
    *Harrison Justices v. Holland.
    July Term, 1846,
    Lewisburg.
    (Absent Brooke, J.)
    Levy by County to Improve Navigation — Statute-Constitutionality. — An act requiring the County Court to lay a levy upon the titheables of the county for the purpose of*improving the navigation of a stream lying within it, though passed without the assent of the people, is constitutional.
    On the 5th of March 1838, the General Assembly of Virginia passed an act declaring Simpson’s creek, in the county of Harrison, a public highway, for all purposes of navigation; and requiring the owners of milldams across said creek, within two years after the passage of the act, to construct slopes to their dams of - certain dimensions: and providing that “all sums of money which the owners of such dams ■ might necessarily expend in making such slopes should be ascertained by the County Court of Harrison county when it laid its county levy, and should be allowed by the Court to the owner of the dam out of the levy.” The act further provided, that if the County Court failed to perform such duty, the Circuit Court should compel it to do so by mandamus. And it further declared, that if the owners of such dams failed to construct the slopes and keep the same in constant repair, the dams might, be abated. In February 1840, another act was, passed, giving farther time to mill owners to erect slopes in their dams!
    Subsequent to the. passage of the act of March 1838, the counties of Marion, Taylor and Barbour, were created; each of which included a part of the county of Harrison : though Simpson’s creek is still in the county of Harrison.
    On the 17th of May 1841, the County Court of Harrison, made an order that the owners of dams on Simpson’s creek be notified not to proceed further in the preparation *of materials or other work, or in reference to the erection of slopes in or at their respective dams until after the next General Assembly, in order that steps may be taken for the repeal or modification of the Act of Assembly in relation to Simpson’s creek: and notice of this order was directed to be given to all the owners of dams upon the creek. At the .next June term of the Court Stout and Holland ,moved the Court to rescind this order, but ‘the Court refused to entertain the motion.
    At the May term of the County Court for 1842, Stout and Holland moved the Court to appoint commissioners for the purpose of ascertaining whether the mill owners on Simpson’s creek had complied with the acts of the General Assembly' requiring them to reduce the height of their dams, and to construct slopes in them, but the Court overruled the motion. And at the next June Court, Holland presented a claim for his expenses in constructing a slope in his milldam across Simpson’s creek, and moved the Court to levy upon the county for the same. The only evidence of the justice of this claim was a paper signed by three persons, certifying that they had examined the work, and they were of opinion that it was in conformity with the Acts of Assembly; and that the charge was reasonable. The Court declined to consider the claim in the manner in which it was presented.
    The County Court having refused to act upon his claim, Holland applied to the Superior Court of Harrison county for a mandamus to compel the County Court to ascertain the sum of money expended by him in constructing a slope in his dam, and to levy upon the county for the same. Upon his petition a mandamus nisi issued to the justices of Harrison county, and was served upon them, to which they made a return. 1st. That in the opinion of the .County Court it has no power to levy upon the titheables of the county for money to pay for said slopes. 2d. That the said Holland has hitherto ’''produced to the County Court no satisfactory evidence that he has any right to have money levied by the Court for or on account of the slopes mentioned in said writ. 3d. That by the act of 25th of February 1842, power to levy for slopes erected under the act of 1838, is taken from the County Court of Harrison.
    Holland demurred to this return, and the defendants joined in the demurrer; and the cause being heard upon the demurrer, the Superior Court held that the return of the County Court was not sufficient in law to preclude the plaintiff from having and maintaining his demand: and it was ordered that the justices of Harrison should, within a reasonable time, and before the next term of the Superior Court, by an order of the County Court, cause a jury to be empan-elled to ascertain by their verdict what amount Holland was entitled to for erecting the slope in his dam; and that the justices at the ensuing Court at which the county levy is laid for said county, do assess upon the titheables of the said county the amount so found by the verdict of the jury, together with the costs incurred by said Holland in this behalf; or shew cause why they have not done so. From this judgment the justices of Harrison applied to this Court for a supersedeas, which was awarded.
    William A. Harrison, and Grattan, for the appellants.
    We'insist — that the act of 1838,is .unconstitutional as ¡it relates-to .the .owners.of the milldams on Simpson’s creek. That act requires these mill owners to build slopes in their dams within two years, and if this is not done, it directs that the dams shall be abated. Now, admit to its full extent the doctrine of Stokes, &c. v. Upper Appomattox Company, 3 Heigh 318, that the jus publicum extends to all streams, yet Cren-shaw v. The Slate River Company, 6 Rand. 245, decides that this jus publicum maj' be released; qnd that it is released to the owners of mills established according to the statute; *and the Act of Assembly, 2 Rev. Code, ch. 235, g 23, p. 232, which is a legislative contract with all mill owners, only retains the right to the Commonwealth to make locks in the dam. There was, therefore, no obligation upon these owners of dams upon Simpson’s creek to construct slopes in their dams. They could have incurred no penalty by refusing to do so; and no legitimate authority could either enforce obedience to the act, or have abated their dams upon their refusal to comply with it.
    These parties have then built these slopes voluntarily, in compliance with no valid law; and the question is, can they now de-man^,.-remuneration for their work; and demand it, not of the body who illegally directed the work to be done, but of a party having no connection with the matter?
    The principle involved in the cases of Ogden v. Gibbons, 9 Wheat. R. 1, and Farmers & Mechanics Bank v. Smith, 6 Wheat. R. 131, as well as many other cases which might be mentioned, we submit is directly opposed to the allowance of the claim.
    ’ We insist farther, that the provision which requires the County Court of Harrison to levy for the cost of these slopes is unconstitutional and void.
    The origin and extent of the power of the County Courts over the local and police interests of their respective counties, seems to be involved in some obscurity. It is certain that at the time of the adoption of our first constitution, that these Courts exercised very extensive powers of this character.
    An examination of Hen. Statutes, from the commencement of the series down to 1778, has satisfied us, that all their powers were vested in them by special Acts of Assembly. Thus, b}r various statutes, the County Courts were authorized to give rewards for killing wolves, to establish ferries and fix their rates, to license ordinaries, appoint their own clerks, lay off parishes, fix tavern rates, *lay out highways and bridges, set up pillories, stocks, whipping posts and ducking stools, regulate smiths’ accounts, grant administration, bind out poor children, appoint their own collectors, appoint surveyors of highways who should lay out roads, contract for clearing rivers, and build bridges and levy the costs thereof on their county.
    The highways of the county seem to have been put under the charge of the County Courts at an early day. But the power was strictly limited to roads in which the people of the county were particularly interested. The roads which the Courts were authorized to have opened were those to the courthouse, to the mills, to the church, to iron works, and public landings. All these were peculiarly county-roads, terminating so. far as the county was concerned with them, in the county. The only road which the Court was authorized to have attended to which went out of the county, was the road to the seat of government. In the whole of this road the county was interested, but' their work upon it was only in their own county. The Court is referred to 1 Hen. St. 199, 436; 2 Hen. St. 103; 3 Hen. St. 392; 6 Hen. St. 64.
    The County Court were authorized to build bridges in their county; but it will be seen they were bridges over the roads which the Court was authorized to open, or repair; and the only case in which they were required to build a bridge, was where it was needed over a stream dividing two counties. 1 Hen. St. 436 ; 3 Hen. St. 394; 5 Hen. St. 175; 6 Hen. St. 64.
    That the County Courts were thus limited as to roads and bridges, will be seen from the fact that whenever it was desired by a county to construct or repair a road extending beyond the bounds of the county, it was held necessary to procure an express Act of Assembly to authorize it. 6 Hen. St. 293 ; 8 Hen. St. 16, 152, 546, 548, 552, 660.
    *Th‘e power of the County Courts over rivers, was much more restricted. As early as 1769, they were authorized to contract for clearing out rivers; but the obstructions which they were authorized to have removed were only trees and stumps which had fallen into the stream; and af-terwards, they were authorized to have hedges and stops, and loose stones removed, but were not required to remove any obstruction that required the use of gunpowder. 2 Hen. St. 455, 484. 6 Hen. St. 69. And this continues to be the extent of the general power of County Courts over rivers. 2 Rev. Code, ch. 235, l 18, 19, p. 230-31.
    We submit that an examination of the legislation on the subject prior to the adoption of the first constitution, will shew, that the County Courts hada general power over the opening and repair of county roads; but that they had no- power to open or repair a road extending beyond the county, except that to the seat of government. That their power over the improvement of rivers extended to the removal of very slight obstructions, such as trees, stumps, trash, and wiers, nets, and the like. And for the power to open or repair any other roads, or to make any other improvements on rivers, a special act was necessary. That the levying for county roads and bridges was always voluntary, except where the bridge was to cross a stream dividing two counties; and this was compulsory only -where the two County Courts which were interested in the bridge, differed in opinion as to the necessity of it, and the superior Court, which was made the arbiter between them, decided in favour of building. That they were not allowed to improve rivers where any expense was to be incurred. And that when special acts were passed authorizing any work, and the levy of money, for the object, such acts were passed, and such levy provided for,- at the request o.f. the counties which were .to execute the work and bear the burden.
    *Such was the authorit}' vested in the County Courts at the adoption of the Bill of Rights and Constitution of Virginia. After their adoption, it was made a question, whether the County Courts could lay a levy on the people of their county for any purpose. And this question was brought before this Court in the case of the Fairfax Justices, 5 Call 139. The question made in that case, was, whether the justices, not being elected by the people, were not precluded from the power of taxation by the sixth article of the Bill of Rights. The Court, looking to the fact that the justices were inhabitants of the count}', necessarily scattered over it, living among the people, identified in interest with them, and bearing their fair proportion of the burdens they imposed; and looking also to the fact that .the only objects for which they could lay a levy were objects in which the people of the county were interested, and which lay in the county, held that all the security which the people could desire, or the Bill of Rights contemplated, was practically attained, and that the justices might lay a levy. The opinion most clearly shews, that it was the security arising out of the character of the object for which the levy was to be made, and the position and circumstances of the justices, that, in the judgment of the Court, reconciled the power with the Bill of Rights.
    The question of the extent of the power of the justices to tax the people of their .county, came before this Court in the case of Goddin v. Crump, 8 Leigh 120. That case did not arise upon the general power of the justices to levy for county objects, but under a special Act of Assembly, authorizing the subscription which was made to the James River and Kanawha Company; an act which was passed on the petition of a, majority of the people of the City who were to bear the burden. The questions considered in that case were, whether a majority of the people of the City could bind the minority; and whether the Legislature could constitutionally *vest the Court with' power to levy a tax upon the City for an object which, though of interest to the City, was of primary importance to the State. In that case the Court held that a majority could bind the minority; and that the object being one of peculiar interest to the City, though of general interest to the State, it was competent for the Legislature, on the petition of the majority of the people of the City, to authorize the authorities of the City to levy for it.
    We submit with great confidence, that this decision distinctly recognizes the doctrine, that to vest in the local authority the constitutional power to levy upon the people of their county or corporation, there must be both the consent of the people, and a peculiar, though not an exclusive interest in the object. Taking this decision to be sound law to its utmost extent, and it is still a strong, and as we think a controlling authority, against the constitutionality of the act under which this proceeding is had. Here is no assent of the people, but dissent, and opposition to the burden attempted to be put upon them. And we put the question, and will put the issue of the cause upon the answer: Would the Court have determined in Goddin v. Crump, that an act was constitutional which constituted the corporation of Richmond a subscriber to the stock of the James River and Ka-nawha Company, without or against the consent of the corporation and the people of Richmond?
    If this subject be considered on principle, and with reference to the Bill of Rights of Virginia, it will be found that the cases of the Fairfax Justices and Goddin v. Crump, have gone fully as far as was authorized by the Constitution. The foundation principle of English liberty is security of persons and property. The principle upon which our revolution was commenced, prosecuted, and perfected, was security of persons and property..; and it would have been strange, therefore, if in establishing the principles of our institutions, and giving *form to the government, this great cardinal principle had been forgotten, or had failed to be carefully guarded and secured. Accordingly we find that the first article of the Bill of Rights declares the indefeasible right of the citizen to “the enjoyment of life and liberty, with the means of acquiring and possessing property. ” The government to be established is not to be a government devised for the purpose of limiting the acquisition of property, or of artfully drawing it from its possessor; but its object and purpose is to afford encouragement and facility to its acquisition, and security to the possession of it. The third article again declares that the government established, ought to be for the common benefit, protection and security of the people. The fifth article states one of the means by which this security is to be attained. And the sixth declares, that the people ‘ ‘cannot be taxed or deprived of their property for public uses; without their own consent, or that of their representatives,” elected by themselves, “nor bound by any law to which they have not, in like manner, assented, for the public good.”
    In carrying this last axiom into practical operation, it was a problem to be solved, how a system of legislation in relation to matters of local interest, could be adopted, which would be at the same time just to the localities immediately concerned, and the whole people, and also safe for the weaker party. The plan adopted was to give a limited authority to the local divisions existing in the country, over objects which were local in their character, and in which these local divisions had a peculiar interest. The scheme was no novel experiment. Municipalities had existed in every European nation having any semblance of freedom. • They were common in England; and were transplanted thence to Virginia, and were in operation when the government was established.
    *In fixing the limits of the power of these local authorities, the objects to be attained, and the dangers to be avoided, were and could be the only guides. To give the Legislature general power to impose a tax upon a small locality, was to violate the provision of the Bill of Rights, which declared that the people were entitled to have their property not only secured by the principles, but by the forms of their government; and to have equally violated that great principle of the revolution, as well as of the Constitution, that taxation without representation is a monstrous and intolerable despotism. To tax the .whole country for the benefit of a small section of it, was opposed to the principle of justice which was inculcated in the fifteenth section of the Bill of Rights; and if the local wants of the different divisions of the country were to be provided for in that way, there was danger that they would be neglected, or that combinations of these local interests would be formed in the Leigslature which might do still greater injustice. Even to tax the particular locality to provide for its various and often diminutive local wants, if done without the previous expressed assent of the locality, would be often to impose burdens for objects 'which the people did not approve, and if their assent was first to be attained, the difficulty of obtaining that assent on all occasions would have been insuperable. On the other hand, to give to the local authorities the power to tax themselves for objects local and of peculiar interest to themselves, requiring in all but the clearest cases, the concurrent action of the locality and the legislature, was to give them that security which the Bill of Eights contemplated, and was in that spirit of justice to all, which it enjoined. The references which have been herein before given will shew that such was the practical system adopted in Virginia before the revolution. That event made no change in it.
    *Looking, then, to the security which the citizen is entitled under the Constitution to except; considering bis right to be taxed only by those who have a common interest with him, we submit that it is not competent for the Legislature, without the consent of the county, to impose a tax upon it, either directly, or through the action of the County Courts, for any object whether local in its nature, or in which the county has a peculiar interest ; and therefore that the act of March 1838 is unconstitutional and void.
    2. The act, so far as it requires the County Court to levy upon the titheables of Harrison, to pay the costs of the slopes, has been repealed.
    It has been virtually repealed by the subsequent creation of the counties of Marion, Barbour and Taylor, out of parts of the county of Harrison. The law directed that the County Court should levy on the titheables of Harrison county. At that time the county of Harrison had a certain boundary; and all the titheables within those limits were subject to the levy of the County Court of Harrison. Since then, by the action of the Legislature, a large portion of the territory of Harrison, with the titheables upon it, have been taken from the county. The justices of Harrison cannot tax the people of Marion, Barbour and Taylor; and therefore the General Assembly having rendered it impossible to the County Court of Harrison to execute the law, it is virtually repealed. Surely it is no answer to -say that there is still a county of Harrison, the County Court of which may execute the law. The present county of Harrison is not the Harrison county of 1838; and it is not merely the name which can subject it to the liability. Suppose when Marion was formed, the name of Harrison had been given to it, and the name of Marion had been given to the present county of Harrison, would the liability have followed the name? Or suppose on the occasion of one of these divisions, *both the parts had insisted on retaining the name, and to satisfy both, one had been called East Harrison, and the other West Harrison, would either or both have been liable? Or suppose to reconcile their dispute, both parts had agreed to take a new name, and the name of Harrison had been extinguished, would the liability have been extinguished with the name?
    Lee, for the appellee.
    The counsel for the appellants have attempted to maintain two propositions: 1st. That the act of the 19th of March 1838, is unconstitutional. And 2d. That it has been repealed.
    It is not to be denied that this Court may declare an act of the General Assembly unconstitutional. But whilst this is true it must ever be a matter of great, delicacy with this Court to declare that the body in which the Constitution has vested the legislative power, has transcended its powers. And it will not be done except in a case where there is a direct violation of some explicit provision of the Constitution or Bill of Eights. To doubt must be to affirm. Eletcher v. Peck, 6 Cranch 87; Ex parte M’Collum, 1 Cow. E. 550.
    It is then for the counsel for the appellants to point out the clause in the Constitution or Bill of Eights, which has been violated by the act of 1838: and this I submit they have not done. True they-have referred to several clauses of the Bill of Eights; but they do not pretend that this act is a direct violation of either or all of them. In the case of Goddin v. Crump, 8 Leigh 120, the counsel who maintained the unconstitutionality of the law, attempted to bring it within the influence of the first and sixth clauses of the Bill of Eights. But they admit that the immunity secured by these clauses is subject to the exceptions, first, that private property may be taken for public purposes; second, for general taxes; and third, for levies for local purposes.
    *It is not now to be doubted that the General Assembly may delegate the authority to the County Court to tax their county for local purposes. This question has been settled by the cases of the Eair-fax Justices, 5 Call 139; Goddin v. Crump, 8 Leigh 120; and is sustained by the cases of Livingston v. Mayor of New York, 8 Wend. E. 85; and Thomas v. Leland, 24 Id. 65. The only question therefore is, whether Simpson’s creek is such a local object as that the General Assembly could legally and constitutionally delegate the power to improve it to the County Court. As the Court is judicially acquainted with the geography of the country, they know that the whole of that creek which is declared a public highway by the act of 1838, is within the present limits of Harrison county.
    It is truly said by one of the counsel for the appellant in the case of Goddin v. Crump, that immemorial usage is to determine what the County Court may do. And certainly by immemorial usage the County Court has the power of clearing out streams. Nor is this power confined to streams limited to the county, but is extended to such as pass through several counties. 2 Hen. St. 455; 4 Id. Ill; 5 Id. 375 ; 6 Id. 69. This-
    
      last is the act of 1788, and is the prototype of the act of 2 Rev. Code 230, which is now the law of the land.. In 1810, an act which is referred to by Judge Green in his opinion in the case of Crenshaw v. Slate River Company, 6 Rand. 269, declared Middle Island creek a public highway for near seventy miles, and directed mill owners to make slopes in their dams. And in 1811 on the petition of William M’Coy, who had built a dam before the passage of the act of 1810,- an act was passed directing that the county of Ohio should compensate him for the injury he might sustain by making the slope in his dam. In 1838, Greenbrier river was declared a navigable stream, and the County Courts were directed to pay the damages to the owners of dams. Sess. Acts 131. These acts shew the universal practice on this subject.
    *It is very natural to enquire what is the constitutional distinction between the power to make a highway on land, and to make it on water. The objection to the latter is not the clearing out the stream, but the paying for it. And this objection applies equally to the first. But it cannot admit of any question that the County Court might have had a road made along the bank of the creek, and laid a levy to pay for it. If this be so, why may they not fix the highway on the water?
    The act on the subject of roads, 2 Rev. Code 233, authorizes the County Courts to lay levies for various purposes connected with roads, landings and bridges within their counties; and to improve roads extending through several counties. And the question in these cases is not whether the county has an exclusive interest in the road to be made; other counties may also be interested in it, but has the county an interest in the road. ' Such is the principle involved in the acts of 1836, to construct a road from Scottsville to the head waters of Rockfish river; of the act of 1838, to construct a road to Cumberland Gap; of the act to authorize the town of Winchester to subscribe to the Valley Turnpike Company; and many other cases of the same kind which might be referred to.
    Is it to be held that all these acts are in conflict with the Bill of Rights and Constitution of Virginia? I will refer again to the case of the Fairfax Justices, S Call 139; to Goddin v. Crump, 8 Heigh 120; Thomas v. Belaud, 24 Wend. R. 63. The principles of these cases fully sustain the legislation to which I have referred. And the case of Goddin v. Crump, is much stronger than the case under consideration, because the work to which the subscription was made was a great national work, yet it was held the City of Richmond might subscribe to it; whilst Simpson’s creek is local to the county of Harrison, and none other than citizens of Harrison are interested in its navigation. The theory on which *this legislation is based is that the county is benefited by the local improvement; and if this is the object of the law, the propriety or constitutionality of | the law cannot be affected by the fact that the benefits anticipated from it do not result. Mayor &c. of Baltimore v. Hughs, 1 Gill & John. 480.
    It is said that the majority of the people of Richmond were in favour of the subscription to the James River and Kanawha Company. This does not appear in the case; but if it did, the constitutionality of a law cannot depend upon the consent of a majority. The object of written constitutions is to protect minorities, and this security is entirely lost if the assent of majorities can alter them.
    It is argued that the act of 1838 is repealed, first, by the establishment of the counties of Marion, Barbour and Taylor, and second, by the act of the 25th of February 1842.
    It is true that these counties were taken in part, off the county of Harrison; but all of Simpson’s creek which is to be improved is still in this last county. The people who are to pay for that improvement are the persons to be benefited by it. And if the levy had been made in June 1842, when the application was made to the Court, the injustice now complained of would have existed to a very small extent. It was the refusal of the Court at that time to do justice to the appellee that has delayed the levy until Barbour and Taylor have been established; and the justices of Harrison cannot set up their own wrong to protect them from doing right.
    The act of February 1842 does not repeal the act of 1838, so far as it directs the County Court of Harrison to make compensation to the mill owners for the erection of slopes in their dams. It only prohibits compensation for such dams as are abated under the act of 1838.
    
      
      Powerof Legislature to Delegate Authority to Tax.— It is well settled that the legislature may delegate its power of taxation to local authorities for local purposes. In support of this proposition the principal case is cited and approved in Bull v. Read, 13 Gratt. 99; Gilkeson v. Frederick Justices, 18 Gratt. 584; Langhprne v. Robinson, 20 Gratt. 665. See, in accord, Case of the County Levy, 5 Call 139; Goddin v. Crump, 8 Leigh 120.
      Railroad Companies — Right to Take the Property of One for the Use of Another. — Property belonging to a railroad company not in actual use necessary to - the proper exercise of its franchises may be taken for the purposes of another railroad under the general railroad law of the state. An express legislative enactment is generally required, in order to take such property by a railroad company, except where the proposed appropriation would not destroy, or greatly injure, the franchises of the company, or render it difficult to prosecute the object thereof. B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 853, citing Tuckahoe Canal Co. v. T. R. Co., II Leigh 79; Harrison Justices v. Holland, 8 Gratt, 258. See also, citing the principal case, Talcott.v. Pine Grove, 23 Fed. Cas. 659.
      Counties — Destruction of Identity. — In Dinwiddie Co. v. Stuart, 28 Gratt. 549, it is said: “This court has more "than once decided that not even an excision of a part of its territory and incorporation of a part of its inhabitants with another county or municipality destroys the identity of a* county. Harrison Justices v. Holland, 3 Gratt. 247; Wade v. City of Richmond, 18 Gratt. 583.”
    
   By the Court.

Affirm the judgment.  