56 N.H. 514 | N.H. | 1876
Lead Opinion
CHESHIRE COUNTY. "Any town may, by a two-thirds vote, raise by tax or loan such sum of money as they shall deem expedient, not exceeding five per cent. of the valuation thereof * * and appropriate the same to aid in the construction of any railroad in this state, in such manner as they shall deem proper." Gen. Stats., ch. 34, sec. 16. In accordance with the provisions of this statute, the inhabitants of the city of Keene have voted a subsidy equal to three per cent. of their last property valuation, to aid in the construction of that part of the Manchester Keene Railroad located between Greenfield and Keene. This sum, amounting to upwards of $130,000, is called a "gratuity" in the vote. It is, in fact, an appropriation of that amount, to be raised by a public tax, to the purpose of building a railroad, with no equivalent except the expected benefits to be derived from the opening of such railroad. The plaintiffs, who are citizens and large tax-payers in Keene, contend that the legislature, in passing the act quoted above, transcended the limits of their constitutional power; that the action of the city in voting the gratuity is therefore without warrant of law; and the; ask for an injunction to prevent the issuing of bonds or the levy of taxes in accordance with said vote.
The question we are thus called upon to consider is an important one, not only in its legal aspects, but in its practical bearing upon the rights and interests of these parties, as well as others in a similar situation, both tax-payers and holders of municipal bonds heretofore issued for a like purpose under the authority of the act in question.
In one view, the duty of the court is extremely plain and simple; in another, it is very delicate, and not free from difficulty. We have not to inquire into the policy of the law, or, if the purpose be admitted to be public, whether the supposed public good to be attained was sufficient to justify the legislature in conferring upon two thirds of the legal voters of a town the power to devote not only their own property but that of the unwilling other third to such a purpose.
All mere questions of expediency, and all questions respecting the just operation of the law, within the limits prescribed by the constitution, were settled by the legislature when it was enacted. The court have only to place the statute and the constitution side by side, and say whether there is such a conflict between the two that they cannot stand together. If, upon such examination, there appears to be a conflict, and if the conflict is so clear and palpable as to leave no reasonable doubt that the legislature have undertaken to do what they were prohibited from doing by the constitution, the court cannot avoid the high though unwelcome duty of declaring the statute inoperative, because the constitution, and not the statute, is the paramount law; and the court must interpret and administer all the laws alike. *531
The learned counsel for the plaintiffs have not pointed out the particular part or clause of the constitution which they say is violated by this statute. Their position, however, is, that the act authorizes the taking of private property, under the name and guise of taxation, and appropriating it to a use that is really and essentially private; and that such a proceeding, being manifestly at war with those fundamental principles upon which the right of the citizen to be secure in the possession and enjoyment of his property depends, is in violation of all those provisions in the constitution established to guard and perpetuate that right. The proposition assumes this form; — the legislature are forbidden by the constitution to exact money from the people of the state under the name of taxes and apply it to a private purpose: this statute authorizes the act thus forbidden, and is therefore void. The first part of this proposition is admitted by the defendants, and so we need not now inquire in what particular provision of the constitution the inhibition is to be found. Whether it rests upon the commonly received meaning and definition of the terms taxes, rates, assessments, c., used in the constitution, and the general guaranties of private property contained in the bill of rights; or whether, by a fair construction of Art. 5, the levying of all taxes, municipal as well as state, is limited to the purposes therein named, — viz., for the public service, in the necessary defence and support of the government of this state, and the protection and preservation of the subjects thereof, — is at present immaterial, inasmuch as we are to start with the assumption that taxes cannot be imposed or authorized by the legislature for any other than a public purpose.
Is the building of a railroad a public purpose? The legislature have undoubtedly passed their judgment on that question, and determined that it is. It is not to be denied that the levying of taxes is specially and entirely a legislative function, and the court are not to encroach upon the province of a coordinate branch of the government in the exercise of that power. Where is the line that divides the province of the court from that of the legislature in a matter of this sort? The court is to expound and administer the laws, and there the judicial function and duty end. How much of the question, whether a given object is public, lies within the province of the law, and how much in the domain of political science and statesmanship? When the judge has declared all the law that enters into the problem, how much is still left to the determination of the legislator? Admitting, as has indeed been more than intimated in this state (Concord Railroad v. Greeley,
If the legislature should take the property of A, or the property of all *532
the tax-payers in the town of A, and hand it over, without consideration, without pretence of any public obligation or duty, to B, to be used by him in buying a farm, or building a house, or setting himself up in business, the case would be so clear that the common-sense of every one would at once say the limits of legislative power had been overstepped by a taking of private property, and devoting it to a private use. That is the broad ground upon which such cases as Allen v. Jay,
Experience shows that highways would not be built, or, if built, would not be located in the right places with reference to convenient transit between distant points nor kept in suitable repair, but for the control assumed over the whole matter by the state; and so the state interferes, and establishes a system, and imposes an enormous burden upon the people in the shape of taxes, compelling them to supply themselves with what they certainly need, but need no more than they need shoes or bread, — and nobody ever complained that the interference was unauthorized, or the purpose other than a public one.
Enough has been said to show the delicate nature of the task imposed upon the court when they are called upon to revise the judgment of the legislature in a matter of this description. It is especially delicate for two reasons, — first, because the discretion of the legislature, with respect to the whole subject of levying taxes, is so very large, and their power so exclusive, that it is not always easy to say when the limits of that discretion and power have been passed; and, second, because the rule to be applied is furnished, not so much by the law as by those general considerations of public policy and political economy to which allusion has been made. I do not deny the power and duty of the court, when private rights of property are in question, to settle those *534 rights according to a just interpretation of the constitution; and the discharge of that duty may involve a revision of the judgment of the legislature upon a question which, like this, partakes more or less of a political character. But before the court can reverse the judgment of the legislature and the executive, and declare a statute levying or authorizing a tax to be inoperative and void, a very clear case must be shown.
After the legislature and the executive have both decided that they purpose for which a tax is laid is public, nothing short of a moral certainty that a mistake has been made, can, in my judgment, warrant the court in overruling that decision, especially when nothing better can be set up in its place than the naked opinion of the court as to the character of the use proposed.
Certainly it is not for the court to shrink from the discharge of a constitutional duty; but, at the same time, it is not for this branch of the government to set an example of encroachment upon the province of the others. It is only the enunciation of a rule that is now elementary in the American states, to say that, before we can declare this law unconstitutional, we must be fully satisfied — satisfied beyond a reasonable doubt — that the purpose for which the tax is authorized is private and not public.
I have spoken incidentally of our common highways; and it has been said that their purpose is, to furnish to the public facilities for travel, for the transmission of intelligence, and the carrying of goods. No one will contend that to build and maintain them is not a public purpose. Indeed, the public nature of this use is so very obvious, that it has been classed among those said to be public per se (Whiting v. Sheboygan Railway Co., supra), standing in need of no credentials from the court to entitle it to legislative recognition. Wherein does the use of a railroad differ? What public benefit can be mentioned, that comes from the building of a common road, that does not come, in kind if not in degree, from the building of a railroad? It is not necessary to enlarge upon the benefits of either: they are, doubtless, numerous and varied, — so numerous, indeed, so interwoven with everything that distinguishes an intelligent, virtuous, rich, well organized, and well governed state, from a tribe of primitive barbarians, that an attempt to trace them all would be little less than an attempt to search out the sources of our civilization.
The point is, they are alike in kind; and when it is admitted that the construction of one class of roads is clearly, beyond all possibility of doubt, a public purpose, I cannot conceive upon what ground it is to be said that the construction of the other class is, beyond all reasonable doubt, a private purpose.
It is said that railroad corporations are private; that the roads are built and run for private gain; that the public call only enjoy the benefits offered by them upon payment of a toll, — and, therefore, their purpose is private. The short and conclusive answer to all this, in my mind, is, that the character of the agency employed does not and cannot *535 determine the nature of the end to be secured. To say of a railroad corporation that it is a private corporation, and therefore the construction of a railroad is a private purpose, seems to me, in truth, no more logical, if less absurd, than to say of any officer or agent of the state, — He is an individual, with all the private interests and private associations of other citizens; therefore the purpose of his office and of all his official acts is private. The argument, that because a toll is granted, therefore the purpose must be private, carried to its logical results, would certainly declare the purpose of a very large number of public offices in the state to be private, — among them the secretary of state, justices of the peace and of police courts, registers of probate, registers of deeds, sheriffs, clerks of the courts, town-clerks, etc., etc.
If the purpose is public, it makes no difference that the agent by whose hand it is to be attained is private. Nor, if the purpose were private, would it make any difference that a public agent was employed. The question, therefore, whether a railroad corporation is to be regarded as public, or private, or both, — that is, public in one aspect and private in another, — seems to me quite immaterial, and that the decision of that question one way or the other does not advance the inquiry we have in hand.
It has been admitted by some, who have maintained with singular ability and zeal the position of the plaintiffs in this case, that the state might legally take into its own hands the whole matter of railroads within its limits; might build, equip, operate, and control them, making use of no intermediate agents in the business, — because in that case the people would remain owners of the property into which their money had been converted. With great deference, it seems to me, this is a concession of the very point in dispute. The form of the argument seems to be this: The state cannot levy a tax for a private purpose. (So much, all admit.) The building of a railroad is a private purpose; but the state may nevertheless levy a tax to build a railroad, provided the tax be large enough to carry through the whole enterprise without calling in the aid of any other agency; — or, to draw from the same premises the conclusion sought to be established here, the state cannot levy a tax for a private purpose. The state may levy a tax to wholly build, equip, and run a railroad; therefore the building of a railroad is a private purpose. This does not bear examination.
Another argument may be noticed here. It has been said by courts, whose decisions we are accustomed to regard with great respect, that, admitting the power of the legislature to authorize towns and cities to subscribe for stock in railroad corporations, and issue bonds or levy taxes in payment thereof, it does not follow that they call lawfully authorize the direct appropriation of the public funds to aid in the construction of a railroad where no stock is taken; because, in that event, no interest or ownership results to the town in the property of the corporation, and no voice in the control and management of its affairs is secured. I do not understand how this call be said by a court of law. Upon what ground can the legislature authorize the raising of a tax to *536 pay for stock in a corporation of any sort, unless the purchase of such stock will be a devotion of the public funds to a public service? It is a matter of common knowledge that the original stock in railroad corporations often becomes worthless, or nearly so; but whether such a result is to be apprehended or not, makes no difference, so far as I can see, with the argument. If the end in view is private and not public, the legislature might as well authorize a town to enter into copartnership with any private person, in the prosecution of any private enterprise or business, and furnish its stipulated proportion of the capital to be invested, by levying a tax, as to authorize it to purchase such stock, even were it likely to advance in value on their hands, and the people thus be gainers by the operation. Deny that the end is public, and at the same time admit that a tax may be levied for the purchase of the stock, and the inevitable conclusion appears to be, that towns may be authorized to engage in the private and perilous business of dealing in stocks, and so apply the public funds to a purpose as remote as any that can well be conceived from that permitted by the constitution, to say nothing of the fact that such investment must be made with a reasonable assurance that the money will be lost. Clearly, one or the other of these propositions must be changed; — either we must admit that the end in view is public, or deny the power to purchase stocks when the end in view is merely a private end.
It is said that the power to tax involves the power to destroy; and that this is true is well shown by the recent example of the state banks, whose existence was terminated by a tax of ten per cent. imposed by congress on their circulation. But how does this strengthen the position of the plaintiffs? They say that if the legislature have the constitutional right and power to authorize a tax of three per cent. to aid this railroad, they have the constitutional right and power to levy a tax upon all the property in the city of Keene equal to the full value of such property, and give that to the same road. Suppose this be granted, what does it prove as to the object for which the tax is laid? Is it not equally true that they might authorize a tax equal to the full value of all the property in the city for the support of the public schools, the public highways, or any other object of a confessedly public nature? The suggestion plainly of no force in an inquiry as to the nature of the purpose for which a tax has been authorized or levied, for the reason that the supposed power of destruction is a necessary incident of the taxing power, and follows it whatever be the object for which it is put forth, whether public and legal, or private and illegal. It amounts to little more, in the present case, than the truism that any governmental power may be abused by the agent in whose hands it is reposed.
But if the question on which this case must turn has been rightly apprehended, I think it was decided more than thirty years ago, in the case of Concord Railroad v. Greeley,
A glance at the early legislation in this state, with reference to the taking of land for railroads against the owner's consent, is sufficient, without looking elsewhere, to show that, for several years before the case of Concord Railroad v. Greeley arose, much doubt was felt by the legislature and the people at large as to the existence of such a right, and a strong disposition is manifest to deny its exercise. The first charters to railroad corporations granted the light to lay out their road, and necessarily take land for that purpose — see Private Acts of 1835, pp. 201, 212, 223, 264, Private Acts of (June session) 1836, p. 341, Private Acts of 1837, p. 336, Private Acts of 1839, pp. 456, 470; and at the June session, 1836, a general law was passed, entitled "An act to provide a more cheap and expeditious mode of assessing damages for lands or materials taken by railroad corporations," which unequivocally recognizes the existence and validity of the right thus conferred by the charters. Public Acts, June session, 1836, p. 299. This act was repealed at the November session of the same year, and an act substituted in place of it covering the same general ground, but more comprehensive and specific in its details, providing for an assessment of damages by jury in case the parties were not content with the award of the committee, c. Public Laws, Nov. sess., 1836, p. 248. It is noticeable, also, that at the November session, 1836, an act was passed authorizing the town of Concord to purchase and hold stock in the Concord Railroad Corporation, to an amount not exceeding thirty thousand dollars. Public Acts, Nov. sess., 1836, p. 316. But before 1840, for reasons that are well known but need not be stated here, the public mind became somewhat agitated upon the general subject of the legal relations borne by railroad corporations to the people and government of the state, and the rights and duties of such corporations, as well as the power of the legislature to appropriate private property to their use without the owner's consent. We accordingly find that, at the June session of that year, an act of a somewhat sweeping character was passed, whereby the acts of June, 1836, and January, 1887, in reference to the assessment of damages, and the act authorizing Concord to purchase and hold stock in the Concord Railroad, were all expressly repealed. And it was further enacted, "That from and after the passage of this act, it shall not be lawful for any corporation to take, use, or occupy any lands, without the consent of the owner thereof, unless the construction of the works contemplated in the act of incorporation shall have been commenced prior to the passage of this act." Laws of June session, 1840, ch. 498, p. 438.
At the November session of the same year another act was passed which, whether called forth by actual grievances or not, shows in a striking light the state of public sentiment and the temper of the legislature. It was enacted, "That from and after the fifteenth day of March, A. D. 1841, it shall be lawful for the owner or owners of any land, taken by any railroad corporation in the construction of their railroad, when such land-owner shall not have been fully compensated for the same, on or before the fifteenth day of March, 1841, to remove the rails from *538 said railroad, fence up the land, and take and retain possession of the same until entire satisfaction is made to the owner or owners of the land thus taken." Laws of November session, 1840, Ch. 584, p. 504. This latter act was repealed by the Revised Statutes, which went into effect March 1, 1843; but the provision of the former, that no railroad corporation shall take any land for the use of such corporation without the consent of the owner thereof, was retained, and appears as sec. 1, ch. 142, Rev. Stats.
Things remained in this position until 1844, when an act was passed, entitled "An act to render railroad corporations public in certain cases, and constituting a board of railroad commissioners." Laws of November session, 1844, ch. 128. Section 8 of this act contains an elaborate provision for a lease under the seal of the state, signed by the governor and certified by the secretary of state, whereby the right to construct a railroad over the route proposed should be granted and guaranteed to the corporation, for a term not less than one hundred nor more than two hundred years, for the public use and benefit, with the right of user in the same to pass and repass with their locomotives, cars, and vehicles of transportation thereon, c., — a device for finding the way out of a dilemma which would not do discredit to the ingenious inventors of many of the legal fictions with which the common law still abounds.
The next year (1845) came the case of Concord Railroad v. Greeley, where the constitutional power of the legislature to authorize the taking of private property for such a use was strenuously denied. It is obvious, even without going outside the statutes just referred to for evidence, that this was a question which had seriously engaged the public mind, and one upon which opinions greatly differed. Under these circumstances, it was natural that the case should receive a careful examination by the court; and I think it may justly be said, that the opinion by Mr. Justice GILCHRIST is among the most valuable to be found upon the general subject of which it treats. He says, — "The constitution of this state is not so much a constitution delegating power, as a constitution regulating and restraining power. All power, in the largest terms applicable to such a subject, is conferred by the people, through the constitution, upon the general court, subject to the condition in its exercise that it shall pass no laws repugnant to the limitations and restrictions in the constitution." He considers the objection that the power of eminent domain cannot be exercised except through the medium of a public corporation, and says the question involved is, not what is a public and what is a private corporation, but whether this corporation be one that may hold the land of an individual for the public use. In considering the great question in the case, namely, whether the proposed use was public, he says, — "It is sufficient for this occasion to say that the use of a thing may be considered public, so far as to justify the exertion of the legislative prerogative in question, if it be devoted to the object of satisfying a reasonable pervading public demand for the facilities for travel, for transmission of intelligence and of commodities, not extraordinary as compared with those enjoyed *539 by communities of like pursuits. Such objects rank themselves in fact among the first duties of a government from the moment that it has secured itself against foreign aggression, and established tranquility within its own borders. Without these the citizen pines in seclusion. The bounties of nature and the fruits of his labor, which commerce would transmute into wealth, are wasted, and he provides himself, with difficulty if at all, with those things which embellish home and render its appropriate enjoyments possible."
I am not aware that the soundness of this decision has ever been questioned; certainly it has been acquiesced in and acted upon by the legislature and the people, as the undoubted law of the state ever since it was rendered. The legislature has again and again, in a variety of forms, directly and indirectly, declared the use to be public, and has jealously guarded against the possibility of an inference that the right thus to take land could be derived from any other source than the supreme law-making power of the state. Railroads are declared to be designed for the public accommodation like other highways, and therefore to be public; and it is said that, being public highways, they can be laid out, built, maintained, and put in operation only by virtue of grants of the legislature, or of authority derived from them. They are required, in times of war, insurrection, or invasion, to transport soldiers, munitions of war, and other property of the state, as well as soldiers, munitions of war, and other property of the United states, and the mails of the United states, at such rates as the governor and council shall impose if the parties do not agree. They are forbidden to discontinue their roads, and required to keep them in good repair, and discharge their duties in carrying passengers and freight agreeably to their proper object and purpose — Gen. Stats., chaps. 145, 146; besides, their charters are always carefully guarded to prevent an inference that they are not the creatures of the state, charged with public functions and subject to legislative control.
Undoubtedly a legislative declaration, that a given use is public, cannot be regarded as conclusive to all intents, without denying the power of the court to interpret the constitution; nevertheless it is true, that the creator of a thing may generally impose upon the work of his own hands such qualities and characteristics as he chooses; — and when we see that the legislature, in establishing railroad corporations, has always been so careful, not only to bestow upon them attributes and powers consistent with no other idea than that their purpose is public, but to lay upon them also obligations and duties which would be clearly unjust and arbitrary in any other view; and when, in addition to this, we find the statutes full of declarations that the use is a public use, it would seem that nothing which falls much short of absolute demonstration would warrant the court in holding that the use is, after all, private.
Thus far, indeed, the cases all agree. It is nowhere contended, and is not contended by the plaintiffs, that a railroad is not a public use in such sense that land, the private property of individuals, may be taken *540 for its construction. But a strenuous effort has been made to distinguish between the nature of a public use that warrants the exercise of the power of eminent domain, and that which warrants the exercise of the taxing power in its behalf. Of course the use Which warrants the taking of land for a road-bed must be public, otherwise every charter granting that right, and every general law recognizing its existence and regulating the mode of its, exercise, has been nothing less than an arbitrary and despotic interference by the legislature with private rights of property, in flagrant violation of Art. 12 of the bill of rights, as well as the other provisions of the constitution whereby those rights are secured.
The argument, then, admits that the use is public, but holds that it is not sufficiently public, or is not public in the particular way, to bring it within the category of objects for which taxes may be imposed: either in degree or kind, the public quality which it confessedly possesses falls short of that required by the constitution to justify an exercise of the taxing power.
It is incumbent on those who undertake to maintain this distinction, to point out clearly the differences on which it rests. An assertion that it does exist is not enough, nor is the argument advanced by a repetition of such assertion, even though made in confident and emphatic terms. What is the rule wherewith we are to determine when a given public use is of a character to warrant the exercise of one power and not the other? What is the principle to be applied? No one will contend that the power of eminent domain and the taxing power, though similar, are in all respects identical; but all agree that neither can be exercised except for a public end. Which is the higher power? or, in other words, which requires the greater public exigency to call it forth? What is the nature of those objects which lie on one side of the line, and what of those upon the other side? Where is the line to be drawn, and what are the reasons that determine its location? These are some of the questions not to be evaded, or met with much speech and ingenious ratiocination, but to be answered fairly and clearly, before a court can say that the legislature have beyond all reasonable doubt transcended their constitutional powers in declaring that a use which is of such character, — that is, public in such sense that private property may be taken and appropriated in its behalf, — is also public in such sense that taxes may be levied in its behalf. In those cases to which we have been referred by the plaintiffs' counsel, where an attempt to do this is made, it does appear to me the failure has been rendered only more conspicuous by the eminent ability of those who have undertaken the task. And, after a most careful examination of those cases, if we were to hold that a railroad, being a public use for which the land of individuals may be taken against their consent, is not a public purpose for which taxes may be imposed, I should be utterly at loss what sound reason to give for the distinction, or in what terms to frame a rule to govern the future action of the legislature in cases of a like description. *541
Unless the court are to stand between the people and their representatives and declare when the latter have misjudged in their deliberations, and set up limits to the legislative powers of the general court not found in the organic law of the state, it is clear to my mind that this law cannot be annulled by a judicial sentence or decree.
Concurrence Opinion
After the very full discussion by my brother LADD of the general principles upon which the decision of this case must rest, and in which I fully concur, I shall attempt to do but very little more than cite a few of the leading authorities which bear upon the questions we are considering, quoting freely therefrom so far as may be necessary to give a clear understanding of the view which the courts have taken of these questions.
We are asked to restrain the city of Keene from issuing its bonds to the amount of $130,000, in aid of the construction of the Manchester Keene Railroad, pursuant to a vote of its city councils passed in the month of November, 1874, upon the ground that chapter 34, section 16, of the General statutes, authorizing a town or city to raise, by tax or loan, money to aid in such construction, is an unconstitutional exercise of legislative power.
It is not claimed that the constitution of this state contains any express denial of power to the legislature to authorize a municipal corporation to aid in the construction of a railroad, and there is nothing from which such denial of power may be inferred. The plaintiffs, in argument, refer to article 2 of the bill of rights, by which the right of acquiring, possessing, and protecting property is guaranteed to every citizen, and is thus put above the altering or repealing power of the legislature. We are also referred to the fundamental rule laid down in E. Kingston v. Towle,
There is no presumption in favor of the unconstitutionality of a statute. On the contrary, the presumption is always the other way; and it devolves upon any one who would question it, to establish its unconstitutionality beyond reasonable doubt. Cooley's Const. Lim. 182, and numerous authorities cited in note 1.
The plaintiffs contend "that railroad corporations are private corporations in all respects, except so far as they may be empowered to *542 exercise the right of eminent domain in taking land for its construction; that in all other respects they are private, and that their undertaking can no more be aided by taxation than can the undertakings of any other private corporation or individual."
General Statutes, ch. 146, sec. 1, declares that "Railroads, being designed for the public accommodation like other highways, are public, and at all times subject to the control of the legislature." "Section 2. All railroad corporations are public, and trustees and others in whom any railroad is vested are public agents, so far as the security and protection of the public rights and interests are concerned." "Section 3. Railroads, being public highways, can be laid out, built, maintained, and put in operation only by virtue of express grants of the legislature, or of authority derived therefrom."
These provisions of the statutes are so clearly nothing more than a reaffirmance of the law, as it has been uniformly held in the courts of this and nearly every other state in this Union, that it is idle to do more than cite a few of the vast number of authorities upon this point. The first decision in our state is that of Concord Railroad v. Greeley
In Great Falls Man'f'g Co. v. Fernald,
In Ash v. Cummings, in an opinion by SARGENT, J., in which the doctrine of the above cases is cited with approval, the learned judge then adds, — "If it is constitutional to grant to a private company the right of thus taking property for public uses without the consent of the owner, it follows that it is none the less so to grant the same right to an individual, if it is done under similar restrictions and limitations, and subject to the same conditions. The use is just as public, and no more so, if the highway is built by a public corporation, or a private *543 company, or a single individual, provided the same road is built in each case, and subject to the same regulations and restrictions."
If anything more were needed to confirm this position, we need only refer to the case of Olcott v. The Supervisors, 16 Wall. 678, from which I quote, "that railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early a question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use; yet it is a doctrine universally accepted, that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is, that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant. It would be useless to cite the numerous decisions to this effect which have been made in the state courts. We may, however, refer to two or three, which exhibit fully not only the doctrine itself, but the reasons upon which it rests." Beekman v. Saratoga Schenectady R. R. Co., 3 Paige 45; Bloodgood v. Mohawk Hudson R. R. Co., 18 Wend. 1; Worcester v. Railroad Co., 4 Met. 564.
"Whether the use of a railroad is a public or a private one depends in no measure upon the question who constructed it, or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is, the agent, the function performed is that of the state. Though the ownership is private, the use is public. So turnpikes, bridges, ferries, I and canals, although made by individuals under public grants, or by companies, are regarded as publici juris. The right to exact tolls or charge freights is granted for a service to the public. The owners may be private companies, but they are compellable to permit the public to use their works in the manner in which such works can be used. That all persons may not put their cars upon the road, and use their own motive power, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the legislature is the exclusive judge."
Regarding this question then as firmly settled, we are led to another, which arises for the first time in this state, although it has been before courts of most of the other states of this Union, and settled almost uniformly one way, and that is, whether, if there be no constitutional prohibition of any sort, the legislature of New Hampshire can authorize a municipal corporation to aid in the construction of a railroad by issuing *544 bonds, or raising money by tax or loan, to be given as a gratuity, or loaned to such railroad corporation.
The provision of the statute is as follows: "Any town may by a two-thirds vote raise by tax or loan such sum of money as they shall deem expedient, not exceeding five per cent. of the valuation thereof as made by the assessors for the year in which said meeting is holden, and appropriate the same to aid in the construction of any railroad in this state, in such manner as they shall deem proper" — Gen. Stats., ch. 34, sec. 16. By another provision of the statute, this section is made applicable to cities when voted by a two-thirds vote of each branch of the city councils.
It is not claimed that there is any express prohibition of this power in the constitution of this state. Nor do I know of any grounds upon which such prohibition may be implied. It has been argued on behalf of the plaintiffs that "the legislature has only the power to raise revenue by taxation for a public purpose; but when revenue is attempted to he raised for a purpose not connected with the public interest, it is no longer taxation, but robbery." I should not be disposed to quarrel with any one who asserts this proposition, but I fail to see how it is applicable to this case. No one will assert that taxes may be imposed for a private use. But has it not been settled over and over again, in this and nearly every other state of the Union that the construction of a railroad by a company incorporated by a state for the purpose of building it, and endowed with the state's right of eminent domain, is a thing in which the state has, as such an interest? The legislature has reserved the right of altering, amending, or repealing the charter granted to the Manchester Keene Railroad. The legislature has the power to control and regulate it. It can define its use, and regulate its tolls and rates of transportation. If a work made by authority of the state, subject to its regulation, and having for its object an increase of public convenience, is to be regarded as ordinary private property, then the long array of decisions above referred to must be laid aside as not only inapplicable, but useless.
In the constitutional convention held in this state in 1850, an amendment was adopted by the convention, and submitted to the people for ratification, which read as follows: "12. No town or incorporated place shall have the right, either directly or indirectly, to suffer their credit to be used for the especial benefit of any corporation, or to raise money for the purpose of loaning the same to any corporation, or for taking stock therein;" — see Journal of Convention. This amendment was rejected by the people. Not only did it fail to secure the requisite two-thirds vote, but the majority against it was very large. Although this is not conclusive evidence that the people understood that by defeating the proposed amendment they already possessed the power to do what the amendment proposed to prohibit, yet it affords very strong evidence that the people were unwilling to deprive themselves of the power, if the occasion should ever present itself when they might desire to exercise it. *545
This statute was first enacted in 1864. P. L., ch. 2,890, sec. 2. According to the defendants' brief, at least twelve cities and towns have aided in the construction of railroads under the provisions of this act, without their power so to do having been challenged until the present case. This fact in itself is not perhaps entitled to much weight, except as showing that from the large number of people interested in the result of this suit, this question deserves very careful consideration.
Upon a question of constitutional law, the decision of the supreme court of the United States is the decision of a court of last resort, and is therefore entitled to our most respectful consideration. Turning then to the reports of that court, the case of Railroad Company v. County of Otoe, 16 Wall. 667, is found to be precisely in point. The constitution of Nebraska contained no prohibition against the power of the legislature to authorize a county to issue bonds in aid of the construction of a railroad.
The county of Otoe, having been authorized by the legislature, issued bonds to the amount of $150,000 in aid of the construction of a railroad. Certain of the coupons coming due, suit was brought to enforce their payment, which was resisted upon the ground that the legislature had not the constitutional power to grant such authority, and the case was carried by appeal to the supreme court of the United States. The opinion of the court was delivered by Mr. Justice STRONG, from which I quote: "Unless we close our eyes to what has again and again been decided by this court, and by the highest courts of most of the states, it would be difficult to discover any sufficient reason for holding that this act was transgressive of the power vested by the constitution of the state in the legislature. That the legislative power of the state has been conferred generally upon the legislature is not denied, and that all such power may be exercised by that body, except so far as it is expressly withheld, is a proposition which admits of no doubt. It is true that, in construing the Federal constitution congress must be held to have only those powers which are granted expressly, or by necessary implication; but the opposite rule is the one to be applied to the construction of a state constitution. The legislature of a state may exercise all powers which are properly legislative, unless they are forbidden by the state or national constitution. This a principle that has ever been called in question. If, then, the act we are considering was legislative in its character, it is incumbent upon those who deny its validity to show some prohibition in the constitution of the state against such legislation. And that it was an act of legislative power is not difficult to maintain. No one questions that the establishment and maintenance of highways, and the opening of facilities for access to markets, are within the province of every state legislature upon which has been conferred general legislative power. These things are necessarily done by law. The state may establish highways or avenues to market by its own direct action, or it may empower or direct one of its municipal divisions to establish them, or to assist in their construction. Indeed, it has been by such action that most of the *546 highways of the country have come into existence. They owe their being either to some general enactment of a state legislature, or to some law that authorized a municipal division of the state to construct and maintain them at its own expense. They are the creatures of law, whether they are common, county, or township roads, or turnpikes, or canals, or railways. And that authority given to a municipal corporation to aid in the construction of a turnpike, canal, or railroad, is a legitimate exercise of legislative power, unless the power is expressly denied, is not only plain in reason, but it is established by a number and weight of authorities beyond what can be adduced in support of almost any other legal proposition. The highest courts of the states have affirmed it in nearly a hundred decisions, and this court has asserted the same doctrine nearly a score of times. It is no longer open to debate."
In the same decision it is held that the prohibition, "that the property of no person shall be taken for public use without just compensation," has no reference to taxation. "If it has, then all taxation is forbidden, for `just compensation' means pecuniary recompense to the person whose property is taken equivalent in value to the property. If a county is authorized to build a court-house, or a jail, and to impose taxes to defray the cost, private property is as truly taken for public use without compensation, as it is where the county is authorized to build a railroad or a turnpike, or to aid in the construction and to levy taxes for the expenditure. But it is taken in neither case in the constitutional sense: the restriction is upon the right of eminent domain, not upon the right of taxation."
"There is no solid ground of distinction between a subscription to stock, and an appropriation of money or credit. Both are for the purpose of aiding in the construction of the road; both are aimed at the same object, — securing a public advantage, obtaining a highway or an avenue to the markets of the country; both may be equally burdensome to the tax-payers of the country. * * That the legislature of the state might have granted aid directly to any railroad company, by actual donation of money from its treasury, will not be controverted.
* * The security against abuse of power by a legislature in this direction is found in the wisdom and sense of propriety of its members, and in their responsibility to their constituents. But if a state can directly levy taxes to make donations to improvement companies, or to other objects, which in the judgment of its legislature it may be well to aid, it will be found difficult to maintain that it may not confer upon its municipal divisions power to do the same thing. Counties, cities, and towns exist only for the convenient administration of the government. Such organizations are instruments of the state created to carry out its will. When they are authorized or directed to levy a tax, or appropriate its proceeds, the state through them is doing indirectly what it might do directly. It is true, the burden of the duty may thus rest upon only a single political division; but the legislature has undoubted power to apportion a public burden among all the tax-payers of the *547
state, or among those of a particular section. In its judgment, those of a single section may reap the principal benefit from a proposed expenditure, as from the construction of a road, a bridge, all almshouse, or a hospital. It is not unjust, therefore, that they should alone bear the burden. This subject has been so often discussed, and the principles we have asserted have been so thoroughly vindicated, that it seems to be needless to say more, or even to refer at large to the decisions. A few only are cited. Blanding v. Burr,
This very clear and satisfactory opinion was followed by another at the same term, in Olcott v. Supervisors, 16 Wall. 678, in which the same doctrine was reiterated; and again, in Queensboro' v. Culver, 19 Wall. 83; and yet again, in Pine Grove v. Talcott, 19 Wall. 666, where it is said, — "Similar laws have been passed in twenty-one states. In all of them but two it is believed their validity has been sustained by the highest local courts. It is not easy to resist such a current of reason and authority. The question belongs to the domain of general jurisprudence."
When a question is presented for our consideration, which, in the language of the supreme court of the United States, has been affirmed by the highest courts of the states "in nearly a hundred decisions," and in that court "nearly a score of times," I think we may well agree with that court that the question is "no longer open to debate," and I may well be excused from entering upon a discussion of its merits. I have therefore attempted but little beyond making use of some of the arguments adduced by that court, and clothed in the forcible language of the very eminent judge who delivered the opinion in Railroad Company v. The County of Otoe.
Concurrence Opinion
I concur. I think the conclusion reached by my brethren is supported by unanswerable arguments, and by a weight of authority much greater than that which call be cited in support of the opposite conclusion.
Bill dismissed. *548