,27 Iowa, 28, and that a subsequent general assembly, by the passage of the act of April, 1870, re-asserted the power denied them in that case.

If this case but involved a second time the validity of the act of 1868, annulled by this court in the case referred to, we might regard the question as tothatact settled by that case, but as the general assembly has re-asserted its authority and re-enacted the law with important modifications, we have treated the question as still anPage 12open one, and have given it as full and careful examination and consideration as we are capable of.

The first section of the act declares "that it shall be lawful for any township, incorporated town or city to aid in the construction of any projected railroad in this State, as hereinafter provided."

"SECTION 2. Whenever a petition shall be presented to the council or trustees of any incorporated township, city or trustee of any township, signed by one-third of the resident tax payers of such township, city or town, asking the question of aiding in the construction of any railroad to be submitted to the voters thereof, it shall be the duty of the trustees, or council, or board of trustees, to immediately give notice of a special election, by publication in some newspaper published in the county, if any be published therein, and also by posting said notice in five public places in each township, city or town, at least twenty days before said election, which notice shall specify the time and place of holding said election, the line of road proposed to be aided, the rate per centum of tax to be raised, and the township or townships, incorporated town or city in which such tax shall be expended; at which election the question of' taxation `or `no taxation' shall be submitted, and if a majority of the votes polled be `for taxation,' then, in that case, the township clerk, recorder, or clerk of said election shall forthwith certify to the county auditor the rate per centum of the tax thus voted by such township, city or town. The board of supervisors shall, at the time of levying the ordinary taxes next following said special election, levy all taxes voted under the provisions of this act, and cause the same to be placed on the tax lists of the proper townships, cities or towns, and said taxes shall be collected at the same time, in the same manner, and be subject to the same penalties for non-payment, as other taxes;provided, that the aggregate amount of tax levied under the provisions of this act, in any township, city orPage 13town, shall not exceed five per centum of the assessed value of the property of said township, city or town.

"SECTION 3. The funds collected under the provisions of this act shall be paid out by the county treasurer to the treasurer of the railroad company, upon the orders of the president or managing director of the railroad company whose road such tax has been voted to aid; which orders shall be accompanied by sworn estimates of the engineer in charge of the work on such road, showing that double the amount of such orders has been expended for the construction of such road, in accordance with the terms of the notice provided for in section two of this act, and also by a certificate signed by the members of the council, or board of trustees, or a majority of the members thereof, of the township, city or town voting the tax for which said orders are drawn, to the effect that the provisions of this act have been so complied with as to entitle said company to the amount called for by such orders; and it is hereby expressly provided that no part of the funds raised under the provisions of this act shall be expended in any other townships than those specified in the notice of election;provided, however, that should the taxes not be drawn from the county treasury in accordance with the provisions of this act by the railroad company in whose favor the same may have been voted, within two years after the date of the collection thereof, then the right of said railroad company to said funds shall be deemed forfeited, and the same shall be repaid by the county treasurer to the persons from whom the same may have been collected.

"SECTION 4. All railroads constructed by, or with the aid of, any taxes levied and collected under the provisions of this act, shall be subject to the control of the general assembly in regard to the management of the same and the charges for the transportation of freight and passengers thereon."

The authority and power of the courts to annul an actPage 14of the legislature, in conflict with the fundamental law, has been repeatedly asserted and is now universally acknowledged. While this authority is unanimously conceded, the cases, with entire uniformity, hold that it is never to be exercised in doubtful cases.

The supreme court of Few York, inClarkv.The People, 26 Wend. 599, says, that" the power of the courts of justice to declare the nullity of legislative acts which violate the provisions either of the constitution of the United States or of the State, while it is undoubted, should be exercised with extreme caution, and never where a serious doubt exists as to the true interpretation of the provisions alleged to be repugnant.

In Illinois it is said that the true inquiry is, whether "the will of the representatives, as expressed in the law, is, or is not, in conflict with the will of the people as expressed in the constitution, and unless it is clear that the legislature has transcended its authority, the courts will not interfere.Lane et al.v.Dorman et ux., 3 Scam. 238. See also, in support of this rule, the following cases:Foster et al.v.The Essex Bank,16 Mass. 245;The Farmers MechanicsBankv.Smith,3 Serg. R. 63,73.

Many other might be cited, but I forbear, as this court has frequently declared the same doctrine.

InSantov.The State,2 Iowa, 208, it is said by Mr. Justice WOODWARD that," although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to unless the case be clear, decisive and unavoidable. It is the duty of the court to give an act such construction, if possible, as will maintain it.Ricev.Foster, 4Harr. (Del.) 479;Fisherv.McGin, etc., 1 Gray, 1;Maizev.The State,4 Ind. 342;Commonwealthv.Williams,11 Penn. 61;Statev.Cooper, 5 Blackf. 258; 2 Pet. 522;Ogdenv.Saunders,Page 1512 Wheat. 270; 19 Johns. 58; 1 Com. 550;Calder v. Bull, 3 Dall. 386;Fletcherv.Peck, 6 Cranch, 87.

In the case ofMorrisonv.Springer,15 Iowa, 304, this court held that it "will declare a law unconstitutionalonlywhen it isclearly, palpably and plainlyinconsistentwith the provisions of that instrument;" and Mr. Justice WRIGHT, in his opinion in that case, cites a long list of authorities in support of the rule announced. See, also,McCormickv.Rusch,15 Iowa, 127;Whiting Whitingv.City of Mt. Pleasant, 11 id. 482-485;McGregor v. Bayles, 19 id. 43;Duncombev.Prindle, 12 id. 1.

The same rule of construction has been declared in Massachusetts, Pennsylvania and other States.Adamsv.Howe,14 Mass. 345;Sharplessv.The Mayor, etc.,21 Penn. 162;Thorpv. R. R.Co.,21 Vt. 142;ThePeoplev.Draper, 15 N. Y.

Having seen that courts of justice are authorized to declare a legislative act unconstitutional and void, only when it violates that instrumentclearly, palpably, plainly, and in such a manner as to leave no reasonable doubt, we proceed to inquire whether there is any check or legislative power independent of, or in addition to, those which are to be found in the constitution, or, in other words, whether the courts possess the power to annul an act of the legislature for any other reason than that of itsplain,clear and palpableviolation of thewrittenconstitution.

It is said that "the judiciary may arrest acts of the legislature on the ground that they are unjust and immoral;" "that there are certain principles of natural justice which not even the legislature can be permitted to disregard." It is conceded that the power of the legislature must be confined to "making laws." It cannot administer or execute them. So the very words of the constitution, which vests the power of legislation in the general assembly, exclude the judiciary from any share in it; and such share they will undoubtedly possess if they are at liberty to refuse to execute a statute, on the ground that it is notPage 16in harmony with their notions of morality and justice. Mr. Sedgwick, in his work on statutory and constitutional law, says: "Constitutional provisions may be ambiguous; the doctrine of interpretation is vague; but these branches of judicial authority are subject to some tests and can be circumscribed within some limits. But who will undertake to decide what are the principles of eternal justice? And who can pretend to fix any limits to the judicial power, if they have the right to annul the operations of the legislature on the ground that they are repugnant to natural right? There may be, there always will be, questions, not only as to the expediency but the justice of laws. But questions of public policy and State necessity are not meant to be assigned to the domain of the courts. The right of construction, the right of applying constitutional restrictions, are vast powers, which it will always require great sagacity and intelligence to exercise. Let the judiciary rest contented with its acknowledged prerogatives, and not attempt to arrogate an authority so vague and so dangerous as the power to define and declare the doctrines of natural law and abstract right," in the construction of statutes. Sedg. on Stat. and Con. Law, 182

These views of the learned author we approve and adopt. The same views are held by many of the soundest judges and legal writers.

Mr. Justice COWEN, of the New York supreme court, inButlerv.Pilmer, 1 Hill, 324, holds this language: "Strong expressions may be found in the books against legislative interference with vested rights; but it is not conceivable that, after allowing the few restrictions found in the federal and State constitutions, any further bounds can be set to legislative power by written prescription." And Chancellor KENT says: "Where it is said that a statute is contrary to natural equity or reason, or repugnant or impossible to be performed, the cases are understood to mean that the court is to give them a reasonable .Page 17construction. They will not presume that every unjust or absurd consequence was within the contemplation of the law." 1 Kent's Com. 408.

And Mr. Justice BALDWIN, of the supreme court of the United States, used this language: "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 cognizance. The remedy for unwise or oppressive legislation, within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fail, the people, in their sovereign capacity, can correct the evil; but the courts cannot assume their rights." There is noparamountandsupremelaw which defines the law of nature, or settles those great principles of legislation which are said to control State legislatures in the exercise of the powers conferred on them by the people in the constitution."Bennettv.Boggs, 1 Bald. 74, 75. See, also, in support of the same views,Cochranv.Van Surley, 20 Wend. 381;Kirbyv.Shaw, 7 Harris (Penn.), 258;Statev.Dawson, 2 Hill (S. C.), 100;People v. Mayor ofBrooklyn, 4 Coms. 423;Town of Guildfordv.Cornell, 18 Barb. 615;Sharplessv.The Mayor,etc.,21 Penn. 147;Braddeev.Brownfield, 2 Watts Serg. 271;Harveyv.Thomas, 10 Watts, 63;Calderv.Bull, 3 Dall. 386;Fletcherv.Peck, 6 Cranch, 87;Bloodgoodv.Mohawk andHudson R. R. Co., 18 Wend. 9;Terretv.Taylor, 9 Cranch, 43;Bonapartev.Camden and Amboy R. R. Co., 1 Bald. C. C. 205.

There are authorities which hold the contrary doctrine, and in doing so usually take refuge behind that clause in the bill of rights which declares, "the enumeration of rights shall not be construed to impair or deny others, retained by the people."

Now let us inquirewhatlegislative rights, other thanPage 18those contained in the constitution, are "retained by the people."

The second section of the "bill of rights" declares: "Allpolitical power is inherent in the people." Political power consists of the three great attributes of sovereignty, namely:legislative, executiveandjudicialauthority. This isall inherentin the people. These powers, then, are supreme in the people in the first instance.All the legislativeas well as the executive and judicial power is inherent in them. By section 1 of article 3 of the constitution, we find that "Thelegislative authority of this State shall be vested in a general assembly," etc.

The people, then, have vestedthelegislative authority,inherent in them, in the general assembly. The people were the original possessors ofallthe legislative authority in the State. By this section they vest itallin the general assembly. Subsequently, in the same instrument, they withdraw some portions of this authority and impose certain restrictions upon the exercise of the authority granted. It follows, therefore, as a logical sequence, that, within these limitations and restrictions, the legislative power of the general assembly is supreme; that it is bounded only by the limitationswrittenin the constitution. WRIGHT, J., inMorrisonv.Springer,15 Iowa, 342, says: "The legislature clearly has the power to legislate on all rightful subjects of legislation, unless expressly prohibited from so doing, or where the prohibition is implied from some express provision.This theory must never be lost sight of bythe courts in examining the powers of the legislature. It iselementary, cardinal, and frequently possesses controlling weight in determining the constitutional validity of their enactments.The general assembly possesses all legislative authoritynot delegated to the general government,or prohibited by theconstitution."

Thus, it seems clear by logical deduction, and upon thePage 19most abundant authority, that this court has no authority to annul an act of the legislature unless it is found to be in clear, palpable and direct conflict with the written constitution.

2. — taxation for construction of railroads: act of 1870.

We come now to inquire whether the act of 1870, authorizing local aid to railroads, is soclearly,palpably and directlyin violation of our State constitution as that it becomes the province of this court to annul it.

It is urged that the act, in providing for the levy and collection of a tax, which when collected is to be paid over to a private corporation, is unconstitutional, on the ground that it conflicts with section eighteen of the "bill of rights," which declares: "Private property shall not be taken for public use without just compensation first being made, or secured to be made, to the owner thereof," etc. The argument is, that, by implication, the taking of private property forprivateuse is forbidden by this section.

That the legislature has no constitutional authority to take the private property of A. and give it to B. there can be no reasonable doubt.

The difficulty, however, seems to be in ascertaining what is apublic use, and what aprivate use, within the meaning of this section. This clause is a restriction upon the right of eminent domain. But for this restraint the legislature would have power to authorize the taking of private property for public use without making any compensation. The right to exercise the power of eminent domainonlyexists when the object is a public one. Every State exercises this power in behalf of railroads, turnpikes, canals and other internal improvements, and this is done without reference to whether the State holds any pecuniary interest in the improvement or not. Upon our statute book will be found laws of this character. It has been the law of this State for twenty years without question,Page 20that, "Whenever any corporation or other person designs to construct a canal or railroad, a turnpike, graded, macadamized or plank road, or a bridge, as a work ofpublic utility although forprivate, profit, it may take such reasonable amount of private real property as may be requisite for a right of way, etc., upon paying such sum as may be assessed, etc. Rev. of 1860, § 1278. So also the act of 1853, granting the right of way to railroad companies alone. Rev. p. 218.

And it has been the law of this State for more than a quarter of a century, that any private citizen who will erect amillto grind grain for toll, may erect a dam and have a writad quoddamnumfor the condemnation of the land overflown, as for a public purpose. Laws of 1843, ch. 102; id. of 1855, ch. 92 (Rev. § 1264); id of 1866, eh. 119.

The validity of these statutes, and that the purposes were,publicones, within the meaning of the constitution, although, in the language of section 1278 of the Revision, it be "forprivate profit" has been too often and too uniformly recognized to be now disputed. SeeGammellv.Potter,6 Iowa, 548;Lummeryv.Braddy, 8 id. 33; see alsoCowgillv.Essex Mill, 6 Pick. 94;Bostonv.Newman, 12 id. 467.

These acts can be sustained only on the ground that the objects to be promoted by them werepublic; that the exercise of the right of eminent domain in behalf of railroads, canals, turnpikes, plank roads, bridges, mills, etc., is upon the principle, that being of"public utility"although for "private profit" they are for"public use,"within the meaning of the constitution.

The cases are numerous and uniformly in accord with this view.

The right of the legislature to exercise the power of eminent domain in behalf of railroads has always been upheld by the courts on the ground that theuse was aPage 21public one. Indeed this is elementary and unquestionable. See 2 Kent's Com. 339, 340;Beekmanv.TheSaratoga S. R. R. Co., 3 Paige, 45.

The case last cited is the leading American case upon this subject. The point was expressly made, that takingprivateproperty for the use of a railroad was not taking it forpublic use, and therefore forbidden by the constitution of New York. The clear and conclusive language of the chancellor has often been quoted and followed, and never overruled.

In speaking of the power of eminent domain, he says: "The right ofeminent domaindoes not, however, imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation,where thepublic interest will be in no way promoted by such transfer. But if thepublic interest can be in any waypromoted by the taking of private property,it must rest in the wisdom of thelegislature, to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain and to interfere with the private rights of individuals for that purpose. It is upon this principle that the legislature of several States have authorized the condemnation of the lands of individuals for mill sites, where from the nature of the country such mill sites could not be obtained for the accommodation of the inhabitants without overflowing the lands thus condemned.Upon the same principle of public benefit, not only the agents of the government, but alsoindividuals andcorporate bodieshave been authorized to take private property for the purpose of making public highways,turnpike roadsand canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes, and of bringing water to cities and villages.In all such casesthe object of the legislative power is the public benefit derived from the contemplated improvement, whetherPage 22such improvement is to be effected directly by the agents of the government, or through the medium ofcorporate bodies, or ofindividual enterprise?

Chief Justice MARSHALL, in the case ofWilsonv.Blackbird Creek Marsh Co., 2 Pet. 251, says: "Measures calculated to producesuchbenefits to the public, though effected through the medium of aprivate corporation, are undoubtedly within the powers reserved to the States."

InSwanv.Williams,2 Mich. 427, the question before the court was, whether "property taken by a railroad company was a taking forpublic usewithin the meaning of the constitution," and it was decided in the affirmative. Mr. Justice MARTIN in that case says: "Most certain it is that as to all their rights, powers and responsibilities,threegrand classes of corporations exist: 1st, political or municipal corporations, such as counties, towns, cities and villages, which from their nature are subject to the unlimited control of the legislature; 2d, those associations which are created forpublic benefit, and to which the government delegates a portion of its sovereign power to be exercisedfor public utility, such as turnpike, bridge, canal and railroad companies; and, 3d, strictlyprivatecorporations, where theprivate interestof the corporators is theprimaryobject of the association, such as banking, insurance, manufacturing and trading companies." "Theobjectdefines thecharacterof these associations, by whatever name they may be styled."

The learned judge further says, that in the creation of that class of corporations to which railroad companies belong, "the public duties and public interests are involved, and in the discharge of these duties, and the attainment of these interests, are the primary objects to be worked out through the powers delegated to them. To secure these, the right of pre-eminent sovereignty is exercised by the condemnation of lands to their use, a right which canPage 23never be exercised for private purposes. How, then, can they be regardedas privateassociations?

"Norcan it be said that the property, when taken, is not used by the public, but by the corporation for its own benefit and advantage. It is unquestionably true that these enterprises may be, and probably always are, undertaken with a view to private emoluments on the part of the corporators, but it is none the less true that the object of the government in creating them ispublic utility, and that private benefit, instead of being the occasion of the grant, is but the reward springing from the service. If this be not the correct view, then we confess we are unable to find any authority in the government to accomplish any work of public utility through any private medium, or by delegated authority; yet all past history tells us that governments have more frequently effected these purposes through the aid of corporations and companies than by their immediate agents; and all experience tells us that this is the most wise and economical method of securing these improvements."

In support of these views see the following cases:Blodgettv.Mohawk H. R. R. R. Co., 18 Wend. 1; 7 Pick. 496;2 N. H. 25; 20 Johns. 442, 443;Stewartv.Land, 1 Cranch, 299;Amboy Turnpike, 5 Johns. Oh. 112;Prattv.Brown,3 Wis. 612;Robins v. R. R., 6 id. 636;Soensv.Racine, 10 id. 280;Corp. of N. Y.v.Coates, 7 Cow. 585.

The right to exercise the power of eminent domain in behalf of railroads and other improvements of public utility is recognized by all courts, and denied by no one. While admitting this right it is said that the legislature has no constitutional power to levy a tax on the property of the citizens in aid of a railroad corporation, because it is a mere private enterprise.

It has been abundantly shown that theobjectfor which the right of eminent domain is exercised is apublicone,Page 24forpublicutility, for "public use," within the meaning of the constitution; that this right can be exercised in behalf of these corporations upon no other ground. If, then, the building of a railroad is a public object so as to authorize the taking of the private real property of the citizen — the highest species of property — for a right of way, is it any less a public object for the purpose of receiving aid through the medium of taxation to assist in building the road upon such right of way? The right of eminent domain and the taxing power are both sovereign powers. The former is limited topublic usesby express words in the constitution. The latter is not, nor is it limited at all except that the legislature shall not pass any law to compel any person "to pay tithes, taxes, or other rates, for building or repairing places of worship, or the maintenance of any minister or ministry." Conceding, however, that the taxing poweroughtnot to be exercised, except in behalf of a public object, it is unquestionable that it may be exercised for public purposes — for any object that will justify the exercise of the right of eminent domain. If the State can, for any purpose, take the land of a citizen, it may tax him for a like purpose. The object or purpose should be a public one in either case. But it would be absurd to say that the right of the citizen to prevent his property from being taken for other than public uses, which is secured by express constitutional limitation, may be overridden, but that his right to save his money from being applied, through the process of taxation, to other than public uses, which right isnotembodied in the constitution, must be respected. And yet such absurdity is involved in the position that the citizen's real property may be taken absolutely to aid in the construction of a private enterprise — a railroad — while his money cannot be taken by the process of taxation to aid in the same enterprise. The proposition is that you may not tax the property holder to aid the construction of a railroad, although the taxing powerPage 25is not limited in the constitution, yet you may take his land for the same purpose, notwithstanding the right to thus take is limited to "public purposes." If the taxing power cannot be constitutionally invoked in aid of railroads, neither can the power of eminent domain. If the act under consideration is in conflict with the constitution, in that it taxes the people in aid of the construction of railroads (or, rather, allows the people to tax themselves), then all the legislation of this and every other State, invoking the power of eminent domain in behalf of railroads, and other like internal improvements, are unconstitutional; and all the adjudications of the courts for more than a century, sustaining such exercise of the right of eminent domain, are based upon false premises, and are erroneous. To be consistent we must hold these corporations and the object and purpose of their creation to beprivate, and that neither the power of eminent domain nor the power of taxation can be invoked to aid in their construction, or that they are created forpublic utility, to promote the public interest and convenience, and that both of these powers may be constitutionally exercised to aid in their construction. If they areprivateinterests for the one purpose, they are also for the other. If they are public for one, they are for the other. If the taking of private property for the right of way of a railroad is a taking for "public use," so also is the imposition of a tax to aid in the construction of the road an exercise of the taxing power fora public purpose. This view is in accord with the whole course of legislation of all the States, in regard to internal improvements, and is sustained by a current of judicial decisions that cannot be consistently repudiated.

Every railroad, canal and turnpike road in the United States has been built by the aid of such legislation — granting to them a right of way — based upon the principle that theobjectwas apublicone, justifying the invocationPage 26of sovereign power in their construction. This species of legislation, whether in the nature of grants of right of way to railroads, canals and turnpikes, or by authorizing local aid, through the process of taxation, in their construction, has been sustained by the highest courts of almost every State in the Union, upon this ground and upon none other.

In addition to cases already cited herein, see the following:Livingstonv.Mayor of New York, 8 Wend. 85;In Matterof opening Furmam street, 17 id. 649;Sutton's Heirsv.Louisville, 5 Dana, 30;City of Lexingtonv.McQuillen's Heirs, 9 id. 513.

4. — Taxing power not limited thus limited.

While the right to take private property for public use is conditioned upon making compensation, the taxing power is not thus limited. Indeed, the very idea of taxation implies the power to collect levies of money from the people without making any direct pecuniary compensation. The only revenue possessed by the State is derived from taxation, and it would be absurd to say that she should compensate the citizen for taxes collected.

It is well settled that this clause of the constitution requiring compensation to be made where private property is taken for public use is not a limitation upon the taxing power. See the following cases:The Peoplev.Mayor of Brooklyn, 4 Coms. 423;Town of Guilfordv.Cornell, 18 Barb. 615;The Samev.Supervisors of Chenango Co., 3 Kern. 147;Kirbyv.Shaw,19 Penn. 258;Williamsv.Mayor of Detroit,2 Mich. 560;McMastersv.Common wealth, 3 Watts, 292;In the Matter of the District of Pittsburg, 2Watts and Serg. 320;In the Matter of Fenlon's Petition,7 Penn. 173;Extension of Hancock street, 18 id. 26;Sharplessv.City of Philadelphia, 9 Harris, 147;Schenly and-wifev.Allegheny City,25 Penn. 128;Nicholsv.Bridgeport,23 Conn. 189;Griffinv.The Mayor, 4 Coms. 419;Commonwealthv.Alger, 7 Cush. 53;Page 27Cummingsv.Police Jury,9 La. 503;Moersv.Cityof Reading,21 Penn. 188;Slickv.Maysville andLex. R. R. Co., 13 B. Mon. 1;Justices of Clarke Co.v.P. W. R. R. Turnpike Co., 11 id. 143.

5. — judicial limitation.

The taxing power being one of the sovereign powers vested in the general assembly by the people, and not being limited, either expressly or by clear implication, in the constitution, to the condition of making compensation, the judicial power possesses no authority to thus limit it.

The conclusion therefore is, that as the legislature may constitutionally exercise the right of eminent domain which is limited by the constitution, in aid of the construction of railroads and other internal improvements of public utility, so also may it exercise the taxing power, which isnotlimited, in aid of the same objects.

It is objected that a railroad differs from other public highways, such as turnpikes and canals, because travelers cannot use it with their own carriages, and farmers cannot transport their own produce in their own vehicles. Chancellor WALWORTH answering this objection says: "If the making of a railroad will enable the traveler to gofrom one place to another without the expense of a carriage andhorses, he derives agreater benefitfrom the improvement than if he was compelled to travel with his own conveyance overa turnpike road at the same expense. And if a mode of conveyance has been discovered by which a farmer can procure his produce to be transported to market at half the expense which it would cost him to carry it there with his own wagon and horses, there is no reason why thepublic should not enjoy the benefit ofthe discovery.

"Thepublichave aninterest in the use of therailroad, and the owners may be prosecuted for damages sustained, if they refuse to transport an individual, or his property, without reasonable excuse, upon being paid the usual ratePage 28of fare."Beekmam, v.The Saratoga S. R. . R. Co., 3 Paige, 45.

And inSwanv.Williams,2 Mich. 427, the court says: "The fact that upon railroads individuals do not travel or transport property in their own vehiclesfurnishes no argu'ment in thisparticular, from the fact that the nature of the road, as well as the personal safety of individuals, renders it impossible that it should do so."

6. — bill of rights.

It is also said that the last clause of the 9th section of the "bill of rights," which declares that "no person shall be deprived of life, liberty, or property, withoutdue process of law," is infringed by the act of 1870.

"Due process of law," means ordinary judicial proceedings in court.Boydv.Ellis,11 Iowa, 99;Ex parte Grace, 12 id. 214;Taylorv.Potter, 4 Hill, 140. So that if this clause of the constitution is held to apply to the taxing power, then no tax whatever for the support of the government can legally be levied and collected, except through the means of judicial proceedings in the courts; whereas it is well known that the sovereign power of taxation belongs exclusively to the legislative department of the government, and that all taxes are levied and collected in pursuance of legislative enactments, without the aid of the courts. This clause has no reference whatever to the taxing power, and where property is taken in the lawful exercise of the taxing power, it is not taken "without due process of law."Allenv.Armstrong,16 Iowa, 512;McCarrollv.Weeks,2 Tenn. 215;Harrisv.Wood, 6 B. Mon. 643;Livingstonv.Moore, 7 Pet. 669.

7. — prior decision.

It was said by Chief Justice DILLON, inHansonv.Vernon,supra, that this court in the Wapello county case (Iowa, 388), had held that" The legislature could not, under any circumstances, pass an act which will make it lawful for a county or city, in its corporate capacity, to subscribe stock in a railroad company," andPage 29that it was impossible "to hold the act of 1868 to be valid and yet stand by the decision" in that case.

When it is remembered that until the act of 1868, no act of the legislature of Iowapurportingto authorize any thing of the kind was held invalid by this court, and that no such question was before the court in the Wapello county case, or in any other of the numerous cases involving the validity of city and county railroad bonds, it will be plain enough that whatever may have been said about the constitutionality of an act authorizing the issue of bonds by municipal corporations was onlydictum. The real decision, in the case in 13 Iowa, was, that the legislature had never authorized the municipal corporations of this State to subscribe stock to railroads, issue bonds and levy and collect taxes to pay the same, and that those municipal corporations possessed no power independent of express legislative authority to subscribe to the stock of railroad companies, issue bonds therefor, and levy and collect local taxes to pay the same. To that decision, and to the whole series of decisions of this court holding invalid county and city bonds, issued for that purpose, we give our unqualified approval. But it is given on the grounds that the general assembly had never passed any act conferring the power, and that without such legislation it did not exist.

The question of the constitutional power of the legislature to authorize municipal corporations to aid by local tax in the construction of railroads, within the territory of such municipal corporations, has been before the highest judicial tribunals of at least twenty-one of the States and the supreme court of the United States, and in every instance the power has been affirmed, until quite recently in the supreme courts of Michigan and Wisconsin, and in this court in the case ofSansonv.Vernon. See the following cases:Sharplessv.The Mayor,etc., 21 Penn. St; 147;Commonwealthv.Perkins, 43 id. 410;The People ex rel.v.Mitchell,35 N. Y. 550;Clarkev.The City of Rochester,Page 3028 id. 605;Gouldv.The town of Venice, 29 Barb. 442;Slackv.City of Maysville, 13 B. Mon. 1;Maddoxv.Graham, 2 Met. (Ky.) 56;Nicollv.Mayor, 9 Humph. (Tenn.) 252;Goddinv.Cramp, 8 Leigh (Va.), 120; Cityof Bridgeportv.Housatonic R. R. Co.,15 Conn. 475;Society for Savingsv.New London, 29 id. 174;Cin. R. R. Co.v.Commissioners,1 Ohio St. 77;State, etc., v.Commissioners, 12 id. 596;Shoemakerv.Goshen, 14 id. 569;Prettymanv.Supervisors,19 Ill. 406;Butlerv.Dunham, 27 id. 474, and cases cited; Gibbons v.Mobile, etc., R. R. Co.,36 Ala. 410;Robinsonv.Bidwell,22 Cal. 379; TheCommissionersv.Bright,18 Ind. 93; The City of Aurora v. West, 22 id. 88;Augusta Bankv.Augusta,49 Me. 407;Clarkev.Janesville, 10 id. 130; Mills v.Glason, 11 id. 470; Cold-well v.Justices of Burke, 4 Jones Eq. (N. . C.) 323;Powersv. TheInf. Ct. DoughertyCo.,23 Geo. 65;The St. Joe. C. R. R. Co.v.BuchananCo.,39 Mo. 485;City of St. Louisv.Alexandria, 23 id. 183;Stricklandv.Miss. R. R. Co.,27 Miss. 209,224;Cottonv.Com. of Leon Co., 5Fla. 610;Police Juryv.Succession of McDonough,8 La. 341;SanAntonio v. Jones,28 Texas, 19;Gillmanv.Sheboygan, 2 Black. 510, and cases cited.

We find, then, that upon principle and reason there is the same authority for the exercise of the sovereign power of taxation in aid of the construction of railroads that there is for the exercise of the right of eminent domain, and that this view is sustained by an overwhelming weight of authority. Our plain duty, therefore, is to sustain the act in question. And the question whether its enactment was dictated by a wise State policy or not we must leave to the general assembly, where it exclusively belongs under the constitution.

The order of the district judge, refusing the injunction, is

Affirmed.Page 31

BECK, J. (dissenting).

This court has ruled in at least eight cases that the people cannot be taxed to raise money for the payment of county and city railroad bonds. This is the effect of the course of decisions upon the questions growing out of the county and city railroad bond cases. It is not pretended, in the opinion of the majority of this court just announced, that there is any distinction in principle between those cases and this. But to avoid the effect of this conceded and indisputable fact, it is said that the decisions in those cases were not based upon the want of constitutional power in the legislature to authorize the levy of such a tax, but upon the alleged omission of the legislature to bestow upon the cities and counties the power so to do. Here is a most grave error of fact. This court has decided, that, under the constitution, the power in question is not possessed by the legislature, and cannot be conferred upon the counties and cities of the State. A brief reference to the adjudged cases will vindicate the positive assertion I make.

I will notice in the first placeThe State ex rel.v.TheCounty of Wapello,13 Iowa, 389, the leading case upon the questions involved in the railroad bonds litigation. Upon pages 393, 394, LOWE, J., gives a statement of the facts of the case, which are simple and few, being the vote of the people to subscribe stock to the railroad company, to be paid in bonds of the county; the subscription of the county judge, for the county, to the capital stock of the incorporation; the issuing and delivery to the company of a part of the bonds provided for by the vote; the demand of the residue by the company, and the refusal by the county officers to issue them. Thereupon an information, upon the relation of the company, was filed, asking for a writ of mandamus to compel the county to issue bonds in payment of the balance of the stock subscribed. The opinion then proceeds, in the statement of the case, in the following words: "This informationPage 32was dismissed by the court, upon demurrer of the defendant, alleging, in substance, as the grounds thereof, that the said railroad subscription on the part of the county and its agents was not only without authority of law,but in violation of theconstitution of the State." It thus appears that the very ground of objection made by the defendant was that the subscription, and, of course, all proceedings to carry it out, were in violation of the constitution of the State.

On pages 394, 395, Justice LOWE, in stating the questions presented for determination, uses this language:

"The question, as presented by the record in this case, assumes a duplex form, and is to be considered under two aspects. First, whether, at the time this subscription was made, the legislature had conferred upon the counties of the State the power of subscribing to the capital stock of railway companies; if so, then, secondly, whether it was competent for the legislature to pass a valid act giving such power."

Five pages of the opinion are devoted to the inquiry whether the power had been conferred upon the counties, and the conclusion arrived at that the legislature had made no attempt so to do. The constitutional question is examined intwenty-fivepages, and the power, either in the legislature or in the counties, is utterly denied upon constitutional grounds. This question was presented by the pleadings; it was the main question in the case; the first question was the subordinate one. It is claimed that as the determination of the first question authorized the final conclusion arrived at, the affirmance of the judgment of the court below, all that is said upon the constitutional question is meredictum. But the questionisin the case, and itisdetermined. The fact that it is second in the order of consideration cannot make the determination thereondictum. Its determination, by adopting the view of my brothers, rendered the decision of the other question unnecessary,Page 33and with equal fairness all that is said upon the want of legislative grant of power to the county may be claimed to bedictum. I am astonished that such views should be entertained and expressed by my learned brothers. The simple statement I have made of the facts of the case, and the grounds of the decision, will disclose the grave and mischievous error into which they have fallen.The Statev.The County of Wapellois followed and approved inMyersv.The County of Johnson,14 Iowa, 47. The statement of the case is brief as well as the, opinion. The county was sued upon coupons of bonds issued to a railroad company; defense, fraud in issuing the bonds, and the absence of power and authority in the county to issue them for the purpose intended. A replication, pleading a former adjudication, was held bad upon demurrer The ruling upon the demurrer is sustained, and the decision in a sentence re-affirms the rule inThe Statev.The Countyof Wapello, as to the want of power in the counties to issue such bonds.

The next case decided by this court isMcMillan et al.v.Boyles et al.,14 Iowa, 107. From the statement in the opinion it appears that plaintiffs insisted that the bonds were void, because "they are not only unauthorized by the laws and the constitution of the State, but in contravention of both." A demurrer to the petition was sustained. FollowingThe Statev.Wapello Co., and upon the principles therein announced, the judgment of the court below was reversed.Rock et al.v.Wallace,14 Iowa, 593, follows next in order. The opinion is brief, and holds the county bonds in question invalid on the authority ofThe Statev.The County ofWapello.Smithv.Henry County,15 Iowa, 385, was an action upon coupons of certain county bonds issued to a railroad, in payment of a county subscription. A demurrer to the petition was sustained. Upon appeal to this court, itPage 34appears from the opinion that the questions involved inTheStatev.The County of Wapellowere re-argued, counsel conceding that decision to be against the power of the county to issue the bonds. The arguments, adverse to the ruling of the court in that case, are declared to have been most ably and carefully prepared. But the court adhered to the prior decision in the cases above referred to, in the following language:

"The want of power under ourConstitutionand laws is so clear, and the argument against the right to exercise it is so well sustained and conclusive, as we have attempted to show in the cases above cited (the same above quoted), that we cannot longer regard it as with us open for controversy. In this State it must be considered settled."Ten Eyckv.The Mayor of Keokuk,15 Iowa, 486, without a statement of the facts of the case further than to show that the same questions were presented to the court that had been determined in the prior cases, follows their rulings.Chamberlainv.The City of Burlington,19 Iowa, 395, was an action to restrain the city authorities from levying and collecting taxes for the purpose of paying the interest upon certain bonds issued by the city upon its subscription to the capital stock of a railroad. The statement of the case, as contained in the report, is lengthy, and shows that the bonds are claimed, in plaintiff's petition, to be void, because of want of authority of the city under its ordinances and the laws of the State to issue them, and because they were issued for an illegal purpose. A demurrer to the petition was overruled by the district court, and, upon the questions presented by the decision, the case was submitted to the court. The ruling of the district court was affirmed, COLE, J., delivering the opinion. The questions discussed relate to the power of the city under its charter and the laws of the State to levy and collect taxes for the payment of the bonds issued by the city. This, ofPage 35course, involved their legality. It may be admitted that the constitutional question was not passed upon in the opinion. But the case is valuable for my present purpose, as it clearly shows that the court, as then constituted, and especially the learned justice delivering the opinion, who now concurs with the majority in this case, regarded the constitutional question as presented in and determined by the cases I have above noticed. The opinion uses this language: "The following cases determined by this court hold that counties have noconstitutionalor legislative authority to bind themselves by the issuance of bonds for railroad stock." The cases cited are those above referred to.MoClurev.Owen,26 Iowa, 144, is the last case determined by this court in which the question as to the constitutional power of counties to collect taxes for the payment of railroad bonds was directly presented for our decision. It was a proceeding to enforce the collection of taxes levied for that purpose. The relief was asked upon the grounds of irregularity in the actions of the officers issuing the bonds, and the want of power in the counties to issue such obligations. A few quotations from the opinion will most clearly show the points decided, the authority relied upon, and the views of the court, as then constituted, upon the constitutional question. My learned brother, the present chief justice, concurred. Upon page 248 will be found the following language:

"We are asked by appellant's counsel to change the later ruling of this court, and abandon the principles of the adjudications so frequently heretofore announced in the cases that have arisen upon these county and city railroad bonds. This we are asked to do, not because the rulings and the principles of the construction of our constitution upon which they are based are unsound, but because the supreme court of the United States, which is termed, in the language of appellant's counsel, the finalPage 36arbiter of these questions, has disregarded the decisions of this court, and, in cases before it, has overruled them."

The question decided inThe Statev.The County ofWapellois stated in the following language:

"It is held by a unanimous court, in a carefully prepared and well-considered opinion, after elaborate and profound argument by counsel among the ablest in the State, that the constitution confers no power upon the legislature to authorize counties and cities to become stockholders in railroad corporations, and to borrow money upon their bonds for the purpose of payment upon such stock, and that under the constitution they are forbidden so to do."

The cases above noticed are cited as following and reaffirmingThe Statev.The County of Wapello. The opinion then announces that "the principles of these adjudications, independent of their authority, have the unqualified approval of this court as now constituted. We see no reason to depart from these rulings."

InHansonv.Vernon,27 Iowa, 28, the constitutional question was again before this court, and prior adjudications were again examined and re-affirmed. DILLON, C. J., in his able opinion, uses the following language: "If any thing can be said to be settled in this State, it is, that under the constitution there is no legislative power to endow public or municipal corporations with the faculty of subscribing to the stock of railroad companies, and to levy a tax on the inhabitants to pay therefor. Every body so understands it. I have so understood it ever since I have been on the bench, and have never felt myself at liberty to regard it as an open question.Not one of the counsel concerned in this case hasever asked the court to overturn that decision, and to hold suchsubscription and tax to be constitutional." The learned chief justice, still further on in his opinion, affirms that it was decided inThe Statev.The County of Wapello, "that the legislature could not, under any circumstances, pass an act whichPage 37will make it lawful for a county or city in its corporate capacity to subscribe stock in a railroad company." The opinion of "WRIGHT, J"., in the same case, more carefully notices the course of adjudication of this court, and the points ruled in the several cases, and arrives at the same conclusion. These opinions expressed the view of the majority of the court. COLE, J., dissenting.

In order, if possible, to determine if in fact any reasons exist for the position of my brothers, that the constitutional question was not in the cases above cited, and that, therefore, all the decisions therein are meredicta, I have examined the record of so many thereof as the clerk has been able to find in his office. The records inSmithv.Henry Countyand inRockv.WallaceI have not seen. In my opinion the question is fairly presented in all those I have examined. All of the records contain objections to the bonds, against the payment of which relief is claimed, founded upon their invalidity and want of binding force. In my opinion no one of the records withdraws the constitutional question from the consideration of the court, but, on the contrary, the court was required, in view of the want of constitutional authority in the legislature, as presented in the records, to clothe counties and cities with the power to issue bonds, to hold them invalid upon that ground.

InMcMillanv.Boyle, the petition of plaintiff, upon which the relief was granted, presents the constitutional question and no other. An injunction is asked to restrain the collection of taxes to pay the bonds and to declare them void upon the ground, and no other, that they were unauthorized by and in conflict with the constitution of the State. InTen Eyckev.The City ofKeokukthe petition of plaintiff asks that the defendant and its officers be enjoined and restrained from the collection of taxes levied, or to be levied, for the payment of the interest and principalPage 38of the bonds of the city issued upon its subscription to a certain railroad company. It is expressly admitted in the petition, that, by an act of the legislature, an attempt was made to confer the power to issue the bonds upon the city, and that another legislative act was passed with the express purpose of "curing, establishing and making legal and binding "the bonds in question. See Acts of 5th General Assembly, (1856) pp. 448, 449. These enactments are expressly referred to. The only objection made to the bonds are those of a constitutional character, and it is not pretended that the bonds are invalid for want of power conferred by legislative enactment. The simple point made is, that they are unauthorized by, and in conflict with, the constitution. I repeat, that in all the cases that I have cited, exceptChamberlainv.The City of Burlington, so far as I am able to discover upon examination of the records thereof (with the exception above mentioned), and the reported decisions therein, the constitutional question is fairly and expressly presented; and that question and no other is presented in the two last mentioned.

Probably no litigation that has arisen in the State has been conducted with more ability and vigilance than that growing out of county and city railroad bonds. This is especially true of this litigation in the United States courts. No cases have been more critically examined than those of this court, declaring void paper of this kind.The Statev.The County of Wapellohas been subjected to the closest scrutiny by many able counsel. It was overruled and disregarded by the United States supreme court inGelpckev.Dubuque, 1 Wallace, 176. The counsel in that case, supporting the validity of these bonds, as it appears from their argument, printed with the report of the court's decision, do not question the fact that the constitutional question is properly presented and decided inThe Statev.The Countyof Wapello. There is no claim by them that the decision therein isdictum. I havePage 39never heard that any attorney for the bondholders has, in any case, claimed the like. The United States supreme court, inGelpckev.Dubuque, and in all other cases where the question has been before it, concedes that this court, inTheStatsv.The County of Wapello, and other cases, has decided against the constitutionality of the bonds in litigation. We can find nowhere in all of this protracted litigation, from courts or counsel, the intimation of an opinion that these decisions aredicta.

The foregoing examination of adjudged cases in this court justifies the statement I have made, that this court has repeatedly denied the constitutional power of the legislature to authorize taxation to aid in the construction of railroads owned by private corporations. I have shown that all the judges making the decisions so understand it; the courts in the land so understand it; the bar so understand it; the people so understand it; and, until the dissenting opinion inHansonv.Vernon, a doubt upon the subject was never expressed. A striking instance of the unanimity with which all minds admitted the fact may be mentioned. The question incidentally arose in a case in argument before us on the day the opinion of the majority was announced. The counsel, among the ablest at the bar, conducting the argument on both sides, admitted the fact that the decisions of this court upon the question were as I have above stated. I may well express my astonishment that my learned brothers should have fallen into so serious an error. It may probably be explained by the fact that the case was not argued before us, and the opinion was prepared without the aid of the discussion of counsel, which all courts so highly prize, especially when great questions are presented for consideration, and authorities are relied upon. The appellant's counsel, though among the ablest at the bar, favored us with neither printed, written or oral argument, and the brief discussion on the part of the appellee was, as I remember, confined exclusivelyPage 40to the impolicy of declaring the law unconstitutional, in view of the great advantages of railroads to the business of the State, and the development of its resources, and the great want under which the people labor for facilities of transportation. The necessary haste in the preparation of the opinion, resulting from the accumulation of the business of the court, may have had something to do in the failure of my brothers to perceive the points decided in the cases heretofore in this court, involving the constitutionality of taxation for the purpose of building railroads.

The opinion of the majority of this court overrulesHansonv.Vernon,supra, which held an act of the legislature of 1868, in no essential particular affecting its validity different from the one in question, unconstitutional and void. Both these acts make it lawful for townships, incorporated towns or cities to aid in the construction of railroads, by levying a tax not to exceed five per centum upon the assessed value of the property thereof, to be paid to the corporation building the road. Nothing in the way of stock, nor any interest in the road, is to be received in return for the money so paid the corporation, but it is to be a free gift on the part of the townships or towns voting the tax. The acts provide for the method of calling into exercise the power conferred, and the manner of collecting the tax, and the payment of the money to the corporation. Their provisions are not essentially different, and as it cannot be pretended that these matters in the least affect the question of power on the part of the legislature to authorize the taxation, it is needless to notice them. In two provisions the acts differ. The act of 1870 provides that the money may be raised by taxation "to aid in the construction of any projected railroad in this State." The act of 1868 provides for the taxation in aid of any railway located in, or which may be contiguous to, the township voting the tax. The act of 1870 provides that all railroadsPage 41constructed in this State which shall accept the township aid, "shall be subject to the control of the general assembly in regard to the management of the same and the charges for the transportation of freight and passengers thereon." The prior act contains no such provision. In my opinion, there is no such difference in these acts as would render one unconstitutional and void and the other valid. As to the question of power in the legislature, to authorize taxation as provided for by either, it is the same in both cases. If there be any difference, the first is the less objectionable. It provides for taxation to build roads in the township or town, or those contiguous thereto; the second authorizes taxation for any road wherever it may be located, within the State. Under it a tax may be levied in the city of Keokuk, to build a road in Alamakee county.

The later act provides that the roads built with the aid of the tax shall be subject to the control of the State as to their management and rates of transportation. The first act contains no such provision. Will my brothers maintain that the legislature has not such power over all railways? Are they prepared to hold that this provision at all increases the legislative authority over railway corporations? These are grave questions, and I am glad that in this case they have not been touched.

The majority in their opinion do not pretend that the acts are essentially different upon points which affect the constitutionality of either. In my opinion they are each equally invalid. All that is said in the majority opinion in regard to their difference is, that there are important modifications in the last upon the provisions of the first. The subject is dropped with that single remark. It cannot be claimed, therefore, that the law is sustained because these modifications cured it of any invalidity by reason of constitutional objections.

The law of 1868, as I have before remarked, was declared unconstitutional inHansonv.Vernon. In thePage 42outset of the opinion of the majority, this fact is stated, and is the introduction of the following observation:

"If this case but involved a second time the validity or the act of 1868, annulled by this court in the case referred to, we might regard the question as tothatact settled by that case, but as the general assembly has re-asserted its authority, and re-enacted the law with important modifications, we have treated the question as still an open one, and have given it as full and careful examination and consideration as we are capable of."

Here we have stated the reason for overrulingHansonv.Vernon. As we have seen, the difference in the provisions of the respective acts has no weight with the majority in the conclusion. The ground, as given in the above extract for regarding the question involved as open, is, that the legislature "re-asserted its authority and re-enacted the law." I have never heard it claimed that the legislature, by the re-enactment of an unconstitutional law, could make it valid, or that such action on the part of that branch of the government,the re-assertion of itsauthority, should influence courts in the determination of constitutional questions, and require them to regard as open questions of that character, which are settled by a long course of adjudications. It is a virtual surrender of the most important power and most sacred character of the courts — the power to annul all unconstitutional laws — the character that places them above every influence, public and private. Legislative action or opinions cannot be made, with safety to our form of government, a test of the constitutionality of laws, nor should they influence courts to disturb well-settled precedents and rules of constitutional construction.

The right of this court to declare void, for unconstitutionality, a law of the legislature is conceded by the majority, and the rule is stated in language of no greater force than is usually employed for that purpose. I understand that the power must not be exercised except in clearPage 43cases, where there cannot be a reasonable doubt, in the judicial mind, of the unconstitutionality of the law in question. Now, as we have seen, the law under consideration in no essential respect differs from the act of 1868, which was declared unconstitutional; and this court has settled, by a long course of decisions, that the people cannot be taxed to aid in building railroads, even when the counties and cities in which the tax is levied receive, in return, stock in the companies. How can it be said that upon this subject there can be a doubt in the judicial mind, when it is not an open question, but determined by a course of decisions that in all courts ought to preclude debate thereon, and forever put it at rest. If we who occupy this bench do not regard the decisions of this court, who will, and where will be the end? Will not those who succeed us disregard our determinations as we do those of our predecessors? If the judicial mind cannot rest upon judicial determinations of all questions, how may they be settled? There can be no greater reproach to the administration of justice by the courts than the well-founded charge of oscillating decisions. This court, we know too well, has suffered in that way on account of the conflicting decisions upon the validity of county and city railroad bonds, though the later decisions had the almost unanimous approval of the legal mind of the State, and are most emphatically applauded and concurred in by the majority opinion, though disputing the reasoning upon which they are based.Stare decisisis a maxim the application of which is necessary, not only to secure private rights, but to preserve and maintain the authority and confidence due to courts of last resort. In contemplation of law, we occupy this bench as a court, not as individual judges. It ought not to be understood that the law will or does change with the opinion of the judges who, for a time, sit here. When the law is solemnly declared by this court, there it ought to rest, and it ought not to be understood that, when newPage 44judges come upon the bench, the people may expect a change in well-established rules and principles that protect their rights. In this way only will the certain and equal administration of justice to all be secured.

The construction given in the majority opinion to section 25 of the bill of rights, in my opinion, totally destroys its force and effect. The section is in these words: "The enumeration of rights shall not be construed to impair others retained by the people." The enumeration of rights contained in article 1 of the constitution, denominated by the instrument itself the bill of rights, includes both political, and those which are usually termed private, rights. As I understand the argument of my brothers, it is this: By another section of the bill of rights, it is declared that all political power — political power includes legislative power — is in the people. The people have conferred upon the general assemblyalllegislative power inherent in them, except what is expressly reserved in the constitution. It follows that the power of the general assembly is supreme, except as it is limited by express provision of the bill of rights. This is the sum of the argument. But my brothers forget that the bill of rights secures private as well as political rights, and that section 25 plainly implies that the people retain others beside those enumerated. Now it is very clear that the legislature cannot encroach upon any rights retained by the people, and, as to them, is not supreme. In this view the words of WRIGHT, J., inMorrisonv.Springer,15 Iowa, 342, quoted for that purpose, fall very far short of supporting the conclusion reached by the majority, as above stated. The very section of the bill of rights above quoted withdraws from the power of the legislature the reserved rights of the people. These no free government can interfere with or destroy. Among these rights is the personal right of every citizen to be exempted from all exactions of money by the State, disguised under the namePage 45of taxation, for purposes not public in their character.In aword, all rights are reserved by the people, the surrender of whichis not necessary to the full and perfect working of our freegovernment.

This view is in accord with the construction of the constitutional provision under consideration, as announced inThe Statev.the County of Wapello,13 Iowa, 412. I know of no decision of this court wherein a contrary doctrine is advanced, save the one to which I am now expressing my dissent. A few thoughts will make plain the principle just announced. The constitution is not the origin or foundation of the people's rights; it confers none that they did not possess before its formation. When they formed the instrument they were possessed of all rights with which nature endows all men. Society organized upon the basis of Christianity and a high state of civilization, the institutions pertaining thereto, and the inalienable rights of man, were in existence and recognized as the inheritance of the people. For the protection and preservation of these thepeopleestablished this free government. Its frame-work is the constitution. It is obvious that, by the constitution, the people surrendered no rights they possessed before it was formed that an enlightened and Christain people ought, or may, enjoy under a free government. Whatever rights of the people are demanded by a government designed to protect the rights of life, liberty, property and the pursuit of happiness, existing before the constitution, the people surrendered in that instrument, and no other. Those not surrendered are the reserved rights of the people referred to in section 25 of the bill of rights. Over these no power in the State is supreme.

The power conferred upon the general assembly by the people in the constitution is a power to legislate upon all rightful subjects of legislation in a manner that shall not interfere with their reserved rights. If it be not so,Page 46then have the people failed of their purpose in the formation of the constitution, which cannot be admitted.

To the extent necessary to maintain the government, it may be admitted that all the property of the citizen may be taken in the exercise of the taxing power. But the exercise of this power is limited by this inflexible rule: it must be for the purposes of the government — for public purposes. Taxation for any other purpose is utterly unauthorized, is a usurpation of power, and an act of oppression. I know of no express provision in the constitution limiting the exercise of the taxing power as above stated, yet no one will deny that it can only be exercised within such bounds. It is, therefore, in my opinion, not true, as stated in the opinion of the majority, that the legislative power "is bounded only by the limitationswrittenin the constitution."

It will not be pretended that the legislature can confer power which it does not itself possess. Will it be claimed that the general assembly may by law levy a tax upon certain townships for the purpose of bestowing the money raised thereby as a gratuity upon a railroad corporation? Would this court sustain such a law? In principle there is no distinction between an act of that character and the one under consideration. Both laws have the same object, the same effect. The act in question is a grant of power to a majority of the voters of a township to do what, it must be confessed, the general assembly has no power to do. It must be that all restrictions upon the direct exercise of power are applicable in its indirect exercise. Therefore, all the "limitations written in the constitution" against taxation of the character in question, when directly levied by an act of the legislature, if there be any, forbid the exercise of the power when it is attempted to be conferred upon the majority of the voters of a township.

The maxim of the common law, that the power of parliament is supreme, is not applicable to our government.Page 47The rights of Englishmen are declared in and preserved by their constitution. Our rights existed before our constitution. Their constitution is a grant of rights by the government to the people; ours is a grant of power by the people to the government. The English government is supreme, the people subordinate. Here the people are supreme and the government but a creation of their will, an instrument for their protection. The view of my brothers is applicable to the English constitution, and not to the constitution of Iowa.

The long list of decisions of courts of other States cited in the opinion of the other members of the court are considered of little weight upon the questions involved in this case, when it is remembered that the constitutions of the respective States wherein they are rendered are dissimilar to ours. The constitutional provisions upon which the decision inThe Statev.The Countyof Wapellois based, it is believed, are not to be found in the fundamental laws of those States. I have not the time to pursue an investigation of the subject that will enable me to speak positively upon this point. Yet, when it is remembered that many of those cases were decided by divided courts, often by a bare majority of the judges, which is the fact in regard to some of the leading cases, it is a matter of no little amazement that my brothers should follow them against the repeated decisions of this court, unanimously rendered, and which, as I have shown, have heretofore been regarded by the legal mind of the State as finally settling the question.

To the question whether the construction of railroads is such a public purpose as will authorize taxation therefor, I will devote no time. To me it appears utterly unreasonable to hold the construction of a railroad a public purpose, when every thing pertaining to it, save the public easement devoted to its use, is property of a private corporation, intended for private gain. I will not notice thisPage 48point further here, for I cannot do so without repeating what I said in my concurring opinion inHansonv.Vernon. Upon that opinion, as well as the opinion of the chief justice in the same case, I am satisfied to rest my conclusions upon this point. I can add no force to them.

I cannot concede the force of the argument of the majority, as expressed in their opinion, based upon the doctrine that the right of way of railroads is acquired under the exercise of the right of eminent domain. It is this: Under that right, power is granted by the legislature to private corporations building railroads, to condemn and appropriate the use of lands over which it may be necessary to construct these roads; the right of eminent domain can only be exercised for public purposes; therefore the construction of railroads is a public purpose. The application of this conclusion is as follows: As railroads are thus shown to be public objects, and as taxes may be levied for all public purposes, they may be for the construction of railroads, even though the people in their corporate or political capacity receive, in return for the taxes paid by them, no property in the roads, which are, as to their ownership and profits — I do not speak of their control — private property. The error in this argument results from leaving out of view the character of railroads and the corporations building them.

I will proceed to inquire into the character of railroads and the corporations constructing and owning them, and of the right acquired in lands over which they pass. The conclusions reached will enable me to determine upon what principles lands are condemned in the exercise of the right of eminent domain for the purposes of railroads. The result, I believe, will demonstrate the fallacy of the argument above stated.

It will not be disputed that the rails, ties, bridges, cars, station-houses and all other equipments of railroads arePage 49private property; their use and employment is under the control of private persons,i.e., private corporations. I do not, of course, speak of the railroads built and owned by the State, or any corporate or political subdivision of the State, if there be such; neither must I be understood to deny the legal right of the State to regulate and control railroads owned by private corporations in a proper manner, and to a certain extent. But these roads and all property pertaining to them are designed for the public convenience and patronage. Mills, hotels and stage coaches are maintained for the same purposes. Unless the public wants require them they will not be built. The public patronage is necessary to support them. But the public has no ownership in this kind of property. It simply has an interest in and right to its use, and cannot be excluded therefrom upon compliance with proper rules as to compensation, etc., adopted for its control. It may be described, in one sentence, as private property devoted to public use for the purpose of private gain.

Railroads in this State are usually, if not always, owned by aggregate corporations. These corporations are strictly private, and in them the public — the State — has no right of property. It is unnecessary to discuss any views as to what extent, if any, the State may regulate and control these private corporations. No one will deny that they are private and exist for private pecuniary profit. The State is entitled to no part of their earnings. I will not be understood as intimating that they are exempt from taxation. A railroad corporation is no more public than a corporation whose object is the erection and management of a hotel, or the building and operating of a line of steamboats. The objects of these corporations are all alike, namely: to realize profits for their stockholders, by transporting the people and their goods.

It will be seen, that these views, which cannot be questioned, verify the accuracy of the description above givenPage 50of railroads, namely: they are private property, devoted to public use, for the purpose of private profit.

Our next inquiry is this: What interest do railroad corporations acquire in lands over which their roads pass? Upon this point there is no dispute; all authorities unite in holding that they acquire no other interest, unless by purchase, than a right of way — an easement; the title remains in the land-owner; the use of so much of the land as may be necessary is given for the purposes of the road. Upon what principles is the use of the land taken for this purpose? This is an important question, and, in my opinion, the key that will disclose the error in the opinion of the majority. The character of the corporations building railroads, and the exclusively private character of their property, forbid a thought that any thing exists in either, apart from their business objects, that will authorize the State, for them, to exercise the right of eminent domain, or to clothe the corporations with the power to exercise that right. Let us suppose the case of a railroad built by a private corporation, and not intended to transport the public and the goods of the public, but exclusively confined to the object of transporting the property of one person, or of the corporation owning it. Such may be the case with a railroad built from a coal mine. Will it be pretended that the right of eminent domain may be exercised to condemn lands over which it may pass? Most assuredly no claim of the kind can be made.See Bankheadv.Brown,25 Iowa, 540.

The corporation and road in this case will differ in no respect from the corporation and road built for public patronage. We may thus clearly see that the right of eminent domain is not exercised on account of the corporation, or road built by it, but because the object of the corporation and road is for the use and convenience of the public. It is not exercised on account of any character possessed by the road or corporation aside from public use and convenience. When exercised, the use of the road must bePage 51public. For whom is the right exercised? The answer is plain, — for the public.

The right of locomotion must be free; the people must be allowed to travel and transport their goods wheresoever they will. They must not be confined to any particular means of transportation, but must be permitted to adopt those which they esteem best adapted to their comfort, convenience and interest. One cannot selfishly forbid the use of his lands for the public travel; he holds them subject to the right that the State may exercise, which we call the right of eminent domain, to open lines of travel over them, on payment of just compensation. But, as we have seen, the right will only be exercised for the public. If the convenience, interest or comfort of the people require a particular means of locomotion, it cannot be denied them. It has been found that railroads are better adapted to public convenience than other means of public travel, and that the better way of building them is by private corporations, rather than by the State or by the political subdivisions of the State. The relation of the public and the railroad corporations is thus easily understood. The right of way, the easement of the road, is acquired for the public; the corporation is private, and the road is its private property. The exercise of the right of eminent domain gives to the people, not to an individual, the right of way — the easement — over lands. The corporation, in consideration of compensation to be paid by the public using the road, undertake the construction and operation of the road, which, as we have seen, is private property. We have then the case of a private corporation, whose object is private profit, but whosebusinessis the public accommodation, occupying an easement which can only be taken under the right of eminent domain by the people. There is no mystery in this: the easement is in the public; the means of transportation is private property. This results from the necessity of the case, or from public policy. It is foundPage 52that the public interest is best subserved when the structure and equipments of a railroad are owned by private corporations. The corporation is permitted to occupy the right of way — the easement — which can be alone taken for the public, on condition that it will supply means of public transportation. It cannot be said that the corporation thereby becomes public, or the road it owns becomes public property, or a public object or purpose, in its construction and maintenance. The easement of a common highway is in the public. A stage-coach maintained for public convenience and public patronage, whereby private gain is acquired, is private property; yet it cannot be operated without using the easement granted to the public. No one will argue that it is therefore a public object, for the maintenance of which the people may be taxed. It is in no sense different from the property of railroad corporations. The fact that the railroad corporation exclusively uses the easement in the business of transportation does not change nor weaken the argument. The necessities of the case require the occupation to be exclusive. Neither does the fact that great expenditures are necessary to be made, to prepare the lands over which the easement extends for the proper use of a railway, affect the argument. To fit a common road for the profitable use of stages or express wagons may require great outlays by the owners of such property. I well remember an instance where, for miles, a common road was improved at great expense by stage-owners, to enable them to prosecute with greater profit their business of transporting the public from one town to another. Can it be claimed that the people could have been taxed to make such improvements, which were needed only by private persons, to render their business more remunerative?

The fact that the State authorizes railroad corporations to institute proceedings to condemn lands under the right of eminent domain, and requires them to make compensationPage 53to the land owners, does not support an argument against the view I take that the easment is acquired for the public and not for the corporation. In the case of a public road, one or more citizens may institute proceedings for the appropriation of lands to the public for a highway, and, under our statute, in certain cases, the parties who so institute the proceedings may be required to pay to the owner the assessed value of the lands. The easement, however, is taken and held by the public.

At the risk of repetition I will state again my conclusion on this question. The easement which is used by railroads pertains to and is acquired by and for the people. It is public in its nature, for it is used by the people, the corporation supplying the means for its use. These means, the railroad and its equipments, are private property, devoted to private gains. The people cannot be taxed for the purpose of raising money to be given to private persons or corporations to enable them to acquire such property.

The argument I have just noticed, upon which so much stress is laid, in the opinion of the majority, is, in my judgment, most conclusively answered in a line of reasoning differing from the one which I have presented, by DILLON, C. J., inHansonv.Vernon,27 Iowa, 28; by DIXON, C. J., of Wisconsin, inWhitneyv.Sheboygan Railway Company, Am. Law Reg., March, 1870; and by COOLEY, J., of Michigan, inThe Peoplev.Township Board, Am. Law Reg., August, 1870. I forbear to present the arguments of these decisions, which I fully approve, being content to rest my conclusions upon the views I have expressed above.

The decisions in the cases just referred to discuss fully and most ably the whole ground covered by this case. The views therein expressed in regard to the constitutional limits of the legislative power I most fully approve. They completely answer the arguments and conclusions containedPage 54in the opinion of my brothers, and the inferences to be drawn therefrom, and render any further effort on my part in that direction quite unnecessary.

In my opinion the decision of the majority of this court in this case will fail to settle the important question involved. It is in the face of eight prior decisions of this court. It overrulesHansonv.Vernon, which holds unconstitutional a law, as I have shown, in no respect different from the one in question. It is contrary to the recent most able and satisfactory decisions of the supreme courts of Michigan and Wisconsin upon the same question. The most eminent writers upon the law cordially approve those decisions; they will condemn the one made by the majority of this court in this case. It cannot and will not satisfy the legal mind of the country that it is of greater authority than the adjudications it overrules. It is contrary to the spirit and experience of the times. Pennsylvania, Illinois, and probably other States, where the courts have sustained, as do my brothers, taxation of the people to aid in the construction of railroads, after having endured the oppressions and evils flowing therefrom, have, by constitutional provisions, provided against them. The courts of Michigan and Wisconsin and the executive of California have protected the people of those States from legislation of this kind, and saved them from its evil effects. Our State, by the decision of this court, is made to take a stride backward; that work, which by our predecessors was so well done for the protection of the people from unjust, unconstitutional and ruinous taxation for private purposes, is destroyed, and the barriers against the aggressions of unconstitutional exactions are broken down.

Upon the most mature consideration and thorough conviction, I dissent from the reasoning and conclusions of the majority as announced in their opinion.Page 140