it need not be said, that this would be a much more alarming power, than the unlimited right of taxation entrusted by the people to their representatives;"

"The difference between general taxation, and special assessments for local objects, requires that they should be distinguished by different names, although both derive their authority, from the taxing power. They have always been so distinguished, and it is therefore evident that the word tax, may be used in a contract, or in a statute, in a sense which would not include a street assessment, or any other local or special taxation within its meaning. Several cases have been found in which it has been adjudged to have been so used. But in no case, has it been adjudged, that street assessments are not made by virtue of the legislative taxing power. If there are expressions to the contrary, in some of the cases, it will be found that they are dicta, inapplicable to the point decided, or if applicable, that they were unnecessary to the decision, and not well considered.1

The line which distinguishes between the cases of taking private property for public purposes under the right of eminent domain; and that of the taxing power under the constitution, has been one of the most prolific sources of controversy and litigation in the courts. This is the natural result of an education of the masses of our people, who, under a system of a free government, which seems to confer upon the individual citizen absolute rights; a system which teaches them to look with jealousy upon the exercise of power, whenever it comes in conflict with the sole and absolute dominion of the citizen, over his own posessions.

But it is no longer a question of constitutional power, in this state, that the legislature can compel public burthens to be borne by the persons who ought to bear them; or who, in the judgment of the legislature ought to bear them, without, or even against the consent of such persons; and the legislature have the

NOTE 1.-Among the cases criticized as coming within the charge of dicta, in applicability, not necessary to the decision, or not well considered; are, Matter of Mayor of New York, 11 John, 80; Bleecker v. Ballou, 3 Wend. 266; Sharp v. Spier, 4 Hill, 76. The following decisions are found to sustain the principles above laid down. Livingston v. Mayor of New York, 8 Wend. 85-101; Owners of Ground Assessed v. Mayor of Albany, 15 Wend. 376, as to taxing power; Thomas v. Leland, 24 Wend. 65; Striker v. Kelly, 7 Hill, 9–23.

power to authorize and direct a tax to be assessed, and levied, upon the property of such persons as in their judgment ought to bear the burthen to pay the expenses of any such public improvement, or supposed public benefit. The liability of the persons upon whom the expenses of improvement is cast, stands upon the same ground as all other liability to taxation. a

The legislature may designate any one to institute proceedings to acquire private property for public purposes, as where the commissioners of the Central Park in the city of New York, a recognized public body were authorized to institute such proceedings, the question whether such a body had, apart from this legislative power, a legal existence, was held to be immaterial. b

The legislature, even, possess the power to levy a tax upon the taxable property of a town, and appropriate the same to the payment of a claim, made by an individual against a town. Nor is it a valid objection to the exercise of such power, that the claim to satisfy which the tax was levied, was not recoverable by action against the town; c and the courts have no power to supervise or review the doings of the legislature in such cases. d It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude or charity. e

"It is well settled, that the authority to raise money by the exercise of the taxing power, is not in conflict with the constitutional provisions, protecting private property from seizure. The two principles co-exist in the constitution, and it is not difficult to distinguish between them. This power is frequently resorted to for the purpose of promoting education, and carrying out the system of common schools. For such purposes in this state, the power has ceased to be questioned. It prevails and is exercised equally in other states. g

We are now treating of the constitutional power of this state. It is needless, as well as useless in this work to discuss it as a question of state policy, or as to the extent which this power

a Brewster v. City of Syracuse, 19 N. Y. 116-118.

b Matter of Central Park Extension, 19 Abbott, 56.

c The Town of Guilford v. Supervisors of Chenango Co. 13 N. Y. R. 143

d Id. 148.

e Per Denio, J. Id 149.

f Id. see Booth v. Town of Woodbury, 32 Conn. R. 118. g Commonwealth v. Hartman, 17 Penn. 119.

ought to be exercised. This work does not intend to discuss questions of political, or domestic policy. Under the question of power, it is now held, that the legislature of a state unless restrained by its constitution can authorize a county, or a town to take stock in a railroad or other public improvement; to borrow money to pay for the same; and to levy a tax to repay the loan; that this authority can be conferred in such a manner as to accomplish the purpose, either with or without a popular vote; and when the legislature have power to authorize the act, it can by retrospective legislation, cure the evils arising from an irregular execution of such power. a1

Whatever may be the interpretation of the legislative power under constitutions of other states, in the state of New York, it would seem to be settled, that where the fundamental law has not limited, either in terms, or by necessary implication, the general powers conferred upon the legislature, courts cannot declare a limitation, under the notion of having discovered something in the spirit of the constitution upon a subject which is not even mentioned. b

In relation to the taxing power, there is found no restriction in the constitution upon the power of the legislature; it is therefore limited, only by their own discretion. It possesses all the power

a The People v. Mitchell, 35 N. Y. 551-3; Wall, U. S. R. 327; Thompson v. Lee County.

b People v. Fisher, 24 Wend. 220; Benson v. Mayor of Albany, 24 Barb. 248 Grant v. Courter, id. 237.

NOTE 2.-In the case of Sweet v. Hulburt, reported in 51 Barb. 812, the author is found concuring in the decision of that case, which, in some respects, is in conflict with the principles above laid down in this work. So far as it is in conflict, he desires to say, he failed to give that case all the consideration, that his subsequent and better examination of the law has impressed upon his mind, and though he concurred then, in the result, though not in all the reasonings, his better judgment now is, that the case, upon the principle of the power of constitutional right of taxation, for the purposes in the act mentioned, was erroneously decided. The word "donated" in the act in question, did not express the true spirit of the act. Had the word "contribute " which was its spirit, instead of "do nate" which was its letter, been used, the spirit of the act would have been better expressed, and no legal objection could have been raised against it I think the true rule is, that though a law, unjust in its operation, should be, ot as enacte nevertheless, if not forbidden by the constitution, the remedy is not in an appeal to the judiciary, but to the people, who must apply the corrective.

of legislation that was possessed by the British parliament, except by the express or implied restrictions in the constitution itself. a To determine an act of the legislature, with reference to taxation for a public improvement or a public object, to be unconstitutional, we must see the prohibition contained in the constitution itself, in express terms, or by necessary implication from its terms.

"But there is a spirit existing among the people, and cases are found, where the courts have been disposed to encourage this spirit and hold, that a law, though not prohibited by the constitution, 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 it is claimed that the courts can declare such an act unconstitutional, if they deem it wrong or unjust," or, to borrow the language of a modern case, b "in delegating to a Senate and Assembly with the approval of the governor the power to make laws, under certain limitations and restrictions, but without enumerating and defining those powers, the people did not, nor did they intend to, invest that body with authority to make laws inconsistent with natural right." And also, c "There are certain vital principles which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection of which governments are instituted. An act of the legislature, contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority."

This sounds well, and is well written, but is it sound in theory, as constitutional law? Under what power of the constitution, are the courts authorized to nullify a law of the legislature except for its infraction of that instrument? If the legislature, under the admitted authority of the taxing power, have been unjust or oppressive in the enactment of a law, has the right ever been heard of, under our system; has the power ever been discovered in our constitution, that clothes the judiciary with authority to declare

a See People v. Morrill, 21 Wend. 563; Butler v. Palmer, 1 Hill, 324; Bloodgood v. Mohawk & Hudson R. R. Co., 18 Wend. 9; Leggett v. Hunter, 19 N. Y. R. 445, and cases cited; Sharpless v. Mayor of Philadelphia, 21 Penn. 148. b Sweet v. Hulburt, 51 Barb. 318.

c Id. 317.

the law to be void, because it is unjust? It would be assuming a right on the part of a court, to change the constitution;-to supply what they might conceive to be its defects; to interpolate into it, whatever in their opinion ought to have been put there by its framers. The constitution has expressed in terms of prohibition, the things which the legislature may not do. If the judiciary shall assume that there are certain other things that the legislation shall not do, and so declare it, do they not extend the list? Do they not thereby alter that instrument? Do they not become aggressors themselves? Do they not thus violate both the letter and spirit of that organic law, even more than the legislature possibly could? If they can add to the reserved rights of the people, they can take them away; if they can mend, they can mar; if they can remove the landmarks that the people established for their own protection, they can obliterate them; if they can change the constitution in any particular, there is nothing but their own will to prevent them from demolishing it entirely.

In a case, in the state of Pennsylvania a Chief Justice Black held this language: he said, "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."

The leading and most prominent objection raised to the exercise of the taxing power to favor railroad corporations, is on the ground, that they are private corporations, and that such taxation, is, consequently, to be applied to a private purpose. If the premises of this proposition were sound, such taxation would clearly be unaua Sharpless v. Mayor of Philadelphia, 21 Penn. St. R. 161, 2.