
    The State ex rel. James Copes vs. The Mayor and Aldermen of the City of Charleston.
    The Oity Council of Charleston have the power, under their charter, to subscribe to the stock of Railroad Companies, within and without the State, and to tax the inhabitants of the city, for the purpose of paying the subscriptions.
    The City Council of Charleston, having, at different times, subscribed to the stock of Railroad Companies, within and without the State, the legislature by an Act of 1854, confirmed all such subscriptions and declared them obligatory on the City Council :■ — Held, that the Act of 1854, was constitutional — and that no proceeding by quo warranto, in the name of the State, for the purpose of questioning the validity of such subscriptions, could afterwards be taken.
    BEFORE O’NEALL, J., AT ORANGEBURG, NOVEMBER, 1856.
    Motion for a rule to show cause why an information in the nature of a quo warrcmto should not be exhibited.
    The motion was founded upon an affidavit of the relator, James Copes, and a certificate of the clerk of the City Council of Charleston. The affidavit stated, that the relator “ has been for forty years last past, and still is, a resident of the city of Charleston: that he has been for several years last past, and still is, owner of taxable property within the corporate limits of the said city, and subject to the local jurisdiction of the City Council thereof.
    
      “ That the Mayor and Aldermen of the said city, to wit, the City Council of Charleston, hath, from the 11th day of April, in the year of our Lord, one thousand eight hundred and forty-eight, at divers times, and up to the present time, used and exercised the following powers, privileges and franchises, to wit: subscribing in its corporate capacity, on the said 11th day of April, 1848, the sum of five hundred thousand dollars, to tbe Nashville and Chattanooga Bail-road, a corporation without the limits of the said city of Charleston, and State aforesaid; on the 24th day of June, 1851, the sum of two hundred and fifty thousand dollars, to the Memphis and Charleston Railroad, a corporation without the limits of the said city and State; on the 27th day of February, 1852, the sum of one hundred thousand dollars, and on the 1st day of December, 1852, the further sum of one hundred and fifty thousand dollars, to the North Eastern Railroad, a corporation without the limits of the said city; on the 18th day of March, 1858, to the Blue Ridge Railroad, a corporation without the limits of the said city, the sum of five hundred thousand dollars; and on the 12th day of July, 1853, the sum of five hundred and forty-nine thousand dollars, to the Blue Ridge Railroad in Georgia, a corporation without the said city and State; and on the 23d day of May, in the year 1854, the sum of two hundred and sixty thousand dollars, to the Charleston and Savannah Railroad, a corporation without the limits of the said city; in all, the sum of two millions, three hundred and nine thousand dollars.
    “ That the said Mayor and Aldermen of the said City, to wit, the City Council of Charleston, hath, from the said 11th day of April, A. D. 1848, up to the present time, claimed the power, privilege, and franchise of raising from the citizens of the said city of Charleston, by taxation, such sum or sums of money as were needed, and will hereafter, from time to time, be needed to pay its said several subscriptions to the aforesaid Railroads in and out of the said State, and hath, during all the time aforesaid, for the purpose of raising all such sum or sums of money, as were required from time to time, to pay its said subscriptions to the said several Railroads, as they became due and payable, exercised and used in its corporate capacity, and still continues to exercise and use the power, privilege, and franchise of laying a tax or assessment on all of the taxable property, real and personal, owned witbin the corporate limits of the said city, and of providing for the payment of the said taxes or assessments; and in case of default, for enforcing the payment thereof. That in the said several years past, from the said 11th day of April, 1848, to the present time, the said taxes and assessments made as aforesaid, for the purposes aforesaid, (and not for municipal purposes alone,) have been annually exacted of and from this deponent, and from all other tax paying citizens of the said city of Charleston, by the said City Council of Charleston; and have been paid to, and received by the said City Council of Charleston, in its corporate capacity, and as deponent hath heard and believes, directly or indirectly applied to the extinguishment of such instalments on its said several subscriptions as had become due.
    “All which powers, privileges and franchises, so used and usurped by them, the said Mayor and Aldermen, to wit, the City Council of Charleston, this deponent believes, are wholly without any warrant of authority derived from the charter of the said city, or from any Act or Resolution of the General Assembly of the State of South Carolina.”
    The certificate of the clerk merely stated the time at which each subscription was made, the several amounts subscribed and the names of the different Roads.
    His Honor, Judge O’Neall, delivered the following opinion:
    Motion for a rule to show cause why an information in the nature of a quo warranto should not be issued against the respondents.
    It appears that the respondents, as the City Council of Charleston, had at various times before December, 1854, exercised the power of subscribing to the capital stock of the different Railroad Companies, within and without the State. The Relator, a tax paying corporator of the city, denies their power to subscribe, and to assess him to pay for the same. He gives tbe information by affidavit, on wbicb tbe motion for tbe rule is founded.
    Tbe case was fully argued, botb for tbe State and for tbe respondents before me, at Orangeburg.
    I bave given to tbe case a good deal of reflection, and tbe result to wbicb I bave come, makes it unnecessary for me to follow tbe learned and very ingenious argument presented by tbe Relator’s counsel. Tbe words of tbe charter, 4tb sec. of tbe Act of 1783, 7 Stat. 98, are very broad botb as to tbe power claimed of subscribing, and also of assessing. Tbe City Council, inter alia, “is empowered to establish and make such by-laws, rules, and ordinances, respecting tbe harbor, streets, lanes, public buildings, work bouses, markets, wharves, public bouses, carriages, wagons, carts, drays, pumps, buckets, fire engines, tbe care of tbe poor, tbe regulation of seamen, or disorderly people, negroes, and in general every other by-law, or regulation that shall appear to them requisite and necessary for tbe security, welfare and conveniency of said city; or for preserving peace, order and good government for tbe same,” — so too they are further empowered “ to make such assessments on tbe inhabitants of Charleston; or those who bold taxable property within tbe same, for the safety, convenience, benefit and advantage of the said city, as shall appear to them expedient.”
    It seems to me that tbe power to subscribe for stock in a Railroad Company, and to assess tbe inhabitants or tax-payers of tbe City for tbe same, is plainly within tbe general discretionary power committed to tbe City Council. But if it was not, I think tbe whole controversy is closed by tbe 3d Section of tbe Act of 1854, 12 Stat., 375, wbicb enacted' “ That all subscriptions heretofore made by the City Coimcil to any Hail-road, Planh-road, or Ganal Company, be it within or without the limits of this State, mid all bonds heretofore issued by them for the purpose of raising money, are hereby fully authorized and 
      confirmed, and declared to be obligatory in law upon the said Oity Council and City”
    
    The argument educed from this provision, that the State is thereby estopped to deny that the subscriptions of the City Council made before to Railroad Companies are valid, seems to me to be irresistible. It is exactly what ruled the State from proceeding to forfeit the charter of the Bank of Charleston, for suspending specie payments. The State vs. The Bank of Charleston, 2 McMullan, 439. In that case, inasmuch as the Legislature, by the Act of 1839, subsequent to the suspension, had extended the time of payment of the last instalment of the increased capital stock of the Bank to such time as the President and Directors might call for the same, it was held that the forfeiture (if any) was waived, and the State could not then set it up. That was an implication. Here the State expressly confirms the acts previously done. In this case the State is the actor, the proceeding is by the consent of the Attorney-General, — Mr. Copes, the Relator, merely gives the information; I do not see how he can claim any thing which the State cannot demand.
    This reasoning necessarily supposes that the Act of 1854 is constitutional; if it be not, then the State, of course, is not bound by it. In the course of my service as a Judge, I have been repeatedly called upon to stand between the State and the Legislature, and pronounce the Acts of the latter unconstitutional and void. Whenever they have clearly so appeared, I have never hesitated to assume the responsibility. But unless it be clear that an Act is unconstitutional, no Judge will undertake to adjudge that it is.
    I confess that I do not see any ground on which the Act of 1854 can be ruled to be unconstitutional. It is clearly within the legislative power committed by the Constitution to the General Assembly. It does not undertake to impair the obligation of a contract. It affirms the Act of a municipal corporation, and acknowledges it to be as good as if the Legislature bad. previously given tbe power. There is certainly a great difference in this respect between municipal and private corporations. The former is always very much under the control (as a part of the law-making power) of the Legislature. The latter may stand upon their Charters.
    If it be necessary to look to authority, the case of Sharpless et al. vs.- The Mayor, etc., of Philadelphia, February No., 1854, Liv. Law Mag., 123, and the defendant’s answer, arguments and appendix in that case, furnished to me at the hearing, -will furnish an abundant supply.
    Upon every, consideration I am against the motion, and do, therefore, refuse the rule.
    From this order the Belator appealed, on the grounds:
    1. Because the Charter of the City of Charleston does not directly or impliedly confer upon the City Council the power to tax the people of Charleston for the construction of Bail-roads in or out of the State, and the business of constructing, or aiding in constructing, Bailroads, is not one of the purposes for which the Corporation was. created.
    2. Because, if the power to tax the people of Charleston for the purpose of aiding in building Bailroads, in or out of the State, is given by the general words — “ Every other by-law or regulation that shall appear to them' requisite and necessary for the security, welfare, and convenience of the said City, or for preserving peace, order and good government within the same,” — “And the said City Council shall be vested with full power and authority to make such assessments on the inhabitants of Charleston, for the safety, convenience, benefit and advantage of the said City, as shall appear to them expedient,” — it is unlimited, and more extensive than the powers which the Legislature itself can constitutionally exercise.
    
      3. Because a tax on the people of Charleston alone for the construction of works of internal improvement within the State, hut beyond the corporate limits of the City, and which are supposed to be fox the common benefit of all the people of the State, is unequal and unconstitutional, whether it be imposed by the Legislature, or by the City Council under the authority of the Legislature.
    4. Because, under the general grant of legislative authority, by the first section of the first Article of the State Constitution, the Legislature has not the power to impose a tax on any one portion or class of the people of the State alone, for the common benefit of the people of the whole State — the imposition would not be taxation, but confiscation — and the more so, if the burden were imposed for the benefit of people of other States and territories.
    5. Because a law imposing a tax, to be used for any general purpose, is a general law, and not a local one, and therefore not such an one as the City Council can have power to pass.
    6. Because, under the Constitution of the State, the power to raise revenue by taxation, for general purposes, is vested exclusively in the Legislature, and cannot be delegated.
    7. Because the third section of the Act of 1854' is unconstitutional and void, inasmuch as it was designed to call into existence contracts and obligations which were utterly null and void, and of no force when the said Act was passed, and because it violates the spirit of the third section of the ninth Article of the Constitution of the State.
    8. Because, though the Legislature may forgive and confirm any Act of a Corporation which is simply contrary to the laws of the State, and by wbicb it may have forfeited its charter, yet it cannot sanction or confirm the usurpation and continued exercise of powers and franchises which are inconsistent with the rights of the citizens under the Constitution of the State. Neither can it, by such confirmation, subject individual members and their property, without their consent, to the obligation of contracts made without authority, and beyond the purposes for which the Corporation was created.
    Treville, for appellant.
    The Legislature cannot constitutionally confer on a municipal corporation unlimited power to construct Eailroads in or out of the State, and to tax the people of the corporation against the consent of the minority, to pay for them. Sug. on Pow. 119; Bradley vs. Baxter, Amer. L. Beg., Sept. 1853, p. 658; Planh Road Company vs. Rusted, Amer. L. Beg., Eeb. 1856, p. 218 ; People vs. Collins, Amer. L. Beg., Aug. 1854, p. 591; 2 Story Com. 343, 367, 428; Sharpless vs. Mayor of Philadelphia, 9 Har. 147; 2 Kent, 331; Burney vs. Tax Collector, 2 Bail. 654; Amer. L. Beg., Dec. 1853, p. 85; Amer. L. Beg., Nov. 1853, p. 27; Id. 1; Lelandvs. Thomas, 24 Wend. 65; Brown vs. Comity Commissioner, Amer. L. Beg., May, 1853, p. 437; Liv. L. Mag., Jan’y, 1854, p. 28; Amer. L. Beg., Sept., 1856, p. 702; 1 Sum. C. C. B. 46. Putting aside the constitutional objection, the Charter or Act of 1783 does not confer on the City Council the power or authority to construct Bailroads, or to purchase Bailroad stocks, and to tax the people of the corporation to pay for them. 2 Kent, 289, 299; Dartmouth College vs. Woodward, 4 Wheat. 518; Ang. & A. on Corp. 84, 85, 86; 2 Cranch, 427; Ang. & A. on Corp. 233,245, 278; 1 Mill, 234; Bangs vs. Snow, 1 Mass. B. 181; Stetson vs. Kempton, 13 Mass. B. 272; People vs. Utica Ins. Comp., 15 Johns. B. 3, 58; Beatty vs. Lessee of Knowler, 4 Peter, 152; Beatty vs. Mar. Ins. Company, 2 Johns. B. 109; 2 Story Com. 366, 382, 383, 388, 389; Telfair vs. Howe, 3 Bich. Eq. 235; 7 Wend. 412; Ang. & A. on Corp. 202; Blaclcstone Oanal Company vs. Far-num, 1 Sum. 0. 0. R. 46; 2 Story, Com. 360; 2 Kent, 274, 275; Amer. L. Reg., Nov. 1853, p. 32; Amer. L. Reg., Dec’r, 1853, p. 107. All subscriptions by Council to Railroads, in and out of tbe State, are void, and all bonds, &c., given for money borrowed to pay subscriptions, are void. Broughleton vs. Manchester Water Works, 5 Cond. Eng. C. L. R. 216; Powell vs. Breek, 4 Strob. 427; Ang. & A. on Corp. 193, 200; Amer. L. Reg., October, 1856, p. 721; 13 Con. R. 249; 3 Story Com. 260; Story on Ag. 388, 307; Lee vs. Munro, 7 Cranch, 366; Durham vs. Trustees of Rochester, 5 Cow. 465; 1 Eng. 0. L. R. 792. The Act of 1854 is void, because retroactive, unconstitutional, not being a law, but an order or judgment, a judicial act. Lowden vs. Moses, 3 McC. R. 93; Dash vs. Vanhlect, 7 Johns. R. 477; Hampshire vs. Franklin, 16 May R. 75; Medford vs. Lamed, 16 May R. 215; Foster vs. Fssex Bank, 16 May, 244; Blackledge vs. Ogden, 2 Cranch, 270; King vs. Dedham Bank, 15 Mass. R. 447; Magwood vs. Dugan, 1 Hill, 182; Bull vs. Calder, 3 Dal. 386; Amer. L. Reg., Nov. 1853, p. 380; 9 Har. R. 147; Satterbee vs. Mathe-son, 2 Peter, 380; Con. So. Ca., Art. 1, § 1, Art. 3, § 1; Dash vs. Vanhlect, 7 Johns. R. 477; 9 Har. R. 147; Amer.L. Reg., Nov. 1853, p. 103.
    Porter, City Attorney, contra,
    cited Wile, on Mun. Corp. Intro. 17; New River Water Case, 11 Co. 73; Wilkinson vs. Leland, 2 Peters, 653; Satterlee vs. Matheson, 2 Peters, 413 ; Wile, on Mun. Corp. § 266,12,10; Codin vs. Crump, 8 Leigh, 120; 15 Conn. R. 475; Nickolls vs. Nashville, 9 Hump. 252 ; Talbot vs. Dent, 9 Monro, 526; 20 Ohio, 609, 625.
   The opinion of the Court was delivered by

O’Neall, J.

The Court of Errors, having unanimously concurred in the ruling below, have instructed me to deliver the opinion. I have had the benefit of twice hearing the able argument of the attorney for the Eelator; but I have never seen cause to hesitate about the judgment, which I formed on the Circuit. Bather than delay the opinion, I have thought it was better briefly to assign the reasons of our judgment. A review of the learned argument of the Eelator’s attorney would be to write a book on this subject. The work of elaboration and expansion, after twenty-eight years service on the Bench, may well be left to younger and more ambitious men. A right decision is more to be desired than many reasons. It is often, that in the multitude of words error is found. There was an old aphorism that wisdom was shown by few words: and beyond all doubt, if there is any thing which is becoming a more serious evil than any other-both in making and expounding laws, it is that too much is said.

So much by way of excuse for not undertaking the immense labor of reviewing the able argument of the Eelator’s attorney.

The positions, which he assumed were, 1st, That the legislature could not constitutionally confer the power exercised by the respondents. This he supposed to be the power to construct Eailroads, in or out of the State, and to tax the people of the city to pay for them. But I do not so understand the power exercised. I regard it as the mere investment of the funds of the corporation in stocks. They (the corporation) subscribe so much to the stock of a Eailroad Company. What is that but buying so much stock in it. If the corporation had an excess of funds and could pay each instalment without taxation, no one would doubt their power thus to dispose of their surplus funds. What is the difference between that case and borrowing money by the sale of their own bonds to pay for the stocks ? It may not be wise thus to go into debt, but I do not perceive how the Mayor and Aldermen are to be checked, in the exercise of this power, save by the ballot-box.

I know no restrictions on legislative power, wbicb in this State is vested by the Constitution in the General Assembly, except those which deny certain powers, or which by implication arise because certain powers are conferred on Congress. So far as legislative power is concerned, I agree, that subject to the restrictions, which I have suggested, the General Assembly have all the powers of the Parliament of Great Britain. But I do not believe that the judicial or executive powers belong at all to the legislature. The Constitution has wisely placed these in different. hands. That the General Assembly have all the powers, which the respondents have exercised in their corporation in and for the whole State, I have no doubt. If they (the General Assembly) thought proper, they could build a railroad, with just as much propriety as a Granite State House. Both might lead to an extravagant waste of money, but still the power can not be questioned. They have dug canals, and built roads, and I have no doubt they will do so again. They have subscribed to railroads in and without the State, and it is very possible, they may do so again. For all these purposes, they have directed bonds to be issued and sold, and for their payment have taxed the property of the State. The powers of the General Assembly in all these respects seem to me to be undoubted, and if so, why may they not clothe a municipal corporation with the same powers to be exercised for the benefit of the people of their charge ? It seems to me to be clear they can.

2d. If so, the next question is, did the legislature in the charter of the city use words sufficiently large to cover the power exercised by the City Council of subscribing to railroads, issuing bonds to be sold for the purpose of paying for the same, and then taxing their corporation for the final payment of the bonds thus issued and sold. After specific powers are given, tbe Council are authorized to make every other by-law or regulation that shall appear to them requisite and necessary for the security, welfare and conve-niency of the said city or for preserving peace, order and good government for the same.”

It is true that railroads were not in 1783, even thought about, but because the subject of action is new, it by no means follows, it may not be within the words conferring the power. A penitentiary did not exist at the formation of our Constitution, yet who doubts, that the General Assembly may establish one.

The only enquiry legitimate and proper is whether a subscription to a railroad in the State or without the State may not be necessary for the “ welfare or conveniency of the cityV Who is to decide that question. The Court ? Certainly not. It is by the words of the charter left to the City Council. But let us examine the matter slightly. Charleston in 1783 was looked to as a commercial city. She had realized the importance of commerce in a very striking degree between 1776 and 1783. Before war in reality brooded over her very hearthstones, from 1776 to 1780, her merchants became indeed princes, but from the fall of the city in May 1780 to 1783, she became a garrison town, and saw wealth and commercial enterprise take to themselves wings and flee away. It was therefore of great importance to promote the means and channels of commerce. That from that day to this has been a prime consideration. Why was the Hamburg Eail-road conceived and begun ? Was it not to promote the commerce and convenience of the city? Why was the Louisville, Cincinnati, and Charleston Eailroad projected? Was it not to connect the queen cities of the west and south ? Why have all the railroads, in the State and out of the State; to which Charleston has contributed, been built ? Certainly presently or remotely to benefit Charleston. Have they not answered the ends intended ? I have no hesitation in saying that though it is probable, there have been instances in wbicb little has been done, where much was expected, for the benefit of the city, that yet in the main they have contributed much to the “ welfare and convenience/" of the city. Go back to the period when the Charleston and Hamburg Road was contemplated; when its noble founders Black, Áiken, and others, calculated its income, as a paying concern from the daily travel of five or six passengers in the mail coaches of that time, and compare it with its present annual income of more than a million and a half, and ask has it not contributed to the 11 welfare and conveniency" of the city? How has it been enabled to do this ? Is it not by its connection with the roads within and without the State which have been helped to be built by the generous contributions of the city ? So it seems to me. Considered in this way, I have therefore no doubt about the powers exercised. But really there is no necessity for such an argument. What is a corporation ? It is an artificial person, capable not only of exercising given powers, but also of owning real and personal property. Suppose the city of Charleston was as fortunate as Augusta; and had like her a large fund derived from a very productive piece of property, might not her City Council invest this fund in the purchase of stocks, or in subscribing to a Railroad ? I see nothing to prevent such a course. Why not, in the absence of funds, become the owner of railroad stocks by borrowing money, making and selling bonds, and trusting to the fortunate result of the investments to pay for them, or, that expectation failing, to charge the payment on the future means of the city. I am unable to see anything to restrain the city authorities in this respect, but public opinion, indicated by the ballot-box. The taxing power given by the charter “to make such assessments on the inhabitants of Charleston, or those, who hold taxable property within the same, for the safety, convenience, benefit and advantage of the said city, as shall appear to them expedient,” is ample. They can make just snob assessments as may in their judgment be necessary. I do not perceive any thing which can help the Relator, Copes, from paying, as long as he may own property within the city, its due proportion of the city debt in the shape of assessments.

3d. Bufrif the power of the City Council was doubtful, by the Act of 1854 the General Assembly have confirmed the action of the City Council. That is to my mind a conclusive answer to all which has been said. The proceeding by quo war-ranto is a remedy, in the name of the State, for the exercises of a power on the part of a corporation, which has not been granted to it, and thereby the charter may be forfeited. The State, however, before the proceeding by quo warranto says, if you had not the authority, we now confirm all which you have done. This relates back, and by confirming, necessarily gives the challenged power, at the time it was exercised. How can she afterwards ask, by what warrant did you exercise the power ? She is estopped, and of course the Relator.

But it is contended, this was also an unconstitutional Act. It has been well asked, by what provision of the Constitution ? None can be found. The whole argument is by mistake. This is not charging Mr. Copes with a debt. It is not infringing upon any of his rights. It was exclusively a matter between the State and the city. Each represented by their constituted authorities have concurred in the Act of 1854, and there is an end of the whole matter.

The motion is dismissed.

JOHNSTON, Dunkin, Dargan and Wardlaw, CO., and WITHERS and Whitner, JJ., concurred.

Munro, J,, having been of counsel gave no opinion.

Motion dismissed.  