Frederick R. Cotten and William G. Ponder, Appellants, vs. The County Commissioners of Leon County, et , al. Appellees, 6 Fla. 610

DUPONT J., delivered, the opinion of the Court. It would prove but a useless waste of words—an unprofitable expenditure of time—to engage in any labored effort to impress the importance of the question presented by this case for the adjudication of the court. The bare announcement that it- involves the construction and

interpretation to be given to certain clauses of the Constitution of the State—the fundamental law of the land—the embodiment of the delegated sovereignty of the people—is a sufficient guarantee that it has received at the hands of the court that calm, thorough and anxious consideration which befitted the occasion.

Without, therefore, indulging in the encomiums upon our republican institutions which usually constitute the exordium to efforts of this character, we the rather address ourselves at once to the particular point involved in the case, and, aided as we have been by the arguments and investigations of the able counsel engaged on either side, we shall endeavor, plainly and briefly as we may, to assign the reasons which have operated to conduct our minds to the conclusion at which we have arrived.

Before, however, entering upon the discussion of this point, it may not be inappropriate or unprofitable to consider and endeavor to define the legitimate power of the judicial department, when called upon to arrest the action of a co-ordinate branch of the government.

Indeed, we deem a clear apprehension of the limits of this power not only essential to the harmony of the three great departments which have been established by the fundamental law as contained in their State Constitution, but absolutely neGGSsarv. for the very conservation of that instrument itself; for it has happened, and may again happen, that the arm which is invoked for the protection of that sacred palladium of our political rights may, from a misapprehension of its legitimate functions, give it its most deadly wound.

Instances are not lacking to show that the judiciary, in essaying to shield the Constitution against the presumed aggressions of the Legislature, has itself become the greater aggressor. Every enlightened court will be admonished by these instances, of how delicate a character is the duty imposed upon it, when called to decide upon the constitutionality of

an act of the Legislature. While it is an essential element in the character of an independent judiciary firmly to maintain and resolutely to exercise its appropriate powers when properly invoked, it is equally its duty to be careful not rashly and inconsiderately to trench upon or invade the precincts of the other departments of the government. That the judicial department is the proper power in the government to determine whether a statute be or be not constitutional will not, at this day, be questioned.

That matter, though once mooted by no less a man than Thomas Jefferson, was put finally to rest by the decision in the case of Marbury vs. Madison, wherein C. J. Marshall gave it the sanction of his great name. But it is a most grave and important power, not to be exercised lightly or rashly, nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers. If there exist upon the mind of the court a reasonable doubt, that doubt must be given in favor of the law. In support of this position is the case of Hylton vs. the United States, 3 Dallas R., 171, in which Mr.

Justice Chase declares, “if the court have such power, I am free to declare that I will never exercise it but in a very clear case.” And in Cooper vs. Telfair, 4 Dall., 14, Mr. Justice Washington gays, -“'the presumption must always be in favor of the validity of the laws, if the contrary is not clearly demonstrated.” In Fletcher vs. Peek, 8 Cranch R., 87, C. J. Marshall, who in the previous case of Marbury vs.

Madison, had dwelt so strenuously upon not only the power but the duty of the judiciary to restrain the other departments within their appropriate boundaries, declared, “it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers and its acts to be considered void. The opposition between the Constitution and the laws should be such that the Judge feels a clear and strong conviction of their incompatibility with each other.” In further support of this position may be cited any number of decisions by the State courts.

We shall refer to only a few of them, remarking, however, that if there be one to be found which constitutes an exception to the general doctrine, it has escaped our search. In Adams vs. Howe, 14 Mass. R., 345, the doctrine is thus stated: “The Legislature is, in the first instance, to be the judge of its own constitutional powers, and it is only when manifest assumption of authority or misapprehension of it shall clearly appear that the judicial power will refuse to execute the law.” In Wellington vs. Petitioners, &c., 16 Pick.

R., 95, the same court announce their determination “ never to declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. In the case of City of Louisville vs. Hiatt, 2 Mon. 110, the Court of Appeals of Kentucky, say: “If it be doubtful or questionable whether the legislative Jiower has exceeded its limits, the judiciary cannot interfere, though it may not be satisfied that the act is constitutional.” The same doctrine is again announced by that court in the case of Lexington vs.

McQuillan’s heirs—-9 Dan., 514—they declare: “ We should be justly chargeable with wandering from the appropriate sphere of the judicial department were we, by subtle elaboration of abstract principles and metaphysical doubts and difficulties, to endeavor to show that- such a power may be questionable, and on such unstable and injudicious ground to defy and overrule the public will, as clearly announced by the legislative organ.” In the case of Police Jury vs. Succession of McDonough, decided in the Supreme Court of Louisiana and reported in 8th Lous. An. Reports, 341, Slidell, C.

J., says : “ It is true, that if a statute passed by the Legislature is not warranted by the powers vested in that body, such act cannot have the force of law, and it is the solemn duty of the judiciary so to declare it when an attempt is made through the judiciary to enforce it. But this is a most grave judicial power, not to be exercised lightly nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers.

In just deference to a coordinate department of the government, it is always to be presumed that a statute is conformable to the Constitution and has the form of- law until the contrary is clearly shown.” Ranny, J., in delivering the opinion in the case of the Cincinnati, Wilmington and Zanesville Railroad Company vs. the Commissioners of Clinton county, reported in 1st Ohio State Reports, 77, has placed this matter in such strong light that we cannot resist a further citation, even at the hazard of being considered unnecessarily prolix, lie says: “But while the right and duty of interference in a proper case are thus undeniably clear, the principles by which a court should be guided in such an enquiry are equally clear, both upon principle and authority.

It is never to be forgotten that the presumption is always in favor of the validity of the law, and it is only when manifest assumption of authority and clear incompatibility between the Constitution and the law appear that the judicial power can refuse to execute it, which interference can never be permitted in a doubtful case; and this results from the very nature of the question involved in the enquiry. The Legislature is of necessity, in the first in. stance, to be the judge of its own' constitutional powers.

Its members act under an oath to support the Constitution, and in ¿very way under responsibilities as great as judicial officers. Their manifest duty is never to exercise a power of doubtful constitutionality. Doubt in their case, as in that of the courts, should be conclusive against all affirmative action.

This being their duty, we are bound in all cases to presume they have regarded it, and that they are clearly convinced of their power to pass a law before they put it in the statute book.” But why multiply authority to sustain a proposition so plain—so reasonable and perfectly conclusive to the mind of any one, who has the slightest apprehension of the prin-" ciples underlying the great fabric of a Republican Government ? Upon the rigid observance of the principles embraced in this proposition, depends the harmony of the great departments of the government.

Violate it, and soon they will be seen like errant spheres madly shooting from their appropriate orbits, and engendering passion, strife, embarrassment, confusion, uncertainty, where there should alone exist love, peace, union, concord and co-operation. The Constitutional power of the General Assembly to confer upon the several counties of this State as they have attempted to do by the enactment of the 22d

section of the act of 1855, entitled “an act to provide for and encourage a liberal system of Internal Improvements in this State,” the authority to subscribe for’shares in the capital stock of certain Railroad Companies therein referred to, and to provide by taxation through their respective Boards of County Commissioners, for the liquidation of the debt so to be incurred, is the particular question submitted for our decision. In order to a better understanding of the argument, and as in its progress we shall have occasion to refer specially to its provisions, it may be proper to set forth the

section in full. It is as follows: “ Sec. 22.

Be it further enacted, That it shall be lawful for the Board of County Commissioners of any County, or the Mayor and Council of any City, or the Trustees of any Town, through or near which such Railroad or their extensions may pass or in which they may terminate, and they are hereby authorized to subscribe and hold stock in said Company, upon the same terms and conditions, and subject to the same restrictions as other stockholders: Provided, it shall be first submitted to the vote of the legal voters of said County, City, or Town, to be held and taken at such times and places, and in such a manner, as said authorities respectively may appoint, whether or not stock shall be taken ; and if when the vote be thus taken it shall appear that a majority of the votes shall be in favor of such subscription, it shall thereupon be lawful for the board of county commissioners, city or town authorities, by agents by them appointed, to subscribe and take in such company such an amount of stock as they shall determine: Provided, That in no case of county subscription the amount shall exceed fitty per cent of the eost of construction through said county; and to issue the bonds of said county, city or town, payable with interest at such times and places as they may deem proper, and dispose of the same for the payment of such subscription, pledging the faith and resources of said county, city or tówn, for the payment of such .Bonds and interest, and they shall from time to time, levy and collect such a tax as shall be necessary to pay the instalments of interest on the bonds, as the same become due, or to create a sinking fund for the gradual reduction of the same: Provided, That the rate of interest shall not exceed ten per centum per annum ; or funds may be raised by such Board of County Commissioners, or city or town .authorities, by tax, in such sums or instalments as will meet such subscriptions and the receipt for the payment ■of such tax, shall entitle the payers thereof for every one hundred dollars so paid, to have one share or more, as the, ■case may be, of the stock so subscribed by said county oommissioners, city or town, in said company, and which receipts shall be assignable.

Bo stock held by any county, city or town, shall be asssignable by said county, city or town until the bonds issued for the purpose of procuring funds for the payment of said county, city or town subscription, shall be paid, except in exchange for such bonds.” The counsel for the appellants, contesting the exercise of this power by the General Assembly, have cited us to several geueral principles of government which, even if they were not expressly enunciated in our “Declaration of Bights,” are of too universal acceptation in this country to admit of any question as to their correctness.

Among the propositions thus cited is the one “ that all political power is inherent in the people.” While we readily admit the truth of this proposition, we by no means concur in the application which has been made of. it, or in the argument attempted to be deduced therefrom. If we correctly apprehend the use intended to be made of this political- axiom, it was to assimilate the Federal and State Constitutions and to invoke the same stringency of construction when applied to the one as to the other.

But there exists a manifest difference in the very elements of the two instruments, and this elemental difference induces also a difference in the rules of construction to be applied to either instrument. Whilst the Federal Constitution contains only specific grants of powers, coupled with a general reservation, the State Constitution makes a general grant of all the political power of the people, restricted only by specific reservations. This characteristic difference will be readily perceived by a bare reference to the two instruments. In the 8th

section of the first

article of the Federal Constitution is enumerated specially the several powers delegated to the legislative department of the General Government. But, so jealous were the people of the respective States, that, not content .with this special enumeration of the powers intended to be granted, they afterwards fortified their reserved rights by an afiirmative declaration, in the nature of an amendment to that instrument, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Here, as before remarked, is a specific grant, with a general reservation. In

section 1st of

article 2nd, in our State Constitution, may be found the grant of power which the people have delegated to the State government. It is couched in these terms : “The powers of the government of the State of Florida shall be divided into three distinct departments, and each of them confined to a separate body of magistracy, to wit: those which are legislative to one; those which are executive to another, and those which are judicial to another.”’ This is certainly a full, entire and express grant of all political power, and may be correctly denominated a general grant; but, in the 27th clause of the first

article constituting the “ Declaration of Bights,” is contained the restriction upon that grant, and that clause is in the following words, viz: “That to guard against transgressions upon the rights of the people, we declare that everything in this ai'ticle is excepted oat of the general powers of government, and shall forever remain inviolate"; and that all laws contrary thereto, or to the following provisions, shall be void.” Here, then, is a general grant of powers, coupled with specific resti’ictions, and this comparison serves to verify the characteristic difference existing between the two instruments, as before announced.

Indeed, all winters who have commented upon the subject, readily admit the elemental difference and freely recognize the difference to be observed in applying the rules of construction. Without further elaboration of the general propositions assumed by the counsel for the appellants, we now address ourselves to the specific objections alleged in argument against the power of the General Assembly to pass the

section of the act of 1855 complained of. The main argument of the appellants is based upon the assumption that the first and second clauses of the 8th

article of the State Constitution contain restrictions upon the taxing power of the Genei’al Assembly, and that by implication, if not expressly, all these restrictions are applicable to and control the taxing power of the county authorities. The sections referred to are in these words : “1st. The General Assembly shall devise and adopt a system of revenue, having regard to an equal and uniform mode of taxation, to be general throxxghout the State.” “2nd. Ho other or greater amount of tax or revenue shall at any time be levied than may be required for the necessary expense of government.” The fourth

section of the same article, which contain* the only special delegation of power to the counties to tax, is in these words : “ The General Assembly shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes, respectively, and all property shall be taxed upon the principles established in regard to State taxation.” How, without undertaking to decide, or even to intimate an opinion, whether the second clause, above referred to, does indeed impose a peremptory restriction, and such an one as can be practically enforced by the judiciary against the general taxing power delegated to the General Assembly, we may, for the sake of argument, admit that it is a restriction and constitutes one of the principles applicable to the taxing power of the counties, as referred to in the 4th clause of the 8th. article.

That

article may then be road thus: “ The General Assembly shall have power to authorize the several counties and incorporated towns of this State to impose taxes for county and corporation purposes respectively ; and all property shall be taxed according to an equal and uniform mode of taxation, to be general throughout the county; and no other or greater amount of revenue shall at any time be levied than may be required for necessary county purposes.” This exposition and

interpretation of the fourth clause places the matter in the very strongest light contended for on the part of the appellants, and accords to them all the legitimate fruits of their argument upon this objection. It will readily be perceived, then, that the whole argument is narrowed down to the simple enquiry whether or not the act complained against, to wit: the subscription for shares of stock in the Georgia and Pensacola Railroad Company by the Board of County Commissioners of Leon county is legitimately a county purpose, within the meaning of the said 4th clause of the 8th

article of the Constitution. We think that it is, and, in order to demonstrate the correctness of this- conclusion, it may be proper .to note .the difference existing between the ordinary expenses of the State and county organizations. While the ordinary expenses of the former are mainly induced by the necessary support of the officers required to conduct the business appertaining to the three great departments of the .■government respectively, that of the latter is confined almost exclusively to the improvement of the social condition 'of the citizens, there being no salaried officers to support.

The Constitution does not attempt to give a definition to the term “county purpose,” and to obtain a correct

interpretation of that phrase we must look to the contémporaneous legislation upon that subject and the uniform 'action of the county courts under the territorial government. By •this referenced will be abundantly demonstrated, that at that -day county purposes were taken to embrace principally the erection and repair of court houses and jails, the opening and maintaining public thoroughfares within the limits of their respective counties, by opening roads, building bridges and causeways, and keeping the same in repair, licensing and regulating ferries and toll-bridges, &c.

It is thus seen, that the entire subject of highways was at the time of the constitution, an object peculiarly within the jurisdiction of the county authorities, and we are hence warranted in the assumption that it was so understood by the Convention whe'n they used the phrase, “ county purposes.” But we do not understand the appellants to differ from us in this

interpretation, when applied to ordinary roads and bridges through a county—the objection is, only when it is sought to apply it to a “ HcoilroaW’ Upon what sound principle this particular species of thoroughfare is to be withdrawn from the

interpretation of the phrase before referred, we are at a loss to perceive. Surely it will not be seriously contended that while the County authorities are permitted in the erection of their court houses and jails, to avail themselves of the improvements in architecture brought about by the advancement so rapidly goingon. in the arts and sciences, they shall be precluded from availing themselves of the benefits resulting from the most magnificent discovery of the age.

With almost as good reason might it be insisted, that they should confine their citizens to treading the tortuous windings of the Indian’s “ trail” or to the little less primitive thoroughfare of the Pioneer’s <{ bridle way.” But not to do injustice to the argument of the appellants, we remark that the objection seems to be, not so much to the particular nature of the work as to the fact, that it is not wholly confined within the territorial limits of the county, and was therefore not embraced in the phrase “ county purpose.” The counsel who closed the argument for the appellants, contended that the test to be applied to the work as determining its character in this respect, was its locality, while the counsel for the respondents insisted that the true test was to be found in the anticipated benefits.

We think that neither the one or the other of these tests, taken by themselves, will furnish the correct rule, but as a general rule that it requires a concurrence of both, for it will reádily strike the mind of every one, that a great enterprize may be embraced entirely within the limits of a county, and therefore exclusively local, without in the slightest degree being entitled to the distinctive character of a county purpose.

While on the other hand, another enterprize though entirely without the county limits, may confer innumerable benefits upon, and advance the best interests of the county,, with as little claim to the character of a county enterprize. Indeed it would be as unprofitable as it is dangerous to attempt to prescribe any definite rule to be looked to as furnishing the correct test on this subject. It is better not to essay to circumscribe by fixed rules, that which no human intellect can fully embrace.

Wisdom would counsel, that each case of this kind should be decided as it may arise, untrammelled by the decision of the preceding one. Another argument used to show that the object contemplated by the county subscription does not come within the meaning of the phrase “ county purpose” was that the corporation whose stock was subscribed for, was a private corporation.

We*do not think the argument at all conclusive, for though it be true that the Georgia and Pensacola Railroad Company be a private corporation, yet the stock purchased by the county is certainly public property, and belongs to the citizens of the county, in the proportion of their respective contributions by way of taxes. In further elaboration of our views on this subject, we take it for granted that no one would seriously contest the right of the county to. construct a Railroad to be located wholly within her territorial limits, provided she possessed the means of herself.

Now, if this be admitted, then the point is yielded as to the character of the object to be attained, and the only question that can arise, is, as to the lawfulness of the mea/ns to be employed. In this view of the case, we can discover no objection in the absence of the ability in herself to effect the object, that she should invite the co-operation, not only of contiguous counties, but even of individual capital and enterprize.

The two objections now under consideration, viz: that the purpose of the subscription was not a “ county purpose,’’ and “ that the corporation through whose agency the road was expected to be built was a private corporation,” both came up for consideration in the case of Nicol et al. vs. Mayor and Aldermen of Nashville, 9 Humph. R., 252, and were so fully discussed, that we feel ourselves constrained to cite somewhat at large from the report of the case. The Judge who delivered the opinion in that case, after stating the two objections, goes on to remark : “ This 29th

section of the second

article of our Constitution provides, that the General Assembly shall have power to authorize the several counties and incorporated towns in the State, to impose taxes for county and corporation purposes, respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation.” It may here be noted that this provision in the Tennessee constitution is almost in the very words, and certainly embodies the very spirit of the provision contained in the 4th clause of the 8th

article of our constitution. The Judge goes on to say “ the reason why this clause was embraced in our constitution,! those contemporaneous with its formation know to have been, that doubts had been suggested by the highest Judicial tribunal of the State, as to whether the taxing power eould be delegated by the legislature to the counties, and to the incorporated towns, and the clause was intended to remove these doubts.” Addressing himself particularly to the points under consideration, he proceeds —“ Is the making of the road from Hashville to Chattanooga a corporation purpose of the town of Hashville? What is a corporation purpose of the town of Hashville ? General

definitions, are always difficult to be given with precision and accuracy, especially where they have to cover as extensive ground as that embraced by the expression, “ corporation purposes.” I shall therefore not attempt to specify what are corporation purposes of the city of Hash-ville; they are and may be made to be as numerous and diversified as may be found requisite by experience, to pro» mote the peace, comfort and prosperity of its corporation, and anything which promotes these things, is or may be constituted a legitimate corporate purpose.” * * * “ Such are all facilities of canals, roads, the improvement of rivers, by which their navigable use is extended, by all which the commercial interests of a town is increased and expanded by reason of the increased facilities of communications thus furnished, by means of which, the wealth of its populators individually and collectively is increased with a consequent increase of the comforts and enjoyments of life.” It is true these improvements must have some connexion with the corporate town claiming them as corporate purposes more direct than that which would result from the general increased prosperity of the country by reason of such improvements, made without a direct reference to or indirect connexion with the town.

That is, the improvement claimed to be a corporate purpose, of the character under discussion, must have such relation to the town as to be the medium through which this prosperity is attained. It must begin or terminate at the town, or pass through or so near to it as to be capable of effecting its direct interests.

It would seem to be an incontestable truth, that a corporate town, is deeply interested in the making of any road or other means of transportation and travel whereby the facilities of its commerce are increased—and, if it be so interested, why shall it not become a corporate purpose to have them made ? It would really seem almost useless to argue in favor of it. Is there anything illegal in it? Is there anything against good morals in it ? Is there anything against public good in it ? Surely not. A town is situated ten miles from a navigable stream.

It is obvious that it would be a matter of great importance to the town, its commerce and general prosperity, to'have a railroad or McAdamized road to the river. It concerns no one else but this town, and no one else will make it. Shall it not become a corporate purpose of this town to make it, if it be able ? Surely no one will deny but that it may.”* * * “If a corporation may make the road, may it not join with others to make it ?

If the undertaking be too expensive to be carried into execution by the corporation itself, or, if others be desirous of uniting with it for the effectuating of the design, why may they not unite? Again, it maybe asked, is there anything wrong in this ? Is there anything against the public good in this ? Is there anything against law in this ? Surely not.” These views are so smply and forcibly expressed, and at ■the same time are so pertinent to the points under discussion, that we have, at the hazard of extending this opinion to an unreasonable length, deemed it profitable to refer to and cite them fully.

Slidell, C. J., of the Supreme Court of Louisiana, expressed similar views upon the same point, which arose in "the case of Police Jury vs. Succession of McDonough, (8 Louisiana An. Reports, 341,) -which was decided as late as the year 1853. Referring to the enquiry what are county purposes, he remarks: “ This question is not a new one; on the contrary, it has been frequently subjected to rigorous judicial investigation, and its answer may be satisfactorily found in the illustrations which are presented in decided cases. Thus, in the case of Goddin vs.

Crump, 8 Leigh’s Virginia Reports, the improvement of James and Kanawha rivers was considered, as regards the city of Richmond, a local purpose by reason of its connexion with the commercial prosperity of that city.” After citing the observations of Tucker, J., in [the last foregoing case, and several others to the same point, he proceeds to express the following enlightened views: “If the decisions cited be true exponents of the law, as we think they are, their application to the present case is otr yious.

The contemplated railroad passes through the tei’ritorial limits of this corporation and has one of its termini there. If the enterprize is successful, the results which have been experienced in other towns and sections of the Union may he realized here. Its facilities of commerce may he enhanced. An impulse to industry within its limits may he given—its population augmented—its lands rise in value. Whether these prosperous results will ensue, is in the womb of the future. But it is evident that the Legislature expected them, and it is clear that the police jury and a majority of the voters so thought.

The Legislature plainly declared such an enterprize to be within the range of their corporate purposes. The police jury, acting under the legislative sanction, declared by their ordinance their opinion that the measure would conduce to the interests of their locality, and a majority of the tax-payers have concurred in that opinion. Whether their expectation is false or well founded is not, under such a state of legislation, a judicial question.

We take it to he a well settled principle, that if the Legislature can constitutionally exercise a power, it is to bo presumed by the judiciary, in just deference to a co-ordinate branch of the government, that in the particular case it was exorcised discreetly and with a deliberate aud just regard to the interests of its citizens.”—(Citing the opinion of C. J. Shaw, in the case of Norwich vs.

The County Commissioners, 13 Pick, 62.) We might cite several other cases, going to illustrate the meaning of the term “ county purposes,” hut we deem the foregoing sufficient to warrant us in declaring the act of subscription to the capital stock of the Georgia and Pensacola Railroad Company, by the Board of County Commissioners of Leon county, to be fully within the letter and spirit of that phrase. It was urged with much earnestness at bar, that the word “ necessary,” in the connection in which it occurs in the 2nd clause of the 8th

article of the Constitution, and by implication transferred to the 4th clause of the same article, qualifies the term “ county purposes ” occurring in the latter clause, and that it ought to exercise a potent influence in determining the true meaning of that term. It was argued that the word necessary, in this connection, must be taken to limit the action of the county authorities to such purposes only as were indispensable to promote the interests of the county. In other words, that it restrained their action to the superintendence of the ordinary affairs of the county.

However this may be when applied to the expenses of the State government, (of which we desire to intimate no opinion,) we are very clear, that as applid to the counties, the term does not have the effect contended for. The word necessary is an adjective possessing degrees. A thing or purpose may be necessary, more necessary, indispensably necessary. An object simply necessary to subserve the interests of a county is as much a “ county purpose ” as though that object were indispensably necessary. "We do not see that a reference to the term furnishes any light to the

interpretation of the phrase “ county purpose,” or that it serves in the slightest degree to fix or limit the true meaning of that phrase. If, indeed, it had any distinctive meaning in the connection to which it is sought to apply it, (and we are rather of the opinion that it has,) we are inclined to think that that meaning is pre„ cisely the reverse of that contended for in the argument for the appellants, and that it is rather the indication of a grant of discretionary power, to be exercised by the county authorities within the appropriate limits of their general powers, than a restraint upon those powers.

As pertinent to the matter under discussion, we cannot more forcibly express our views than by citing the very lucid comments of Chancellor Kent upon a kindred subject, to wit: the constitutional powers of the Federal Government. We remark incidentally however, that while we fully adopt the logic of the distinguished commentator, we by no means desire to be considered as sanctioning Ms application of it.

The reasoning may he perfectly sound when applied to a government of general powers, such as is our State government, and yet wholly fatal and inconclusive when applied to a government possessing only enumerated powers, such as is the Federal Government. He says—“ The constitution has not left the right of Congress to employ necessary means for the execution of its powers to general reasoning. It is expressly authorized to employ such means; and necessary means, in the sense of the constitution, does not importan absolute physical necessity so strong that one thing cannot exist without the other.

It stands for any means calculated to produce the end. The word necessary admits of all degrees of comparison’ A thing may be necessary, or very necessary, or absolutely and indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to he taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to he adapted to the various crises of human affais.

To prescribe the specific means hv which government should in all future time execute its powers, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might he appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide by immutable rules, for exigences which if foreseen at all must have been seen dimly, and would deprive the legislature of the capacity to avail itself of experience or to exercise its reason and accommodate its legislation to circumstances.

If the end be legitimate and within the scope of the Constitution, all means which are appropriate and adapted to this end, and which are not prohibited are lawful.” 1 Kent Com. 252. Thes views are as logical in expression, as they are beautiful in conception, and appropriately applied» are overwhelmingly conclusive. We belong not to the latitudinarian school, but'our every lesson on the subject of government has taught us to discriminate the distinctive elemental nature of the Federal and State organizations.

While the one is simply a confederation of separate and independent political sovereignties, each striving for the mastery—the other is the pure embodiment of th».will of the people, and constitutes a unit. Accustomed to witness the ceaseless conflicts of opposing powers, whether our eyes be turned to our own Federal organization, or to the monarchical governments of Europe, we have learned to give expression tc^.our political jealousy without duly considering the appropiateness of its application. Here under our State government we have no exacting John—no jealous and determined Baron.

The people’s breath creates the sovereign. The people’s breath can demolish it. All these harsh epithets then, so richly abounding in one of the dissenting opinions, cited at the argument of this case—such as “ piracy,” “ licensed robbery,” “ spoliation by a dominant faction,” and the like, we conceive to have been uncalled for, in the connection in which they are to be found, and are to be admitted, rather for spiciness, than for their rhetorical taste or political applicability.

Another objection urged against the validity of the act of subscription to the stock of the railroad company, and one that at the first blush is rather imposing and plausi* ble, is, that by the terms of 'the statute its operating vitality was made to depend wholly upon the votes of the people.

The position assumed in the argument was, that this act of submission amounted in fact to a virtual delegation of the taxing power to the peojfie, and therefore' a clear violation of those clauses of the Constitution which confines the exercise of that power to the General Assembly, and by their permission to the respective county authorities. If the view taken of this subject by the appellants were correct, and it be true that the act in question does delegate to the people the authority to make subscription and the consequent power to levy taxes to pay for the same, we have no hesitancy in declaring such

an act of the Legislature to be a palpable infraction of the' Constitution, and one that would demand the prompt interposition of the judiciary. It would clearly be changing the essential character of our political institutions by converting a representative government into a pure democracy. But such is not the view which we have taken of the provision in that act. We can discover nothing in it which bears even a semblance to a delegation of legislative power.

The only operation of that provision is to obtain, in a perfectly legitimate mode, the expression of the will of the constituent as a guide for the action of the representative. Is there anything in this violative of the principles of republican government, or abhorrent to our ideas of popular rights ?

Indeed, if there be one principle of government more jealously maintained-—-one more earnestly insisted upon—one of more universal acceptation than-an other—it is, that “the representative is bound by the will of the constituent.” This principle constitutes the foundation of all representative governments; and there a!re those now- on the stage of action who vividly remeuiber the shock .that- was given to the popular mind when a high functionary of the Federal Government, some years since, gave utterance to the sentiment, “that the arm of the representative ought not to he palsied by the will oí' his constituents.” We have looked into the act critically, with a view to ascertain if it is in fact obnoxious to the objection under consideration.

After authorizing the Board of County Commissioners of any county to sub" scribe for the stock of such railroads as are therein referred to, the act contains a proviso in these words : “ Provided, It shall be first submitted to the vote of the legal voters of said county, city or town, to be held and taken at such times and places and-in such a manner as said authorities respectively may appoint, whether or not stock shall be taken ; and, if when the vote be thus taken, it shall appear that a majority of the voters shall be in favor of such sub" scription, it shall thereupon be lawful for the Board of County Commissioners,1"city or town authorities, by agents by them appointed, to subscribe and take in such company such an amount of stock as they shall determine.” It will be readily perceived, by a close attention to the phraseology of this proviso, that even should the vote be favorable to the subscription, there is nd^éxpress mandate in it making it the duty of the commissioners to subscribe.

So far as the letter of the law is to determine its operation, it is very clear that a discretion is still left with them to refuse. How far, in this particular, the spirit of the law shall control its letter, we do not undertake to decide, or even to intimate an opinion. But, be this as ' it may with regard to the act of subscription, we think there can exist no reasonable doubt but that the amount of subscription is still within the discretion of the Board of Commissioners, unaffected by the vote of the people.

If we are correct in this construction, then it results undeniably that the vote contemplated by the proviso can, in no proper sense, be deemed to be

an act of legislation. As upon tbe points hereinbefore discussed, we have upon the one now under consideration an array of precedents which conclusively settles the lawfulness of such a submission to the popular 'vote, whether it be objected to as “ the delegation of legislative power,” or as

an act of “ conditional legislation.” In the case of Police Jury vs. Succession of McDonough, before referred to, this very point was discussed and settled. The court say : “ Is such a submission really inconsistent, as was suggested at bar, with the genius of our institutions?

If the Legislature could constitutionally confer on the Police Jury authority to pass a taxing ordinance, it would seem-rather a safeguard against oppression, than the reverse, to qualify the power of requiring it to be exercised, with the approbation of a majority of those who are to bear the burden.”—(Citing De Tocqueville, p. 65; White’s Dig. of the Laws of Mass., 1147; 2 Gill’s Reports, 19; 7 vol. West., L. J., 22; 8 Barr, 395; 10 Barr, 216.) .

The same point arose in the case of the Cincinnati, Wilmington and Zanesville Bailroad Company vs. the Com: missioners of Clinton County, hereinbefore referred to, and it was similarly decided in favor of the law. In Kentucky, the precise point was ruled in the case of Talbot vs. Dent., 9 B. Mon., 526, and afterwards affirmed in the well considered case of Slack vs. The Maysville and Lexington Railroad Company, decided in 1851 and reported in 13 B. Mon., 1.

This precise point has frequently been before the courts in all its various phases, and, with scarcely an exception, has been uniformly ruled in favor of .the-law. But, if further authority be deemed necessary to put the question at rest, we refer to the concurrent action of the Federal Government and the State of Virginia with regard to the retrocession of the county of Alexandria, in the District of Columbia. The act ot Congress of the 9th July, 1846, submitted the question of a retrocession to a vote of the qualified electors of that county.

Virginia had previously enacted a law signifying her willingness to receive back the county whenever the Congress of the United States should see proper to retroceed the same.

Congress enacted the law of the 9th July, 1846, submitting the question of retrocession to the qualified voters of the county, providing the machinery for the election, and enacting, that if a majority of the voters should be against accepting the provisions óf the act, it should he void and of no effect; hut if a majority should be in favor of accepting,.then it should he in full force; and, in that event, it should he the duty of the President to inform the Governor of Virginia of the result, and that the law was consequently in force.

After stating the facts of that case, the Supreme Court of Pennsylvania forcibly remarks : “Many of the most profound constitutional lawers of the Union were in Congress at that time,, and the State of Virginia never hesitated to accept the retrocession, because the Congress of the United States delegated to the people the decision of the question.

This act, under all the circumstances, must, therefore, he considered high authority as a precedent in the development of the constitutional functions of the legislative power.” It was further objected against the validity of the act of our Legislature, that by the terms of the 22d section, it was provided that each tax payer of the county should receive a remuneration in the shape of stock in the Bailroad Company, equivalent to the amount of his assessment, and the position was assumed that this provision was a clear infraction of the 1st and 14th clauses of our “ Declaration of Eights” which were intended to secure to the citizen, the right “ of acquiring, possessing and protecting property.” Fortunately for us, this is not a point now for the first time to be decided.

It. has been made in several of the many Railroad cases which have arisen in the States of the confederacy, and has uniformly been adjudged in favor of the law. Without indulging in an argument of our own on thispoint, we will content ourselves with short extracts from the opinions in the two cases of “Police Jury vs. succession of McDonough” and Talbot vs. Dent, before referred to in this opinion. In the first of the above named cases, the court says :—• “ the objection made to the law upon the ground that the stock subscribed for by the respective police juries is to go to the tax payers, as provided in

section 4th, seems to us untenable. In the undestanding of practical men, this is surely no grievance. -Its manifest object was to lessen the burden of the tax-payer. If the stock should prove worthless it imposes no additional burden upon the holder; it involves him in no further responsibility. Rut if the stock should prove valuable, such value would be so much taken from the tax.” In the case of Talbot vs.

Dent, the Supreme Court of Kentucky says—“ It is true it is somewhat an anomily for the governing power to levy a tax for a particular purpose and at the same time, in a measure, reimburse him by the transfer of the thing paid for by the tax ; still if the government were under a valid obligation to pay, and had the right to meet this obligation by a tax upon its citizens, a contribution rateably assessed and levied for this public object, upon all the property of the citizens, would not lose its character of a tax, nor be less obligatory upon individuals, because the payment of it would entitle them respectively, to corresponding portions of the thing for which the government had contracted the debt or obligation, for the 'discharge of which the contribution was required.” These views are so logically and forcibly expressed* and the matter placed in so simple a light, that we deem it a work of supererrogation to add to them.

It was further objected at bar that the provision contained in the 22d

section of the act of 1855, which authorized the counties to issue bonds for the purpose of raising the money necessary to pay for the stock purchased, was an infraction of the 13th clause of the 13th

article of the constitution, which expressly prohibited the General Assembly from pledging the faith and credit of the State, to raise funds in aid of any corporation whatsoever.

The argument was this, that the letter of the clause confined thó prohibition to the State only, yet its spirit made it applicable to, and equally binding upon the counties. ¥e have before declined to determine how far a restriction plainly applicable to the exercise of power by the Legislature, shall be taken to affect the county, but for the sake of the argument are willing to admit the position assumed, viz: That all the restrictions of the constitution which are expressly applied to the 1 egislati ve power of the State, are equally binding upon the legislative powers of the counties.

With the full advantage of this admission, however, we do not. see that the objection urged is at all strengthened, for there is nothing in the provisions of the

section referred to that authorizes the Board of County Commissioners to u pledge the faith of the county to raise funds in aid of any corporation whatsoever.” By an attentive reading of that

section it will be seen that the bonds therein authorized to be issued, are not intended to raise funds “ in aid of the corporation,” but expressly to provide the means by a disposal of the same, to pay for the stock so to be purchased.— And it is equally apparent, that the authority to “ pledge the faith and resources of the county,” is to give credit to those bonds only, and not for the benefit of the company* or for any other purpose whatsoever. We think therefore-that the objection, however forcible it might he in the-state of cáse assummed, does not apply to the law now under consideration.

We have thus, at some length, gone over the several objections alleged in argument against the validity of the-particular

section of the act referred to. We have given-to the objections and to the arguments in support of them the most deliberate consideration. We have taxed to the uttermost extent all our powers of discrimination. We have resorted for light to all of the decided cases within our reach. We have scrutinized with anxious care and attention the powerful reasoning of the many able jurists, whose opinions are to he found in the books of rej>orts, to-discover, if we might, the great desideratum,, truth •, and, after the most laborious investigation, we are constrained to pronounce the particular

section of the act in question, to be perfectly compatible with the provisions of the Com stitution, and therefore valid. If we should have erred in. this conclusion, it will present an extraordinary instance-of a most singular fatality attending'the adjudication of a. great constitutional question; for,it maybe noted as a. pregnant fact, that as often as the questions involved in. this case have arisen for adjudication, they have received, hut one determination, and that in accordance w-ith the conclusion arrived at in this case.

The courts of Virginia, Massachusetts, Connecticut, Pennsylvania, Ohio, Kentucky, Tennessee, Mississippi and Louisiana all hold the-same uniform language upon this subject; and if there he .a single adjudication in opposition to our conclusion, as ■announced in this case, we have failed to have it brought to our notice.

In the face of such an overwhelming and.' imposing array of authority, it would indeed have been most extraordinary* even if our own reasoning had tended. to conduct us to an opposite conclusion, not to have raised .in our minds a serious doubt as to the correctness of that rea .soning; and we áre taught by the lessons hereinbefore inculcated in regard to the appropriate function of the judiciary, that whenevei’, in the examination of a great constitutional question involving the exercise of powers by a co-ordinate branch of the government, 'a rational doubt arises as to the validity of any particular act of that department, a proper and respectful regard and deference for the same would dictate an affirmation of the act.

In the beautiful and forcible language of an eminent jurist, before referred to, “If a court, in such a case, were to annul the law while entertaining doubts upon '.the subject, it would present the absurdity of one depax’tment of the government overturning in doubt what another had established in settled conviction, and to make the dubious constructions of the judiciary outweigh the fixed conclusions. of the General Assembly.” In order, however, to break the force and weaken the authority of the decided cases, it. was suggested at bar that those cases were adjudicated under constitutions essentially differing from ours ; that the restrictions upon the legislative power to be found in our Constitution are more stringent than those imposed by any of the, Constitutions -of the several States where those adjudications have been, made, and that, therefore, they ought not to be- considered as authority in this case.

"We have carefully examined the several State constitutions alluded to, and have not found that difference to exist, which is contended for. In the majority of them, we find the restraints upon the legislative department equally stringent, with those imposed by our own ; and in several of them, they are even more stringent. Let the decree of the Chancellor he affirmed with costa.