construction, whether by the state, or by private or municipal corporations, in whole or in part.

Eighth. That the legislature may authorize municipal corporations to subscribe to a stock of a railroad company, with the consent and approval of the majority of the corporators duly ascertained. "

Ninth. That the passage of a law authorizing such subscriptions to the stock of a private corporation, or to take effect upon the approval or assent of a municipal corporation by the vote of the corporators, is not a delegation of power to the corporation to pass a law, but is a legitimate case of conditional legislation, and is entirely within the discretion of the legislature.

In enforcing these propositions, a member of the court remarked, a "The constitution of the United States, and that of our own state, constitute the only restriction or limitation of the legislative power. It is, aside from these limitations, supreme, uncontrollable and omnipotent, in respect to all other matters and subjects. The taxing power, is one of the inherent powers of government, and belongs appropriately to the legislative department." Another eminent judge in the same case, remarked as follows: "It is not denied but that the state may provide by law, for the construction of a railroad through the agency of its own officers, taking all lands necessary for the purpose by virtue of its right of eminent domain; or delegate the power to build the road, and take the

a Id. 480.

NOTE 3.-Since the rule adopted in the above eighth proposition, the highest court of this state, and also the court of the United States, have given interpretation of constitutions, and the subject of legislative power of taxation for the construction of railroads, and have carried the rule beyond what is laid down in this proposition. In the case of The People v. Mitchell, 35 N. Y. 551, it was held that a county, or other municipal corporation, may subscribe for stock in a railroad or other public improvement if authorized so to do by the legislature; and that the legislature can authorize such municipal corporation to take stock therein; 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 they have authorized the act upon the condition of receiving the popular vote, the legislature can by retrospective legislation, cure any evils arising from an irregular execution of he power. The same rule, and in terms similar and in almost identical language, has been held by the Supreme Court of the United States, in the case of ThompBUL V. Lee County, reported in 3d Wallace Reports, 327.

lands required for it, to a private corporation. Nor is it disputed that the state may, under its taxing power, charge the expense of such public improvement, made by itself, upon the citizens of a particular locality which may be supposed to be more immediately benefited by the improvement; nor is it controverted that a municipal corporation may be authorized by law, to make such public improvements as are required by the interests of its locality, and tax the citizens of the locality to defray the expense. The power of the state, to this extent, is unquestioned, and so well established by long exercise of it, and by judicial decisions, as to render a discussion of it unnecessary if not unprofitable."

"There is nothing more easy than to imagine a thousand tyrannical things which the legislature may do, if its members forget all their duties, disregard utterly all the obligations they owe to their constituents, and recklessly determine to trample upon right and justice. But to take away the power from the legislature because they may abuse it, and give to the judges the right of controlling it, would not be advancing a single step, since the judges can be imagined to be as corrupt and wicked as legislators.”

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

These propositions, and the conclusions drawn from them, seem to be the views upon which the New York courts have also proceeded in giving constitutional construction, and in establishing the law of this state. They are also sustained, by the construction given by the national and other state courts.

4

NOTE 4.-A few of the cases favoring the New York constitution are as follows: Fletcher v. Peck, 6 Cranch. 87, where it was held, "If a state legislature shall pass a law within the general scope of their constitutional powers, the court cannot pronounce it to be void, merely because it is in their judgment, contrary to the principles of natural justice." The ideas of natural justice are regulated by no fixed standard; the ablest and purest men have differed upon the subject; and all the court in such an event could say, would be, that the legislature, (pos. sessing an equal right of opinion,) had passed an act which, in the opinion of the Judges, was contrary to abstract principles of right.". In Golden v. Rice, 3 Wash. C. C. R., it was said, that the state legislatures may make such laws as they see fit, unless inconsistent with the powers exclusively vested in the government of the United States, or by some article of the federal or state constitution." In

Bennet v. Boggs, 1 Bald. 74, it was said, "We may think, the powers conferred by the constitution of this state, too great or dangerous to the rights of the people, and that limitations are necessary; but we cannot affix them." "We cannot declare a legislative act void because it conflicts with our opinions of policy, expediency or justice." The remedy for unwise and oppressive legislation within constitutional bounds, is by appeal to the justice and patriotism of the representatives of the people. If this fails, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights."

In the Providence Bank Case v. Billings, 4 Peters, 514, 562, Chief Justice Marshall said, "The power of legislation, and consequently of taxation, operates on all persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as part of itself, and need not be reserved when property of any description, or the right to use it, in any manner is granted to individuals, or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right, that it must bear a portion of the public burthens, and that portion must be determined by the legislature." In Commonwealth v. McCloskey, 2 Rawle, 374, the court say, "If the legislature pass a law in plain, unequivocal, and explicit terms, within the general scope of their constitutional power, I know of no authority in this government, to pronounce such an act void, merely because in the opinion of the judicial tribunals it was contrary to the principles of natural justice; for this would be vesting in the court, a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative and judicial departments, dangerous to the well being of society, or at least, not in harmony with the structure of our ideas of natural government." In Norris v. Clymer, 2 Barr. 285, the court said, "The constitution allows to the legislature, every power, which it does not positively prohibit." In Commonwealth v. McWilliams, 1 Jones, (Penn.) R. 71, the court said, "From the commencement of the government, our representative bodies have exerted the unchallenged power to lay taxes, mediately or immediately, for every purpose deemed by them legitimate. Among these purposes, the construction and maintenance of roads and highways, to meet the necessities, and to facilitate the commerce of the people, have ever been deemed of first importance. Without these, a commercial community could scarcely exist. Indeed, they are so essential to the progress of civilization and the cultivation of the arts of life, that the degree of refinement attained by a people, may, in some sort, be measured by their extent and condition." "No one has yet dreamed of doubting the validity of that power when applied in maintenance of the ordinary roads of the country."

In Commonwealth v. Hartman, 5 Harris, 119, the court say, "The legislature has jurisdiction on all subjects on which its legislation is not prohibited. In applying this principle to the present case," (an act to provide for the establishment of common schools,) "it is enough to say, that there is no syllable in the constitution which forbids the legislature to provide for a system of general education, in any way which they, in their own wisdom may think best. But it is argued, that for the purpose of promoting education, and carrying out the system of common schools, laws may be passed which will work intolerable wrong, and

produce grievous hardship. The answer to this is, that a decent respect for a co-ordinate branch of the government, compels us to deny that any such danger can ever exist. But if a law, unjust in its operation, and nevertheless not forbidden by the constitution, should be enacted, the remedy lies, not in an appeal to the judiciary, but to the people, who must apply the corrective themselves; they have not intrusted the power to us." In Wilson v. Mayor of New York, 4 E. D. Smith, 678-9, Woodruff, J., said, "The power of the state to tax all property within its limits, whether real or personal, cannot be denied." "In the apportionment of taxes, and the assigning to persons or to property the portion which each shall contribute, to the public burthens, the legislature have the sole and exclusive power, of determining what is just and equitable, and upon what description of persons, and upon what property within the state and in what ratio, the imposition shall be made." "The inquiry is, in this tribunal, not what property might equitably be taxed, nor what property it is expedient to tax," &c. In the case of the Fire Department v. Noble, 3 E. D. Smith, 441, it was held that a statute imposing a tax upon foreign insurance corporations for the benefit of the fire department, as a condition to their right to take insurances, was not an infraction of the constitution which forbids taking private property for public use without just compensation; that a tax upon a particular business may be levied for the benefit of a public charity, and may be paid directly to the persons having the benefit thereof. A tax may be legally levied under a statute for that purpose for losses sustained by default of a county treasurer. People v. Supervisors of Livingston, 17 N. Y. 486. The legislature can apportion the public burthens among all the tax-paying citizens of the state, or those of a particular section or territorial division, and although a statute may be unconstitutional under which public expenses are incurred, a tax may be properly levied to meet those expenses. People v. Haws, 34 Barb. 69. When the legislature determines that a public improvement will be a benefit to the adjacent property, and that the expenses of making the same shall be paid by the owners of such adjacent property, the courts have nothing to do with the correctness or incorrectness of the determination, but must assume the fact to be as the legislature declares it. The wisdom or justice of the taxation, is not a subject of judicial inquiry, nor is the purpose for which the tax is imposed. People v. Lawrence, 36 Barb. 177. Taxes for bounties to volunteers; taxes upon the owners of dogs, are legal subjects. A local tax upon lands adjacent to the Long Island Railroad Company, for the benefit of that company, as a public improvement, was held to be a legitimate exercise of the taxing power. Litchfield v. McOmber, 42 Barb. 288. An act to tax the citizens of the locality of Utica, to pay the additional expense of terminating the Chenango canal at that place, instead of Whitesborough, was held a proper exercise of the taxing power. Thomas v. Leland, 24 Wend. 65. And finally, "The raising money for a local improvement is an exercise of the taxing power, inherent in the legislature; and this power of taxation, implies a power to apportion the tax (territorially) as the legislature shall see fit, and moreover, that this power of apportionment has no limit, where there is no constitutional restraint; and that the constitutional inhibition against depriving a person of life, liberty or property from being taken for public use without just compensation, has no application to such a case,' Matter of Trustees of the N. Y. P. E. Public

School, 31 N. Y. 582-3; Howell v. City of Buffalo, 37 N. Y. 267; People v. Smith, 21 N. Y. 595; People v. Law, 34 Barb. 494; Thomas v. Leland, 24 Wend. 65; Livingston v. Mayor of New York, 8 Wend. 85; Bank of Rome v. Village of Rome, 18 N. Y. 38; Grant v. Courter, 24 Barb. 232; The Cincinnati, &c., R. R. Co. v. Commissioners of Clinton Co., 21 Ohio, 77; City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; People v. Lawrence, 36 Barb. 177; McCulloch v. Maryland, 4 Wheat. 316; and see United States v. The Railroad Bridge Company, 3 Law Register, Old Series, 617, Per McLean, J.

Opposed to this view, are found several recent decisions of the courts of some of the western states; among them those of Ch. J. Cooley, of the state of Michigan, in the case of the People ex rel The Detroit & Howell R. R. Co. v. The Township Board of Salem, in the supreme court of that state. Also, of Ch. J. Dixon, of the supreme court of Wisconsin, in the case of Whiting v. Sheboygan Railway Co., reported in American Law Register, Vol. 9, N. S. 156; Weeks v. City of Milwaukie, 10 Wisconsin, 242. Also a case in Iowa, Hanson v. Vernon, reported in 27 Iowa R.; not yet come to hand, from a note of it, supposed to be to the same effect as those of Michigan and Wisconsin, which are conceded to be the ablest opinions opposed to the doctrine which we have shown to be the established law of New York.

The

It does not become us to deny, or controvert the soundness of views expressed in these opinions;—to question the wisdom of those states, in adopting a state policy in accordance with those judicial expressions. We do not claim for the state of New York a superior wisdom in the adoption of the entirely opposite view of policy, or in the construction given by the judiciary of the taxing power, under a somewhat different constitution, and as to what constitutes a public use of property, and the power of the legislature to declare it;-nor, whether the judicial department of other states may not possess the power to control the legislative department, and deny them the power to declare, whether their citizens, and which of them, shall bear the burthens of taxation, to pay the expenses, of socalled public improvements.

These are questions of state policy, as to which, each independent state, in its sovereign capacity, must determine for itself. The judicial department of each such state, are the interpreters of their own local constitutions and statutes, and we therefore assume, that their courts, have correctly enunciated in those opinions, the law which is to control the action of those states.

But inasmuch as the highest judicial authority of our own state, under our own local constitution, have given a different, and the opposite interpretation of our own constitution and statutes; and as the other departments of our own state government, have declared, adopted and practiced a different state policy, we claim that the citation of the decisions of other states which have given a differ ent interpretation to the legislative power from that established in this state, (however wise such other rule might be as an original question to be settled) is calculated to mislead and confuse the profession, and the citizen whose private interest dictates the desire for a different construction. We may add to the cases above cited, as in degree, sustaining them. Griffith v. Indiana & Ohio R. R., 20 Ohio, 609, and dicta of Judge Patterson, 2 Dallas, 304, of Judge Chase in same