Hanson v. Vernon. than it has over the like property and rights of natural persons, or other private corporations organized under the same general law. How it can be said that the voluntary use of private capital, for the exclusive advantage and profit of those who contribute it, is a public use of it, justifying compulsory taxation in favor of the private undertaking, surpasses my ability to understand. Because the legislature does not, and indeed cannot, compulsorily organize persons into a railway corporation, but their action in forming such a corporation is, and must be, purely voluntary; because the state cannot compel a railway company, in the absence of a contract on its part, to build its road, but it may abandon its enterprise at pleasure; because the state does not own the stock, but the same is the private property of the stockholders; because the state is not liable for the torts or the contracts of railway companies; because it derives no dividends or profits from the operation of the roads, but the same belong wholly to the stockholders, it follows that railway corporations are purely private, and their undertakings can no more be aided by taxation than can the private undertakings of any other corporation, or of an individual. All corporations are created or authorized by the legislature because of the supposed public benefit that will result therefrom; but the notion that, there fore, it is competent to tax the citizen for the benefit of such corporations is entirely of very modern origin, is subversive of private rights, and, in my judgment, dangerous beyond conception. Ten Eyck v. Canal Co., 3 Harr. (N. J.) 200, 203. I notice, in conclusion, a few of the more plausible objections to the soundness of the foregoing views. It is argued that taxes authorized by the law under consideration are levied and collected for public purposes because the right of eminent domain can be exercised in favor of railroad companies. There is plausibility enough in this suggestion to justify an answer to it. It overlooks the fact that the taxing power and the right of eminent domain are, though in some respects kindred, essentially different. Property may be taken under the taxing power without making any direct compensation whatever, the foundation of this power being, as above shown, in an absolute political necessity, the com pensation to the tax payer being merely theoretical and incidental. Property, by virtue of the power of eminent domain, can only be VOL. I.-30 Hanson v. Vernon. taken when direct and full compensation is made in money, and can only be taken to the limited extent required by the object in favor of which it is exercised. The leading case on this subject is The People v. Brooklyn, 4 Comst. 423, 425, where the distinguishing attributes of the two powers are very clearly stated by Mr. Justice RUGGLES. The two powers being different, it does not follow that a tax can be levied for the benefit of any private enterprise, though the enterprise be one which would justify the exercise of the right of eminent domain. Because the legislature may take enough of A.'s land to enable a railroad company to build its road, provided A. be paid in money the full value of the land, and any additional damage that the taking may do him, it does not follow that A. can be taxed to build the road without receiving or being entitled to any return for the money he is thus compelled to pay. The cases are obviously dif ferent. The difference may be exemplified by an example or two, derived from actual adjudications. Under the right of eminent domain, it has been held, by the supreme court of Massachusetts, that, on making compensation to the owner, land may be compulsorily taken for the establishment of a great mill power for manufacturing purposes. Hazen v. Essex Co., 12 Cush. 475, 477. It has also been held, that land may be thus taken for a public grist-mill (Harding v. Goodlet, 3 Yerg. 41), and for mill-dams (Newell v. Smith, 15 Wis. 101), and the like. We have also statutes authorizing the condemnation of property for bridges and works of internal improvement (Rev. ch. 54, 55), and authorizing mill-dam owners, on paying damages, to flood the supra-riparian proprietors. Rev. 211. Conceding, for the argument, that these and similar decisions and statutes are sustainable, will it be contended that citizens can be taxed, and against their consent compelled to pay money to a man, or company, or private corporation, proposing to erect "a great mill power for manufacturing purposes," or "a public grist-mill," or to re-imburse mill owners the amount which they will have to pay under the ad quod damnum act? If this is not claimed, then the argument I am answering, viz, that there is a right to tax where there is a right to exercise the power of eminent domain, is shown to be unsound. If this is Hanson v. Vernon. claimed, then the startling and dangerous consequence to which the proposition leads equally demonstrate its unsoundness. Our statute (Rev. § 1278) authorizes "any person or corporation designing to construct a canal, or a railroad, or a turnpike, graded, macadamized or plank road, or a bridge, as a work of public utility, although for private profit, to take such reasonable amount of private real estate as may be requisite for a right of way not exceeding one hundred feet wide, upon paying therefor," etc. Can the legislature tax the citizen and compel him to assist "any person or corporation" designing to construct such works for private profit? Who is bold enough to claim it? I deny that it can be done. The property that can be taken by the exercise of the right of eminent domain is restricted to the actual amount required to execute the undertaking, and is generally limited to one hundred feet in width, and full value in money must be paid. This itself is a check against the abuse of the power. But the amount of tax that may be levied is unlimited, and no return or compensation to the tax payer is contemplated. Indeed, the very object of the act of 1868 is to get the money of the property owner without being obliged to make any compensation to him therefor. Again, it is urged in support of the act of 1868, that railways are simply improved highways, and that taxes in aid of their construction stand upon the same principle as ordinary road taxes; that since the state might itself build a railroad and pay for it out of the public revenues raised by taxation, so it may, if it chooses, authorize such taxes in aid of private railway corporations. This argument is unsound. The ordinary highway is the common property of all, for the common use of all, and the jurisdiction and control over it on the part of the legislature, as the representative of the public, is absolute and unlimited. In all of these respects a railway is dif ferent. That because the state may itself build a railway and own it, (see however, art. 7, of constitution), it is a non sequiter to suppose it can authorize the citizen to be taxed for the benefit of a private corporation organized for pecuniary profit. Let me illustrate. The state may levy a tax to support common schools. Can it levy a tax, or authorize a majority in a town or city to vote a tax to support the private school kept by Mr. A. or B.? I think not. Other illustrations will readily suggest themselves. Hanson v. Vernon. and I will say no more in response to this argument, except to refer to the answer it received in the Wapello County Case. Some argument in favor of the validity of the act under consideration may, it has been suggested, be drawn from the fact that courts have sustained laws authorizing the giving of bounties to soldiers volunteering to defend the country in time of actual war, and the levying of taxes to pay such bounties. I believe the difference between such a case and that of a compulsory donation to a private railway company is so distinctly pronounced and obvious that I may safely leave the argument to answer itself. The legislation under consideration is, I think, to be distin guished, on the principle involved, from the ordinary case of municipal assessments for local public improvements, such as sidewalks, etc., and is not necessarily identical with that in which the legislature has authorized some specific public works, such as draining marshy lands, to be done through the intervention of a company, and the expense assessed upon the lands benefited. Draininy Co. Case, 11 La. Ann. 338. Nor will a denial of the constitutionality of the act of 1868 be equivalent to holding that the legislature could not, if it deemed it for the public good, and complied with the requirements of the constitution (art. 3, § 31), give public aid to local or private objecta. Such a case is contemplated by the constitution, and the legislature in exercising this power decides that the object aided deserves public assistance; a very different case from a general act authorizing a majority of a local district to vote a tax as a bounty to a private railway corporation. I will not further elaborate the argument. The legislation in question cannot be sustained. It is the duty of a judge to look at this statute in the light of the principle which gives to it its distinctive character. The court cannot uphold the tax in question without sanctioning the following principle, viz.: That it is competent for the legislature, because of the incidental advantage which would result to the community from the carrying out of the objects of a voluntary private railway corporation, organized for pecuniary profit, to authorize tax to be levied on the citizen and his property, to be given as ◄ bounty to such private corporation, to be used in aid of its ndertaking, without any pecuniary compensation to the tax payer being contemplated or provided. Such a doctrine would unsettle the Hanson v. Vernon. foundation of private rights. The citizen would no longer own his property in fee simple, but hold it as a tenant at the will of the majority of the local community in which it is situated. If, because of the incidental advantage to the community resulting from the construction of its road, and the pursuit of its business, by a railroad company, the citizen and his property may be specially taxed to aid such company to execute its undertaking, who can define the logical boundaries to this doctrine? Who can fix the limits to this kind of taxation? Who can foresee the consequences of such a decision? Railroad enterprises are not the only ones that would result in a consequential benefit to the public. On the contrary, political economists tell us, and our reason and observation confirm it, that agriculture, commerce, the mechanic arts, in a word, every department of labor and every industrial pursuit, promotes the public good by advancing the public prosperity. Manufactures of various kinds are scarcely less needed in Iowa, to-day, than railroads. As in the case of railroads, it requires large capital to build and operate them. Can the legislature authorize a tax as a bounty or gratuity to private persons or corporations proposing to erect manufactories? That it could authorize this, or any like taxation, could not be denied, were the present legislation sustainable. One of the counsel has drawn, in eloquent terms, a graphic picture of the disastrous effects, in retarding the growth and development of the State, of holding the act under consideration to be invalid. As such considerations have no place in the judicial determination of the question, except to superinduce greater care and more sedate deliberation, I dismiss them, with an expression of my disbelief in the dangers which are apprehended, of my skepticism in the healthfulness of an artificial growth caused by the unnatural stimulus of public taxation in favor of private enterprises, and of my firm conviction that any benefits resulting from a different holding would be dearly purchased at the expense of the fundamental rights of the citizen. This opening once made in the barriers which the constitution has erected to protect private property, who is so wise as to foretell what troops of foes may not hereafter enter at the same breach? And who, in such an event, will be strong enough to prevent it? My convictions as to the illegality of the law are clear and decid-d, however imperfectly I may have expressed and vindicated the grounds on which they rest. I entertain no doubt, however the decision of the court may, for |