Lead Opinion

The opinion of the court was delivered by

Mr. Justice McIver.

This is an application addressed to this court in its original jurisdiction for a writ of mandamus to compel the respondents to apply funds alleged to be in the hands of the respondent, Neely, as county treasurer, to the payment of a coupon which matured on 1st of January, 1889, on a bond held by the relator, purporting to have been issued by the county commissioners of York County, as the corporate agents of Cherokee township, under the provisions of an act of the general assembly of this State, approved December 21, 1883, as well as under the provisions óf an act approved December 22, 1888, entitled “An act to provide for the payment of township bonds issued in aid of railroads in this State.” There are other appro*601priate:allegations in the petition which it is not deemed necessary to repeat here, as we think it would be well for the reporter, in preparing the report in this case, to set oüt the petition as well as the return, of which we shall, make only a brief statement.

The term of office of the persons named as county commissioners in the title of this case having expired, the return is made by their successors in office, to wit: T. G. Culp, Robert W. White-sides, and Wm. Ross, together with the respondent, Neely. The return sets forth, among other things, as reasons for declining to comply with the demand of the relator, that Cherokee township has never been constituted a township in accordance with law, inasmuch as certain provisions of the act defining the powers and duties of county commissioners have never been complied with, to wit: that the lines and boundaries of the townships in York County have never been established “by the erection of permanent monuments of stone, brick, or iron to designate the respective boundary lines of said townships ‘at every angle thereof nor have the county commissioners of York County in any other way definitely established the territory and boundary lines of any of the townships in said county that the Circuit Court never made “any order or direct any measure looking to the division of said county into townships” as provided by law; nor did the county commissioners ever report their acts and doings to the general assembly for confirmation.

It is also alleged that the act of 1883, above referred to, has been adjudged unconstitutional by this court, and respondents say that they have been advised that the attempt of the legislature, by the recent act of December 22, 1888, to validate the bonds issued under the act of 1883, and to provide for the levy of a tax to pay the same, is likewise unconstitutional and void. It is further alleged that the Charleston, Cincinnati and Chicago Railroad, in aid of which the bonds in question purport to have been issued, was not completed through Cherokee township and accepted by the railroad commissioners until December 21, 1888, and that even under the provisions of the act of December 22, 1888, no taxes in the hands of the respondent, Neely, as county treasurer, can be applied to the payment of the coupon held by the relator, though it is admitted that there are certain sums, the *602amounts of which are stated in the return, in the hands of Neely, as county treasurer, arising from taxes levied and collected prior to the completion of the road through Cherokee township, which, for the reasons stated in the return, cannot be applied to the coupon held by the relator.

This brief and condensed statement of the allegations in the petition and return is deemed sufficient, under the view which we take of the case, to present the real questions involved, though there are several other matters mentioned which we do not think it material to notice, as we shall confine ourselves to what we regard the real questions in the case. The material questions raised by the pleadings in this case are: First, whether Cherokee township has ever been created a township according to law. Second, whether the act of December 22, 1888, entlitled “An act to provide for the payment of township bonds issued in aid of railroads in this State,” is constitutional. Third, if so, whether the respondent, Neely, has in his hands, as county treasurer of York County, any funds applicable to the payment of the coupon held by the relator.

As to the first question. In view of the repeated instances in which the legislature has recognized the division of counties into townships, and especially in view of the legislation in which the particular township of Cherokee has been recognized as such, it seems to us too late now to inquire whether the regulations in respect to the marking the corners of the townships, reporting to the court and to the legislature the action of the county commissioners, have all been complied with. Indeed, the counsel for the respondents have laid so little stress upon this point that we do not deem it necessary to consider it further.

The real question in the case is the second, as to the constitutionality of the act of 1888. This question having just been considered and determined in the recent case of State v. Whitesides, ante 579, we do not propose to go into any extended discussion of it. Indeed, but for the importance of the question and the large interests involved, we would not undertake to add anything to what is there so well said.

We do not regard the act in question, which for convenience will be designated as the act of 1888, as in any sense a validat*603ing act, and lienee any discussion of it in that aspect would be out of place. It has none of the features of such an act. It does not purport to declare any previous legislation valid, which had been decided by the tribunal invested with jurisdiction for that purpose to be unconstitutional and void, nor does it purport to legalize any acts done under such unconstitutional legislation. On the contrary, it is an exercise of original legislative power, and the real question is, whether there is anything in the constitution of the State forbidding the exercise of such a power.

As we understand it, the legislature has been invested by the people with unlimited power of taxation, except as restrained by some constitutional provisions; and it has also been authorized by section 8, article IX., to delegate this high power of taxation to certain specified subordinate agencies, for certain specified purposes. It may, then, be said that, in respect to taxation, the legislature has been invested with two distinct classes of powers: one which it exercises at its own sovereign will; the other which it delegates to some subordinate agency, to be exercised by such agency at its will, within the prescribed limits. Now, while there are limitations to both of these classes of powers, the'limitations are not the same. In the former the only limitation is some constitutional provision, while in the latter there may be, and usually are, additional limitations prescribed in the act delegating the power. But the more material distinction between these two classes of powers is (so far as concerns the present discussion) that in the former the only limitation imposed by the constitution, so far as the purpose for which the tax is imposed is concerned, is that it shall be a public purpose, w'hile in the latter the limitation is that it shall also be for a corporate purpose.

Bearing these distinctions in mind, it must be obvious that when this court decided in Floyd v. Perrin, ante 1, that the act purporting to delegate power to a township to levy a tax for a purpose other than a corporate purpose was unconstitutional, it did not touch the question whether the legislature might not, by the exercise of its own power, impose a tax for the same purpose for which it had, without constitutional authority, attempted to delegate the power to certain townships.' That decision rested on the ground that as the purpose for which the legislature at*604tempted to delegate to the townships the power of taxation was not a corporate purpose, the act purporting to delegate such power was without constitutional authority. No such question is presented or can arise in this case. The only question here is, whether the legislature can, by the original exercise of its own power of taxation, impose a tax on the property within the boundaries of Cherokee township for the purpose of contributing to the construction of a railroad which passes through said township.

The proposition that the construction of a railroad is such a public purpose as to warrant the levy of taxes to aid in building it is too well settled by the very decided weight of authority to admit of further discussion, although if the question were an open one, its correctness might well be disputed. So, too, it seems to be settled by the weight of authority that the legislature may not only delegate this power of levying taxes to aid in the construction of a railroad to municipal corporations, but may also, by the exercise of its original power of taxation, directly impose such tax upon any territorial division of the State, to aid in the construction of a railroad supposed to be of special advantage to the people residing within such territorial division, provided a majority of those people have signified their assent to the imposition of such a tax.

Indeed, some of the authorities hold that the tax may be imposed without the consent of the inhabitants of the territorial division upon which the tax is imposed. But we are not prepared to go to that extent. What is said in the opinion of the Chief Justice in the case of State v. Whitesides, supra, is not to be regarded as a decision that such a tax may be imposed directly by the legislature without the consent of the people of the particular locality to be affected thereby, but simply as a statement of the fact that some of the authorities go to that extent. Except for governmental purposes proper, we do not think that the legislature has the power to impose a tax upon the people of any particular locality or territorial subdivision of the State without their consent. In this case, however, such consent was given, and that is the avowed basis upon which the act of 1888 rests. It is argued, however, that such consent has only been manifested by an election held without authority of law, and hence should *605not be regarded. It seems to us that it is not at all material how the assent of the people lias been given. All that was necessary was that the legislature should be satisfied that consent had been given and the terms of the act, especially the preamble, show plainly that they were satisfied of that fact.

The only remaining inquiry is whether the respondent, Neely, had in his hands as county treasurer any funds applicable to the payment of the coupon held by the relator. By the 2d section of the act of 1888 it is provided “that no tax shall be levied under the provisions of this act to pay the interest on any town-ship bond until the railroad in aid of which they were subscribed shall be completed through such township and accepted by the railroad commissioners;” and the section goes on to provide that it shall not be construed to authorize the levy or collection of any tax to pay any interest which had accrued prior to the completion of the road through any township and its acceptance by the railroad commissioners, and if any such tax had been collected, it should be refunded to the taxpayers. In the return it is stated, and this fact is not traversed, that the road was not completed through Cherokee township and accepted by the railroad commissioners until the 21st day of December, 1888; and as it is not alleged, and does not appear, that any tax has been levied or collected since that date, we do not see how it is possible for any funds to be in the hands of the respondent applicable to the coupon held by the relator under the terms of the act. Any taxes that may have been collected by the county treasurer under the provisions of the act of 1883 were illegally collected, as that act has been declared unconstitutional; and this is plainly recognized by the legislature in passing the act of 1888, as it is therein required that the taxes thus illegally collected shall be refunded to the taxpayers.

The act of 1888 does not purport to validate the previous illegal action of the corporate authorities of the townships, but the legislature then, by the exercise of its own legislative power, fixed upon the township, a debt, merely referring to the bonds previously issued without authority as a convenient means of designating the amount of such debt with the time when it should become payable, the rate of interest, and the times when such *606interest should become payable, and provided then for the levy and collection of taxes to pay the same, with the express provision that no such tax should be levied until after the completion of the road, as above stated. It is quite clear, therefore, that when these proceedings were instituted, the respondent had no funds in his hands which, under the provisions of the act of 1888, could be applied to the payment of the coupon held by the relator, and upon this ground the application for the writ of mandamus must be refused.

The judgment of this court is, that the rule to show cause be discharged, and the petition be dismissed.

Mr. Chief Justice Simpson concurred.

Concurrence Opinion

Mr. Justice McGowan.

I concur. The meaning of the opinion of the court being that there is no necessity for the issue of any new bonds ; but “the debt” fixed upon the several townships by the act of 1888 shall be represented by the bonds heretofore issued, to be paid according to the provisions of the act; and I am authorized to say that such is the view of the other members of the court.