The Railroad Aid Law

The People ex. rel. The Detroit and IIow ell Railroad Compauy . The Townshlp Uoard of Balem. OPINIÓN I!V CCOLKV, ,T. The m;t of 18G4, uiuler which the pro ccedings in qiiestion wero taken, provides tbat it shail bc lawiul iur eaofa ot the seveial townships in the Counties of Livingston, Uakland, Washlenaw and Wiijnc, tci pk-dgo their credit to aid in tho coosti uctioD of a railroad frotn sorae point near the citj of Detroit to the village of Howoll, fr such sum or sums not cxceediiig tho nve per centutn ot' tlic :i.S; .-sed valuation, for tho timo bt-ing, of tho real und pcisoual property of sucli t"Wi snip as the electora of such township ehull, at a meeting or meetings callcd for thai purpose, determine. The elec:ors, íl i. also provided, muy, at such meeting or meetings, doterruiue the tcrms, conditioii, muuner of exccuting tLe eecurilies, and other partieulars in regard to such pledge of credit, or they D9'av empowrr sonie tnwnship officer or coiumiltec of elector? to determine the same, iind in case of no such delermina tion or delegatinn of power to an offictr :r comuiittee, thcn the Beveral lownship boards of such townshipa ar seveiMlly givcu power to determine all t-uch partioalars : Provided ihat the amount of b mts that ehall beeome duo in any one yt ar sball uot exceed two per centum oí the air6ess(id valaatinn of sueb townehip at the time of is.-uing tbe i-auie. Tbe meeting of electors to decide upnn such pledge is to be called hy the Supervisor on a requtst signed by thirtj-six taspajing electors, nd up.u ten dayö' public notica, and the socurities igued or madö iu pursusince df the act, are declarcd to be a valid charpe upoo tbe taxable properiy of tbe ttmnship issuing or making tbe farac, and it is made the duly of the tnwijship boaid to provide by tax for the; payineiit of tbe principal aud interest ifaereoo as fast as tbe sunie sball bccotne due and fayable by the terms t lereof. But no bonds or oihir évidences f debt are to be dclivcred to the treasurer of any town-hip, cily or villagi-, fcr aay railroad companv, until all tbe teiiu-i ar.d cnnditious required by the vute of tlie towosbip, or by the proper autbdritiis, phiill have been crni'plied wi h Provided : Tfiat no b mds or other videnoes of debt is3ud uiider tbe provisions of said act, or tba monejs arising from tl, e sale ot the same, are to delivered or pid over to the railrrad py, unti! the ticssliall befun.isUd and ddivercd on tbe line of the load ir'á;LílariS:mfeU On saingB eball bo fully cumpleted and, e.'.dy for tha iron, " withio tbe limits of he munici alitics rendcring sucb aid.' of 1864, page 96.) The aot ttlso pruvides for aid by tbe 3oun!y of Livingston in its uorporate apacity, to the same line of road, aod here aiu expressions in it wbicb seein o iiriply an uuderstandiuif on tbe part of the Legtslature that tbey had conerred the liko power on the City of Deroit, but the power is uot giveo in exjress teruif, nor is macbinery providod 'or its exeroisa. And although "the everal towf.ahips " in the coumies nsmed appear to be authorized to pledge heir credit for ihe purpose speeified, it wou'd set-m to be tLe iiituntion nf the jegii-laturü to limit the right to sucb ownuljif'S at tnifibt lio upon the line of ii)' road wliich shouicl be leid out and ommenced, iuasmuoh ns the eecuiities or inoney are to be retuioed uutil cerluin jrogress bas been made upon such road witliin tliH limita of the municipality endering the aid. Undfir tliia act it appears tbat the owD.hip of Salem voted aid to the ex;. nt of live per ccutum of its assessed vuluatiou ; but the nieetiug at which the vote was taken was irregular for want of suficient notice, and a special act of the jegislalure was obtaiued to legalize the ame. A couditiou was attached to the vote which the railroad company hus oomf)lied with, but the towuship board refuse to issue the securltics voted, claimDg thiit the act of 1864 was in excrss of legislativo aiilhority, and therelorc uucoui-titutional and void, and that the towuship vote wüs in cousequence a uulty. The railruad cotnpauy thereforc ijiply for a writ (if mandauius to com)ul tho delivery of the securitie, and an issue of law having been joined upou heir spplication, we aie required t" eoueider tho important constitutional queetion which the objectiou of the towuship board presenta. I suppose if the lcgislative act in questicm can be susíaiutd at all it must be so Bustsiined under the general authority of the State' to prescribe and determine tho objects to be provided for, fostercd or aided through tho expeuditures of the public moneyg. In other words, it mu-t bö regurded as an ncipient ftep iu the exercis' of the botcreign power of taxution. Tbiü power, we are tol!, is n t, and from ts very nature eannot be controllcd aud limited by precise and accurate rules, wbieb shull desígnate and dunne in all caset be parüuular purposes l'or wlii-h alone moneye pnay bu raised, or to wbich tliey niny be aipropriated wheu raicd, or tLo cxieot of the berden v.bicli tmiy be impi'Bi-d, sin tl it is adiicd t!ut upon ali these points a bioad und ancontrollal Ie di-critioii iw necesfarily res'ed in tbö legiglaiive dcpai ttiK-in oí' every goveroment. rlt is corcedcd, nfvcTtheleB.s, tliat tlu it are certuin liaiitations up u tb6 power, qi t pret-cribed n esprens terma by any ooustitntioual pro4rton, but ii htrciit n tlie eubjeot itself, wfaicb a'tcud ts cxcicj.se uuder all cercumatancee, and uliicl . hrfleaible and absolute in tbeir reetriiinis s f dirccily imposed in the most potive fonu of wordu. It is uoi doubitd by anj une tbat tlie power o the LegMatnre to determine for wlmt purpi'fce taxes hha!l bo ltvicd, and v.hiit districts of icrriiory aud wbat cIusüoh o persons ai J roperty shall bear the bur deu is vui i !.:oud, aud it aiust be con fessed that in dcsciibing or dtiinir.i; i words r.re gometttnes employfd by t!:o courts w!:ich import an absolute and nulimited diserctiou, sucb as irigbt exist íd an rresponsible govermneut, or n tbo poopie, il" acting in thoir sovereign capaoity, without any written oonatitution, and whioh consequently could uot bc brought to tho (est of my reetriotive ruien. For rmmy purpoaes tiu;se broud and louso definitinns of tlio power of taxation ara not objoctinable, but they oanoot be regarded as oareful ;md preciso enougb to bo tests of oonst.iutionnl authority, aud wLenevur they ero ctu l'loyed in the law, the tnodifications by familiar opDglitutional principies are aïffayg to be understood. 1 unJerstaud, that in order to render valid a burden imposed by the Legislature ui'dar un exercise of ihe power of taxution, ibe folloning rtquisiles must ajipear : 1. It muit be impoeerl for a public and not for a mere private pur poso Taxation is a mode for raming revcuues i'(r public pui poses only, and, as is said n somo of the caa.es, whero it is prostiluted to oLjects in no way oonnected wili the public interest or welfare, it ceases tü be taxation and bccoiiies plun Ier. (8harplear. Mayor, etc., 21 Penn. St., Iü8; Grinitu vs Weiseoberg Sohoo] District, 67 Penn. St., 438; Broadhead ■. Milwankee, Ü Wja , G57.) 2. Tlie tas must be laid according to ome rulo of apportionmi-nt ; not arbitrarily or by caprice, but so that thu barden may lo n.ado to f.ill with soinettiiug like impartality upon the persous or propertj upon whion it jtistiy and equitablj sbould rest. A Sta'.e burden i- cot to be mposed upe n any teiritory smaller tlian tho whole State; nor a county burden ujion any territory smaller or greater thau tbe county. Equality in (bu impoeitiOD of tbc burden is . f the very esseuce of tbe power itself, and though abfolute equality and absolute justioe are never attainable, the adoftion of Borne ru;c tending lo tliai end is indispensable. (Wecks v. Milwuukee, 10 Wis , 253 ; Reyersot) vt. Utley, 1(5 31eli., 2CU; Mernuk w. Ambcrst. 12 Alien. 504.) 3 As a corollary froia the precoding, if the lax is niposed upon one of the municipal subdívi.-ions of tho State only, the purpose mu.-t LOt only be a pubiio purpose, as regareis the people of that subdivieiou, but it must be loca , that is lo sny, tbe people of that inunicipality uiu-t have a spueia! uid pecular intcrtüt in tLe object to bo accompüshed, which will muke it just, proper und equitable i bat tliey sboulti bear tbo borden, rat her than thu Stutu it lurge, or auy uioro considerable portion of tbo State. (WeU'sM. Wcs'oa, 22 Mo., 285; Covingion t-. Southgate. 15 B. Monr , 491 ; Morford vs. Ui crer, 8 iowa. '22 ) The tlireo principios here statid are fuiidumental íiuxiius ia ihc Uw of taxaation. 'J Ley mhere as conditious u the power lo impoüo any fixes vvbatsoever, PAi.if TO-jtifVlüo .jbíj$ trtTA,' hey are observed ti.'at tbe legislativo lepartwent is exercis-qg any auihority over this subject wbich it lias reetivcd 'rom t!e people, and ouly tbeu is tbat eu)reme legislativo discretion of which the authorities speak called into action. No discretiotiary power iu tbat departiusnt s so absolute, and no judgment it eau troduco is 6o conelusivc, i;s to preclude ,i:o citizen contestiug it whenever be eliuvcs bis rights have heen Dvaded by a ditregard of any of these conditions. fbe duty of consideriug such a ques.ion is both umvoiooine and undesirable, ut it is not a duty wbicb can be avoid eJ, and we have uo isposition to one lts performance. I propone first to inquire whcther the urpo6e to be accoinpiished by the act in [uestioc is a public purpose, in ihe genne mplied wheu burdens are to be imprsed uuder the legislativo power over the suboct of taxatioö. I do not understand tbat the word oublic, whon employed in refereoce to .liiü power, ia to be construed or applied n any narrow or Iliberal sense, or in any soDse which would precluda the liegislaturc froni taking broad views of State interest, necessity or policy, or rom giving those views eflfect by means )f the public reveuues. Neeessity alono 8 not tbe test by which the Jiinits of' State authority in this direotiou are to ie dtfined, but a wise stutomanship must look bevond the expenditurcs which are absolutely ueedful to the c(utiaued ezistiaooe of oigauized government, and embrace others which uiay tend to make h-.it government subseive the general wull beiug of society, and advauce the irescnt aud prospcctive b&ppiues and jrosperity of the people. To erect tlie jublic buildings, to compeüsate the pub ie officers and to discharpo the public debtn, are not the ole purpnses to whii h ;he publio reveuues rnay be applied, bul on the contrary, considera ions of natural tquity, gralitude aud charity are never out of piace when the general ood of the whole penple is in question, and may be kopt in view in the impoeition of the public burdens. The sovereien legislativo authority must judge of tic force of such considtírations ou a general view of the just aud proper demauds upon the public treusury, and of the ability of the people to provide for all; and when that authority determines thal Buch paymenta will subserve public g'od, the imlity of tl e ïegifilator for tho correctuess of hie judgmtpt uiuüt be to tbe people whoïo repesentativé he is, and upon whoni iLe buráeM ho iniposcs must rest. isur lias it ever been doubted that whure the olject of laxuüuii was one of gpneral interest to all prts of tLe Stute, it was co(upetei)t for the Statu, nstead oL .ssnming the burden directly, and pf ovid'ing for it by meaus df a general Btate levy, to apporti' n it auoODfi the ■evciül couiiticsaud towii!, and t) yutlioiize auu rtquire thein to provide for it liy local taxatioD. Our nwu (átate purs.ies iliis oourse iuvaribly, as regarda its eiieral buiden in tliis respect, following tthat I uuderstaud to bo the gÓDeru] gyntem of tno country, and lbo roault demoiii-tralua ihit it is practicable, wise and espedient to make use uf the local niucliii.ciy as thp best uitai v t f itacbing all tho peoplo without confusión and whBout excitirig digcootent. Thoro is not only ootbing in this course iiicon-is tent with oóïreot priüoipJee, but on the contrary, it is in most perfect accord with otlier features oi' our govtrtjmental polity, the gcueral purposo being to louvo with tho local conmiuuiiy in managing tho public uff'ürs which concern them, the largest possible liberty of oction which is consistent wiih tbe genöral order and good government, Iu tho piBSiMjt oase it appeara (Lat tha object of the burik-u is not to raiso money for a purpose of general Stato interest, lts object, on the contrary, is to créate a demánd wbich tball bu a burdcti upon a small portion of tho Stato only Ou the grouud of looal benefit, a small district of tho State is tó be taxed to eucourage a local enterprise, which it is suposcd will be of such peculiar local advuntiigo that this dislriot, rathor Ihan tho State at largo, or any grsater or smaller portion of the ÍState, should contributo to it constructiou. Tho road, when coastructed, is uevertbelen to bo private property, owned, eontrollcd and opera ted bj a, private corporation for tho benefit of its own members, and to be sulject to tho supervieiou and control of the State ouly, as Other private propeity ie, witli sucb few esceptions as the Stute, in ranting 'the corporáte powers, has stipulated "for, ia order to secure impaitiality ia the manageoier.t of ite buniuess, and to prevent extortion. Piimarily, therefure, the money, when raited, is to boneílt a pnvate corpnratioD ; to ndd to its i funda and itnprove ita property ; and the benefit to the property is to bo pccoiidary and Dcidenfcu], like tbat wliicb Fpringa froiu the buildiug of a grist mili, ine establishment of a factory, the opening; of n public inn, or from any other privato enterprisewhich acconitaodatesa local waai aud tecds to increaso local values. A railrcad, howevcr, it is eaid, is a public bighway, and assucb its coiistruction is a public purpose, whioB may be aceonipliehed through the iustrumcntalïty of ihe 8overei?n power of emiuent üomaiti, even wlicu individuáis anrl nnt tlie State are to own and control it. This argument is eupposed to pocsc-s greut force, and it therefore bceomes our duty to examino it with care. It is truo that a railroftd n the hands of a privute curporation is often spoken of as a pub lic highway, aud that it haa been recognizcd us so far a publio object as to ju.stify tho appropriation of private property for lts constiuulion, hut this fiiet does uot conclusivoly determine the right to era loy taxatiua in aid of ihe road in the like case. Rekening by analogy frnm one of tho soVereign powers f governraent to nnothor is esceedingly liabie to deceive and mij-lead. An objeot tnay be public ia oncéense and for 'one ['Urpoie, when in a 'general seuse and for other purposes it would be idle and misleadiüg to apply the same terms. All goveruincntal powers csist for 'O puiposes, but they are not neccctsariyto bo exerciscd under the same conütio;:.s of public interest. Tl.e sover!gn pólice power which the State posHa 'ui - .1 1,' ■ L i "i v...'.. . -i very porson, to every kiud of business, o ev. ry Bpecieg ot property withiu the ommonwt'alth. The conduct of evury ndividual and tho use of all pioperty ind all rights is regula'ed by it, to luy extent found necessary for the presrvation of tho public order, aod also 'ur the protectiou cf tko private rights of ne individual Bgainst encroachment by )thers. ïhe sovereign power of taxation g employtd iu a gre-.it mauy cases where ;he power of emiuent domain migbt be nade more immcdiately efficiënt and ivailable, if coastitutional principies iould íüner it tobo resorted to ; but itich of these power lias its own peculiar md appropriate opbere, aod tl objeot vhich s publie for thö dematds of ouc s uot uecte.-sarily of a character to pernit the exercise of anothur. 1 have said that railroads aro often ipokeri of as a spcciea of publij bighay. They aro such in the sense tliat ;hey accommodate the publie travel, and hat they are regul.ited by law with a ,'iew to prevent partiality iu the'w acomodutionH. But their reserablanec to :he bighways wíiioh belong to tha pubie, wliich the publie nuke nnd keep in epair, and which are open to the whole public, to be used at will, tind with such ueaus of locomotion as taste, or picasjre, or cor.venience may diotate, is rathir fanciful than otherwise, and has beon nade prorriueut, perhaps rather from tbe uece.-sity of resorting ti theright of euiiuent dumaiu for their establishment thau uny other reason. They are not, wheu n private haDds, tbe pcople'a highways ; but they are private property, whose owners mako it their but-iness to trausport persons and nierohandise in their uwu carriüges over their own land, for siich pecurnary cotnpensatiou na may be stipulated. Thcso owners carry on for tbeir own benefit a business which has, indeed, its publie aspect, inasmuch as it accommodates a publio want; and its establishment is cousequcntly in a certaiu st-ntie a publie purpose. But it is not such a purpouu in any other or difiVrent sense thuu would be tho opening of a hotel, tho estublishujent of a line of etages, or the putting in operation of a grist mili, ench of which uiay, mider proper circumetances, bo retardad us a lo cal necessity, in which the local publie uiay tako au interest beyond what tbey would feel iu other objeets for which the right to ñapóse taiation wonld be unquestionahle. The busiuees of ralroaiíing in pmate hands is not to be dinliiiguishtd in its legal characteristics Iroui either of tbe other kinds of bu nes hert' named, or froui niauy othern whicli might be mentioned ; but in the case of Weeks M. Milwaukofl, 10 Win., 242, the Suprcme Court ot Wisconsm jubtly t.i:iii:d with liltlo OOD8ÍdertÍ0D tht: üf a right tu favor, under the pow er of taxatiou, the constxuctiou of a (uhlic hotel, thongh the aid was to bo roudercd expressly " in view tbo gieat public beaetit ytiich tbe construction oí tlie hotel woukl lie t the city." The oourt uxprcssly deol.ared tbai tbo publio oouli) Dut be empelled to aid such an enterjirise trom any regard to the incidoi4al benetíts which the publio weie to reeeive Ilion früin '1 he right of eminent domain is a vital right in every govermu.uit, auil mut oi'ten bo called into eserciso when a ppcial nocessity demanda tfaat thu piiv;iU) rifjht in a particular piece of property sliall giv3 wuy íor the pnblic c001 This right, it lias been held, uiay bo exorcised in Lelisi.lt of railwaya iu tho Lauda of private partios. But there can be no doubt, I think, tbat this holdÍDg wa a i couuiderablo modiücatiou of uomuiou law principien, though at the eame time it must be admitted that it wus on such 8!rong grouads of ueccssity and policy, and in view of considerations so entirely new, as fully to excuse, íiiid, indeed, tn justify it. jS7o principio was o'.der, and none scemod btier nuderstood or more inflexible, than thut ono man's properly could not ba taken under tho power of the goveruaiunt and tiansferred to anOther aaainst the will of the owner ; but the State, ncvertheless, is ullowed to do so n the case oí railroads, UDder tbe guise of a oonveuient (iciiou, which trents a Corporation managiug its ovyn proper ty for its own profit, as meroly a puldic convenience and ngency. Nothing but an overriding pulilie necessity could ever Lavo led Ihy court to thia judginent, for when the relations botweeu t!ie pro piietors of a railroad and the public are esainiRed, tve pcrceive at once that the idea of ogency in a legal neni-e is inadmisblo. They are public agenis iu tbo H;:nie sonse that Uie proprietnr3 of manv othcr kinds of prívate busineSH are, and uot iu my other or different sense. To Ilústrate thi I migiit draw wany exact parallels, but a single oue will be suffioeut for our purpose. Tiio iüchiyau Central Railroad Company mükr.- a business of transportiug peisoug and :iy over i:s road for the benefit i f its gtdckholders, but at rates which thc State li;.s regulatedj and o the condition which tho Sfcate has prescribed, of furui.shiíig ioipartial auc.ommodatioos. It does so, moreover, uoder a charter froin the S ate, from whieh it deriven itM nutiioiity ; and i'nr tliis churter it has rendered, or ia Buppofled tu have rendered, a compeDsation The nackmen of Detroit make a business of transportiug persons and property over shorter ruutcs tor thoir on profit, and in like marmer at rutes whioh the law regúlales, and on the li!;e eouditioos of ioipartiali'j. To rouder the analogy closer, (bey aro reqairod to obtaiii a liaenso from tbc publ c autborities to follow this calling and for this licotse a feo is exucted. Li!;e the ruilroad Corporation they supply ;i publio want, and i f tLe former can bcc.illud a public aieiuy, tLe lutter, it iiiui bo conceded, are cntitled to staod iu tbe siime category. If wc examino the culjeot criticilly we h! all find that tl;e most important coosidei ation iu thu case of eminenl dornain is the necessity of accomplisfaing souie pubüe good nhich is otherwise ïmpructicalile, aiid wo shall also fiod thai the law does not so mtich regard the ntearis as the net-d. The power in ujuch tiearer akiu to tbat if tho public pohec than to that of taxation ; it gnes but a s'ep further, and that step is in ihe same diroc'ion. Every man has an abstract ligbt tu the exclusive use ufhifl own property for lii.s own enjoyment in suoh marmer as he shull ehooso: but if pieelude a reasonnble tujoyiueut nf adjaceut pnfperty, the law would iaterfere to iuipuse restrainta. He is said to owu his private lot to the center of the eartb, but hu wouid uot be allowed to excávate it indcüuiteiy lest his ueighbor's lot sbould áisappear in the escavatioi:. The abstract right to make use of his own propeyty iu liis own way is compelled to yield to the general comfort and protee tion of the commuüity, and to a proper regard lo relative rights in oihers. The situation of hi property may even be Buoh that h e is compelled to dispose of it, beeause the law wiil Bot suffer bis regular bui-ineíS 10 be earritd oq upoo it. A oeedful and iawl'al species of ïüanufactuie may so injuii'usly sffect the htal'-h iind comfort ui iha viciuiiy that it caDoot be lolurated in a donsely settlud neighborhood, utd thcieforo the owner of a lot in that neighborhood will uot be allowed to engage ia that manu'acture upon it, even though it be his regular and legitiniata business. The butcher, ia the viciuity of whoso premises a viilage bas growu up, finds himself couipelled to remove bis business elsewhcre, because his right to mako use of ii ík lot as a place for the slaUghter of eattle has become inconsistent with the superior right of community to the enjoyment of pure air aDd the aocoaipanying b!essing3 and comfortc. The owner of a lot vithiu the fire limits of a city, may bo compelled to part wilh the property, becsuse he is unable to erect a briek or stone structure upon it, and the local regulations will not perinit ooe of wood. Eminent domain onlj recognizes and enlorces the superior right of tbe oommuuity agaitist the selfishnens of índividualn in a s;u;ilar way. Every branch of neeeful imluntry bas a right to exisi, and couimuuity has a right to demand that it be permitted to exist, and if for that purpose a peculiar locality already in pi sscHsiou of un individual is etsentiul, the owner's right to undisturbed occupancy uiust yield to the superior interest of the public. A railroad cannot go arouud the farm of every unvvilling per■oo, and the business of ttansporting persons and property for long distnuces by rail, whiob bas been found bo essentml to the general eajoymeiit aud welfare could never have existi-d if it were in the power of iiny uüwilfing person to sto) the road at his boumlary, or to demaud unreasonable teims as a condition of passing bm. The law iuterferes iu tbo6e casea, and rogulates the relative rights of the owncr and of the comniunity with as strict regard to justiue aud equiiy as thn tircuiiiSlances will jicrnii'. It does not depi'ive the o woef oí bis property, but it compels liim to dispose of bo much of it as is eosebiial on equ tadle ttnns. While, therefore, euiinent doujuin esta! iúdóítry", itso regu latos tho relativo riglits of all that no individual tahalí have it in his power lo predude its cstablishmeut. It is proper, huwever, to ndd the renmrk, tlüil even where tho neui-ssity is conceded, I do not understani) that tho i i.;lit cf eminent domain cun be exercised on behalf of prrváte partios or cor poratjonií, unless tho 8tate iu piiimitting it reserves to ilself a riht to supervise and control tho use by Buch tegulatioDS as stiall icisuie tü the public the benefit promised thertrby, and as snátl preclude ti:c! porpnu which tho publiu bad íd view iu authoiiing i!ki npproprittiou beiug (Jefeated by purtiality or uureasnn ably tseltish action ou the part of tho8e wlio ouiy on tbc groand of' public convenionce and welt'aro liiive been Buflerod to ruttke the appropriation. Iu tho oase of Ladloo V8. Langham (34 -la., 311) it was held by tho Su prenie Oonrt of Akbaraa that the righl of eminent domain naiarht be exercisod ou behalf of milis which ground raio for toll, and were oompclled by laiv to reuder impartid service for all, whon it could not be for other milis; and the distiuction made is a very reasonable ono. JSxeept that the necessity is wantmg, thero would be the saine justiücation for the condemnation of lands for hiatjles fur the public dmymen of a city as for a way for a railroad ; the liké power of regulatie tho usa existing in each case, and the puipose in oue being pubhe iu precisely the samo seuse as in tbe otber. Uut whea we examine the power of taxation wilh a viow to ascei taio the purpose for which burdens may be impostd upoi! the public, we peroeive at once that peeessity is not the goveroint; eousiderution, and that iu maoy casea it hus little or uothiug to do with the gestión presentod Certain objeots must of neoessity be providod for under dus pow( r, but in regurd t(i innumerable other object for which the State mposes tuxes upun its oitizene, the qnwtioa ia a.vvays ouo of mere policy, and if tbe tases are impcwod, it is not bccause it is absoluiely neccssary that thosa objects shi.uld ba acconij)lished, but beoause on the whole it is dcenu d bost by Ihe pubïu BUtitóritiei th.it tliey should bo. Ou the oiher hand, certain things of absolute necetsity lp civiiïzed soeiet the Stato is precluded, either by expresa CÖMUtutiond iMvisiijs,orby neces.-ary itnphcation, from providu.g for at all aud thuy aro left wholly 10 the fo8terin caro of pnvate enterprise and private liberaiuy. We oancede, for iustance, that religión ii ossential, and that without it we should degcnerate to barbarism and brutality; yet we proliibit the State from burdening the cilizsn with its support, aud we eoment ourelvcfi with recoguizing and proteciiifir its observanee ou secular grounds. Certaiu profeesions i"d oeeupations in lift ure abo MSMtial, but we havono authority toempl.iy the public mones to iüducc persona to enter them. ïbe neaecsity tnay be preesmg, and to supply t my be in i certain Heuse to accouiplish a l4pixblio purpose." but i is not a parpóse for 'which the power of teXatioD may be omplojed. The public necessity for v.n educaled and skillful physieian.iu some particular looality may be great and pressing, yet if ilie people should be (ÉXed to hire onc to locale there, the eommon voice woulrl exclaim bat the publio moneys were boiog devoted lo a private purpoW, ïlie apening of a nuw street iu a city or village may be of trifling public impórtanos as comparad with tLe lnoation within t of s'iwe r.cw business or manufacture; but while the right t pay out the publio funda for the ouo would be wiiich the public can.aid as individuals if they soe fit, wbilb they are Dot permitt -d to employ tho machiuery of the goveminent to that end. Indeed, the opening of a new street iu theoutakiits cf u oity is enerally very rcuch more a ma'ter of private intere:t thau of public concern ; so rauch so that the owuer of the land voluntarily throws it open to the public without comper'sation ; yet even in a case where tho public authorities did cot regard tha street as of sufficient importauco lo induce their taking the necessury action to secure it, it wouid not be doubted tbat tho uj inent they should couseut to accept it as a gift, the streel would at oi.ee become a public object aud pui pose, upou whieh the pub lic fuads migbt be expended with no more restraint upou the action of the uuthorities in tbat particular thau if it waa the most prominent and essoutial thoroughfare in the city. By eommon consent also a large portion of the most urgent ueeds of eociety are relegated exclusively to the law of deinand and supply. It is this in its natural opert.tion, and without the interference of the government, that gives u the proper proportion of tillers of the soil, artmauH, uianufacturerii, merchants aud professional men, and tbat determines when and where they ehall give to society the beüefit of their particular services However great the ueed iu tke dirèction of aDy particular calling, the intorference of the government u not tolerated, because, though it might be supplying a public want il i oousiderod &a iuvadiug the domain tbat belouge exclusively to private inclinación and enterprise. We perceive, therefore, tbat tl o term "publia purpose" as employed to denote the object for wbich taxes may be levied, has no relalion to the urgency of thü publio ueed, or to the extunt of tho public benefit which is to follow. It is, ou the other band, merely a term of classiScution to distinguisl) tha objects for whicb, aceordiug to setlled usage, the government is to provide, from those which, by the like usage, areleft to private incliuatiou, interest or liberality. It creates a broad aod manifest distinotioa - olio in regard to which there need be neithcr doubt nor difficulty - between pu' 'lic werks ai.d privittu eutcrprisos; botween the puli'io couveuiences which it is the buciurss of goveroment. to próvido aid thoso which prlf ate interest and comptítitinn will supply whenever tbc deajand is Bufficient. Whon we draw ihis Ijne of distinction, we perceive immcdiately tuat the present case faüs outside of it II was at one time in tliis State djemed true poliey that the government should supply railroad faciiitics to the tráveliiig and commercial publio, and while th:t poliey pr lbo rigln of taxatipD t'r ilio ] urpose w:is uiqucstKiunble. Our policy in tliat respect has chajjged ; railruads iré no [oneer pub!. o works, but private property ; individuáis ai:l not tho State own and control them for their owu profit ; the public may reap miniy and large benutits from lh ui, :ud indeed are expected to do sa, but o'ily incidenully, and nnly as they miylit reap bimilar bencfits frnm othcr modes of investing capita!. It is do louger reoonizt-d as proper or pt.litic that the Stato should supply the nicans of locomotiou by rail CO tlie people, and this ifecios of werk is therefore rumitted to tbe oate uf pii vate enterprise, and cannut bo aided by the publio funds any moro tl.:iu abj othcr private uadertákios which in like minaer i'aiis ouiside the line of distinctiüii indicaicd. Iu the ooorM of lbo argument of this case allusion was mode to the power of the State to pay bounties. But it is not n the poweráof the Stato, in my opinioa utider the name of bounty, op under any other cover or subterfugo", to furnish the capital to set private paitieg up iu any kind of business, or to subsidizo their buMuess after they havo eotercd upon it. A bounty law, of wbich this is tho real nature, is void, whatovor may be tho pretense on whiehit may bo euacted. The right to hold out pecuniary inducements to the failhful performance of public duty in dangcrous or reftpoorible positioDs, stands upon a differeut footing altogothtr; nor bave I aoy oecasioo 4ö question the right to pay rewards for tho destraotioo of wild beasts and other public pests, a provisión of this character beiug a mere pólice regulation. But the disoriuiination by the State between different classes of occupations, and the favoi ing of one at the i-xpense of the rest, whetker that oce be farraing or banking, merchandiziogor milling, printing or railroading, is not legitímate legisltion, and is an invasión of that qualty of right and privilege wbich ia a uiaxini in State government. When the loor is once opeued to it, tbere is no line at whioh we can stop nd say witli coiiiideuee thal thus far we may go witli safety and propriety, but no farther. Eveiy houe.st euipluyiuent is lionorable ; it is beuefieial to the publio ; it dts rves encouragement. The more successful we can mate it, tho more doea it generally cubserve tho public good. But it is uot thu busineu of the Ötate to make diserimiuations in favor of one class sgainet another. The State can have no favorites. lis business is to proteot tfa i i:iterests of all, and to givo all the benefit of equal lawa. It caunot compel an unvvilüng micority to submit to taxation in order that it may keep upon its fict business that cannot stand alone. Moreover, it is not n wuak i.ittreat ouly that can give plausible reasons for public aid. Wbeu the State once enters upon the business of diea, wc -hall not fail to discover that rful interecti ara dioso uiost likely to control legislation, :u:d that the weaker will bo taxed to eobanco the profits of the Btronger. I shall not qaestión tho right cf tho peo ple, b_v thtiir GoDstitniioD, to open the door to such ditorimin&tions, but in this State they have not adopted tbat polioy, aud they have not authoiizyd auy department of tbc governmeut to adopt it lor tbern. It sourc?Iy ssems necessary to gay that whal tlie Stato, as a politica! coramünity, cannot do, il can not requiro tho inferior municipalities to do. Vhen the case is foubd to Htand entirely outside tho duruain of' taxation, State burdons and township burdene are alika precluded ; no township vote and no townsbip icajority, however largo, can aíFect tiie principie; ai3T singlo udiridual has the right o insist that tho public do not owu ür coutrol bis property for tho purpose of donaiións. It may be proper to mention the maxitn whicb ia pressed upon our consideration, that tho Legislature must pass upon the proper objects as well as the proper extent of taxatiqó, not only n tho case of the Siato at larga, but ia the case also of tho hevtiral municipal Borporáíious. Those corporationa tainly have no inherent power of t-ixatioo, hut tke only so much as tho State sball seo fit to allop and under suuh rastriitiaus as the State may tink proper to iinpose. I hall coucede also tbat fex,j;yv lflft.t[,tliairjn Antn.40 al purposes of the State aud tliüSü of a n.uru loca! concern, thcy are to tas as . aud nuiy be conipelltd to obey the legislativa mil. Tho power of oueroioo and control is nevel theless to be exeroised in view of, and iu subordination to, tbose maxi ras of loc;il selfgovcnuaent, whi;h pervadu our whola systeoi lid wbich preclude arbitrary and uuaceusloniud iiupositioas, howevor deirable, in tho opinión of (hu Legislaturo the object to ba attaintd rnay appear to be. If lbo Township of Salom can bo rcquired to tnx itselt in aid of the Detroit & Howell liaüroad Company, it must bu eithery"'si on tle gruuncl of the incideutal local benefit in the enhancemeöt of values, ov tecond, ia consideratinn of tho facilities whicb the road is to afford the township for travel and busi ness. The first ground is wholly inadmis.sible. Tho incidental benefit which any corporation may bring to the public hafl never been recognized as sufficient of itselfto bring the object within the sphere of taxation. n the case of streeta and similar public improvemeDts, tho beuefits received by individuáis have Bometimes been accepted sis a proper basis on which to upportion the burdeu ; but in all such cases the power to tax is unquestiomible, irreepective of tba hcoe&lB. ïhu quealion in Buob cases has not been of the right totas, but of the proper basis of apportioument where ihe right was conceded. The secoud ground is more plausible. To state the casa in the fortn of a contraot, it would stand thua : The townBhip is to give or loan to the railroad company five per ceotuui of i's asseised valuation. In oonstderation wbcreof the railroad company iigree to construct íind opérate their roiid, and to hold tbemselve3 ready :tt all times to give to the peoplo of the towuship tho facilities of travel and trado upon it, provideu they will pay for bucIi fucilities the samo ratea whieb are eharged to all other persous, Iu other words tbo coinpany agree,OD beiag aecurod the sum rneutioued, tu take upon themselves the business of oominon carriers witliiu the limita of tho township. If this consiieration is suffifient ia the casa of cohiaion carriers, it iiiust be sufficient also in the case of any other omployment. Theie is do: hing in tho buiness of carrying goods and pasengers vvliieh iivps the person vbo cou-" ducts it u claim upon the public different iu its nature froin tbat of the inauufucturer or the mercbant. Neitber is il of thu lca.-t importuBce in a lígal poiut of view thut tho oariier is uanally a corporal ion, while the other kinds of bugioece naiucd are mure coumionly carried uu by BÍDg'.o individuáis or paitntrbiiips. Tlieso aro accidental circumttaiices, wliich may nr moy not cxist in auy particular case. But if lic Lgislature shou!d pass an act providiug i hat the township of Sultm shciuld give or loan a cerlaia percentage of its taxable p'upeity to any merobant whh will ündertake t ori'C' a store withiü the towi:ehip, und hnld hiuiself rcady at all tiinw, 10 sell gnods tlHTtin to t!:c people of tho township on terms ss favorable as iiiüe ho would exact f'ioni oihers, ho would bo a bold uiau wl;o should uudci' - lake to dt-fend such legislalion ( n cnigtitutidual principies, i'et the cac would poisess all the elenienls of public iuUrist whicb are to bu fot,d in the caso be f ore us ; the publio couvtnieuce would be Kuhsei ved, and there would bö 11 like taudenty to increase local vultic, The differcLce iü the cases would bo in, iitiiiucd on jourth }'■: {Continued front fonrth gagP )■ caitse the lauil coulil no otheswise, a a geuersi MS ljB obtalned ftw the wbole lint TJie fat-t that tlie wolk wiu one of enéral utility, nul that BO work of that descrlptton was powible without the cxeroíhc o( tliia power, has created precedent! ïvliieh were readlly ;[pii. cl to rallroads.- 'Lney were ulways (buuded oa necessiry, nd were the extreme applloatlon of a povref wlilch, in a. muchsBUilkr degree, Uas frequently coinRellcd prlvatu ownera o! prooerty to Bubmlt to sumo obilxatlons wlterebr tfceiï nlfhi)orhol mlgbt abled the more swomtlj and c ivenleutly to uso thelüfli li ome cltiea or Englaud, ly aiiclcnt custom, therc were regulatlons eoucernlng party walls, rtralns and the llke, whlcli rested on slmtlar principies, and m sume cases onxleru legislatura has followed th8ama i-oal. The courts, when railroails wen tlrst InvenUd, recognlzlng the glty.anct endeavorlng to flud some plauslbl basis for It, carelessly sakl that the Milrouts nmst bo eegarded as agenta oí th Ötate.and in thla apparently simple way soYve( the dlfflculty. Bot i t was i mere flg'uu of speech, and made them no nioiv State aBnts tliau th decisión Ihat many thlngs nro lawful bceauso devlsed l)y the govemmental power, makei every on who avalli hlmseir of the privileges oí the law a bovcniineut ageut. Buch a theory wouhl inake amutS of pre-emptiouers aucl national tankers, and oceao captains, all of whom necelve certain povrcra aml prmle ordfer to fortheï the policy of the United States, and some of whom bive eiuties to perform au tlie couiUtiuns of thelr privllc-es, jost as every eitlwn, In a smaller way has certain dutles luirt uponhluiasa eoasïderatlon tor hls legal righw. lt mlght be cHiricult to trace out to uiy dwtlnct and eulirely satislactory orlgln, in the theoretlcalsystem of human government, the pro priety of allowin; rallroads to resort to compuUory means to obtaln laml for tlieir tracks. But we percelve lt necessity and it has been provMed by our uonstitution, uu.ter which we holil all our teunres, that rallroads may be organlzetl. "We are uot requlred, therefore, to trouble oui-selves In acoonntlng for what we must accept a the law of the land ; and we certatiily are not rcquirc.l to explaln an unomaly by resortlng to a manifest iictlou, whicU wouUl lead to the most dangerous rcmilts. Wlien land in taken for railroail purposes ft eosts the State nothlng, and tlie owner is supposed to olïtahi its vaiue from the company. The tnxable commuulty, lliereibre, eau bc injured or burdened bj the proces. The persous ngagod in the en terprise pay thsnuelves for thelr owu property and privileges, and if the barden .'alls heavily on any one elsc it la on the private Citizen as land-owner, and uot as tax-payer. When the company, tlierclbre, has completed lts road the public has lost nothlng, and bas iucurred no responsibllltle.- Theucefonvard the private corporatiou electa its owu officers, appoiuts its owu agents, make9 its owu regulatious aobjeot to the law, collects its own reveuue, and, if the work pay, fllvides its proflta araoug its stockholckrs. The public who travel are net a tlxed or resident public, and must not be confounded with the political public represented by the authorltk-s and coutrolliuii the taxation. The tax-paylng coinnjunity has no voice or Interference In the management of the roatl, so long as the law is obeyed, any moro than in auy othcr private business. Il is undertaken for private proat, ana Is in private sml not in public hands. The compauy and its officers are agents of no onc but the stockhoiders, and such legal obligations and privileges as they possess are attached to the business as correspondiug rights aud duties attach under the laws and according to thsir nature to all kinds of private callTaxatlon in thelr behalf is as essentially taxatiou for private purposes as lt would be for any persou or business whatevcr. If tiie Legislatura can mise money by taxatiou to be spent by them for tlieir great etiterprise, it can do the same thing to enable any private citizan to become a producer of vahíos for his own emolument. AU industry hclps general prosperity. No line can be foliad which can, in law, make one business more public than anothcr. The power to resort to taxation to set men up in business is a power thal is foreign to the pnrposes of governm -ut. lt ii not legislativa power, but unlimited goverelgn w'ill, that can compul one private citi.en to penses as are incident to public business. - There is necessarily a considerable discre tion to determiue what ïueans may be desirablc to enable the government to do its work creditably, but a power to tax onc citi.en for the private emulument of another, upon any theory of mere Incidental advantage to the general prosperity of large or small commuiilties, can only rest on a louudatlou of absolute and irresponsible power to make favored classes and citizens, aud make the whole body of tax payen tributary to them. No such power can be . toleratcd iu a repubüc, and no hint of such a power is to be found In our Constitution. As far as it speaks at all on the subject, it yrohibits State aid to private persons or euterprises, and if there is no specific prohibition of taxation for private purposes, it was on the same principie whlch left out prohibitious agaiust giving property away to private persons. That is to say, the principie vvhich rendors it unnecessary to íorbid powers which couH not exist without clear and express grant. For these reasons, and for those more fully expressed by my brother Cooley, I thiuk uo mandamus should issue. OPINIOS BV CURISTUXCY, J. Judge Christiaucy delivered the followIng opinión, concuniuï in the opinión of Judge Cooley, viz.: The magnitude of the interests involved in this case has made me cautious in reachlng a conclusión ; aud though the case had been fully and ably arsuedj ou both sides at an early period iu the term, and I tvas - strongly incliued to the opinión that the act -was unconstitutloual, I stlll had some tloubts ; and, with my views upou such quegtious, to doubt would be to uphold the law. I was desirous of hearing further arguments, and the case has been reargued with Buch abillty, thoroughness and re earch as is soldom aqoeJed ; and without expressing any opinión upon other questions discussed, my doubts upon the maiu questlou in the case have been resolved. I concur fully in the opinión of my brother Cooley. And I concur also in that of the Chief Justice, so lar as it relates to the power of the State, or any of its mnwcipaiitics, to levy tasca for such merely Incidental beucílts as result l'rom the building and operation of a railroad, or the prosecutlon of a private enterprise. 1 am entirely lattsfled sacb merely incidental public bencflts cannot be made the basis of the right to ralse taxes from the peoplc to.be pa id or loaned to a ruilroad corporation or otlier private parties for their own use and without eeourlag to the general or local public auy greatei interest in, beuellt from or control over the work or ejtferprise than wouM have BCcrued from lt liail t' work bron completed or carrled on by the proprietors without such public aid. II v reasons for thls conclusión h:ive been so fully and ablj7 presented by my brother Cooley as to render it uaneecgsary for me to repeat them, and I will add but a single eonsideration, whlch I think o!' some Importases, auU upou whleb he íias not touchnl. The theory upon which this aud other nets graiitlng aid to railroad corporattons have been passed, uut upon which they are sought to be maintalned, Is tbl r that In this way ruilroad accommodatloiM may be ecured iu Iocalitics where but for snch aid the road-s wonld not bc constructed ut all, or uiilll a later period; that experlence lias demonatrated that rallroads expedite the settlemeut and lmprovement of the country through wiilch they run, adding aargeiy to the vaiue of real estáte and promoting the proeperlly of uearly all branches of business; that the aggregate of these Incblental heneflt, if estimatixl iu a wou Kl sometlmes eqaal ü' not exceed the hotitífit wliich tha oompaiiy or lts stoet holdem devlve hen u wcceeeful operatiou ; in other words, that the stock' raap bat a pftrt of the ,íiüi and advantagc arising from the expeudlture of thelT capital in the constroctlon and opi ol the road, wliile the pnblic or the along and nearthe lino receive balance. It ís therefore suppoaed to be bot r able aud equitab'e tbat the latter shonld contribnte a part of the expense of the work from whici they derive sueh Incltten tal beneflts. This theory at the flrst view peems plausible and just. A little refleetlou, however, and a recurrence to the fundamental principies upon which corporations Sïe created by the State, Mili readllj demónstrate thafc thls thcorj is iwfiHiuded opoa any legal principio- a itw legal 'ailacy, aud no inoro just than Round, 'i'iesiincidental beneflts whicli raUroad corporaliüiii thus coufcf by the consti-uetioii and operation uf tlieir ruada, aretlionly considvratlon or compensutlou wblch they pay, or whlch '.lx1 puMIo roceive tor t lie lar;e powers riml exclusiva privileges wiiich Uie Stats haa Uestowed opón tlie corporatlona bcyuiul thosc njoed iy the dtizena oí k C rally, luclutilng the exerete ot the sovereigu power ol eininti; doinain, a rul wliicli, but for thosa Incidental beneöts, wonld be wUolly iinjustiiiuble ;iiul blghly lujurlous ti the people oí tüc State. No ouecau iail, apon a llttle refiectlon, to see that these Incidental beuüts constiíiite tbo solo Inducement and oniy poeslble Justlflcatioii to the goTsroment íov the grivnt ol' such Important unü exclusivo privilege, Tuis tho (undameiflal legal uk'a opon whlch alone corporallons are ciui bu created at all. The cor)oration, tiioruforc, In the receptiou and etijoyimui oí ihcsu lurge powera aud privileges, most, npon nll legal and constitotional principies, be considerad ai baring recelved a fuU equivalent and corapensatlon for those sama Incldsntal basefita whlch are now Rgaln nrged as the basis ol muy and ftirther esm pansa tlon, a the foundation .'or the Imposltlon of direct taxes, for the Increase of their (unds, nrhen ilicy could never have bad an existeuce as corporatloDS but for tlie virtual promise and rcasonable expéctatlon that such benellts were to be enjoyed by the peoplo without furthcr compènsatlon. Such la one of the absordltles into whlch coarta would be led by ele vat I Dg a mere incident into the place of lts principie, a coursc f reasouiun which, if applied to the Oonstttution, would funiisli a ready method for avoldlug any constitutioiial restrlctlon. 8 R AVIS, J. DI88BNT8 Jadge Graves dlssented, but had not rcduced his views towrltlng. He announced, bovvever, that lic would hereafter put ome of the reasons that have led himto this conclusión, into proper shape, and 111e in the ense. He did not think best, in cousideration of the lmportauce of the case, to delay the decisión of the eourt far the preparatiou of a dbwcntlag oplulou.