thorized and void. But the right of taxation depends upon the object for which the fund is raised, or the ultimate use to which it is to be applied, and not upon the character of the person or corporation whose agency is employed in applying it. It having been settled in this state that railroads organized under legislative authority are public improvements, and that the public have an advantage and interest in them; the public may also be taxed for this purpose, though it be done under the direction and agency of an individual or private corporation. a

It is believed to be a narrow view of governmental duty, to insist upon confining the state, to the performance of such duties only, as are necessary to sustain the existence of government; as for instance, to the administration of justice, the preservation of peace, and protection of individual interests; nor has it so confined itself. Schools, colleges, institutions of charity and benevolence, institutions for the promotion of arts and sciences, and other objects too numerous to mention, have not only been established, and their objects promoted by state policy, but taxes have been laid upon individuals by which, their private property has been so taken and appropriated. Canals, bridges, roads, and other means of passage and transportation from one part of the country to another for commercial purposes, have been constructed by the state at public expense from individual taxation, not only here, but by every civilized government; ancient or modern. If these are not public improvements, the law directing taxation for them is void. It has upon this assumption, therefore, been adopted as the policy of this state, enacted into law by its legislature, and sustained by judicial interpretation. It is held that the state may employ the agency of individuals or corporations to construct such works, and though the company may be private, the work they undertake, is for the public benefit, to do which, is within the power of the state, as well as the duty; and the state may therefore, delegate a sufficient share of the sovereign power by way of taxation and eminent domain, to enable such agents to perform the work. The power of taxation by the legislature is unrestrained by the constitution, except by a provision that through it, they cannot take private property for private purposes. The courts, hold those a Bonaparte v. The Camden and Amboy RR. Co., 1 Baldwin R. 223.

purposes and objects to be public, which develop the physical re sources, promote its commerce, and establish public benefactions for the poor, the blind, or the insane. These are clearly the purposes of a wise and humane government. The theory of our government, then seems to be this; the people by their constitution have invested the legislature with all legislative power, and this includes the power of enacting laws for taxing themselves for public purposes, and for the exigencies of government, and the only remedy of the people for unjust legislation done within admitted bounds, is to change their representatives, and thus correct the evil.

Taxation is always a delicate, a peculiarly flexible, and a most indefinite power. There are certain propositions, however, that must be conceded, and they may be laid down as established. First, that every citizen is equally bound to support the government, and aid in promoting its beneficent ends. He must also submit to the inherent power of sovereignty in the government to exercise the right of eminent domain, limited only by the fundamental security that he receive just compensation for private property taken for public benefit. Second, that every citizen, when called upon, should contribute in the form of taxation, direct, or indirect, to burthens resulting from the administration of the government and its laws, under which he claims protection. The taxpayers compensation, is in his reciprocal benefit. Equality, is the great object of the constitution, and should be of the laws; but mathematical equality is practically impossible. The history of sustained taxation, in every form, always shows actual inequality. A tax may be constitutionally imposed upon one class of roperty only, and many may own no such property; or, it may be specific, and therefore arbitrary, and will be also necessarily unequal; or it may be on all property ad valorem; and even then those owning no taxable property will contribute nothing, even though they derive great personal benefit from the appropriation of the taxes. And in whatever form, or for whatever purpose taxes may be imposed, and however nearly they may seem to approximate to equality, they will be found to be necessarily unequal when tested by the only rule or principle of taxation; which is, an equal degree of benefit to each person in the use made of the tax. There is no human process by which a relative degree of

interest can be precisely graduated. It is undeniable, that all the citizens of one county, or a town, have not the same equal interest in a local improvement, such as a road, or a bridge, or a plank or railroad, but there is no method by which the exact interest of each can be ascertained; this exactness therefore, must in degree, be disregarded in taxing for the construction or repair of such improvements, and it is seen that not the local inhabitants alone, are benefited, the people of other localities, counties or towns, are also benefited by these improvements, and the whole public as well as the local citizen are benefited to the extent, that such improvements contribute to the social and commercial intercommunication between the citizens of the different localities; and yet, the taxes to construct or repair a highway or a bridge cannot be levied beyond the limits of the town or county within which the public improvement is made. Inequality of taxation is not therefore, unconstitutional. a

The legislative power in this state, under the constitution, has been so ably, faithfully, and fully, presented, and established by the highest court of the state, including in the principle, the taxing power, that an omission to copy their views, when discussing this subject would seem to be inexcusable.

Chief Justice Denio, in pronouncing the opinion of the court, said: "In the first place, the people in framing the constitution, committed to the legislature the whole law-making power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government, is the rule. A prohibition to exercise a particular power is the exception. In enquiring, therefore, whether a given statute is constitutional, it is for those who questions its validity to show that it is forbidden. I do not mean that the power must be expressly inhibited, for there are but few positive restraints upon the legislative power contained in the instrument. Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision. The frame of the government; the grant of legislative power itself; the organization of the executive authority; the erection of the prin a County Judge of Shelby Co. v. Shelby RR. Co. 3 Kentucky R. People v. Draper, 15 N. Y. 543.

cipal courts of justice; create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance. But independently of these restraints, express or implied, every subject within the scope of civil government, is liable to be dealt with by the legislature. As it may act upon the state at large, by laws affecting at once the whole country, and all the people, so it may in its discretion, and independently of any prohibition, expressly made or necessarily implied, make special laws relating to any separate district or section of the state. As a political society, the state has an interest in the repression of disorder, and the maintenance of peace and security in every locality within its limits; and if from exceptional causes, the public good requires that legislation, either permanent or temporary, be directed towards any particular locality, whether consisting of one county or several counties, it is within the discretion of the legislature to apply such legislation as in its judgment, the exigency of the case may require; and it is the sole judge of the existence of such causes. The representatives of the whole people, convened in the two branches of the legislature, are, (subject to the exceptions which have been mentioned,) the organs of the public will in every district or locality of the state. It follows, that it belongs to the legislature to arrange and distribute the administrative functions, committing such portions as it may deem suitable, to local jurisdictions, and retaining other portions to be exercised by officers appointed by the central power; and changing the arrangement from time to time, as convenience, the efficiency of administration and the public good may seem to require. If a particular act of legislation does not conflict with any of the limitations or restraints that have been referred to, it is not in the power of the courts to arrest its execution, however unwise its provisions may be, or whatever the motives may have been which led to its enactment. There is room for much bad legislation and misgovernment within the pale of the constitution; but when this happens, the remedy which the constitution provides, by the opportunity for frequent renewals of the legislative bodies, is far more efficacious than any which can be afforded by the judiciary." This extended extract, seems to be called for, to excuse the concurrence with a different view of legislative power, expressed in the case of Sweet v. Hul

burt above referred to, a so far as it differs from this. This case coming from a higher source of authority must be controlling as the law of this state, and as being the settled interpretation of constitutional power in the legislative body. Nor does this case stand alone.

The Supreme Court of this state, whose unreversed and unquestioned adjudications we must now regard as the law of the state, have laid down the following propositions in regard to the taxing power of the legislature, as connected with the construction of public works, and especially as connected with taxation in aid of railroads, which will equally apply to other public improvements. b First. That all the inherent power of the people for self government, not delegated to the general gevernment, is reserved to, and belongs to the state.

Second. That of such reserved powers, the entire legislative power, is subject to no restrictions or limitations, except such as are contained in the state constitutions.

Third. That the taxing power belongs to the legislature, and is subject to no limits or restrictions outside of the United States and state constitutions.

Fourth. That the power to authorize the construction of works of internal improvement, and to provide for their construction by officers or agents of the state, rests with, and pertains to, the legislature, to be exercised within its exclusive discretion.

Fifth. That such works may be constructed by general taxation, and in case of local works, by local taxation; or the state may aid in their construction, by becoming a stockholder in private corporations; or authorize municipal corporations to become such stockholders for such purpose.

Sixth. That railroads are public works, and may be constructed by the state, or by corporations, and lands taken for their use are taken for the public use, and may be so taken on payment of a just compensation.

Seventh. That the legislature is the exclusive judge in respect as to what works are for the public benefit; in regard to the expediency of constructing such works; and as to the mode of their

a 51 Barb. 312.

b Clark v. City of Rochester, &c., 24 Barb. 489.