
    Goddin v. Crump &c.
    March, 1837,
    Richmond.
    Internal Improvement Company — Statute Authorizing: Municipality to Subscribe for Stock a'nd Levy Tax for Payment Thereof — Constitutionality.—The corn-monwealth of Virginia having long desired to effect a complete line of transportation from the navigable waters of the Ohio to the city of Richmond, and having with this view constructed certain works on portions of the route, subsequently incorporates a joint stock company to accomplish the object, to which company the works of the commonwealth, are by the terms of the act of incorporation, to be transferred at a specified valuation, and in which company the commonwealth herself becomes a large stockholder. The city of Richmond having been incorporated for municipal purposes, a majority of her citizens qualified to vote for members of the common council desire that the corporate authorities should subscribe for a large number of shares in this joint stock company, and the legislature, in accordance with their desire, pass laws authorizing the common council to make such subscription. By these laws, the common council is authorized to borrow money to effect the object, and to levy, assess and collect such taxes as in their opinion will be necessary for the purpose of paying the interest and redeeming the principal of any loan which may be effected. This authority to borrow money and levy taxes is carried into effect by an ordinance; and under the ordinance the collector takes the property of a citizen, against whose will the laws authorizing the subscription were passed, who refuses to pay the taxes levied under authority of these laws, upon the ground that they are unconstitutional: Held, they are constitutional and valid: dissentiente Brooke, J.
    121 ‘Same- Statute Authorizing Bank to Subscribe for Stock — Constitutionality. — The subscribers for shares in the joint stock company not being a body corporate until a certain amount should have been subscribed, that amount is made up in part by a subscription of the bank of Virginia. This subscription is made by virtue of an act of assembly giving to the president and directors of the bank, with the assent of the stockholders in general meeting, authority to make the subscription. It is objected by a citizen of Richmond, that the city has no authority to borrow money or levy taxes to pay her subscription, unless the company has become a body corporate, and that it is not legally incorporated, because its incorporation is effected by the subscription of the bank of Virginia, and the law authorizing that subscription is a violation of the bank charter, and unconstitutional. But Held, the law giving authority to the bank to subscribe is constitutional, and the subscription valid.
    As early as May session 1784, the general assembly passed “an act for clearing and improving the navigation of James river,’’ by which a company was incorporated for that purpose by the name of The James river company. 11 Hen. Stat. at large 450. Afterwards, under an act passed the 17th February 1820, a compact was made between the commonwealth and the company, by which, for a certain consideration, the works of the company, with all tolls arising' therefrom, became vested in the ■company as agents in trust for the commonwealth. When this act passed, it was contemplated that the commonwealth, through the company, as its agent, would improve the navigation of the James and Jackson’s rivers from tide water to the mouth of Dunlap’s creek, by navigable canals and locks where necessary, and would make a convenient road thence to the great falls of the Kanawha river, and make the last mentioned river conveniently navigable from the great falls thereof to the river Ohio. Sess. Acts of 1819-20, ch. 56, p. 39.
    On the 16th of March 1832, an act passed, declaring that the measures hitherto adopted by the general assembly for the purpose of connecting the tide water of James river with the navigable wa-
    ters of the Ohio *had been found inadequate to effect that object by such line of transportation as the public interest required, and that it was deemed expedient for that purpose to incorporate a joint stock company, to which the interest of the commonwealth in the James river company should be transferred.at a fair value. Under this act, books of subscription were to be opened for the purpose of raising a capital stock of five millions of dollars, in shares of one hundred dollars each. The books were to be kept open for twenty days, and if within that time three fifths of the capital stock should not have been subscribed by persons, bodies politic or corporate, other than the commonwealth, they were to be again opened, and might he continued open, if necessary, until the second monday in December following. When the books were opened, the state was to be regarded as a subscriber for ten thousand shares of the stock, to be paid for by a transfer of her whole interest in the works and property of the James river company. jSTo person, body politic or corporate, other than the commonwealth, was to be regarded as a valid subscriber for any share, unless he should have paid thereupon, into the bank of Virginia or Danners bank of Virginia, at Richmond, at least five dollars to the credit of the James river company, and have furnished a certificate of such payment to the second auditor. When three fifths or more of the capital stock should have been subscribed by persons, bodies politic or corporate, other than the commonwealth, having paid as aforesaid five dollars upon each share, then the subscribers were to stand incorporated by the name of The James river and Kanawha company; and the commonwealth was then to be regarded as a subscriber for so much of the five millions as should not have been subscribed. The James river and Kanawha company were by this act charged with the duty of connecting the tide water of James river with the navigable waters of the Ohio, by one of three *plans of improvement, at their election; that is to say, either by a continuation of the lower James river canal to some suitable point on the river not lower that Lynchburg, a continued railroad from the western termination of that canal to some convenient point on the Great Kanawha river below the great falls thereof, and an improvement of the Kanawha river from thence to the Ohio, so as to make it suitable for steamboat navigation; or secondly, by a continuation of the James river canal as aforesaid, and a continued railroad from its western termination to the Ohio river; or thirdly, by a continued railroad from Richmond to the Ohio river. Sess. Acts of 1831-32, ch. 82, p. 73.
    By an act passed December 8th 1832, the books of subscription were allowed to be continued open until the third monday in December following. Sess. Acts of 1832-33, ch. 87, p. 55.
    During this session of the general assembly, to wit, on the 13th of February 1833, an act passed by which, after reciting that it was represented to the general assembly that a large majority of the citizens of Richmond, qualified by law to vote for members of the common hall of said city, were of opinion that it was expedient for the corporate authorities thereof to subscribe to the stock of the James river and Kanawha company, and further reciting that the common hall of the city were not invested with the necessary authority to effect that object, — it was enacted that the common council of the city of Richmond should be and they were thereby authorized, if to them it should seem proper, to subscribe, on behalf of the corporation of said city, for stock in the James river and Ka-nawha company, to an amount not exceeding the sum of four hundred thousand dollars, and that they should be farther authorized to borrow from time to time, on behalf of said corporation, such sums of money as would be required to effect that object, and to levy, assess and collect such taxes *as would in their opinion be necessary for the purpose of paying the interest and redeeming the principal of any loan which the said common council might negotiate by virtue of that act. Sess. Acts of 1832-33, ch. 91, p. 57.
    At the same session, to wit, on the 16th of February 1833, another act passed, declaring that the president and directors of the bank of Virginia, by and with the assent of the stockholders of that bank, duly given in general meeting, and the president and directors of the Farmers bank of Virginia, by and with the assent of the stockholders of that bank, duly given in general meeting, shall each have full power and authority to subscribe for any number of the shares of the stock of the James river and Kanawha company, not exceeding five thousand, and each of the banks so subscribing may hold and enjoy, sell and transfer, the stock subscribed for, upon the same terms and conditions as other stockholders in the said company: provided that the assent of the stockholders required by the act shall be given at a general meeting called for the special purpose of taking into consideration the provisions thereof, after due notice given in the manner provided by the respective charters of the banks; and that no such assent shall be valid, unless a majority of all the votes which the stockholders, for the time being, of the said banks respectively may lawfully give, shall concur therein. Sess. Acts of 1832-3, ch. 89, p. 56. By a separate act it was provided that the bank of Virginia and Farmers bank of Virginia should each have power to augment its capital stock to the amount of any subscription which the stockholders of such bank might make to the capital stock of the James river and Kanawha company; and it was further provided that each of the said banks should have authority to sell and dispose of such increased number of shares, in the manner its president and directors should deem most conducive to the interest of *the existing stockholders thereof and their assigns, and to the public convenience. Sess. Acts of 1832-3, ch. 90, p. 56.
    A general meeting of the stockholders of the bank of Virginia was held at the bank, in conformity to a call by a competent number of said stockholders, on monday the 27th of May 1833, for the purpose of deciding on the expediency of a subscription on the part of the bank to the James river and Kanawha company, and on the propriety of increasing the capital stock of the bank, as the condition of such subscription. The meeting was continued by adjournment to the next day, the 28th of May 1833, when a preamble and resolutions were adopted, setting forth, that it appearing that the whole number of votes which might lawfully be given by the stockholders, other than the state, upon the stock of this bank is 4593, and the whole number of votes which the treasurer may lawfully' give at this meeting, on behalf of the state, is one third of the whole number of votes given at this meeting, or one half the number of votes given by the other stockholders, that is to say, is 1058 votes, so that a majority of all the votes which the stockholders, for the time being, of this bank may lawfully give is 2826; and it further appearing that the votes given against the subscription are 104, that the votes, other than those given by the treasurer in favour of the subscription are 2012, which added to the votes given by the treasurer, also in favour of the subscription, make 3070, so that the subscription authorized by the act of assembly has been sanctioned by more than a majority of all the votes which the'stockholders for the time being may lawfully give: it was therefore resolved that the president and directors of the bank be authorized and requested to subscribe, in behalf of the president, directors and company of this bgnk, for 5000 shares of the stock of the James river and Kanawha company; and it was further resolved that they be authorized *to increase the capital stock of this bank to the amount of the subscription aforesaid, and from time to time to sell and dispose of the increased number of shares, in such manner as they shall deem most conducive to the interest of the present stockholders and their assigns. After-wards, to wit, at a meeting of the president and directors of the bank held the 4th of June 1833, the president was instructed to make the subscription; and it was made accordingly, on the 31st of July 1833.
    In the mean time, to wit, on the 8th of March 1833, the city of Richmond, by the chamberlain of the city, made her subscription of 4000 shares.
    At the ensuing session of the general assembly, which commenced in December 1833, the books of subscription were authorized to be kept open, by one act until the last day of that session, and by another until, the thirty-first day of December 1834. Sess. Acts, of 1833-4, ch. 87, 88, p. 101. By the last mentioned act it was provided that any person, body politic or corporate, should be regarded as a valid subscriber, who should have paid one dollar or more upon each share subscribed by him, either into the bank of Virginia or Farmers bank of Virginia, or into any of their offices of discount and deposite, or to any agent appointed to receive the same, and should have furnished evidence of such payment to the second auditor. And it was declared that when one half or more of the capital stock of the company should have been subscribed by persons, bodies politic or corporate, other than the commonwealth, then the commonwealth should be regarded as- a subscriber for the residue of the five millions.
    On the 5000 shares of stock subscribed by the bank of Virginia, the sum of 5000 dollars was paid the 24th of June 1834; and on the 4000 shares subscribed by the city of Richmond, the sum of 4000 dollars was paid the 4th of November 1834. *At the succeeding session of the general assembly, the books of subscription were again authorized to be kept open, by one act until the 15th of January 1835, by another until the first day of February 1835, and by another until the twenty-second day of February 1835. Sess. Acts of 1834-5, ch. 79, 80, 81, pp. 69, 70.
    The last act was passed the 24th of January 1835. It recited that it was represented to the general assembly, that a large majority of the citizens of Richmond qualified by law to vote for members of the common hall of said city, and owning much the greater part, in value, of all the property real and personal therein, were desirous that the corporate authorities thereof should make an additional subscription to the stock of the James river and Kanawha company, not exceeding seven thousand five hundred shares; and it was deemed expedient to authorize the said subscription in part, and to authorize a further subscription on the part of the commonwealth. It was thereupon enacted that the common council of the city of Richmond, in common hall assembled, should be and they were thereby authorized, if to them it should seem proper, to subscribe on behalf of the corporation of said city for stock in the James river and Kanawha company, to an amount not exceeding the sum of 250,000 dollars, in addition to the sum of 400,000 dollars which they were previously authorized to subscribe. The common council were authorized to borrow from time to time, on behalf of the corporation, such sums of money as would be required to effect the object aforesaid, and to levy, assess and collect such taxes as in their opinion would be necessary for the purpose of paying the interest and redeeming the principal of any loan which might be negotiated by virtue of this act. It was declared that any person being an inhabitant of the city of Richmond, or owning property therein liable to be taxed by the corporate authority, who might have subscribed in his own right for '*any stock of the company, should be at liberty to withdraw his subscription or any part thereof, prior to the 27th of January 1835, in person or by attorney; and thereupon the money paid by him upon the subscription so withdrawn was to be returned to him. And then it was provided that when two fifths or more of the capital stock of the company should have been subscribed by persons, bodies politic or corporate, other than the commonwealth, the commonwealth should be regarded as a subscriber for the residue of the five millions, including the improvements surrendered to the company at one million of dollars.
    On the 21st of February 1835, the chamberlain of the city of Richmond subscribed ‘ ‘for so many shares as will make the subscription on the part of individuals, bodies politic and corporate, other than the commonwealth, equal to the sum of two millions ‘of dollars: provided the amount of said shares shall not exceed the sum of 250,000 dollars.” Under this subscription, the city of Richmond was certified to be a subscriber, in addition to the 4000 shares previously subscribed, for 1773 shares, on which there was paid on the said 21st of February 1835 the sum of 2500 dollars.
    In July 1836 a bill was exhibited to the circuit superiour court of Henrico by John Goddin, who sued as well for himself as for and on behalf of numerous other citizens and inhabitants of the city of Richmond, and owners of real property therein, who had not consented to the proceedings complained of in the bill, and who might choose to come in under it, contributing their proportion .of the costs of the suit.
    The bill set forth that the act of February 13, 1833, providing for a subscription by the corporation of Richmond to an amount not exceeding 400,000 dollars, and the act of January 24, 1835, providing for a further subscription by the said corporation to an amount not exceeding 250,000 dollars in addition to the 400,000 *dollars, were both passed without the consent and against the will of the complainant, who was at the time a citizen and inhabitant of Richmond, and the owner of real property therein; and that the common council of Richmond in common hall assembled, in pursuance of the authority supposed to be vested in them by the said acts of assembly, had, without the consent and against the will of the complainant, he still being a citizen and inhabitant of the said city and the owner of real property therein, subscribed for stock in the said James river and Kanawha company to the amount of 650,000 dollars, and had also, without the consent and against the will of the complainant, passed an ordinance on the 13th of April 1835, providing for the pajnnent of the interest and redemption of the principal moneys borrowed or to be borrowed to .pay the subscription of the said corporation to the stock of the James river and Kanawha company, by which ordinance it is provided that, besides the taxes necessary for the usual and ordinary expenses of the said city, there shall be levied, assessed and paid, for the year 1835, five cents on every 100 dollars in the valuation of all lands, tenements and improvements within the city of Richmond; and for the purpose of enabling the collector to demand, collect and receive said tax as soon as convenient, it shall be the duty of the assessor forthwith to furnish the collector with a list of all the owners of real estate within the limits of the city, liable to said tax, with the amount thereof, and the valuation of each lot, tenement and improvement; and it shall be the duty of the said collector to proceed immediately in the collection of the said tax, and to pay the amount so collected to the chamberlain of the city; and the chamberlain shall pay over to the commissioners of the sinking fund all taxes collected and received by virtue of the said ordinance, for the payment of the interest and gradual redemption *of all loans made to pay the city subscription to the stock of the James river and Kanawha company. And the complainant set forth that he was advised, and therefore charged, that the legislature of Virginia had no constitutional power to pass the acts of assembly of the 13th of February 1833 and of the 24th of January 1835, and therefore that the said acts conferred no authority on the common council of Richmond to pass the said ordinance of the 13th of April 1835.
    Nevertheless (the bill stated) the extra tax on the complainant’s real property lying within the city of Richmond, amounting to the sum of three dollars 90 cents, was assessed under the supposed authority of the said ordinance, for the purpose of providing a fund for the payment of the interest and the redemption of the principal of the moneys borrowed or to be borrowed to pay the subscription to the stock of the James river and Kanawha company; and the complainant refusing to pay the same, George P. Crump, the collector of the taxes for the city of Richmond, distrained a negro man slave named Harry, the property of the complainant, and took the said slave into his possession, and has advertised him for sale to raise the said tax.
    Besides insisting on the unconstitutionality of the acts of assembly providing for subscriptions by the common council of Richmond, the validity of those subscriptions was controverted on the further ground that valid subscriptions had not been made within the time prescribed, to a sufficient amount to incorporate the company. The bill particularly assailed the validity of the subscription made by the bank of Virginia.
    George P. Crump, collector for the city of Richmond, and the common council of said city were made defendants, and an injunction prayed for, to restrain Crump from making sale of the slave Harry, and to restrain the common council from enforcing their ordinance aforesaid. *Crump and the common council answered, insisting that the stock of the James river and Kanawha company was regularly subscribed according to the terms of the charter, and that the company is in lawful operation as a corporate body. They admitted that the ordinance aforesaid, and the acts of assembly on which it was founded, were passed against the wishes of the plaintiff and of many other inhabitants, voters and owners of property in the city, and without their assent individually given to those acts. But they stated that the acts of assembly, though opposed by a miuority of the inhabitants, were passed on the petition and with the approbation of the common council of the city, and of a large majority of the house keepers, freeholders and voters of the said city. And they insisted that the acts were constitutional and valid acts, and therefore the ordinance lawful and proper to be enforced.
    The various acts of assembly referred to in the bill and answer, the other acts of assemblj' concerning the James river company, the James river and Kanawha company, the city of Richmond and the bank of Virginia, and such other acts of assembly as either party might think pertinent to the matters in issue, were by agreement of the parties allowed to be read from the statutes, without being copied into the record. Among the exhibits there was one shewing that besides the first instalment of 5000 dollars paid the 24th of June 1834 on account of the subscription made by the bank of Virginia, there was afterwards paid, on account of the said subscription, a second instalment of 10,000 dollars on the 30th of June 1835, and a third instalment of 25,000 dollars on the 30th of November 1835; and these payments constituted items in the general statement of the concerns of the bank, which were laid before the stockholders according to law, at each successive general meeting.
    *The cause came on to be heard by consent of parties, and the circuit court being of opinion that the James river and Kanawha company had been duly incorporated, and that the corporation of Richmond had lawful authority to pass the ordinance and enforce the collection of the taijes thereby imposed, refused the injunction prayed for, and decreed that the bill of the plaintiff be dismissed. From which decree an appeal was allowed.
    In this court, the cause was argued by Taylor and Ueigh for the appellant, and Johnson for the appellees, upon the following points made by the appellant:
    I. That the acts authorizing the common council of the city of Richmond to subscribe 650,000 dollars to the stock of the James river and Kanawha company, to borrow the money, and to levy taxes on the city to pay the interest and redeem the principal, are unconstitutional.
    II. That the James river and Kanawha company is not a constitutionally incorporated company, because the incorporation has been consummated only by the subscription of the bank of Virginia, and the law authorizing that subscription is a violation of the bank charter, and unconstitutional.
    III.That the company is not a constitutionally incorporated company, because its incorporation has been effected by a series of enactments altering the charter of the company and changing the contracts of those who subscribed for the stock, which enactments are in violation of that provision of the constitution of the United States, of the constitution of Virginia, which inhibits the legislature from passing any law impairing the obligation of contracts.
    In the view which the court took, the third objection, not being made by the parties themselves whose contracts were said to have been altered, could not avail the *appellant here. The report of the arguments of counsel is therefore confined to the first and second questions.
    Taylor for the appellant. I. The acts of the 13th of February 1833 and 24th of January 1835 are not consistent with the first two articles of the bill of rights of Virginia. If the court shall be satisfied of this, it is its duty to pronounce the acts void, as was done by the general court in Kamper v. Hawkins, 1 Va. Cas. 20, and by this court in The Attorney General v. Broaddus & wife, 6 Munf. 116.
    There must be some limit to the power of the legislature to impose taxes on the property of citizens of the state. And there must be a constitutional control to keep the exercise of the power within that limit.
    It would be manifestly an invasion of the principle of property, and in the highest degree unjust, to tax property in one part of the state and not in another, for the support of government. It would be equally an invasion of the principle of property, to impose a tax of any kind on the property in one city or county, to be applied to the support of the police in another city or county. The support of the government or Of the police should be drawn from the citizens of the state, city or county for whose protection and benefit that government or police is established.
    By the acts in question, the legislature has authorized the common council of Richmond to tax the properly of the appellant and the other citizens of Richmond, to the amount of 650,000 dollars, to dig a canal or make some other line of transportation from the western boundary of Virginia to the city of Richmond. That the legislature could not itself impose a tax on the property of the citizens of Richmond alone, to be applied to the James river and Kanawha improvement, is supposed to be clear. And is it not a solecism to assert that the legislature can confer on others a power with • respect to a third person, which it does not itself possess? Nemo *dat qui non habet. Besides, this is in violation of a principle that lies at the foundation of all free government. The legislature is not itself the supreme power of the state. It has only a delegated power to act for the constituent, body; and that power it cannot, in the whole or in part, delegate over to others.
    The only ground on which it can be attempted to support the acts in question, is the legal fiction that a corporate body is a moral person, that may in many respects be considered as an individual, and the acts of the majority as the acts of the whole. The question then presents itself, what authority can the legislature confer on an incorporated town?
    In Virginia, as in every other country at all extensive, there must be local divisions, as counties and cities. And from the necessity of the thing, there must be public bodies with limited jurisdictions over these districts, for the purpose of ordinary police, attending to roads and bridges, providing for the poor &c. and (in towns where the population is crowded) the regulation of markets, the paving and lighting the streets, guarding against fires and putting them out &c. But all these powers being against common right, the legislature, from the nature of the thing, are limited to the objects for which such corporations or limited jurisdictions are necessarily created. The inhabitants of counties and towns are still citizens of Virginia, and cannot, by any act of the legislature, be deprived of their rights as citizens.
    Richmond was a town and had many inhabitants, before it was incorporated. The charter confined the corporate powers strictly to objects that were obviously corporate, and gave no authority to tax the citizens a single dollar, but for those objects. Suppose the charter had given authority to the common council to lay down railroads or dig canals, hundreds of miles off, or even a single inch beyond the limits of the corporation; *or to engage in speculations within it, such as mills, manufactories, and the like: can it be doubted that such a power ought to be considered as beyond the legitimate objects of incorporation, as against common right, and as depriving those who choose to reside in the city, of their rights as citizens? But the legislature of that day had no idea of granting such powers. The first attempt to grant them was made by the acts in question.
    It will however be said, the majority must govern. What majority? The majority of the people in Virginia? No: the majority of individuals in Richmond. Suppose a majority of the common council and of the freemen of the city concur in the opinion that the property of all the citizens be taxed, but most unequally and unjustly taxed, for the James and Kanawha improvement; could not those who were unjustly and oppressively taxed complain that the bill of rights of Virginia had been violated in their persons? To the benefit of this bill of rights every citizen is entitled, and he cannot be deprived of it by the legislature, or a majority of the common council, or a majority of the freemen of the city, nor by all together. Yet injustice such as this has been committed, not between the citizens of Richmond, but between them and the owners of property on the line of the James and Kanawha improvement. The property of the citizens of Richmond, the willing and the unwilling, has been taxed, while the property of the citizens of Goochland, Fluvanna, Albe-marie, and other counties on the line of the improvement (which must be improved in value, if the property in Richmond shall be) has not been taxed. Who can bear the injustice of these acts? The power of mortgaging the property of a minority, to its utmost extent, is given to a majority, who may act as they suppose for the best, in regard to what is not their own, and who, if the speculation turns out a ruinous one, can only cry out, “we are sorry for *it.” It may be said, this adventure will be profitable. The appellant and others think not. At best, however, it is mere matter of speculation, and the property of the appellant should not be placed, against his will, on the hazard of a die.
    II. The act of assembly of the 16th of February 1833, giving authority to the banks to subscribe, is unconstitutional and void, and the subscription made under it is void. This act violates the 10th section of the first article of the federal constitution.
    The act incorporating the bank is a contract entered into between the state and the stockholders. Fletcher v. Peck, 6 Cranch 87; The State of New Jersey v. Wilson, 7 Cranch 164; Terrett v. Taylor, 9 Cranch 43; Dartmouth College v. Woodward, 4 Wheat. S18; Green v. Biddle, 8 Wheat. 1.
    The charter of the bank is not only a contract between the state and the stockholders, but between the state and each stockholder. The 10th article of the 8th section provides that the corporation shall not be at liberty to purchase any public stock whatever, except their own bank stock. 2 Rev. Code, ch. 193, p. 73. The exception proves what is meant by the term public stock, and shews it is any stock created by act of assembly. The same article also prohibits the bank from dealing in any thing except bills of exchange, gold or silver bullion &c. plainly shewing that the capital of the bank was to be confined to banking operations only. The 11th article' of the same section shews the power which the legislature meant to retain, and the only power that they meant to retain, which is to authorize the bank to make loans to' a state or government.
    If the legislature can infringe fundamental articles in the charter of the bank, against the will of a minority of the stockholders, why was the power retained by the legislature to authorize the bank to make loans to a state or government? The legislature surely did not *mean, at any time or under any circumstances, to coerce the stockholders, against the will of a majority, to make a loan to any state or government.
    The injustice of this subscription, in relation to many of the stockholders, is great and manifest. The widow and orphan, and others who have vested their money in the stock of this bank, depending on the dividends for their support, have their income diminished by those who think the-investment will be profitable, or whose property in Richmond, or on the line of the improvement, they think will be enhanced in value by its being made.
    Johnson, for the appellees.
    I. He cited the act of 1742 establishing the town of.' Richmond, 5 Hen. Stat. at large, p. 191, and went into a history of the town and the powers of the corporation. He said, the corporation now has power to build wharves,' — put up cranes for unlading vessels, — make streets, — cut down hills,' — -lay taxes for such purposes, — lay partial taxes on the owners of lots contiguous to streets, to defray the expense of improving such streets, — and under the act of 1829, power to bring water from without the limits of the city. It is to this corporation that the power to subscribe has been given at the instance of a majority, and it is objected that this is not properly a corporate power. It has not been denied that the legislature may give the power to make and improve streets, — to tax owners of lots, — to regulate buildings, — to appoint magistrates, — or to bring water into the city; and yet it is said that the legislature cannot give the corporation power to contribute to a work more important to the prosperity of the city than every thing which can be effected by all the other powers. The argument is, that any new power must bear affinity to the other corporate powers, and that the power to subscribe is not germane to the other corporate powers. ■ But there can be no test of this kind. Every power given by the charter is a corporate *power. It may however be shewn that the power is germane. Eor what purpose was the city incorporated? To enjoy the natural advantages held out by its peculiar location. Navigation is closely allied to corporate purposes. To bring water, which increases the comfort of the inhabitants, is admitted to be a corporate power; but to bring trade, which enhances the prosperity and wealth of the town, it is argued is not.
    Erom the earliest period of our history, the general assembly has been engaged in legislation similar in principle to that in question. Thus, the expense of roads through counties is borne by each county, though the benefit is not peculiarly or principally to the count}'. So in relation to bridges across water courses dividing counties. So as to navigable streams: the counties are authorized by law to clear out streams, and sometimes required by law to do so, for the public benefit.
    Suppose an act of incorporation of the town were now first to be made, containing all the powers formerly given, and power to improve all navigable waters in which the city is interested, and to lay taxes for that purpose. This could not be said to be an object in which the inhabitants of the town had no common interest. Among the objects for which towns are incorporated, which are those most obvious,' — most ancient, — best established by authority? Towns are intended for purposes of commerce; and whatever has connection with commerce, domestic or foreign, has direct connection with corporate towns. Willcock on Corporations, p. 17; Law Library, vol. 14, p. 10. With the commercial prosperity of Richmond the improvement of the James and Kanawha is directly connected.
    It is objected to the power, that taxation is necessary for its purpose, and that the purpose is not confined to a local district. No one questions the power to erect warehouses, scalehouses, markethouses, wharves &c. yet the benefit of these is not confined to the people of *the town. The benefit of the James and Kanawha improvement, it is admitted, is not confined to the city, but the city will be chiefly benefited by it; at all events it has a deep interest in it. Suppose power had been given to the corporation to construct so much of the improvement as lies within the limits of the town; could it have been objected that the object was not one of a corporate nature?
    The 1st and 2d articles of the bill of rights do not exempt holders of property from taxation. They are not exempt from contribution either to general or local taxation. An attempt has been made to prove that the power to tax, in this case, could not be conferred on the common council. The argument is, that the legislature could not itself impose this tax on the city of Richmond, and that it could not give power which it had not. But does it indeed follow that because the legislature could not impose a tax on the city, it could not give power to the city to tax itself? Could the legislature impose a tax on the citizens of Richmond for ordinary corporate expenses? If they could, they might impose this tax. If, however, for the ordinary expenses of the city, they could not impose a tax on the city, but only authorize the city to tax itself, then in this case they could not impose the tax, but only give the authority. The legislature had full power to alter the charter of the city with its assent. As an original charter of incorporation is valid by the acceptance of a majority of the persons incorporated, so an amendment of the charter is equally valid with the assent of a majority.
    The following legal propositions are insisted on:
    1. The power of taxation may be delegated to portions of the community, and may be exercised by such organs as the legislature may appoint, against the will of minorities. See Case of the County Levy. 5 Call 139.
    2. It is not essential to the validity of such delegation of power, that the object for which the tax is laid ^should be exclusively interesting to those who pay the tax. It is sufficient that there be such common interest in the community to be taxed, as to induce that community to pursue the object at the expense of the tax.
    3. A charter is valid when accepted by the major part of those to whom it is offered. Willcock on Corporations, part 1, ch. 1, \ 25-32, pp. 30-33; Law Library, vol. 14, pp. 16, 17; Stat. 33 Hen. 8, ch. 27; 1 Hen. Stat. at large, p. 552; 1 Kyd on Corp. 45.
    4. An amendment to the charter may be accepted by the major part of those who by the- provisions of the charter express the corporate will. Same authorities, and Rex et Regina v. Lawwood, 1 Ld. Raym. 32; Rex v. Amery, 1 T. R. 588, 589; The King v. Pasmore, 3 T. R. 242, 243; 2 Bac. Abr. Corporations, E. 7, p. 16; Currie’s adm’rs v. Mutual Assurance Society, 4 Hen. & Munf. 315; Dartmouth College v. Woodward, 4 Wheat. 510.
    
      5. A corporate act performed in pursuance of the provisions of the charter is satisfactory evidence of acceptance. Willcock on Corporations, 4 842, pp. 321-2; Law Library, vol. 14, p. 177.
    6. A corporation, by the same corporate authority, may surrender its charter. 2 Bac. Abr. Corporations, G. p. 32; 2 Kyd p. 465; Willcock on Corporations, '$ 861-863, pp. 331-333; Law Library, vol. 14, p. 182; 1 Black. Comm. 484.
    7. 'The dissolution of a corporation by surrender, forfeiture, lapse of time or otherwise, extinguishes all rights of property in the corporation, and all corporate obligations ; the corporate property reverting to the donors or escheating to the state. 2 Kent’s Comm. pj:>. 246, 7; 2 Kyd on Corp. 516 ; Co. Lit. 13, b. ; Edmunds v. Brown &c., 2 Lev. 237; Colchester v. Seaber, 3 Burr. 1866 ; 1 Black. Comm. 484; Willcock on Corp. 4 858-860, pp. 330-331; Law Library, vol. 14, p. 181.
    II. The charter of the bank was extended and altered so as to authorize a subscription by the bank, and it is *contended that this could not have been done without the unanimous consent of all the stockholders. The same objection might have been made to the act of 1813 extending the charter and altering its provisions. Ko inference can fairly be drawn from the 10th and 11th articles of the 8th section, that there is any interdict upon the power of the legislature to alter the charter with the assent of the stockholders. The authority given by the legislature was jealously guarded; more so than was necessary on common law principles. The subscription has notwithstanding been made by a large majority: and the bank has sold additional stock, admitted new stockholders, and obtained a profit on the stock. The objection ought not to avail now, the more especially as it comes from one who is not a stockholder in the bank.
    Leigh, in reply.
    I. The bill of rights, art. 1, ranks among the inherent indefeasible rights of men in a state of society, the right to the means of acquiring and possessing property. What is property? It is “that sole and despotic - dominion which one man claims and exercises over the external things of the world, in total exclusion of any other individual in the universe.” 2 Black. Comm. 1, 2; 1 Ruth Inst. lib. 1, ch. 3, § 1; Barb. Puff. lib. 4, ch. 4, '4 2. All property is, in its nature, an exclusive individual right. What is mine, is mine to keep, mine to give, mine to dispose of according to my own will and pleasure; so mine that none other can dispose of the whole or any part of it.
    There are three exceptions to this exclusive, uncontrollable right of individual property. 1. Private property may be taken for public use, upon making just compensation to the owners. 2. Private property is bound to contribute to defray the expense of government; in general terms, is liable to be taxed. But how taxed? It is liable to taxation by general laws, for general purposes, passed by our representatives in the general ^assembly, (bill of rights, art. 6,) not by our fellow citizens in county or cown. When public taxes are laid by representatives in general assembly, there is this security against unjust and oppressive taxation, — that the taxes are laid for a purpose common to all, upon property held by all, and an equal burden imposed on all in proportion to their means. But this security is gone, if partial taxation on a part of the community, for general purposes, be allowed; since in such case, instead of all having an interest to protect each and every part, some have an interest to oppress and despoil others, in order to relieve themselves from the burden which ought to be borne in common, or to appropriate what is exacted from the sufferer to the benefit of the oppressor part of the community. Therefore, all partial taxation laid on particular individuals or a set of individuals, for general public purposes, is contrary to the bill of rights, and unconstitutional.
    The 3d, exception consists in the delegation, by the legislature, of power of taxation over particular districts and communities, to local municipal governments, for local municipal purposes; such as, to county courts to lay county levies and poor rates, and to the corporate authority of towns to levy town taxes for purposes of municipal government and police. And the question is, whether the acts under consideration fall fairly within this 3d exception, or whether they delegate to the common council of the city of Richmond power to lay a partial tax on the city for a general public purpose? If the former, the delegation of power is constitutional, however unwise; if the latter, it is unconstitutional, though it were as reasonable as it is in truth cruel and monstrous.
    What are local municipal purposes for which the power of taxation may be delegated, can only be ascertained by immemorial usage. The county courts have been, from time immemorial, authorized by law to levy *poor rates for support of the poor of their own county; and to lay county levies in order to defray the expenses of building courthouses, clerks’ offices, jails and bridges, and of opening roads and keeping them in repair. These are levies for local county purposes, ascertained by usage and practice to be so. But suppose the legislature should authorize the court of any one county to lay poor rates for the support of the poor throughout the commonwealth, including its own; to defray the expense of building all courthouses &c. including its own; to open and keep in repair all roads in the state, its own among the rest. Here would be a tax for general purposes, which only the general assemblj' can constitutionally impose. So the county courts have been sometimes authorized to levy money to defray the expense of clearing out obstructions in rivers running through or bounding their respective counties. But suppose the court of any one county on James river should be authorized to lay a tax on the people of that county to improve James river from its source to the great falls; here would be a tax for a general purpose, which only the representatives of the people in assembly can constitutionally impose, making the tax as general as the purpose. The local governments of corporate towns have been, from time immemorial, authorized to levy taxes on the corporators and their property, for local municipal purposes of their own. And the city of Richmond, among the rest, has been authorized to levy taxes to support its own poor, — to build courthouses, market houses, scalehouses, wharves and cranes,— to open and pave streets,- — to regulate buildings,- — to defray the expense of municipal government and police, — to bring water into the town for the daily use of the citizens. All these are local municipal purposes. But suppose an act authorizing the common council to levy taxes for purposes of the same kind, differing only in making the money applicable to such purposes in every town in the state: *here would be a tax for general purposes, the power of imposing which the legislature cannot delegate. The Case of the County Levy, 5 Call 139, sustains all this reasoning.
    It is said, the direct and main object of the incorporation of towns is to promote trade and commerce, and (therefore) navigation. Is it supposed that it would be constitutional to authorize the common council to borrow money to subscribe to a company incorporated for establishing a trade between Richmond and Liverpool, Calcutta, or Canton? Yet to this length must the principle be carried, to justify the authority given.
    It is said that every thing is a corporate purpose which the charter makes so, and the legislature may amend the charter. Suppose a law authorizing the common council to levy a tax on the city to defray the expenses of the general assembly (and such an idea has been started in other states) : would it be contended that the city is interested in the object? that it is peculiarly interested because the session of the legislature is an advantage to its citizens, and therefore that this would be a constitutional law? If there is no restraint in the bill of rights on the power of the legislature to impose or authorize partial taxation on the city for general public purposes; if the legislature may make any thing a corporate purpose, for which the city may be taxed, that ,it thinks proper to declare to be a corporate purpose by law, — what is there to restrain the legislature from partial legislation for the city in other respects? Wiry may not the legislature, on like principles, authorize the common council to repeal the statute of wills or descents, within the city, — or to establish a community of goods, — if a majority of the corpo-rators shall desire it? The doctrines which must be upheld to support these laws, and the precedent they establish, strike at the very principle of property in corporate towns.
    *The King v. Amery, 1 T. R. 575, was, cited to prove that the majority of the persons intended to be incorporated are competent to accept the charter of incorporation ; and Rex v. Larwood, 1 Ld. Raym. 29, was relied on to sustain the proposition that the majority of the corpo-rators may assent to and accept alterations of the charter. The first case arose on a charter incorporating a town, and containing only the most ordinary and unimportant provisions of charters of that kind ; and the other case was the case of an alteration of a town charter in a very trivial particular, respecting the election of sheriffs of the town. But has it ever been held in England, that a majority of the citizens of a town could accept a charter, or an amendment of a charter, authorizing the majority to lay a partial tax for a general purpose on the whole town, or to mortgage the property of the whole for a debt contracted for a general purpose, against the will of the minority? in other words, that the majority of the corporators may accept an amendment of the charter, by which they shall be authorized to dispose of the private individual property of the minority against their will? Such a thing has never been pretended in England. And if, by the omnipotence of parliament, it might be done there, the 6th article of our bill of rights forbids it here. The legislature alone is my representative to tax me for general purposes, and can only tax me in common and equally with others. It cannot make a majority of my fellow corporators of Richmond, nor the common council of the city, my representative so to tax me,— so to mortgage my property.
    If these laws be sustained, the security of property is taken away. The proprietors can no longer consider it exclusively their own. The majority may get authority from the legislature to tax and mortgage without limitation.
    *11. The charter of the bank is a contract between the commonwealth and the whole bank company, — between the commonwealth and each and every stockholder, — between each stockholder and the whole body of stockholders, — and between each and every stockholder and each and every other stockholder. And of this institution the sole end and purpose, the very essence, is that its capital shall be employed in bank operations for bank profits. With that view, and upon that understanding, every original subscriber took shares of the stock, and every purchaser of stock vested his money in the stock. They subscribed and purchased, upon the guaranty of the charter that their money should be employed in bank operations for bank profits.
    Accordingly we find that by the 10th and 11th articles of the constitution of the bank, 2 Rev. Code, ch. 193, g 8, art. 10, 11, p. 73, the bank is expressly inhibited from dealing in the stock of any other company, even with the legislative assent, and that it can only lend money to a government, state or federal, with such assent. Why and for whose benefit was the restriction imposed? Certainly, for the benefit and security of the stockholders; that they might have positive express assurance, and the public faith pledged, that their money should only be employed in bank operations for bank profits, or in loans to government made with the assent of the legislature.
    Let it be conceded that the main end and purpose of the incorporation of the bank was to institute a public company to make loans of money: the difference is wide and obvious between making loans of money, on which interest is to be paid and of which the principal is to be returned, and subscribing money to the stock of the James river and Kanawha company, where there is to be no return of principal, where neither dividend nor interest is certainly to be received, where the principal is to be vested in an enterprise of hazard, and the profit *is to be reduced, deferred or wholly disappointed, according to the success, speedy or tardy, or the total failure of the enterprise.
    The question therefore is, whether it is competent to the legislature to authorize a majority of the members of this bank company to change the contract of its charter in Its essence, without the consent and against the will of a minority? to authorize the majority to divert a large portion of their own stock, and of the stock of their unwilling fellow stockholders, from banking operations for bank profits, to a fund for wholly different and incompatible purposes?
    It is immaterial to enquire whether a majority has power, or may be authorized, to bind the whole company for any purpose connected with its bank operations, — so that the essence of the charter is still preserved inviolate; so that it shall still remain a bank company, employing its capital in banking for bank profit: which was all that was done when the assent of the bank was given to the extension of its charter and to the terms of such extension, and to the other petty alterations which have been made in the original charter. All this may be admitted; and yet it may be perfectly true, and indeed obvious, that the majority cannot bind the minority to a change of the charter in its very essence, —in that employment of the bank capital which the charter expressly assured to each and every stockholder, and in expectation of which, and upon the assurance of which, every stockholder vested his money in the bank stock. For this would be to authorize one man or set of men to dispose of the property of others.
    It is obvious that if the legislature be competent to authorize a majority of the stockholders of the bank thus to divert one sixteenth part of the capital from banking operations to canal making, it would be just as competent to authorize the majority of the stockholders, in despite of the minority, to divert the whole capital of *the bank from bank operations to the works of the James river and Ka-nawha company. Had the legislature authorized the majority of the stockholders to do this, who would have thought such a law constitutional — no violation of the contract of the bank charter — no invasion of the chartered rights and property of the minority? Yet the difference between this and that which has been done is only a difference in degree. The legislature has only authorized the majority to dispose of 15 or 16 out of every 100 dollars of the property of the minority, against their will.
    It is obvious too, that if the legislature was competent to authorize a majority of stockholders of the bank to subscribe to the stock of this James river and Kanawha company against the will of the minority, it would be just as competent to authorize the majority to subscribe for any other stock in any other company, public or private, foreign or domestic; in a company incorporated to work the coal mines of Chesterfield or the gold mines of Louisa, — ■ to make a railroad in Marj’land,' — to make a canal or railroad across the isthmus of Darien or of Suez. There is no limit.
    There is no difference in this regard between this banking company and any other public company. How apply the principle to the James river and Kanawha company. Suppose the legislature shall authorize a majority of the stockholders of his company (the commonwealth herself owning'more than half the stock) to subscribe the whole or any considerable part of its capital to a bank company: and then see the gross violation of public faith, the atrocious injustice, the plain invasion of the rights of all the subscribers to the company, other than the commonwealth. The subscribers to the company have advanced their money for a work of internal improvement, of which they are not only, as stockholders, to enjoy the profits, but from which they are to derive benefit as land owners: the city of Richmond *has subscribed 650,000 dollars for a work which the citizens are told is to enhance the value of the city property, and promote their peculiar prosperity: and the money of these individual subscribers and of the city is diverted to objects in which they have no manner of peculiar interest I The injustice and oppression would be palpable.
    Even this is justified, because (it is said) a coporation has a right to surrender its charter. But it cannot give up the property of the minority acquired under the charter; it can only surrender the chartered privileges, that is, the power of acquiring more property under the charter.
    It is said, the bank company has received a full consideration in the authority to enlarge its capital; it has taken the consideration ; it has sold the new stock, and the sale was in fact much above par. But this is no benefit to the old stockholders; for it brings all the new stockholders to divide with them the dividends resulting from the bank operations on the old stock, since an amount equal to the amount of the new stock is diverted from banking and employed in internal improvement: and as for the price above par at which the new stock has been sold, it is plain that if the new stock had been kept out of the market, the whole of that advanced price would have been distributed among the old shares of stock.
    There are circumstances of aggravation of the injustice of this proceeding that must not escape notice. The commonwealth being a large stockholder in the bank, and exercising through the treasurer an overwhelming influence upon every vote of any general meeting of stockholders (an influence that has never failed to be decisive) and owning more than half the whole stock of the James river and Kanawha company, —proceeds in her legislative character to authorize herself, in her character of stockholder of the bank, to advance *money to herself in her character of stockholder in the James river and Kanawha company. She might have appropriated the whole of her bank stock to the purpose, but she chose to apply the stock of her citizens as well as heir own. She might have left the question of subscription to the sense of the private individual stockholders, but she chosé to give her own vote to dispose of their interests, knowing that if she voted, they in fact had no choice. It is an aid, a benevolence, a forced loan exacted from the bank stockholders, if ever there was one. No matter what the form of the transaction, its substance cannot be disguised.
    
      
       Internal Improvement Company — Hunicipal Aid. — In Talcott v. Pine Grove, 23 Fed. Cas. 659, Case 13,735, many cases are cited, — among them the principal case — to sustain the constitutionality of statutes authorizing municipal aid to railroads. Mr Dillon —Dillon’s Mun. Corp. (4th Ed.), p. 225, — says that the principal caséis the earliest case on this subject.
      Taxation — Delegation of Power. — The power of the legislature to confer the authority on county courts, city councils, corporations, and other organized bodies to impose local taxes for local purposes seems well settled. See, citing the principal case, Bull v. Read, 13 Gratt. 99 (see also, foot-note to this case); Gilkeson v. Frederick Justices, 13 Gratt. 583, 584; Langhorne v. Robinson, 20 Gratt. 664; Kuhn v. Bd. of Ed., 4 W. Va. 512; Talcott v. Pine Grove, 23 Fed. Cas. 659, Case 13,735; foot-note to Case of County Levy, 5 Call 139; foot-note to Harrison Justices v. Holland, 3 Gratt. 247. See the principal case also cited in Sharpe v. Robertson, 5 Gratt. 642, 644.
      See further, monographic note on “Constitutional Law” appended to Com. v. Adcock, 8 Gratt. 661.
      Equity Jurisdiction — Injunction.—The jurisdiction of a court of eauity to restrain officers from acting under the supposed authority of a statute, the constitutionality of which is denied, is well settled. See, citing the principal case. Bull v. Read, 13 Gratt. 78, 87, and foot-note; Eyre v. Jacob, 14 Gratt. 424, and foot-note; Redd v. Supervisors, 31 Gratt. 698 (see also, foot-note); Blanton v. Southern Fertilizing Co., 77 Va. 337; S. V. R. R. Co. v. Supervisors, 78 Va. 277.
      On the subj ect of injunctions, see generally, mono-graphic note on "Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518, and, as to equity jurisdiction, see monographic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
    
   BROOKE, J.

This is a case of great interest as regards the commonwealth and individual stockholders in the James river and Kanawha company, and on principle is deeply interesting to every citizen of the state. That it is the province of the judiciary to decide on the constitutionality of the laws, cannot now be doubted. That the bill of rights is the basis of the constitution, is a proposition sustained by the authority of the judiciary and of the legislature. In the case of Custis v. Lane, 3 Munf. 590, judge Roane, speaking for the court, said, “The declaration of rights is stated to have been made by the representatives of the good people of Virginia, and it is declared that these rights do pertain to them and their posterity, as the basis and foundation of government.” And we have the legislative construction of the bill of rights, in the act of the 24th January 1799, 1 Rév. Code, ch. 32, a., p. 78, to repeal certain acts and to declare the construction of the bill of rights on the subject of religion ; thereby acknowledging its authority as a part of the constitution. The first article of the new constitution acknowledges the bill of rights as the basis and foundation of government, requiring, in the opinion of the convention, no amendment. That it has been repeatedly referred to as the *rule of judicial decision, see The Case of the County Levy, 5 Call 139, and Currie’s adm’rs v. Mutual Assurance Society, 4 Hen. & Munf. 315. Nor is its authority impaired by the few modifications of it to be found in the former and last constitutions. And although a clause in the new constitution subjects the judges to removal from office by a vote of two thirds of the general assembly, without cause, if it shall so please the general assembly, whereby the independence of the judges is greatly impaired, yet it is still their duty to decide on the constitutionality of the laws passed hy the legislature. In the discharge of this office, I know that this court will not be influenced by any other considerations than those of duty: and it is therefore with great deference that I differ from a majority of the judges. It must be admitted that at the institution of civil government founded on the rights of all, the will of the majority must prevail over the opinions and interests of the minority: but when such government is established, its great object is to protect the rights of the minority from the tyranny of the majority; a tyranny more inflexible and implacable than the tyranny of a single despot. In the one case the majority feels no sympathy for the minority. In the other case the sufferers have the sympathy of the majority of their fellow subjects, and the force of public opinion may redress their wrongs. To effect this relief against the tyranny of majorities, written constitutions were devised by the american people. So also, where a corporation is to be created, the majority of the community to be incorporated must decide on the acceptance of the charter; otherwise the smallest minority would defeat the will of the largest majority. When the charter is accepted, the minority are bound by all its regulations, and protected by those which limit the power of the majority; and to give effect to this protection, the minority are not bound by regulations not within the provisions of the charter, and in the case of an abuse of *power by the majority, the courts decide between the corporation and the party injured. This is the case before us. The property of the appellant has been taken by the authority of the common council of the corporation ; and the inquiry is, first, whether the tax imposed on the appellant was authorized by the charter, or, if not by the charter, by the two laws authorizing the subscription of two sums amounting to 650,000 dollars by the corporation to the James river and Kanawha company. It must be admitted, I think, that the charter did not confer the power in question, or no application would have been made to the legislature to pass the laws authorizing the subscription. Those applications were made to the legislature by a majority of the property holders in the city; and it is said that the majority had a right to control the minority. I admit, as before remarked, that the majority may accept a charter, and may also surrender a charter, or refuse an amendment to it. ' But the true question is, did this power of the majority extend to the case before us? If so, the minority, by becoming members of the corporation, are no longer within the protection of the bill of rights, unless it can be shewn that the laws in question were authorized by the bill of rights and the constitution. As it is not contended that the power to impose the tax was given by the charter of the corporation, let us test the authority of the laws passed to give the power, by supposing a majority of the people of any of-the counties or districts of the state to make application to the legislature for a law imposing a tax on that portion of the people of the state, to be applied to public purposes and not local: would such a law be constitutional? I think not. Nor would some portion of interest in the object of the tax make it so. Otherwise the state, by the means of local majorities, might practise the most oppressive tyranny upon local minorities. It would violate the 6th article of the bill of rights, by taking private *property for public purposes without compensation. It would violate natural justice, and be in conflict with the theory and the principles of the constitution. It would violate the 15th article of the bill of rights, which declares that no free government or the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation and temperance, and by a frequent recurrence to fundamental principles. That the legislature may delegate its power to any of the local authorities established by the constitution or the laws, there can be no doubt: but this delegated authority must be for local purposes, and not a public purpose. On this point I refer to judge Pendleton’s opinion in The Case of the County Levy, S Call 139. And all the laws referred to by the counsel are of this character. But if it were not so, and some of those laws went further, still, when a question is made as to the constitutionality of a law, it is not to be decided by the repeated acts of the legislature on which no question has been raised and adjudged, but by the bill of rights and the constitution. That a corporation may accept an amendment to its charter at the will of a majority of the corporators, is readily admitted. But the amendment ought to be by a law not temporary and for a single object in which a majority may have an imposing interest for the time; it ought to be by a law organic in its character and permanent in its operation, and providing for a common interest : and that, I think, is not the character of the laws in question. They were intended to effect a particular object, temporary only, in which there could not be a common interest. That the inhabitants might derive some benefit remote in prospect, though the object was a public object, is no answer to the objection. This benefit cannot be pretended to be the object of the laws. The improvement of the James and Kanawha rivers was a great state adventure, begun many years before, during which the corporation had *never been called on to fcontribute more than the rest of the state; while the state itself had contributed more than a million of dollars of the public money, not for the benefit of Richmond only, but for the benefit of all the people of the commonwealth, and especially of those who lived in the region of the improvement and along its line. It is absurd to say that a great national object like this was a local object as regarded Richmond. If so, other local interests in the region of the improvement ought to have been called on, as well a,s the minority in the city of Richmond.

Taking this view of the two laws in question, I shall not say any thing on the law authorizing the subscription by the bank of Virginia, with the consent of a majority of the stockholders of the bank. I think the decree dissolving the injunction ought to be reversed, and the injunction perpetuated.

TUCKER, P.

The power of the judiciary to decide on the constitutionality of a law is too firmly settled to be now questioned. It is equally clear to my mind that if the legislature have power to act, the judiciary ■cannot control the manner of its exercise.

In this case it is contended that the legislature had no constitutional power to authorize the subscription by the corporation to the James river and Kanawha company. Yet it is admitted that the legislature has the power of incorporating a town with certain corporate powers, and it cannot be denied that this power may be exercised without the unanimous consent of the inhabitants. It would annihilate the power, if the fiat of one man or ten men could arrest its exercise. Some number, then, less than the whole must suffice to render valid the acceptance of the act of incorporation. And if a number less than the whole will suffice, who is to decide upon the plus or minus? Certainly not the judiciary; and as certainly It must fall within the legislative province. *But the legislature has declared the assent of a majority sufficient. We must therefore take it that an original charter accepted by a majority of the inhabitants is valid; and pari ratione, a charter giving new powers and privileges at the instance of a majority, or accepted by them, is also valid. These principles are more than sustained by the English cases; for even a charter of the crown is valid if accepted by a majority, and a legislative or statutory charter is binding without any consent whatever.

But it is said, the grant of new powers must be of such as are corporate in their character. Be it so. But who is to decide that question, and by what is it to be tested?

It has been argued that corporate powers must be confined to the limits of the corporation. This I think a most imperfect test; for, confessedly, the limits of the corporation may be extended, so that, by this mode of reasoning, you extend the power by extending the boundaries of the city. Moreover, it is' not denied that a corporation may bring water into the city from a point beyond it; and it may erect its works for that purpose without its own jurisdiction. This affords us a better test. The interest of the corporation is the true test of the corporate character of the act: for every by-law, says lord Holt, by which the benefit of the corporation is advanced, is good for that reason. Thus in the case of the water works, though the source be ten miles off, the act for introducing the water is fairly a corporate act, because the want is experienced in the heart and through all the wards of the corporation, and the benefit is experienced within the limits, though the operations by which it is introduced are carried on without. So too, the removal of the bar in James river above Warwick would be fairly a corporate act, since it would greatly redound to the advantage of Richmond, would benefit its trade, and diminish the charges which now *encumber and embarrass it. Eor though the work, would be done beyond the limits of the city, the consequences or effects of it would be felt throughout its borders.

If then the test of the corporate character of an act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed measure is likely to conduce to the public interest of the city? Is it this court, whose avocations little fit it for such enquiries? Or is it the mass of the people themselves, —the majority of the corporation, acting (as they must do if they act at all) under the sanction of the legislative body? The later, assuredly. The principles of good sense, not less than those of our institutions,inculcate the general propriety of leaving to individuals and to communities the right to judge for themselves what their interest demands, instead of fettering and controlling them, under the false notion that we the governors know what is good for them better than themselves. Without, therefore, entering into the enquiry whether the subscription was for their benefit or not, 1 am of opinion that they were the proper judges, subject nevertheless to that control which necessarily exists in the charter-granting power.

I come next to the law authorizing the subscription by the bank. From what has been already said, it is clear that if the subscription be germane to the business of the bank, and was so deemed by a majority of the stockholders, the authority to subscribe was valid. Now the bank is an institution whose object is to make gain by dealing in money. It trades in notes, bonds, bills and other securities for money, and unless restrained by charter, it deals in 'stocks of other companies of whatever description. In the subscription to a newly organized companv, it in fact advances its money on the faith of the company itself, and relies for profit and reimbursement on its probable prosperity and success. The scrip which it receives is the obligation of “the company, as completely as if the money had been formally loaned and a negotiable note taken for the amount; and so perfectly was this sort of dealing understood to be within the ordinary current of banking transactions, that the legislature, who did not choose to engage in stockjobbing, expressly provided that the bank should engage in the purchase of no stock but its own. This is a legislative exposition (as far as that can have any weight) of the intimate connexion subsisting between the business of banking and the purchase of stocks. And this legislative inhibition was removed at the instance or with the assent of a majority of the stockholders of the bank, and the institution was thus left free to act as if the restriction never had been imposed. For my own part, I can see no employment of bank capital that is more germane to its business, than the purchase of stocks.

These two points being settled, I do not find it necessary to touch upon the various minor topics that were most ably discussed bj' the counsel for the appellant. They all resulted in the attempt to shew that under the circumstances developed in the course of legislation upon this subject, both the bank and the corporation had a right to withdraw; as also a variety of private individuals who are supposed to have been equally wronged. Be it so. But none of them have asked to be absolved. All are paying up, and harmoniously proceeding with the business of the' company. If they who have been wronged make no complaint, can the plaintiff assert their rights, to their prejudice and against their will? And even if we were unreasonably to decide that the whole charter was void because of one unconstitutional provision, shall we so decide when he who is injured eschews such a decision? The corporation might have withdrawn. It may have been unconstitutional not to provide that it might do so. But it has acquiesced: it has paid 20,000 dollars. If it withdraws, it dissolves *the charter and may lose its advance. It therefore declines to withdraw. Shall a mere integer in the corporation compel a dissolution of the company, against the will of the corporation? I think not. T am therefore of opinion to affirm the decree.

CABEEE and BROCKENBROUGH, J.,. concurred in affirming the decree.

Decree affirmed.  