John T. Harcourt et al. v. J. B. Good, Sheriff, etc., 39 Tex. 455

Walker, J. Under

an act of the Legislature passed on the 6th of November, 1866, the Police Court of Colorado county, on the 21st of June, 1867, ordered an election to be held by the qualified voters of the county on the 16th of November following, for the purpose of de- , termining the will of the people concerning the subscription of stock to the B. B. B. & C. R. R. Company, to aid in building a bridge across the Colorado river at or near the town of Columbus. The result of the election was favorable to the measure, and twelve thousand dollars ($12,000) was subscribed to the capital stock of the railroad.

This stock was to be paid in annual installments, begin- • ing with the year 1870, for which bonds were given, with coupons attached, bearing ten (10) per cent, interest. On the 26th of November, 1867, in pursuance of the statute, the police court of the county assessed the tax for the purpose of paying oft the bonds according to their tenure and effect, and it is to enjoin the collection of this tax that this suit is brought.

Having granted a temporary injunction, his honor the district judge afterwards, on motion, dissolved the injunction and dismissed the bill, from which judgment the appeal is prosecuted to this court. There is no novelty in the question which this record presents. On the contrary, there is no question which has so much occupied the judicial mind, even from an early period in the history of the country, and there has been a most remarkable coincidence in the action of the political power of the States, in which the General Government has uniformly concurred.

Common interest and common necessity will account for this concurrent action of the States, but until very recently the courts of the country have with a like unanimity concurred in opinion as to the competence of the Legislature to authorize counties and municipal corporations to subscribe to the capital stock of railroad and other corporations, to loan their credit, and in various ways contribute to the construction of internal improvements—regarding corporations of this kind as public in their character, holding a public franchise, and being responsible to the political power for the manner in which the franchise is to be executed.

It was not until the position was assumed by the Supreme Court of the State of Michigan, in the case of The People v. Salem, 20 Mich., 452 (that these were not public but private corporations), that any doubt was entertained by the profession or the business men of the country on this subject.

But the profound learning and ability of Judge Cooley, both as an author and a jurist, gave great weight to the opinion of a majority of the court in the Salem case, and did, undoubtedly, for a time shake the confidence both of the bench and bar in the correctness of the doctrine previously maintained with such ramarkable unanimity; but we believe the late case of Talcott v.

The Township of Pine Grove, decided in the Circuit Court of the United States for the Western District of Michigan, by Judge Emmons, will go far to restore the equilibrium of the judicial mind, and perhaps lend additional confidence to the doctrine so ably opposed by Judge Cooley in the Salem case. We beg leave to refer to the entire opinion of Judge Emmons in the Pine Grove case, and, should our brethren concur, will have a copy of the opinion published in a forthcoming volume of our reports.

Judge Emmons has brought together in the same group (in which we beg leave to present them) the adjudicated cases of no less than twenty-six of the States, including the States of Iowa, Michigan and Wisconsin, to whose later cases as opposing authority we are referred in appellant’s brief. We have no comment to make upon the relative learning and ability of the courts rendering these decisions, were it proper for us to do so. They must stand or fall upon their own merits. Alabama, 3 cases.—1854, Stein v. Mayor of Mobile, 24 Ala., 591; 1857, Mayor of Wetumpka v.

Winter, 29 Ala., 651 (Plank Road case); 1860, Gibbons v. Mobile, etc., R. R. Co., 36 Ala., 410. California, 7 cases.—1859, Pattison v. Supervisors of Yuba County, 13 Cal., 175; 1860, Hobart v. Supervisors of Butler County, 17 Cal., 23; 1863, Robison v. Bidwell, 22 Cal., 379; 1864, French v. Techmaker, 24 Cal., 518; People v. Coon, 25 Cal., 635; 1865, People v. Supervisors of San Francisco, 27 Cal., 655; Stockton and V. R. R. v. Stockton. Connecticut, 2 cases.—1843, Bridgeport v. Housatonic Railroad Company, 15 Conn., 475; 1860, Society of Savings v. New London, 29 Conn., 174. Delaware, 1 case.—1847, Rice v.

Foster, 4 Harrington, 479. Florida, 1 case.—1852, Cotton v. County Commissioner of Leon, 6 Fla., 610. Georgia, 2 cases.—1857, Winn v. Macon, 21 Ga., 275; 1857, Powers v. Inferior Court of Dougherty County, 23 Ga., 65. Illinois, 10 cases.—1851, Ryder v. Alton, etc., R. R. Co., 13 Ill., 516; 1858, Prettyman v. Supervisors of Tazewell Co., 19 Ill., 406; 1859, Robertson v. City of Rockford et al., 21 Ill, 451; 1860, Johnson v. Starke Co., 24 Ill., 75; 1860, Perkins v. Lewis, 24 Ill., 208; 1861, Butler v. Dunham, 27 Ill., 474; 1862, Clarke v. Supervisors, etc., 27 Ill., 305; 1862, Piatt v. People, 29 Ill., 54; King v.

Wilson, 3 Chicago Legal News; 1872, Chicago, etc., R. W. Co. v. Smith, decision just rendered in Supreme Court for Horthern Division of Illinois, not yet reported. Indiana, 5 cases.—1857, City of Aurora v. West, 9 Ind., 74; 1860, Evansville, etc., R. R. Co. v. Evansville, 15 Ind., 395; 1862, The Commissioners, etc., v. Bright, 18 Ind., 93; 1864, City of Aurora v. West, 22 Ind., 88; S. M. and B. R. R. v. Geiger, 34 Ind. Iowa, 8 cases.—1853, Dubuque and Pacific R. R. Co. v. Dubuque, 4 G. Green, 1; 1854, State v. Bissell, 4 G. Green, 328; 1857, Clapp v. Cedar Co., 5 Clarke (Iowa), 15; 1858, Ring v.

Johnson Co., 6 Iowa, 265; 1858, McMillan v. Boyles, 6 Iowa, 304; 1858, McMillan v. Lee Co., 6 Iowa, 391; 1859, Whitaker v. Johnson Co., 10 Iowa, 161; Stewart v. Supervisors of Polk County, late case reported in pamphlet. Kansas, 1 case.—1871, County Commissioners v. Miller. Kentucky, 4 cases.—1849, Talbott v. Dent, 9 B. Monroe, 526; 1850, Justices, etc., v. Turnpike Co., 11 B. Monroe, 143; 1852, Slack et al. v. Maysville, etc., R. R. Co., 13 B. Monroe, 1; 1859, Maddox v. Graham, 2 Metc., 56. Louisiana, 4 cases.—1853, New Orleans, etc., Co. v. McDonough, 8 La. An., 341; 1856, Parker v. Scogin, 11 La.

An., 629; 1856, Vicksburg, etc., R. R. Co. v. Ouachita, 11 La. An., 649; 1854, New Orleans v. Graihle, 9 La. An., 561. Maine, 1 case.—1860, Augusta Bank v. Augusta, 9 Me., 507. Mississippi, 1 case.—Strickland v. Mississippi, etc., R. R. Co., cited as of 21 (or 27) Miss., 209, and as 1849. Missouri, 2 cases.—1856, City of St. Louis v. Alexandria, 23 Mo., 483; 1867, St. Joseph Railroad v. Buchanan Co. Ct., 39 Mo., 485. New York, 9 cases.—1857, Grant v. Carter, 24 Barb., 232; 1857, Benson v. Mayor of Albany, 24 Barb., 248; 1857, Clark v. City of Rochester, 24 Barb., 446; 1858, Bank of Rome v. Village of Rome, 18 N.

Y., 38; 1859, Gould v. Town of Venice, 29 Barb., 442; 1861, Starin v. Genoa, 23 N. Y., 439; 1864, Clark v. City of Rochester, 28 N. Y., 605; 1865, People v. Mitchell, 45 Barb. 208; 1866, People v. Mitchell, 35 N. Y., 551. North Carolina, 2 cases.—1855, Taylor v. Neuberne (a navigation case), 2 Jones Eq., 141; 1858, Caldwell v. The Justices, etc., 4 Jones Eq., 323. Ohio, 12 cases.—1852, Cincinnati, etc., R. R. Co. v. Commissioners, 1 Ohio St., 77; 1852, R. W. v. Township Treasurer of Christian Township, 1 Ohio St., 105; 1853, Cass v. Dillon, 2 Ohio St., 607; 1853, Thompson v. Kelly, 2 Ohio St., 647; 1857, State v.

Van Horn, 7 Ohio St., 327; 1858, State v. Union Township, 8 Ohio St., 394; 1861, State, etc., v. Commissioners Hancock Co., 12 Ohio St., 596; 1863, Knox v. Nichols, 14 Ohio St., 260; 1863, Fosdick v. Perrysburg, 14 Ohio St., 472; 1863, State v. Goshen, 14 Ohio St., 569; Griffith v. Co. Commissioners, 20 Ohio. Appendix, 1; Bloomington R. R. v. Gaiger (April, 1871, Vol. 4 of Law Times, State Reps., p. 98). Pennsylvania, 7 cases.—1846, Harvey v. Lord, 3 Penn. St., 331; 1849, Commonwealth v. McWilliams (turnpike case), 11 Penn. St., 62; 1853, Sharpless v. Mayor of Philadelphia, 21 Penn. St., 147; 1853, Moers v.

The City of Reading, 21 Penn. St., 188; 1858, Commonwealth v. County Commissioners, 32 Penn. St., 218; 1861, Commonwealth v. Pittsburg, 41 Penn. St., 278; 1862, Commonwealth v. Perkins et al., 43 Penn. St., 400. South Carolina, 1 case.-1857, State v. Charleston; 10 Rich., 491. Tennessee, 2 cases.—1848, Nichols v. Nashville, 9 Humph., 252; 1854, L. & N. R. R. Co. v. Davidson County, 1 Sneed, 637. Texas, 1 case.—San Antonio v. Jones, 28 Texas, 19. Vermont, 3 cases.—1837, Goddin v. Crumps, 8 Leigh, 120; 1846, Harrison Justice v. Holland, 3 Grattan, 247; Cadis et al. v. Town of Swanton, late case not reported.

Wisconsin, 3 cases.—1859, Clarke v. City of Jonesville; 10 Wis., 136; 1860, Bushnell v. Beloit, 10 Wis., 195; 1860, Mills v. Gleason, 11 Wis., 470. Only one of our own cases is referred to by Judge Emmons, but this is by no means the only time that the question has been before this, court. San Antonio v. Jones, 28 Texas, 19; San Antonio v. Lane, 32 Texas, 405; and San Antonio v.

Gould, 34 Texas, 49, are all cases-which uphold the power of municipal corporations, when: properly authorized by the Legislature, to loan their Credit and subscribe to the capital stock of railroad corporations- We might excuse ourselves on the rule of stare decisisfrom discussing this question, were it not of so great future moment to our rising State. True, the Constitution of 1869,

Section 32,

Article 12, is-sufficiently definite to guide the future action of the peopie on this subject; the power is here expressly given to ■counties (whether it is intended that towns and cities may ■exercise it, is a question not yet before us). But the case at bar comes up under the Constitution of 1866, and we think there is no doubt but that the District Court laid down the law correctly in this case. The only limitation or restriction imposed by this Constitution is found in

Section 27,

Article 7, and which provides for the uniformity of taxation. Ordinance No. 10, if a part of the Constitution, is a ■direct expression upon the power of towns and cities to ■ subscribe to the capital stock or loan their credit, upon a vote of two-thirds of the qualified electors of the county, to companies, associations or corporations. But it is by no means necessary for us to assume that Ordinance No. 10 forms part of the Constitution of 1866.

The constitutions of the States are not like that of the Federal government, mere grants of limited powers; they absolutely confer all powers not restricted by the letter of the constitution. (Cooley on Constitutional Limitation, 168, and authorities referred to.) The State and Federal courts have so understood and explained the constitutions of the States; and under this

interpretation, uniform and long continued, there need be no alarm. The liberties of the people are not threatened; the people have established no despotism over themselves. The Legislature, to whom the people have given the power, is but the agent or servant of the people. The people retain their own sovereignty, nor will they violate or suffer it to be violated.

True statesmen and political economists are not forever drumming words of alarm into the ears of the people; nor do they seek, as is sometimes the case among our mod•ern constitution makers, to lay down proerustean rules and principles for the government of future generations; better the wisdom of each age take care of the age to which it belongs. The people of the present age in this government need not fear any assault upon their liberties either Erom the political power or from the judiciary.

The question under discussion is one with which the people deal primarily; they first determine whether they will or not be taxed, and their determination at the ballot box may well be regarded in the light of a contract. Constitutions and laws should not be so framed as to leave out of view the enlarged and multiplied necessities which may arise in the progress of mankind to his ultimate goal. But the appellants’ counsel, in the able brief filed in this case, invite special attention and consideration to The People v. Salem, 20 Mich., 452.

We award to this case all that can be claimed for it, but we believe it simply to be very logical and profound reasoning upon a false premise. As said by Judge Emmons, the case does not rest upon any peculiarity in the Constitution or laws of the State of Michigan ; its assumptions are general; its principles-would apply to the General Government, and to every State in the Union; its doctrine is, that municipal taxation for railroad purposes is not within the taxing powers of the American States.

As we have .already seen, this doctrine would invalidate the statutes and decisions of nearly all of the States, as-well as the acts of Congress and the decisions of the Federal courts; and its starting point, its controlling idea, is that railroad and other like incorporations are not public but private in their character, and stand upon the same footing as mills and public houses, and that the right of eminent domain may not be exercised by the Legislature to take private property for private use.

The conclusion is undoubtedly correct in its application to private property and private corporations, but the error consists in regarding these public franchises, controlled as they are by the Legislature, checked and guarded by conditions and provisos, created on the plea of pro bono publico, as private corporations.

But the maxim (for it has grown into a maxim) that private property may be condemned and appropriated to a •public use, is everywhere received and held good ; and •without this railroads, turnpikes, plank roads, and bridges, even the common roads necessary and indispensable hs they are, could never be constructed of repaired, for the right of way could never be obtained, in many -.cases, from private individuals. Mills, and inns called public houses, are private property; corporations are franchises.

Chancellor Kent, Vol. 3, p. 458, says “There aré certain franchises which are understood to be royal privileges in the hands of the subject.” Blackstone says, Vol. 2, p. 37, “A franchise is a branch of royal prerogative, such as taking tolls for a bridge, way or wharf.” Even nations have conceded to each other (a concession .generally extorted by force, it is true,) the right to toll navigable streams, bays and sounds, which are navigable •waters and public to the world, except upon the condi'•tions imposed. (See Prosser against Wapello County, 18 Iowa.) We admit that the authorities referred to in the appellants’ brief (Hanson v.

Vernon, 27 Iowa, 28, and Whiting v. Sheboygan R. R. Co., 25 Wis., 167) are in unison with The People v. Salem ; but they proceed upon the same idea that railroads are private corporations, and that private property cannot be taken by taxation for their benefit. These considerations and authorities lead us to the affirmance of the former opinions of this court, in the cases referred to.; and placing a special reliance on the incontrovertible doctrines of Talcott v. Pine Grove, we. affirm the decision and judgment of the District Court. Affirmed.