tax now the subject of controversy. It is worthy of remark, too, that the congressional precedent of submitting the question of the retrocession of the county of Alexandria, in the District of Columbia, to the State of Virginia, to the qualified electors of that county, which is relied upon in the last decision above referred to, would seem to conflict with the views taken in the case of Parker v. The Commonwealth. In the one, the vote of the county determined whether they were to remain a part of the District of Columbia; in the other, whether they would have spirituous liquors retailed. Whether the latter can be regarded a violation of the Constitution, is a question not now before us, and consequently we express no opinion on it.

The case of Goddin v. Crump, 8 Leigh, 120, is in point. The city of Richmond was authorized by the Legislature of Virginia to borrow money to subscribe for stock in the James River and Kanawha Company, and to levy a tax to meet the payment. The question arose then, as it does in the case before us, whether the improvement of the James and Kanawha rivers was to be regarded, with reference to that city, as a local purpose by reason of the connection of those streams with its commerce and prosperity. It was held that it was; and the court sustained the law which authorized the tax. So, also, in Maryland, in the case of Burgess v. Pue, 2 Gill's R., 19, the question came up as to the right to recover a school-tax which had been voted by the taxable inhabitants of a school district. It was objected that the act making provision for public instruction in primary schools throughout the State was void, as being opposed to the Constitution, by reason of making its validity and operation in any county depend upon the votes of a majority of the voters of such county.

The same arguments were urged in opposition to the law which are now insisted on; but the court held it no invasion of the Constitution.

We have been favored with a paper containing the decision of the Supreme Court of Louisiana, in the case of the Police Jury, Right Bank of Parish of Orleans v. The Succession of McDonough, decided in June, 1853, a case which, in all its

leading features, is similar to the one before us, except that there a majority, instead of three-fifths (3), of the tax-payers could authorize the levying of the tax. The court, after a review of the principal authorities, sustained the tax. The reasoning of the court, in response to the objections to the law taken by the counsel, are so apposite to the case before us, that we deem it proper to quote a portion of the opinion.

"It is said," says SLIDELL, C. J., delivering the opinion of the court, "that, although the police jury might subscribe for stock for itself, it could not subscribe for stock for any one of the inhabitants in their individual capacities; that the intent and effect of the law is to force individuals to take and pay for stock in a railroad whether. they wish to or not, whether they think the enterprise likely to be beneficial or not; and that such a proceeding is mere spoliation for the benefit of a private corporation."

This reasoning and these assertions misinterpret the purpose of the law, and involve a doctrine subversive of all taxation. The purpose of the law was to enable political corporations to aid by taxation the completion of public improvements, which it was supposed by the Legislature would redound to their local advantage. The burden imposed was a tax, with regard to which each citizen has not a right to decide authoritatively for himself alone whether the tax is for a useful purpose, and will redound to his individual advantage. If each citizen can be permitted to complain that his tax has been increased without his individual assent, and for a purpose which he individually disapproves, all government would be at an end. The will of a legal majority is not tyranny.

It is the good of the community to which we belong which warrants a tax affecting our property. Of this public good, the Legislature, in taxation for general purposes, and the duly constituted local authorities, acting under the express will of the Legislature in a local sphere and for local purposes, are the judges. The argument for the defendants confounds two distinct powers-the power of taxation and the power of taking private property for public use. In the latter case, previous compensation must be made; in the

former, though in taking a man's money for taxation you do take his property, the compensation is considered as simultaneously in the benefit which as a citizen he enjoys, in common with his fellow-citizens, in the public welfare and the public prosperity, to the advancement of which the money is to be applied.

Such is the theory of taxation. It may be abused, but its exercise cannot be judicially restrained, so long as it is referable to the taxing powers, citing Thomas v. Leland, 24 Wend., 69; 4 Peters, 563.

In the case before us, the Legislature doubtless deemed that the benefits to accrue to the city, would constitute a just compensation to those who contributed to build this road; but as the tax-payers themselves who reside in the city are presumed to be more familiar with the proposed enterprise, and better able to judge of its probable results, as respects their interests, as a matter of caution and security to them, and as a safeguard to the minority, three-fifths of them are required to concur.

We do not consider this as a delegation of the power of legislation to the people; but it is a privilege conferred upon a municipal corporation, to be exercised conditionally- that is, in the event the requisite number of persons shall vote in favor of it. We see no difference, in principle, between allowing to a corporation to levy the tax, provided three-fifths of the taxable inhabitants shall vote in favor of it, and making the exercise of the power to depend upon any other feasible condition, such, for example, as requiring three-fifths of the aldermen and Common Council to concur in levying it.

We do not think that the cases of Thorne v. Cramer et al., 15 Barb., Sup. Ct. R. 112, and Bradley v. Baxter, Ib., 122, opposed to this view.

In these cases the question was not that the Legislature possessed the power to invest a public corporation with authority to levy a tax upon condition that a certain number of the subjects of the tax should assent to its being assessed, but whether it was competent for the Legislature to evade the responsibility of passing a law, by merely proposing it, and declaring "the electors shall determine by ballot, at the

annual election to be held in November next, whether this Act shall or shall not become a law." This was a clear delegation of legislative power to the people, as respects a general law, and is, we think, clearly distinguishable from the delegation of authority to a corporation to do certain things upon the condition of first procuring the concurrence of the local inhabitants whose interest alone is to be affected thereby. It will hardly be denied by any one, that the Legislature may constitutionally invest municipal corporations with the power of raising by taxation the means necessary for their existence and support, by by-laws and ordinances operating upon the inhabitants within their respective local limits. If this power be denied, upon the idea that it is a delegation of the legislative functions, by parity of reasoning all authority to make by-laws and ordain police regulations must be denied, and thus no municipal corporation could exist for any beneficial purpose.

Such, however, was not the design of the framers of the Constitution. Such corporations possessing similar powers have existed from the earliest institution of political sovereignty, and have obtained in every civilized government. Indeed, history informs us that they contributed largely in laying the foundation of liberty in modern nations. Sir James McIntosh's History of England, vol. 1, pp. 31, 32; Angell & Ames on Corp., 12.

Upon the whole, we see no objection, either as arising out of the Constitution, or even as founded in public policy, to making the exercise of the power here conferred depend upon the express will of the taxable inhabitants. On the contrary, we esteem it a wise precaution, tending to enlist the vigilance of self-interest as a protection against injustice and oppression. The objection taken by the court, in the cases cited from 6 Barr and 15 Barb., that such enactments lacked the essential qualities of "command and prohibition," is, we think, plausible, but not solid. It is certainly not without the pale of State sovereignty to pass conditional laws, to grant franchises, or even to confer discretionary powers, with respect to which it would be absurd to say they possessed the quality of either demand or prohibition.

That the tax-payers are made stockholders, is not a valid objection. They incur no additional liability, and their taxes are lessened in the proportion which the value of the stock bears to the amount which they pay.

Nor is it a valid objection that those who have paid over twenty per cent. may have the surplus deducted from the tax to be collected from them. The object was, as far as practicable, to equalize the burden, and to place those who had previously subscribed upon an equal footing with those whose taxes should secure them stock. The cases already referred to are sufficient to show that the purpose for which this tax was authorized must be regarded, as respects Mobile, as local. That it extends beyond the city, and even without the limits of the State, is no objection to this view. The question is, Has the city interest in its completion? Are the local interests of the inhabitants to be advanced, its real estate to be increased in value, its commerce augmented, its boundaries. to be extended, its population increased, and its business generally to be enlarged by the increased facilities of travel and intercommunication which the road will afford? The Legislature of the State and a majority of three-fifths of its taxable inhabitants have answered some or all of these questions in the affirmative, by enacting and enforcing the tax; and it is not for the court to say that the decision which they have made is an unwise or impolitic one.

The removal of the bar in James River above Warwick, although without the city of Richmond, was, nevertheless, a corporate act, as its effect would greatly redound to the interest of the city. Goddin v. Crump, supra. The aqueduct which furnishes the water for the easement now taxed has its commencement several miles out of the city; but will any one contend that its erection is not a corporate act? Certainly not. But it is useless to discuss the point further. Every one must concede the advantage which will result to a commercial city from opening up a great thoroughfare for its commerce; and these advantages will doubtless more than compensate for the expenditure which the city will make towards the prosecution of the work.

The certainty of the result, however, is a matter which the