Noah Haynes Swayne

“ In regard to a man's property taken by tax and applied to purposes purely local and about him, he gets the just recompense, by the application itself. Where the application is to purposes of a wider and more public kind,-for the purposes of his State, or the United States,-he gets a just recompense, provided all others are taxed proportionably with him. But just in so far as he is taxed above them, he gets no just recompense at all. ”

“ I cannot rid myself of the conviction that the deed which conveys to a man his homestead, or other real estate, is as much a contract as the paper issued by a municipal corporation to a railroad for its worthless stock, and that a bond when good and valid is property. ”

“ What it cannot do in one form it cannot do in another. What it cannot do by command, it cannot do by taxation. If the legislature should tax the property of individuals in one city for all the expenses of another, such legislation would be void. And even in regard to improvements of a kind really public, if more than any citizen's just share of the expense of them is taken, the legislation is null. ”

“ If the deed by which a man supposes he has secured to himself and family a homestead, fails to comply in any essential particular with the statute or constitution of the State, as expounded by the most recent decision of the State court, it is held void by this court without hesitation, because it is a rule of property, and the last decision of the State court must govern, even to overturning the well-considered construction of this court. ”

“ The legislature has power to create such corporation, in opposition to the will of the corporators, because such corporation is a portion of the government of the State itself, and every man yields up to the State just so many of his inherent rights, as are necessary to carry on the government which protects him. As said before, every citizen of a State yields up to the State all those rights which are necessary to carry on the government. ”

“ We may observe in passing that it is matter of difficulty for professional men or judges-if not belonging to a State-perfectly to understand the value of decisions made under local constitutions and local statutes in that State. They may run into great error if they read them by lights in which they are accustomed to see elsewhere. But assuming all that is claimed for them, such decisions are not binding upon this court; and if the decisions of other courts are not in accordance with the law as understood by this court, they will not be followed. ”

“ If a dissenting opinion of said courts is based upon correct legal principles, this court will follow such principles, rather than an erroneous decision of a court. Let us see if the decisions of the courts of the different States do establish the principle, that a legislature, with power like that of the State of Iowa, can confer upon municipal corporations the right to purchase stock in railroad corporations. ”

“ A construction which renders practically vain a constitutional provision which a different interpretation, not forced, will preserve, can not be a sound one. It declares (iv) that corporations shall not, be created by general laws, except for political or municipal purposes. Here is a law, in fact creating a corporation for a purpose which is neither. It declares in the same section that the State shall not directly nor indirectly become a stockholder in any corporation. ”

“ The stream can mount no higher than its source. The legislature cannot create corporations with illegal powers, nor grant unconstitutional powers to those already granted.
Again: Counsel of the other side do not distinguish well between private corporations and public ones.
Private corporations are only created with the assent of the corporators. They, by becoming corporators, voluntarily enter into a contract, by which they put their money or property into a common fund, to be controlled in accordance with rules to which they have assented, and which cannot be changed without their assent. ”

“ Now a man's property is as much taken by a tax as by any other form. Indeed of all modes of taking property it is the most effective, as also the most difficult to analyze and oppose. It has always been the instrument of unconstitutional legislation, and, therefore, should be watched and guarded. ”

“ IV. That a majority of such citizens can constitutionally decide upon the acts of the corporation, and compel a minority to contribute, by taxation, to objects to which such minority are opposed.
The next case was in the Supreme Court of Tennessee, Nichol v. Mayor of Nashville, [2] December Term, A. D. 1848. The legislature of Tennessee had incorporated a railroad company, and by subsequent act the town of Nashville was authorized to subscribe 20,000 shares of its stock, and to borrow money, and to levy taxes to pay principal and interest on such loan. ”

“ If power is given to take property in one place which concerns the public at large, property not being proportionably taken from that public at large, or if property is taken from one place only for objects which concern another, the power is not one conformed to the principles of constitutional republican government. ”

“ These sentiments, we cannot but believe, still reside in the hearts and consciences of our people, and may be invoked to save themselves and their State from seeming bad faith.' The case may be avoided or evaded. ”

“ Next in order in the decisions of this question comes Games v. Robb, [19] June Term, 1859, and the opinion is here written by Chief Justice Wright, who says: 'That the judge had the power to submit a vote to take subscription on a railroad, to the people, and to levy a tax therefor, we understand to be settled in favor of the power by the cases of Clapp v. Cedar County, [20] Ring v. The County of Johnson, [21] and McMillen v. Boyles, [22] and the cases there referred to.' Thus, all the judges concur in the decision of this question, as they did in McMillen v. ”

“ Other questions foreign to this subject were also discussed, but it is unnecessary to refer to them. Wright, C. J., dissented, to use his own words, 'very reluctantly,' on the question of the constitutionality of such bonds. ”