Stockton v. Common Council of Stockton

41 Cal. 147

• Court: California Supreme Court
• Decided: July 1, 1871
• Docket: No. 2,492
• Status: Published

Opinions

By the Court, Wallace, J.:

An Act was passed by the Legislature at its late session, and approved on the first day of April, 1870, which is en titled “An Act to empower the City of Stockton to aid in the construction of the Stockton and Visalia Railroad.” (Acts 1869-70, p. 551.)

In substance it directs the municipal authorities of the City of Stockton to donate three hundred thousand dollars to a company who propose to build a certain railroad, having a permanent terminus in the city itself, at its water front. Under the provisions of the Act the bonds of the city for the entire sum are to be placed in the hands of three gentlemen named in the Act, who are thereby created a Disbursing Board, and who are to deliver the bonds to the company in designated sums, from time to time, as the work shall progress. These bonds are to bear annual interest, accruing at a fixed rate; and to pay this interest, as well as to discharge the principal sum mentioned in the bonds, the Act directs the municipal authorities of the city to levy an annual tax, in the same manner in which city taxes for general municipal purposes are collected, etc. The authorities of the city have pursued the directions given them by the Legislature, so far as to prepare and deliver the bonds to the Disbursing Board; but they now refuse to levy the tax to pay the accruing interest thereon.

To compel them to do this the present application for a mandamus is made by the railroad company.

The application is resisted by the city upon a single ground—“that said Act of April 1, 1870, and all the provisions thereof, are, and ever have been, repugnant to, and in violation of the Constitution of the State of California.”

It is thus made apparent that the case here must turn wholly upon the question of constitutional power in the Legislature to enact the statute, and that our duty begins and ends with a consideration of the mere point of law presented.

This is so obvious that no one will controvert it. It is so plain of itself that no reasoning nor process of demonstration could make it clearer. But, self-evident as it is, a perusal of the voluminous printed arguments on file admonishes us that it is not so plain but that it may easily be forgotten. Surely we are not here to pass upon the motives of the authors of the statute. Though “ corruption may invade the halls of legislation, and the interests of the people be betrayed "by their chosen representatives,” and though “the Executive may prove faithless to his trust,” the constitutional authority of. these functionaries to enact this statute would, nevertheless, be precisely as broad and deep in its measure as though the Act in question were admitted to have found its inspiration in the wisest statesmanship and the purest public virtue.

It is unavailing, therefore, that the counsel for respondents should come here to complain that “it is notorious that the facility of influencing legislative bodies is such that the passage of any measure can be secured through the usual appliances;” for even if, unfortunately, this be true, it is also true that we have no authority to reform these “ legislative bodies,” nor to call them to account for the manner in which they may have conducted the public business intrusted to their hands. Questions, too, which regard the mere policy of the statute—inquiries as to whether it is in itself a wise law or a foolish law; whether its anticipated operation will be to promote or to retard the true prosperity of the people—are not for us to consider; for these, and other questions cognate to these, involve the field of m.ere political inquiry, which it does not become us to enter, and which we cannot enter, except we overleap the barriers by which the limits of our rightful authority are plainly defined.

We have deemed it proper to say thus much in limine, in order that our purposed silence in regard to these matters, concerning which it is our duty to be silent here, may not be misconstrued or misunderstood.

The case before us requires an examination at our hands into the authority of the Legislature to enact the statute in question.

The authority of the judiciary in this country to consider of the extent of the legislative power in the enactment of laws was formerly denied in toto, and it will be remembered that in the early days of the Federal Constitution some of the most distinguished public men, among whom was Mr. Jefferson, maintained the opinion that no Court had the rightful authority to declare a statute unconstitutional which had received the sanction of the popular will, acting through its chosen representatives. It is known, too, that an impeachment of a Judge of a State Court of the highest grade was, at a later period, instituted for an attempt upon his part to uphold this power, admitted to be anomalous, and that upon his trial but a single vote was wanting to his conviction of the charge of usurpation of authority in his office.

Though the power itself is now admitted, it is, nevertheless, conceded to be always one of the utmost delicacy in its exercise, and never to be exerted except when the conflict between the statute and the Constitution is palpable and incapable of reconciliation. To this effect the authorities are substantially uniform.

In Santo v. The State of Iowa, 2 Iowa R. 208, Mr. Justice Woodward, in delivering the opinion of the Supreme Court of Iowa, unanimous on this point, said:

“ For some time after the establishment of the State Government, it was doubted whether the judiciary possessed authority to declare and hold an Act of the Legislature unconstitutional and void, and the exercise of the power was declined by some Courts. And now, 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.”

And said the Supreme Court of Indiana (4 Ind. 344): “ Such questions (involving the constitutionality of statutes) are always regarded by the Courts as of serious importance. The judiciary look to the Acts of the Legislature with great respect, and reconcile and sustain them if possible. The General Assembly is the immediate exponent of the popular will—expressly delegated to clothe that will with the forms of law. The presumption that such a body has sanctioned enactments in violation of the Constitution is not to be lightly indulged. That the Act is imperfect or impolitic is not enough. These defects subsequent legislation can remove by amendment or repeal. To bring its validity within the control of the Courts, it must be clearly subversive of the Constitution.”

See, also, Rice v. Foster, 4 Harrington, 479; Fisher v. McGier, 1 Gray, 1; Commonwealth v. William, 11 Penn. 61, where the Supreme Court of Pennsylvania say: “ Of late years it has been much the fashion to impeach the action of the legislative bodies as unconstitutional, when it happened not to accord with the party’s notion of propriety and abstract right. This is very frequently done in sheer oblivion of the doctrine that express prohibition or necessary implication is essential to oust the State Legislature of authority.”

We think that the adjudications in this Court give the correct definition of the judicial power to declare a statute unconstitutional, as how maintained by the general current of authority. It is said (12 Cal. 384) that it “should never be exercised unless there be a clear repugnancy between the inferior and the organic law.”

Again (17 Cal. 30): “ But the legislative department, representing the mass of political powers, is no further controlled, as to its powers, or the mode of their exercise, than by the restrictions of the Constitution. Such restriction must be shown, before the action of the Legislature, as to fact or mode, can be held invalid.”

Again (17 Cal. 551): “But it is equally well settled that this power (to declare an Act of the Legislature unconstitutional) is not to be exercised in doubtful cases, but that a just deference for the legislative department enjoins upon the Courts the duty to respect its will, unless the Act declaring it be clearly inconsistent with the fundamental law, which all members of the several departments of the Government are sworn to obey.”

The law-making power is, in its essence and nature, the supreme power in the State, and the Legislature, in its exercise, impersonates the aggregated sovereignty of the people themselves.

Hence it results that the Legislature is politically omnipotent, except in those particulars in which its power has been limited, qualified, or absolutely withdrawn by the provisions of the Federal or the State Constitution. Said Chief Justice Black, in speaking of.this feature of our organized political system: “ If the people of Pennsylvania had given all the authority which they themselves possessed to a single person, they would have created a despotism as absolute in its control over life, liberty, and property as that of the Kussian Autocrat. But they gave a portion of it to the United States, specifying what they gave, and withholding the rest. The power not given to the Government of the Union was bestowed on the Government of the State, with certain limitations and exceptions expressly set down in the State Constitution. The Federal Constitution confers powers expressly enumerated; that of the State contains a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the Government itself. The Federal Government can do nothing but what is authorized expressly or by clear implication; ]the State may do whatever is not prohibited.” (Sharpless v. Mayor of Philadelphia, 21 Penn. St. R. 160.)

These general views found early expression in this Court (People v. Coleman, 4 Cal. 46; Thorne v. San Francisco, id. 157), and have since been steadily maintained here. (6 Cal. 89; 13 Cal. 159; 17 Cal. 547; 26 Cal. 183.)

Whenever, „ therefore, it is alleged that a statute which has been enacted in due form by the legislative department of the Government of this State is, indeed, in excess of its authority to enact, it is necessarily the allegation of an exception to the contrary of an admitted general rule; and, therefore, the construction is “ strict against those who stand upon the exception, and liberal in favor of the Government itself.”

Hence, when we are called upon to declare that there was no authority for the Legislature to enact a particular statute, it is necessary that we be pointed to the clause or clauses of one or the other, or both, of these Constitutions, supposed to have taken away the power entirely, or limited it to something else than the subject to which the Legislature has applied it. It will not do to talk about the “ spirit of the Constitution” as imposing a limitation upon the legislative power. The limitation ought to be something definite in itself—as definite as a sum to be subtracted from a larger one, in order to ascertain a balance.

The “ spirit of the Constitution ” as an interdiction upon legislative power was repudiated by this Court, in Patterson v. Board of Supervisors of Yuba County, 13 Cal. 182, in which Mr. Justice Daniel, of the Supreme Court of the United States, is mentioned as having said that “ if Judges were to adopt the notion that a law might be declared unconstitutional because of its supposed repugnance to the spirit of the Constitution, they ought to employ a rapping medium to procure authentic revelations from that spirit.” The “ spirit of the Constitution,” as a means to ascertain the powers of other departments, would partake too much of the personal spirit of the individual Judges chosen for the time being to interpret that instrument, and, chameleon-like, it would be apt to prove white, or gray, or red, or bluish, or bottle green, as the peculiar views of those having the spirit in their keeping might give it color. However it may be urged upon a Court as a standard by which legislative power is to be measured in a particular case, such as that now at bar for instance, we think that even those who so urge it would hesitate long before they could be brought to inscribe it upon the Constitution itself, that the powers of each of the departments of the Government should actually be limited by the “spirit of the Constitution,” as from time to time declared by the Courts.'

The rule which requires that an alleged limitation upon the powers of the State Government should appear either by the words which the people have employed for that purpose, or by an implication necessarily flowing from those words, and without which the words themselves cannot have their natural force and fair import, is firmly established.

It assumes, and correctly assumes, that it was the intention of the people that their representatives should exercise all political power, except such as the people themselves have singled out, and have either forbidden to be exercised at all, or permitted to be exercised only upon certain conditions, and under stated circumstances.

If, however, there-be among the great powers of government a single one upon which, more than upon any other, we would anticipate that the intended limitation of the power would have found exact and careful expression upon the face of the Constitution itself, that one would be the power involved in the case at bar—the power of taxation; for it is notorious that in this country and elsewhere (everywhere that government has found an organized existence among men), it has, more than any other, perhaps more than all other powers together, proven to be the exhaustless source of political disquiet and disturbance in the body politic. Its general history has been much the same in all countries where the people have aspired to be free, and have sought to obtain guarantees for the safety and the protection of their property against the unreasonable or irregular exactions of Government.

To go back somewhat less than three hundred years in the history of the country from whose political polity many of the most important features of our own system have been derived, we find an important tax controversy pending upon the point of the power to impose taxes upon the people, and the particular inquiry was, whether that power belonged to the King, by virtue of the royal jirerogative, or was only to be exercised by the people themselves, through their representatives in Parliament.

It was in 1606 that Bates’ case arose, upon an information in the Exchequer, in which the question was distinctly presented. It was recognized as one of surpassing importance to the English people, and, in his argument against the asserted power of the Crown in that case, Mr. Yelverton gave expression to the popular view of the day .when he said: “It is not what we shall be called, or how we shall divide what we have, but whether we shall have anything or nothing.”

Bates’ case was determined by the Court in favor of the Crown, as were other like cases which followed—among them the celebrated case of Hampden concerning the ship money. The controversy thus waged in the Courts led at last to the long and disastrous struggle which culminated in the overthrow of the Government and the establishment of the Protectorate.' That all taxes must be laid by the people, through their representatives in Parliament, has been since firmly maintained in England. At the Restoration, even, amid the general national joy at the welcome event, it was not forgotten to resolve, that to tax in any other manner than “in Parliament is against the law of the land.” The House of Commons alone has authority to originate bills of supply, and the upper branch of Parliament has no power to even amend such a bill, for the House of Commons only is composed of the representatives of the people.

In this country the Revolution, as is well known, originated in the same idea, so firmly fixed on the popular mind, that taxation should be imposed on the people only through their chosen representatives. Hence, in organizing the Federal Government, the House of Representatives was given the sole power of originating bills for taxation (Const. U. S., Art. I, Sec. 7); and various constitutional provisions upon this particular subject are to be found in the State Constitutions of some thirty-three of the States, in some of which the rule, that measures of taxation must originate only in the popular branch of the Legislature, is preserved, and in the others qualified or abrogated altogether.

It would be somewhat strange, in view of this history, if it should, after all, appear that those who framed the Constitutions of the State Governments in this country, and especially that of the State of California, should have, through, mere inattention, failed to limit the power of taxation in every respect which was deemed practicable. We accordingly find in the Constitution of California, in section thirteen, Article II, an important limitation, not, indeed, upon the extent of the power itself, but upon the mere mode upon which it is to be exerted. Taxation is thereby required to operate equally and uniformly, and upon the ad valorem principle. Ho attempt was made to limit the power itself in the hands of the State Government. The Convention at Monterey knew very well that such an attempt would be an attempt upon the safety of the government which it was their purpose to establish—not imperil.

Taxation originates in the financial necessities of government. Those necessities are in themselves illimitable by human agency. The means of the supply, to be adequate, must be illimitable too. It cannot be foreseen by the framers of the Constitution, who would limit the power of taxation, what may be the necessities of the Government, at a given time, or under the pressure of attack from without or insubordination within its borders, or what pecuniary means it may need in its possible struggle with those difficulties which it is the very purpose of organized government to meet and overcome. To assure the public safety, therefore, dictates that the State be clothed with power to. command its entire material resources.

Hamilton, in elaboration of this truth, says: “ Money is with propriety considered as the vital principle of the body politic—as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the pommunity will permit, may be regarded as an indispensable ingredient in every Constitution. From a deficiency in this particular, one of two evils must ensue; either the people -must be subjected to continual plunder as a substitute for a more eligible mode of supplying the public wants, or the Government must sink into a fatal atrophy, and in a short course of time perish.” (Federalist, Ho. XXIX.)

The possible financial necessity of the Government may require all the wealth within its limits. The extent of the actual necessity is for the Legislature to determine in all cases; this is political power. It is the power to exhaust the substance of the people by a levy equal in amount to their aggregate wealth. Hence it was aptly said by Chief Justice Marshall, more than fifty years ago, in speaking of the power of taxation, as it existed under the American Constitutions in his day, that “the power to'tax involves the power to destroy.” (McCulloch v. The State of Maryland, 4 Wheaton, 316.)

In the same case, the same great authority adds (p. 428): “ The only security against the abuse of the power is found in the structure of the Government itself. In imposing a tax, the Legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their Government a right of taxing themselves and their property, and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislators, and on the influence of the constituents over their representatives to guard them against its abuse.”

The, Convention at Monterey understood well that they had not limited the power of taxation in the State Government, and they understood, too, the reason why they could not venture upon the experiment. This is seen by section thirty-seven, Article IV, where they provide for restricting the power of municipal corporations to impose taxes. This restriction of the power of taxation in the hands of municipal corporations could be safely imposed, because the safety of the State was not supposed to be committed to the municipalities, in general charged with duties of a mere local and police character. That the Convention would have imposed a similar or some limitation upon the taxing power of the State, had it been considered advisable at that day, cannot be doubted, for they limited the public indebtedness to a fixed sum, except under peculiar and named circumstances (Article VIII); and they utterly prohibited the loaning of the public credit for private purposes under any circumstances whatever (section ten, Article XI); but they omitted, and evidently ex industria, to place any limitation upon the mere power of the State to impose taxes. The principle upon which taxation is to be imposed by the State Government is pointed out by the Constitution, but the extent to which it may be carried is left unlimited, except by legislative discretion. It is to be exerted to raise money for public use.

The “ public use,’.’ though mentioned in the Constitution, is not mentioned with reference to the power of taxation, or in connection with any limitation upon that power contained in that instrument.

It is declared (section eight, Article X) that private property shall not be taken for “public use” without just compensation. Ho constitutional definition of the words “public use ” is, however, given in that instrument.

For much the same reason as that already mentioned, concerning limitation upon the power of taxation in the hands of the State Government, the “public use,” upon which the power of eminent domain was to be exerted, seems to have been left, in large measure, to the determination of those who were clothed with its exercise, in view of possible contingencies with which they might be called to deal, rather than to attempt its restriction by anticipation.

“Public use,” “public purpose,” and “public policy ” are much the same in import. “Public policy”—the policy upon which governmental affairs are conducted for the time being—is legislative policy in the main, and “public use” and “public purpose ” are largely dependent upon this policy—notoriously varying in our country, from time to time, with the accession to power of political parties, differing from each other as to the system of measures best adapted to promote the interest of the State. The resolve of a legislative body, by which a tax is imposed, or private property taken, is, therefore, necessarily a legislative determination, that a public use is to be promoted by the tax, or the taking directed; and such a determination is the determination of a merely political question by the political department of the Government.

The Legislature, in the case before us, having determined the construction of the contemplated road from Stockton to Visalia to be a matter of public concern, and as such authorized taxation to aid in the work, the question arises as to how far that determination is open to review in the Courts. That question was answered by this Court in the case of Napa Valley Railroad Company v. Napa County, 30 Cal. 437: “ Railroads concern the public interest as matter of legal judgment, and however that conclusion may be opposed to the fact in the case at bar makes no difference, the action of the Legislature on the question not being open to review by the judicial department of the Government.”

If we could review the legislative determination upon that point at all, a question would necessarily arise as to the extent to which that review could be carried here. Could we substitute our judgment upon the point for that of the legislative department absolutely, as we sometimes substitute our judgment for that of a Court from whose judgment an appeal has been prosecuted to this Court? If it was the intention that we should do so, it would seem that the law should have pointed out some mode by which we could get before us, in an authentic form, the facts and circumstances upon which the legislative department proceeded in the particular case. In the absence of a knowledge of these facts and circumstances we would ordinarily be unable to say that an error had been committed at all. A case might, indeed, be presented in which it might appear, beyond the possibility of a question, that a tax had been imposed, or the property of a citizen had been taken for a use or purpose in no sense public; or, in the language of Chancellor Walworth (5 Paige, 159), “ where there was no foundation for a pretense that the public was to be benefited thereby,” and in such case it would be our duty to interfere and afford relief. But should we interfere in any other than such a case, we would but substitute a policy of our own for the legislative policy in the conduct of the affairs of the State, and substitute our will for that of the representatives of the people. The legislative judgment may have discovered a public use and a public benefit in the encouragement of a particular class of improvements in the State; it may be a public use in the building of a bridge, a road, or a mill, and may, in that view, aid its construction by giving the public funds towards that end. We may be ourselves unable to see why the particular work thus selected for Government aid should be preferred to another work of equal, or, perhaps, in our judgment, of even greater public importance, but which has, nevertheless," been wholly overlooked; but we cannot, upon such a view, forbid the Government aid to the work selected, any more than we could direct a similar bounty to the other work, in our opinion unreasonably omitted. In Tennessee, for instance,^ statute declared, at an early day, when grist mills were probably scarce, that every grist mill which should thereafter be built, and should at any time grind for toll, should be held and deemed, “ and is hereby declared, to be a public mill.” It is further provided that the miller should grind according to turn; that he should grind the grain well, if water would permit; that he should take no more than one eighth of the grain for grinding; that he should keep a certain description of grain measures, and then follows a penalty for keeping false measures or violating the other provisions of the statute. Under this statute one Goodlett applied, in 1832, to condemn the lands of one Harding, for the purpose of erecting a grist mill, sawmill, and paper mill thereon. The Supreme Court of Tennessee, upon this application, said: “The grist mill is a public mill. The miller is a public servant. He is allowed a compensation for grinding, etc. * * * It will appear, from what has been said, that when an acre of land is taken from any citizen for the purpose of erecting a grist mill, though the title be vested in another citizen, yet that vestiture is for a public use, and is wholly different from the case of taking property from one man and giving it to another for his private benefit only. * * * The petitioners say they are desirous to build a grist mill, sawmill, and paper mill. For these purposes they ask to have Harding’s land vested in them. The sawmill and paper mill will have no public character; the erection of these mills would be wholly for the private use of these petitioners. To take Harding’s land for such use would be unconstitutional.” (Harding v. Goodlett, 3 Yerger, 53.)

The Legislature of Tennessee, in pursuance of a policy of its own, had seen fit to declare that a grist mill, grinding for toll, was a mill for public use—therefore the Court held it to be such. But the Legislature had not declared that a sawmill or a paper mill, however conducted, should be considered a public mill—therefore the Court could not hold them to be other than private in character. This case arose and was decided nearly forty years ago. The Court did not, at that day, undertake to announce a policy of its own and set it up against the policy of the legislative - branch of the Government. It did not argue,, either, that the circumstance that the miller operated the mill for his “private profit,” and received, one eighth of the grist for grinding, necessarily made the mill private, and not public, in point of constitutional law; nor did it stop to inquire whether, if a grist mill operated in- that way was indeed to be considered a public mill, it ought not to follow that a paper mill or a sawmill, working on the same terms, would also be public. The Court seems to have been of opinion that legislative policy has something to do with determining “public use” and “public purpose,” and that it was just possible that Tennessee legislative policy might determine that the erection of grist mills in that State would promote a public purpose there, which would not be promoted by the erection of sawmills or paper mills. The Court seems to have been of opinion that this was a matter for legislative determination, and it accordingly upheld the authority of the Legislature to declare grist mills, though grinding for the “ private profit ” of the miller, to be public mills; it has not been suggested, either, that at that time the grist mill interest controlled the Legislature of the State of Tennessee or the decisions of her Courts. The true rule to be extracted from the cases, and which is applicable to the case at bar, is that if it is possible that the work or object selected by the Legislature for aid concerns the public use we must consider that it does in fact do so. If it is possible, therefore, that the City of Stockton may have a public interest in this railroad, then the legislative action is conclusive here that the city does, in fact, have such a public interest therein.

In the Sharpless case, supra, Chief Justice Black (speaking of the Acts under which Philadelphia aided in the construction of certain railroads), expressed this view when he said: “ But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the Legislature. For us it is enough to know that the city may have a public interest in them, and that there is not a palpable and clear absence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency—not of law—much less of constitutional law.” In Connecticut the rule by which the Court interprets the legislative action in such a case was declared in Booth v. Town of Woodbury, 32 Conn. R. 128. The Town of Woodbury was supposed to be bound to furnish thirty-two men to serve in the Federal army, under the call of the President during the late' civil war. The Selectmen of the town, under instructions of a town meeting, proceeded to raise, on account of the town, some six thousand dollars, to be applied towards hiring substitutes for such citizens of the town as might be drafted thereafter, and the Legislature of the State subsequently ratified these proceedings by which this gratuity was given by the town. The Court say: “In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such action of the legislative power must be of an extraordinary character to justify the interference of the judiciary, and this is not that case. Second, if there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy * * * and the determination of the Legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords, or other mementoes for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned.”

Upon a similar question before it, the Supreme Court of Wisconsin expresses substantially the same views. It said: “To justify the Court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which funds are raised must be clear and palpable—so clear and palpable as to be perceptible by every mind at first blush.” (Broadhead v. The City of Milwaukee, 19 Wis. R. 652.)

In Schenley v. City of Alleghany, 25 Penn. R. 130, the Supreme Court of Pennsylvania say “ that the exercise of the taxing power by the Legislature must become wanton and unjust—be so grossly perverted as to lose the character of a legislative function—before the judiciary will feel themselves entitled to interpose on constitutional grounds. To arrest the legislation of a free people, especially in reference to burdens self-imposed for the common good, is to restrain the popular sovereignty, and should have clear warrant in the letter of the fundamental law.”

In his work on constitutional limitations (p. 488), Judge Cooley (perhaps the ablest living commentator upon constitutional law) says: “It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden is the legislative department of the State, * * * and in determining this question the Legislature cannot be held to any narrow or technical rule. Certain expenditures are not only absolutely necessary to the continued existence of the Government, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The officers of the Government must be paid; the laws printed; roads constructed, and public buildings erected; but with a view to the general welfare of society, it may also be important that the children of the State should be^ educated, the poor kept from starvation, losses in the public service indemnified, and incentives held out to faithful and fearless discharge of duty in the future by the payment of pensions to those who have been faithful public servants in the past. There will, therefore, be necessary expenditures, and expenditures which rest upon considerations of policy alone, and in regard to the one as much as to the other the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive.” Again (at page 487), the same author, after stating that taxation can be imposed for public purposes only, says: “In this, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that when the Legislature shall overstep the legitimate bounds of their authority the Courts can interfere to arrest their action. .There are many cases oí unconstitutional action, by the representatives of the people, which can be reached only through the ballot box, and there are other cases where the line of distinction between that which is allowable and that which is not, is so faint and shadowy that the decision of the Legislature must be accepted as final, even though the judicial opinion might be different.”

Other, and like authorities, might be cited upon this point, but we think that without further reference to them it is plain enough that when the Legislature has determined \ a given purpose to be a public purpose, we must so consider it, unless we can see at first blush that it is not possible that - it could be such. The field of legislative policy is vast in extent. It embraces in its ample range whatever can be supposed to promote the interest of the body politic, enhance the public revenue by increasing the values of objects to be taxed, facilitate the free interchange of commodities, or improve the social, moral, or physical condition of the community. These, and almost innumerable other and like purposes, favorably affecting, it may be, some particular individuals more directly than others, and benefiting particular interests or localities to a greater degree than other particular interests or localities, are supposed in the general judgment of mankind to be in some degree promotive of the material welfare of the State, and therefore fall within the constitutional power of the Legislature, as being purposes of a public character, to be fostered and advanced in its discretion. Within this broad range it is for the Legislature to select such objects as in its judgment may appear as deserving the munificence of the Government, and in so doing “ the Legislature, as we have seen, cannot be held to any technical or narrow rule.” It will not probably surprise any one to be told that the discretion to determine what is and what is not in this sense a public- purpose is confided to the Legislature, and that in the exercise of this discretion that body may, and, indeed, habitually does, clearly overstep the mere actual necessities of the public administration. The popular understanding of the legislative power in this respect, derived from the known habits of the Government, must be found to be in accord with the learning of the books which treat of it. In California, for instance, did anyone seriously question the authority of the Legislature to appropriate the public moneys to meet the personal wants of the overland emigration of 1852? Yet, in the absence of the legislative discretion involved, who could maintain that in point of mere constitutional law the overland emigrants had any right to be fed and clothed out of the public treasury more than other people. .

Again: who has come to deny the validity of the legislative appropriation by which thousands of dollars have been and are being annually paid to General Sutter for his “private profit,” as the respondent’s counsel would express it? It is no answer to say that the appropriation of 1852 was prompted by a commendable sentiment of humanity, and that the pension to General Sutter is but the expression of the public gratitude towards a distinguished citizen whose personal kindness and generous conduct have justly won for him the popular esteem. These motives, however worthy in themselves, cannot be made to supply the requisite constitutional authority to give away the public moneys.

If the three, hundred thousand dollars claimed by this railroad company be regarded as a mere gift of that much of the public moneys, it must, nevertheless, be upheld by the same construction of legislative power which would support the pension to Sutter. There is no provision of the Constitution which will authorize the gift to Sutter and deny it to the railroad company. The power to select the object of legislative bounty belongs to the Legislature itself, as well as the power to fix the amount to be given away. It will be difficult to draw the line of constitutional distinction between the legislative gratuity to Sutter for reasons of a public nature looking to the past, and the like gratuity to the railroad company for reasons of a public nature looking to the future.

We have mentioned the pension to Sutter, and the aid to the overland emigration of 1852, because they are prominent, but at the same time not exceptional instances of the exercise of legislative authority in the general history of the State Government under its present Constitution. Many other and similar instances may be mentioned. Premiums payable out of the public moneys have been habitually offered for the encouragement of mere private industry. The production of sugar from sorghum, the manufacture of molasses, the production of flax, hemp, cotton, tobacco, hops, raw silk, and the manufacture and production of various other articles by private parties and for “private profit,” were stimulated by the offer of large sums from the public treasury, by the “Act for the encouragement of agriculture and manufactures in California.” (Acts 1862, p. 415.) This policy is further maintained by the Act of April, 1866 (p. 660), “ for the encouragement of silk culture in California,” by which premiums are offered by the State for the growing of mulberry trees and production of silk cocoons, and the constitutionality of the Act was not eveu questioned here in The Attorney General v. The State Board of Judges, 88 Cal. R. 291, but the statute was substantially reenacted in 1868 (p. 699); and an examination of the legislative Acts will disclose other like instances of the habitual expenditure of the public moneys, the validity of which no one has undertaken to call in question. In view of this public history, it cannot surely be claimed in any quarter that legislative authority to expend public moneys in the State was ever understood to be confined to merely keeping the Government in motion.

It has, indeed, habitually and notoriously overstepped that limit to find uses of a public character to be fostered by the expenditure of public moneys, and having done so, it is the legislative judgment which must determine whether or not the public interests are concerned in promoting any particular aim or object to a sufficient degree to justify the expenditure. This makes up legislative policy, for it is legislative policy which selects the objects to be aided, and determines the extent to which that aid should be carried.

In the case at bar, it determined the Stockton and Visalia Eailroad to be a road for public use, and that, as such, the City of Stockton might donate three hundred thousand dollars towards its construction.

As we have already said, under the rule laid down by this Court in Napa Valley Railroad Company v. Napa County, 30 Cal. 437, this legislative determination is conclusive upon this Court. It was there held that “ railroads concern the public interest as matter of legal judgment,” and that when the Legislature had determined that a particular road in fact concerns the public interest, its determination in that respect is not open to be reviewed by this Court.

Upon that authority we are precluded from any examination into the principal question which the respondent has argued here.

But even if the rule were otherwise the result would be the same. Should we undertake to review the legislative determination that this road concerns the public interest we could not disturb it, unless we are prepared to say that there is absolutely no possibility, that the proposed road from Stockton to Visalia could in any degree promote the public welfare, and that there is an utter absence of all possible public interest in the enterprise, and that all this is so palpable as to be perceptible to every mind at the first blush.

We are to say this of a highway traversing a considerable portion of the State, and connecting two important commercial points. It is conceded by the respondent that the road in itself is one which the State might have lawfully constructed at the public expense. It is said in Blodgett v. The Mohawk and Hudson Railroad Company, 18 Wend. R. 1, “That the Government have not only the power, but that it is emphatically their duty and interest to construct railroads where the public interest and convenience demand them, cannot admit of a doubt; for such purposes they are authorized to take private property upon rendering just compensation; and they are, in like manner, justified in exacting tolls from those who travel on them as a means to reimburse the State for their construction and reparation. * * * If, however, the State shall not deem it wise or expedient at its own expense to construct a railroad, can there be any doubt of its power to impart this authority to others?” The case involved the exercise of the power of eminent domain in behalf of á railroad company—the power of eminent domain, which is only to be exerted in aid of a “public use;” but, in our opinion, it is not the less an authority that taxation might have been imposed for the same purpose. There can be no difference between a .“public use” which will authorize the taking of private property, in aid of a particular road, and a “public use” which will support the laying of a tax in aid of the’ same road. We do not say that the power of taxation and that of eminent domain are the same in all respects-—-they both, however, proceed in inviium—both proceed, too, upon compensation real or supposed. That of taxation upon the idea that the Government protection to the citizen is his compensation; that of eminent domain upon the money compensation provided by the Constitution.

In either case, however, the power must rest for support upon the public use to be promoted; and a quasi public use will not be sufficient in the one case more than in the other. Such a use as a quasi public use is unknown to the Constitutiou, and is only an invention of those who, being driven to admit that the power of eminent domain may be exercised in aid of this road, are desirous, at the same time, to deny that taxation may be resorted to for the same purpose. The question as to whether taxation may be imposed in aid of such a road as this, has arisen and been directly decided under a Constitution not differing from ours in any point involved in the decision. ¡Nearly twenty years ago the Supreme Court of Alabama had under consideration the validity of a statute to authorize the City of Mobile to donate three hundred thousand dollars to the Mobile and Ohio Eailroad Company, who were building a road to run from the city toward the mouth of the Ohio Eiver. The company building the road was, in the language of the counsel resisting the Alabama statute, “a private corporation composed of private individuals, who, to promote private fortunes, and to reaj) the advantage of private enterprise, had associated themselves together,” etc. The Supreme Court, however, decided that the donation might be constitutionally made through the exercise of the taxing power. It said that the power of taxation “ extends to the employment of all those measures and appliances ordinarily adopted, or which may be calculated to develop the resources of the State and add to the aggregate wealth and prosperity of the citizens; such, for example, as sundry outlets for commerce, opening of channels of intercommunication between different parts of the State,” etc. (Stein v. Mayor of Mobile, 24 Alabama R. 614.)

That Court accordingly upheld the validity of a tax imposed upon the real estate in the City of Mobile for the purpose of raising three hundred thousand dollars, and donating it to a railroad company who were constructing a railroad to run from the city in the direction of the mouth of the Ohio Eiver.

In fact, we think that -it may be said that the entire current of authority supports the constitutional validity of taxation imposed for such a purpose as that here in question.

It is not denied, for instance, that the State may, in the exercise of the power of eminent domain, take from the unwilling proprietor the lands necessary for the building of this road—a road to be operated by a corporation for its “private profit;” that is conceded by all the authorities. Yet such a talcing can only be supported upon the theory of a “public use” to be promoted by building the contemplated road.

Can there be a “use” which is sufficient, in a constitutional point of view, to seize the property of one, and at the same time insufficient to authorize taxation upon the property of all? If so, we have not found it.

In 1851 the Court of Appeals of the State of Yew York held that the public use which would support the exercise of the power of eminent domain would also uphold the power of taxation, and that really the power of taxation was in itself only one mode of taking private property for public use.

Upon this point the Court said: “ Private property may be constitutionally taken for public use in two modes: that is to say, by taxation and by right of eminent domain. * * * The right of taxation and the right of eminent domain rest substantially upon the same foundation. * * * Taxation exacts money or° services from individuals as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain is taken, not as the owner’s share' of contribution to a public burden, but as so much beyond his share.”

We know that a distinction has, of late, been attempted between “public use ” for purposes of eminent domain, and “public use” for purposes of taxation. In order to maintain the distinction, its authors have invented a new use, which is not exactly a public use, nor yet a private use, but a quasi public use. This quasi public use is of course something essentially different from the true “public use ” named in the Constitution, otherwise there would have been no necessity for the invention of a new use at all;, for in this instance, as in others, necessity has proven to be the mother of' invention. A quasi public use is, therefore, intended to be something more or something less than the “public use,” pure and simple, mentioned in the Constitution, for that was found to be insufficient to maintain the desired- distinction.

Those who have originated the phrase “quasi public use,” have, however, omitted to give it a definition. Quasi, we understand to mean “ as if,” “ as though,” “ as it were,” etc. A quasi public use may be said, therefore, to be a use “ as if” a public use, “as it were ” a public use, “as though” a public use, but of course in reality not a public use at all. In fact, the term is employed for the sole purpose of distinguishing a mere fictitious public use from a real public use, and thereupon it is argued that the unbroken line of authority which concedes that the power of eminent domain may be exerted in favor of the road as being for public use, does not establish that the power of taxation may be exercised for the same purpose, because it is said that the public use which will support-the. former is not actual, but merely feigned—only quasi—but that the public use which is requisite to authorize taxation must be something more.

The result is that the license by which amitizen holds his money is of a higher and better character than the license by which he holds his land—reversing the rule by which the law is supposed to regard things real rather than things personal, and a “public use” to which one may lawfully refuse to contribute his money to-day is nevertheless one to which he may be compelled to surrender his house to-morrow.

But two or three of the Courts in the United States have in fact attempted to maintain a proposition so absurd in itself. Those Courts were lately characterized by the Supreme Court of the United States as “ standing out in unenviable solitude and notoriety.” (1 Wallace R. 206.) Among them at that time was the Supreme Court of Iowa. Since the submission of the case at bar we have, however, seen the opinion of that Court rendered in Stewart v. The Board of Supervisors of Polk County, and not yet reported [since reported in 30 Iowa, 9], in which the distinction is exploded in the following language:

“ 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 the right it is said that the Legislature has no constitutional power to levy a tax on. the property of the citizen in aid of a railroad corporation, because it is a mere private enterprise.

“It has been abundantly shown that the object for which the right of eminent domain is exercised is a public one, for public utility, for ‘ public use,’ within the meaning of the Constitution; and that this right can be exercised in behalf of these corporations on no other grounds. If, then, the building of a railroad is a public object, só as to authorize the taking of the private real projierty 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 to public use by express words in the Constitution. The latter is not, nor is it limited at,all. * * * Conceding, however, that the taxing power ought not 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 is not embodied in the Constitution, must be respected. * * * 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 in this and every other State exercising 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.”

The able opinion from which we have thus quoted at such length is the more interesting in view of the fact that it is apparently the conclusion of a struggle between the Legislature and the Courts, of some eighteen years duration in the State of Iowa, waged with varied success upon the very question now before us.

In the beginning of that struggle, which was in 1853, those who opposed the right of the people to vote upon the question of local taxation, placed it upon the ground it yet really occupies, notwithstanding the effort to mask it under an impossible distinction between a “public use” and a “quasi public use,” so called. The argument which questions the legislative authority in this respect rests upon a fear, real or feigned, that the popular vote in a particular locality is not to be trusted with the question of local taxation for the purpose of local improvement. It looks really to a line of demarcation which it would draw between the rich and poor in the same community, and it would deny to the latter the power to participate in imposing a burden to be borne in part by the wealth of the former. When this question, for instance, first came before the Supreme Court of Iowa, in 1853, Kenney, J., who then dissented from the opinion of the majority of the Court, said: “If this doctrine is to obtain, then it is in the power of a bare majority of voters, destitute of property, to saddle a tax upon a minority, the only property holders in the county.” But the judgment of that Court, as then delivered, did not yield to. the argument. (Dubuque County v. Dubuque and Pacific Railroad Co., 4 Iowa R. 1.)

The Court determined in that case that an Act which authorized a popular vote with a view to the imposition of local taxation for local improvements was constitutional. In 1862, however, and after the personnel of the Bench had been completely changed, the question was again presented, and a similar Act was then held unconstitutional, and much upon the rich and poor idea announced by Mr. Justice Kenney in 1853. The Court said in 1862 that the expressed opinions of the supreme tribunals of some fourteen or fifteen of the States had reached conclusions “not satisfactory to the inquiries and consciousness of the public heart,” and it declared that the question would continue to obtrude itself upon the Courts until a decision was arrived at which “will leave the capital of private individuals * * .* under the control and dominion of those who have it, to be employed in whatever field of industry and enterprise they themselves may judge .best.” (State of Iowa v. County of Wapello, 13 Iowa R. 393.)

The history of the question in Iowa illustrates, too, that-powers political are for the political representatives of the people, and not for the Courts, to exercise; for the authority of the Legislature in the premises, now conceded by the Supreme Court of that State, had been repeatedly asserted by the Legislature, and as often denied by the Court for several years preceding the late decision in Steioart v. Board of Supervisors of Polk County.

It is said, however, that in the ease at bar the act is not “taxation” within the meaning of the Constitution, because it is “ simply taking the money of one man and giving it to another,” and that therefore it is not the raising of money to meet “the public consumption or expenditure,” nor to provide “for the use of the State, nor for the use or benefit of the State Government.” This proposition is based upon the alleged fact that the corporation which is to receive this money is a private and not a public corporation, and that the road itself, when built, is to be operated by the corporation for its own benefit and profit.

The general power of the State Government to build such a road as this one is admitted. The authority to build it upon the basis here adopted is denied; it is claimed that the power to construct the road cannot be exercised through the agency of the railroad corporation. It is not the power to construct, but the mode of its exercise, which is thus questioned. We might put this objection at rest by simply repeating the language of Judge Baldwin in delivering the unanimous opinion of this Court in a case already cited (17 Cal. 30): “ But the legislative department, representing the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the restriction of the Constitution.” What provision of the Constitution has declared that the Legislature, in the prosecution of an enterprise per se of an admitted public character, shall employ no private agency, or shall take care that no private person shall derive a pecuniary profit thereby? or in what clause is there to be found a constitutional inhibition of the “ mode ” here adopted?

Too much prominence in argument here has, however, been imparted to this view to justify us in thus passing it by, conclusive as we deem the answer already given. At every step in the discussion upon the part of the city, we meet the multiform proposition that “public use ” and “private profit ” cannot go hand in hand in the prosecution of this enterprise; that there is a fatal antagonism between the two; and that the moment that “private profit” lifts itself into view upon one side of the proposed work, “public use” must disappear from the other. In a case involving the same objection, the Supreme Court of Massachusetts said: “But it is said that this grant was made upon the petition and for the sole benefit of an individual, and was not needed for the accommodation of the public. It is doubtless true that the leading motive of the defendant in erecting the bridge was private profit, and so almost all other enterprises, many of which have resulted in great public improvements, have originated in motives of private gain.” To our minds, however, the fallacy involved is so apparent that neither illustration nor argument can set it in a clearer light. It is exposed by a mere reference to the usual and ordinary mode of conducting the public business. Government habitually moves through the agency of employes in executing its purposes; these employes must be compensated in some way; and here we come, unavoidably in every instance, upon the spectre' of “private profit,” which must, upon this view, frighten the Government from the prosecution of any public enterprise whatever.

If an incorporated stage company, for instance, should put in a bid for carrying the mails at a fixed compensation, would any one doubt that it was the sole purpose of the company to obtain for itself a portion of the public moneys? Would any one attribute to it a motive of a less selfish character, or claim that a consideration of the public good had in the slightest degree actuated it in making its bid? Surely not. But, upon the other hand, if Government should accept the bid at the proposed price, would not its known purpose be to promote a public service of recognized importance? Could any one claim that its object in providing for carrying the mail was less public in its character because the prosecution of that purpose incidentally afforded “ private profit” to the stage company? Surely not; yet the case we have supposed has been of constant occurrence from the earliest organization of the Government, in providing for the mail service.

We have instanced a familiar case by way of illustration. It might be indefinitely extended into.all the varied circumstances in which Government is to be supplied—to public printing, army stores, etc.—in all which private profit is the avowed motive on the one side, and the “public service” the true object on the other.

In 1831, the case of Beekman v. Saratoga and Schenectady Railroad Company, 3 Paige, 73, was decided by Chancellor Walworth. In that case it appeared that a railroad company, in constructing their road from Saratoga Springs to Schenectady, had seized upon certain real estate in the exercise of the power of eminent domain. There, as here, no question was made but that the State of ¡New York might have built the proposed road herself, and might have appropriated the land in question, and applied the public moneys also for that purpose. The objection of Van Vechter, for the complainant (whose pleasure grounds around his country residence had been invaded), was that “the defendants are a private corporation, and the road when made will be private property; it will not be for public use, but for the private use and emolument of the company,” etc. In fact, the argument of the counsel for the complainant upon that point presented it with a force never surpassed in any case falling under our notice. The Chancellor, in deciding the case, assumed, for the purpose of the decision, that the company was in truth a private company, in the exact sense claimed by counsel. He, declares, however, that it belongs to the Legislature to determine if the public interest will in any way be promoted by the taking of private property for such a purpose. He states that it is upon this principle that lands of one private individual are permitted to be overflowed and condemned in order that another may obtain a mill site; and that not only agents of the Government “ but also individuals and corporate bodies have been authorized to take private property for the purpose of making public highways, turnpike roads, and canals; of erecting and constructing wharves and basins; of establishing ferries; of draining swamps and marshes,” etc. In all such cases the object of the legislative grant of power is the public benefit derived from the contemplated improvement, whether such improvement is to be effected directly by the agent of the Government, or through the medium of corporate bodies, or of individual enterprise. And, according to the opinion of Chief Justice Marshall, in the case of Wilson v. The Blackbird Creek Marsh Company, 2 Peters R. 251, “measures calculated to produce such benefits to the public, though effected through the medium of a private incorporations, are undoubtedly within the powers reserved to the States,” etc. It must be observed that the Chancellor in this case, following the view of the Chief Justice 'of the United States—each of them distinguished for learning and ability—holds that public improvements of this nature may be effected by the State Government, “through the medium of corporate bodies or of individual enterprise.” But how is this power to be availed of, if the corporation or individual selected for the purpose is to derive no “private profit” thereby? Can such service be obtained without pecuniary compensation in some way awarded? The counsel has not suggested in this connection that it would be possible to find a corporation or an individual so public spirited as to undertake an agency in effecting the proposed public improvement without the expectation of “private profit” to accrue, nor is it believed that even in the earlier day in which the Chancellor and the Chief Justice lived private agencies of such a wholly disinterested character were to be readily found. When it is said, therefore, that the Government possesses the power to prosecute a public enterprise through an agency private in its character, the power to compensate such an agency is at the same time necessarily conceded, for otherwise the power to make the employment would be practically incapable of execution, and a power incapable of execution is no power at all.

The power to compensate the private agency thus employed is therefore clear enough, and if this be so it must be admitted that the measure of that compensation and the mode in which it is to be afforded are mere details which will vary with the prevailing habits of the public service, the condition of the public treasury, or the mere policy which would seem to recommend one plan of making compensation as preferable to another plan. Suppose, for instance, that the entire gross proceeds of the business are to be paid into the treasury of the State, and the “private agency” by which the road was built and is operated is to receive from the State a sum equal to a fixed per centum of the ascertained cost of the road, with or without allowance for deterioration by use, as the case may be, or that the net profits earned by the road are to be equally divided between the State and the “private agency,” or that the gross proceeds paid into the treasury shall be returned to the agency after certain deductions are there made; or suppose that the State is to have the authority to require that sufficient means of transportation for all persons and property to be carried shall be kept in readiness on the road, that so many trains of cars, of a designated character, shall regularly at stated times pass over the road; that the road shall be kept in repair at the expense of the corporation operating it, and without any expense to the State, and that as its “ private profit ” for rendering this service the “ private agency ” by which it is performed shall receive compensation from those who use the road at. a rate not exceeding that which the State itself may from time to time prescribe. These, and an infinite variety of other methods which might be suggested, would be but different ways of effecting compensation for services rendered by a private agency in operating and maintaining a work of public use. Of the propriety of the mode of compensation adopted in a particular case it is for the Legislature to judge, and we know no provision of the Constitution which is violated in the mode adopted here.

The legislative and executive departments of the Government seem to have deliberately reached the conclusion that a “ public use ” was to be promoted by the construction and, operation of a railroad such as the Stockton and Visalia road is designed to be, and, even if in so doing they have abused or mismanaged the constitutional authority over the subject, that circumstance would afford no justification to us for the assumption of unauthorized powers for the correction of such abuses.

ÍTo amount of supposed public good to follow would excuse us for the usurpation of powers not belonging to the judicial department of the Government. “ There is always some plausible reason (says Bronson, J.) for the latitudinarian constructions which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained by pushing the powers of Government beyond their legitimate boundary. It is by yielding to such influences that Constitutions are gradually undermined and finally overthrown. One step taken by the Legislature or the judiciary in enlarging the powers of the Government, opens tire door for another that will be sure to follow; and so the process goes on until all respect for the fundamental law is lost and the powers of the Government become just what those in authority choose to call them.” (3 Coms. 568.)

The power of the State Government to foster and regulate internal improvements is unquestionable. Should we, in this instance, deny to the legislative department the possession of this power, or should we attempt to narrow its clear constitutional scope by applying to it the arbitrary measure of our own views of wise policy in the conduct of public affairs, we would, in the hope of accomplishing a temporary good, permanently mar the symmetry of the structure of the Government itself, so far at least as a decision of ours could be permitted to work such an unfortunate consequence to the State. Though late events have awakened the general public attention to an anxious consideration of the extent of the legislative power upon this subject, those events have not as yet fixed a new limit to the power itself as it has heretofore existed, nor would they justify us in stepjfing aside from the well beaten track which we follow to tread upon the new and strange paths into which some, though few, 'of our brethren of the bench have, we hope, but temporarily wandered.

No propositions in the case can be affirmed with greater confidence than that, under Constitutions substantially like ours, railroads, though operated by private companies, are by -mere legal conclusion, for “public use;” that the power of eminent domain, confessedly exercisihle only in behalf of “public use,’-’ may therefore be exerted in behalf of railroads under legislative permission; that as fostering the “public use,” aid maybe extended to the construction of such roads by means of the power of eminent domain or of subscription to capital stock, and' by donations made by cities and other political subdivisions of the State, under the authority of the Legislature first given (or subsequently obtained, as was held in 1843 by the Supreme Court of Connecticut in City of Bridgeport v. Housatonic Railroad, 15 Conn. R. 475), and such is the purport of the judicial decisions of the highest Courts of Virginia, Connecticut, Pennsylvania, Ohio, Indiana, Tennessee, Illinois, Kentucky, Kew York, Georgia, Florida, Texas, Mississippi, Missouri, South Carolina, and other States. These decisions cover a period of little less than half a century of time; and they embody the views of constitutional law with reference to the question before us, which were entertained by some of the most distinguished jurists who have shed luster upon the American bench. They are cited in the briefs, and will be found to be not the mere expression of conclusions reached upon the points involved, but, in many instances, elucidated by a learning and research absolutely exhaustive of the general principle of the law of taxation as applied to the system of Government under which we live.

Upon authority, and upon principle- as well, we think that the Act in question cannot be said, by us to be, in any sense, unwarranted by the Constitution, or beyond the authority of the Legislature to enact.

It is ordered that the writ of mandamus issue as prayed for.