
    The People v. The Township Board of Salem.
    Taxation is a mode of raising revenue for public, purposes only, and must be laid according to some rule of apportionment, so as to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest.
    If the tax is upon one of the municipal subdivisions of the State, only, the purpose must be public, aB regards the people of such subdivision, and local: i. e., the people of the mu. nicipality must have a special and peculiar interest in the object to be accomplished which will make it just that they should bear the burden rather than the State at large, or a considerable portion of the State.
    The sovereign power of taxation, and the power of eminent domain, have each their peculiar sphere; and though neither can be properly exercised unless the object is public, it does not follow that the object which demands the exercise of the one always justifies the other*
    Every branch of needful industry has a right to exist. The public have a right to demand this; and if for that purpose a peculiar locality is essential, he who has the; possession, must, upon just compensation, yield such possession to the superior interest of the public. The business -of carrying freight and passengers by railroad cannot be*established without the exercise of this power; henee its exercise is permissible.
    Necessity is not the governing consideration for the exercise of the power of taxation, though certain objects must be provided for under this power. In regard to innumerable objects the question is one of mere policy.
    The term “ public purpose ” used in reference to the imposition of a tax has no relation to the agency of the public need or extent of public benefit. It is merely a term of classification, to designate the objects for which, according to settled usage, the State is to'provide from those which, by the like usage, are left to private inclination, interest or liberality.
    The construction of a railroad, which is to be owned and controlled by individuals or by a private Corporation is not a public, but a private purpose within the meaning of tboie terms as employed in the law of taxation, The interest which the public have in it is no other or greater than in a.hotél, gust-mill or the establishment of a daily paper.
    The State has not the power to furnish capital to set private parties up in business. Discrimination by the State between different classes of occupations is not legitimate legislation, and is an invasion of that equality of right and principle which is a maxim in State government.
    The Constitution of the State does not confer power upon the Legislature to autliorizo townships to loan their credit to railroads.
   Opinion by

Cooley, J.

In order to render valid a burden imposed by tbe Legislature as an exercise of the power of taxation, the following requisites must appear :

1. It must be imposed for a public, and not for a mere private purpose. Taxation is a mode of raising revenue for public purposes only. And where it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.

2. The tax must be laid according to some rule of apporti.onment; not arbitrarily or by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A State burden is not to be imposed upon any territory smaller than the whole State', nor a county burden upon any territory smaller or greater than the county. Equality in the imposition of the burden is of the very esscence of the power itself, and though absolute equality and absolute justice are never attainable, the adoption of some rule tending to that end is indispensihle.

3. If the tax is imposed upon one of the municipal subdivisions of the Stale only, the purpose must not only be a public purpose, as regards the people of that subdivision, but it must also be local; that is to say : the people of that municipality must have a special and peculiar interest in the object to be accomplisbed, which will make it just, proper and equitable that they should hear the burden, rather than the State at large, or any more considerable portion of the State;

These three principles are fundamental maxims in, the law of taxation, and inhere as conditions in the power' to impose any taxes whatever, or to create any burden fof which taxation is to provide; and it is only when they are observed that the •legislature is exercising any authority over this subject "which has been conferred upon it.

The fact that a railroad in the hands of a private corporation is called a public highway, and is recognized as so far a public purpose that the power of eminent domain may be exercised to aid in its construction, does not conclusively determine that it is a public purpose,” within the meaning of the law of taxation. Reasoning by anology from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle and misleading to' apply the same terms. All government powers exist for public purposes, but they are not'necessarily to be exercised under the same conditions of public interest. The sovereign police power which the State possesses is to be exercised only for the general public welfare, but it reaches to every person, to every kind of business, to every species of property within the commonwealth. The conduct of every individual and the use of all property and of all rights is regulated by it to any extent found necessary for the preservation of the public order, and also for the protection of the private rights of one individual against encroachment by others. The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available' if constitutional principles could suffer it tó be resorted to; but each of these powers has its own peculiar and appropriate ■sphere, and the object which is public for the demands of one, is not necessarily of a character to permit the exercise of another.

The resemblance of railroads in the hands of private parties to the highways which belong to the public, and which the people make and keep in repair is rather fanciful than otherwise, and has been made prominent, perhaps, rather from the necessity of resorting to the right of eminent domain for their establishment than for any other reason. They are not the people’s highways, but they are ¡private property, whose owners make it their business to transport persons and merchandise in their own carriages over their own land, for such pecuniary compensation as may be stipulated. Their business has a public aspect, inasmuch as it accommodates a public want; and therefore the road in a certain sense is a public purpose. But it is not such in any other or different sense than would be the opening 01 a hotel, the establishment of a line of stages, or the putting in operation of a grist-mill, each of which may be a local necessity.

In the exercise of the right of eminent domain the most important consideration is the necessity of accomplishing some public good which is otherwise impracticable. The power is much nearer akin to that of the public police than to that of taxation; it goes but a step farther, and that step is in the same direction. Every man has an Abstract right to the exclusive use of his own property, for his own enjoyment in such a manner as he shall choose; but ii he should choose to create a nuisance upon it, or to do anything that would preclude a reasonable enjoyment of adjacent property, the law would interfere to enforce restraints. Under some circumstances the owner of land, by a proper exercise of the police power, may be pre.cluded from carrying on a legitimate business upon it, or may be compelled to sell it, because he is unable to make use of it for his own purposes under the regulations of police which have been prescribed. These regulations restrain the right to «the individual for the good of the community at large; and the right of eminent domain only recognizes and enforces the superior right of the community against the selfishness of individuals in a similar way. Every branch of needful industry has a right to exist, and the community has a right to demand that it be permitted to exist; and if for that .purpose a peculiar locality already in the possession of an individual is essential, the owner’s right to undisturbed occupancy must yield to the superior interest of the public. As the business of carrying persons and property by railroad cannot be established without the exercise of this power, its exercise is permissible, and the owner of land needed for a railroad may be compelled to dispose of it at a fair valuation for that purpose. Eminent domain establishes no industry, but it so regulates the relative rights of all, that no individual shall have it in his power to preclude its establishment.

But necessity is not the- governing consideration when the power of taxation is to be exercised, and in many cases has little or nothing to do with the question involved. Certain objects must of necessity be provided for under' this power; but in regard to innumerable other objects for which the State imposes taxes upon its citizens, the question is always one of mere policy, and if the taxes are imposed, it is not because it is absolutely necessary, but because on the whole it is deemed best by the public authorities that they should be. On the other hand, certain things of absolute necessity to civilized society the State is precluded from providing for at all, and they are left to the fostering care of private enterprise and liberality. Oí these may be mentioned religious instruction. A skillful physician may be an urgent public need in a town, but taxes cannot be imposed to hire one to locate there. It would be said at once that any such taxation was for a private purpose, though the public might have a much greater interest in it than in the improvement of some back street, for which the right to appropriate taxes would be undoubted.

The term “ public purpose,’’ therefore, when employed to designate objects for which taxes may be imposed, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow. It is, on the other hand, merely a term of classification, to distinguish the objects for which, according to settled, usage, the State is to provide, from those which, by the like usage are left to private inclination, interest or liberality. It creates a broad and manifest distinction between public works and private enterprises; between the public conveniences which it is thebusiness of the government to provide, and those which private interest and enterprise are expected to provide whenever the demand is sufficient.

The construction of a railroad which is to be owned and controlled by individuals or by a private corporation, is not a public but a private purpose, within the meaning of those terms as employed in the law of taxation. The interest which the public have in it is no other or different than that which they have in the building of a hotel, or a grist-mill, or the establishment of a daily paper. If the public could be taxed for the one, they could for the other. It is not in the power of the State to furnish' capital to set private parties up in any kind of business, or to enlarge their business after they have entered upon it The discrimination by the State between the different classes of occupations, and the favoring of one at the expense of the rest’ whether that one be farming or banking, merchandizing or milling, printing or railroading, is not legitimate legislation, and is an invasion of that equality of right and privilege which is a maxim in State government. When the door is once opened to it, there is no line at which we can stop, and say with confidence that thus far we may go with safety aud propriety, but no farther. Every honest employment is honorable; it is beneficial to the public ; it deserves encouragement; but the State cannot discriminate for one against another. The State can have no favorites. Its business is to protect the interests of all, and to give all the benefit of equal laws. It cannot empower the majority, convened in a town meeting, to levy taxes upon the minority to be paid over to private parties, upon the pretence that the expenditures by those parties in their own interest will incidentally benefit the public, when these incidental benefits are only similar in kind to those which must flow from the establishment and proper management of any private industry. Individuals must judge for themselves whether such incidental benefits constitute any claim upon their gratitude or liberality.

Because, therefore, it is not an exercise of the power of taxation, or of any other legislative authority, and is entirety outside of any power conferred by the Constitution upon the legislature, the act which assumed to confer upon the townships in the counties of Wayne, Washtenaw, Oakland and Livingston, authority to loan their credit to the Detroit and Howell R. R. Co., and to levy taxes to provide for the loan, is unconstitutional and void.

This opinion was concurred in by Campbell, C. J., and Christiancy, J.

Opinion by

Graves, J.

In this tribunal the door is closed to all debate, except upon the single question of constitutional validity. As Judges, we have no ears to hear, and no minds to consider any argument which does not bear upon this legal point. We are not to listen to any argument drawn from the liability of the Legislature to abuse the power of taxation. The question is upon the existence of the power as applied to the particular subject, and not upon the degree to which it would be possible to carry it. All power is subject to abuse, and if this circumstance is to be taken as an argument against its existence, we are irresistably driven to results fatal to the existence of all government. The same argument can be employed to beat down all original, as well as delegated, authority. All human agencies are fallible, and the judiciary has no preeminent claim to infallibility.

No branch of the Government has the right t.o abdicate its duties, or arrogate to itself any function committed to another, or to exercise any authority which has been withheld or denied. The Legislature must make the law; the Courts must construe and apply it, and the Executive enforce it. The Courts, in passing upon the constitutionality of an act, are to recognize the supremacy of the Constitution ; and in the investigation of constitutional questions are to be guided by certain rules, some of which are set forth and explained in Sears vs. Cotrell, 5 Mich., 251. In that case the Court said : ■“ If it be said the law is unnecessarily severe, and may sometimes do injustice without fault in the sufferer under it, our reply is : These are considerations that may very properly be addressed to the Legislature, but not to the Judiciary ; they go to the expediency of the law, and not^to its constitutionality. When Courts of justice, by reason of snch objections, however well founded, seek for some hidden or abstruse meaning in one or more clauses of the Constitution, to annul a law, they encroach on the power of tl\e Legislature, and make the Constitution, instead of construing it. * * * * The time was, and the period not very far distant, when Courts were reluctant to declare a statue void, and did not feel warranted in doing so, unless they could lay their finger on the particular clause that was violated, and the conflict between the statue and Constitution was obvious.

In the same case, my Brother Christianey contrasted the principle upon which the Federal and State Governments were founded, and held, as all the Courts in the United States have held, and now hold,- that in- respect to questions of Constitutional authority, under the former, the inquiry is, has the power been granted? and under the latter, has it been prohibited ? — arriving at the conclusion that an act of' the State Legislature, not prohibited by the express words of the Constitution, or by necessary implication, could not be declared void as a violation / of that instrument. In the case of Twitchell vs. Blodget, 13 Mich. 127, it is held that “ where a repugnancy is claimed to exist, between an act of the Legislature and the Constitution, the Courts must examine and construe the provisions of each in the light of the other. ■ And they must sustain the law if they have any reasonable doubts of the conflict, even though theee doubts spring from a construction of the Constitution itself.

The objection of my brethren to the act under consideration, is, that to their minds, it attempts to authorize a tax on the people of a township for a mere private purpose. In debating this question, they are compelled to prove that the exercise of the power of eminent domain, in favor of the corporation, does not admit any public quality in the corporation, or any relation between the corporation and the public which could, as a question of constitutional power, justify the exercise of the power of taxation to help build the road, and to maintain this position an elaborate effort is made to prove the absurdity, or incongruity of a contrary doctrine, by putting a great number of extreme cases and cases assumed to be analagous. In none of the examples relied on, however, has the enterprise or business been stamped tby authority of the State with the public quality or character accorded to railroad coporations in this Commonwealth. . It is conceded that a railroad corporation i-s to be considered public, in this State, in respect to the exer cise of the power of eminent domain; but my brethren think it private in respect to the power of taxation. The grounds of this distinction do not satisfactorily appear. It is not contended that the power of eminent domain can be rightfully exercised in behalf of printing companies, or hack and dray companies; and yet the argument rests upon the theory that perfect equality exists between all these parties in respect to the right to exercise any constitutional power in their favor, when the exercise of such right depends on their relations and duties to the public. All reasoning, therefore, against the power to aid the construction of a railroad by taxation, based upon the analogy between railroad corporations and other companies not entitled, will be likely to carry us to a result as to the employment of the power1' of eminent domain, which all confess to be untenable.

Under our Constitution, the property of no one can be taken by the exercise of the power of eminent domain, except for public use, and it is admitted to be settled law that the use for a railroad corporation is a public use according to the Constitution. No such distinction has been made by the Legislature and the Courts in favor of printing companies and the like. In the case of railroads, the State assists in getting the ground fop the road: it provides that the machinery of the Courts may be used therefor, aud casts some portion of the expense on the tax-payers. A court of justice can as well justify the exercise of the power of taxation as the.exercise of the power of eminenl domain, upon the grounds of extra constitutional necessity. ■ But the exercise of neither can be so justified. Both powers spring from political organization, and rest upon the fundamental láw of such organization. “ The right of taxation and the right of eminent domain resflfe substantially on the same foundation.’’ “ Taxation exacts money or services from individuals as, and for, their respective shares of contribution to any public burthen. Private property taken for public use, by right of eminent domain, is taken, not as the owner’s share of contribution to a public burthen, but as so much beyond his share.” 4 Com., 419. This view was approved in Seers vs. Cottrell, 5 Mich., 251, and in the Woodbridge case, 8 Mich., 274. None of these cases intimate that the power of eminent domain bears any relation to the police power, or that under a Constitution forbidding its exercise except to take property for public use, its employment to take property for a private use, or for the private use of a private corporation, could be jütified oh the p'ea of necessity. N or is it suggested that the private use of a private corporation which could not be aided by taxation could be so essential to the pub-lie interest, local or 'general, as to create a lawful necessity. There is no intimation that the subject, which as a public one, could call into exercise the power of eminent domain, would relapse into & private one when the power of taxation should be invoked.

The case of Swan vs. Williams, 2 Mich., 427, holds that the object which determines the character of a-corporation is that designed by the Legislature, rather than that sought by the company. If that object be, primarily, the private interest of its members, although an incidental benefit may accrue to the government therefrom, then the corporation is private; but if the object be. the public interest, to be secured by the exercise of powers delegated for that purpose, which would otherwise repose in the State, then, although private interests may be incidentally promoted, the coporation is, in its nature, public. *■ * * * * It argues nothing that compensation is required to be made for property taken, before it can be used, for this is made by the Constitution a condition to the exercise of this right by the Government itself, and the delegation of the power necessarily carries the incident with it] Nor can it be said that the property, when taken, is not used by the public, but by the corporators, for their own profit and advantage. It is unquestionably true that these enterprises may, and probably always are, undertaken with a view to private emolument on the part of the corporators ;• but it is none the less true that the object of the Governmmt in crea,tiny them is public utility, and that private benefit, instead of being the occasion of the grant, is' but the reward springing from the service. * * *■ The grant to the corporation is, in no esaniial particular different from the employment of commissioners or agents. The difference is in deyree rather than in principle, in compensation rather than in poicar."

This case decided that the power of eminent domain could be exercised in favor of railroad corporations, and declared the grounds on which alone it could be done. Those grounds so far as they relate to this discussion, were, that the purpose was public, and public in thi very sent- now claimed,, to be necessary to justify taxation. Without overruling this ease a majority of the Court now maintain that the aid act in question is unco nsti^utional on the precise grounds that the purpose is not public in the sense there deliberately and explicitly declared. And it is upon this exact point that the present case is made to turn, the result being rested upon the ground that the purpose is not public in that sense in which it was declared to be public in the instance mentioned.

I do not hind myself to all the reasonings in the case of Swan vs, Williams, but cite it to show precisely what our predecessors decided in 1852, and the grounds of that decision. For eighteen years this judgement has been accepted as decisive of the grounds upon which the power of eminent domain could be exercised in favor of railroad corporations in this Commonwealth.

Whatever the public does is performed to advance the public interests only. The. conferring of corporate life, the exercise of the power of eminent domain to procure a roadway and other needful things,-and the raising of money by tax to help the roadway into shape, are all acts which the public does exclusively for the public advantage. The private emolument of the corporators is not the object of tbe public, and tbe assumption that it is so, begs the question. The purposes of the corporators, however personal and private, cannot convert the public object into a private one.  