UNITED STATES OF AMERICA.
THE
CIRCUIT COURT
OF THE UNITED STATES
FOR THE
WESTERN DISTRICT of MIICHIGAN.
EDWARD B. TALCOTT
vS.
THE TOWNSHIP OF PINE GROVE.
OPINIONS OF JUDGES
EMMONS, WITHEY AND LONGYEAR,
ON THE
CONSTITUTIONALITY OF MUNICIPAL BONDS
IN AlD OF RAILROADS.
PUBLISHED BY ALVAN WILKINS,
EDITOR OF THE BANK CIRCULAR.
DETROIT, MICH.:
PRINTED BY WM. H. THOMPSON & CO., 208 JEFFERSON AVENUE.
1872.








In 1869 the Legislature of Michigan passed an act to enable any
township, city or village to pledge its aid, by loan or donation, to any
railroad company, as specified in said act. Laws of 1869. page 89.
Under this act certain bonds were issued in aid of the Kalamazoo and
South Haven Railroad Company by the Township of Pine Grove, in the
County of Van Buren, in the Western District of Michigan.
An action was brought in the Circuit Court for the Western District
by the plaintiff, a citizen of another State, against this Township, to recover the amount due on certain of these bonds, and on coupons for
interest.
Other suits of a like character had been brought in the Eastern District, one against the City of Port Huron, and another against the City of
Battle Creek.
Demurrers were interposed in each case, and, by agreement, all the
cases were submitted at the same time before Judge Emmons, of the Sixth
Circuit; Judge Withey, of the Western District, and Judge Longyear, of
the Eastern District of Michigan.
In the case against the Township of Pine Grove, D. Darwin Hulhes,
Messrs. Walker and Kent, and Theodore Romeyn appeared as counsel for
the Plaintiff. Messrs. Walker & Kent and Ashley Pond were of counsel
in the Battle Creek case; and T. Romleyn presented the case against Port
Huron. Messrs. Littlejohn, Severens, Lothrop, Douglas, Beakes, Emerson and Canfield appeared as counsel for the several defendants.
Printed briefs on the part of the plaintiffs were prepared and submitted by Mr. Hughes, and by Messrs. Walker &  Kent anld by Mr.
Romeyn.




CIRCUIT COURT OF THE UNITED STATES
FOR THE WESTERRN DISTRICT OF MICHIGAN.
EDWARD B. TALCOTT,
78s.
THE TOWNSHIP OF PINE GROVE.
OPINIONS
OF
Judges EMMONS WITHEY, AND LONGYEAR,
DELIVE:RED AT DETROIT,
JANUARY 16, A. D. 1872.
Where the decision of the highest Court of a State holding an act of the Legislature
unconstitutional is not based upon any provision of the State Constitution, but upon
certain general principles applicable alike, if correct, to all the State governments, and
that of the United States, the United States Courts are not bound to follow such
decision.
Where such decision of the State Court is based upon special provisions of the
State Constitution, it will be followed by the United States Courts as to all matters
arising SUBSEQUENT to the State decision.
But where contracts have been made in good faith, based upon State laws, which
have long been treated as valid by successive public officers of the State, and by the people
of the State generally, and where the prior judicial decisions of the State upon cases analogous in principle, though not upon the precise point, favor such validity, the United States
Courts, in suits upon such contracts, will not, contrary to their own judgment, follow State
decisions holding such laws unconstitutional and such contracts invalid.
Laws authorizing municipal aid to railroads are not in conflict with the Constitution of
Michigan. The decisions of the Supreme Court of the State holding the opposite view were
so contrary to precedent and so unexpected as to operate as a surprise upon the community.
The long-continued and frequent legislative action in the passage of such laws, and of
other laws involving the same principles, with the action of the State and municipal officers
in favor of their validity, and the repeated decisions of the Supreme Court of the State announcing principles which support such laws, together constituted such evidence that these
laws would be held constitutional, that business men were justified in making contracts in
reliance upon their validity; and the United States Courts will enforce all such contracts brought before them whenever made before the State decisions. In construing contracts made subsequent to the State decisions, they will follow those decisions, irrespective
of their own views.




The Supreme Court of the United States has repeatedly held that, in the absence of
some provision in the State Constitution prohibiting it, the Legislature has power to
authorize municipalities to issue bonds in aid of railroads designed to benefit the public interests of the community.
The decision of the Supreme Court of Michigan against the validity of these bonds is
opposed to an overwhelming weight of decisions in other States with Constitutions similar
to that of Michigan.
Before the Constitution of Michigan was adopted, in 1850, the validity of bonds of this
character had been settled in States with similar Constitutions. In adopting its own Constitution, Michigan must be presumed to have adopted the practical and judicial construetion of other like Constitutions.
A railroad corporation, in view of its origin, objects, uses, and the control of government over it, is a public corporation, though its shares may be owned by private individuals.
It is a governmental agency for public purposes.
The Legislature, and not the judiciary, is to determine what is a public use for purposes of taxation.
The taxation authorized in this case is not in violation of the provision of the Constitution against depriving a person of property without DUE PROCESS of LAW. This clause
has no reference to the ou.JECTS and PURPOSFS of a statute, but to the MODE in which rights
are ascertained.
The provision in the Constitution that the State shall not be a party to, or interested in
any work of internal improvement is, on principle, and by repeated and numerous and
uniform  decisions, and by the Legislative action of Michigan, confined to the State as
such, and in its corporate character. It in no way touches the right of the Legislature to
authorize municipalities to make or aid such work.
Neither is it against the prov ision requiring a uniform  rule of taxation. That is uniform taxation which is uniform throughout the taxing district. To fix the extent of such
district is a legislative, and not a judicial function.








EMMONS, CIRCUIT JUDGE.
This is an action upon bonds issued by the Township of Pine
Grove, under an act authorizing municipalities to aid corporations in the construction of railroads. They were issued in full
compliance with the statute. The railroad is in successful operation, and the people of Pine Grove have reaped the benefits for
which they pledged their credit.  Full consideration for the
bonds has been paid by Talcott in reliance upon what he deemed
well settled rules of law affirming their validity.
Natural justice requires that these bonds should be paid. If,
however, there is a rule of law obligatory upon us which forbids
judgment in favor of the plaintiff we must follow it, however
repugnant it may be to our feelings, or however novel and technical may be the rule.
The case presents but two questions:
1. Is the law which authorized the issuing of the bonds prohibited by the Constitution of Michigan?
2. If, in our judgment, it is not, are we bound, contrary to our
convictions, to follow the decision of the Supreme Court of Michigan holding that it is?
Both these questions, we think, are determined by the decisions
of the Supreme Court of the United States, which are mandatory
upon us.
We shall first consider the question last stated:
As a general rule. to which there are rare exceptions. the United
States Courts will, in the construction of State statutes or constitutions, follow the decisions of the highest court of the State. Leffingwell vs. Warren, 2 Black, 599, and numerous other judgments
so decide. All concede this, and cases need not be further cited.
But the decision of the Supreme Court of Michigan in the
People vs. Salem, 20 Mich., 452, which the counsel for the defendant claim  must control ours, is not based upon any principle




4
peculiar to the State Constitution. It is placed on reasons equally
affecting those of every State in the Union, and especially that of
the National Government.
It is said that taxation in support of a railroad owned and controlled by citizens is not within the TAXING POWER of our American governments. This is a broad generality, asserting a principle
of jurisprudence and political power having no reference to any
particular clauses of the local organic law. It would invalidate the
great number of land donations to railroad companies by Congress,
the laws giving bounties to fishermen, subsidies to steamboat lines,
the public money to academies and other schools controlled by
individuals, and all that extensive and familiar legislation, the
" PURPOSE" of which is, by donations and subsidies, to aid the
business of individuals, in which the public have an especial interest, but in the " management of which they have no voice."  A
thousand State laws, hitherto unquestioned, reaching back to the
earliest periods of American history, would fall under this rule.
When such general principles are asserted by the State courts,
as a ground for invalidating contracts, they are adopted or disregarded by the Federal courts, as they deem them sound or otherwise, and as justice in the class of cases before them demands. A
few of the leading cases so ruling will be referred to.
In the City of Chicago vs. Robbins, 2 Black, 418, the Supreme
Court refused to follow the decision of the highest court of Illinois
in reference to a question of negligence by a municipal corporation,
because it depended upon the common law, applicable alike in
Illinois and elsewhere.
In Williamson vs. Berry. 8 How., 495, it disregarded the judgments of the courts of New York upon the construction of a private
statute affecting the title to lands, on the ground that such statute
was not a part of the general law of the State. See, also, Lane vs.
Vick, 3 How., 464.
In Swift vs. Tyson, 16 Pet. 1, the decisions of New York, in
reference to negotiable paper, were not followed because it was a
question of general commercial law not peculiar to New York.




See, also, Carpenter vs. Insurance Company, 16 Pet., 495. Miller
vs. Austin, 13 How., 218. Foxcroft vs. Mallet, 4 How., 353.
The Supreme Court of Michigan, some years since, by repeated
judgments, decided that certain forms of notices were insufficient
to fix the liability of indorsers. Platt vs. Drake, 1 Douglas, 296.
Newberry vs. Trowbridge, 4 Mich., 391. Under these decisions
hundreds of thousands of dollars were lost. The Federal courts
refused to follow them. Subsequently the Supreme Court of the
State overruled its former judgments, and adopted the rule of the
National courts. Barkham vs. Trowbridge, 9 Mich., 209.
But this distinction need not be pursued, as the general rule is
not doubted; the question now being whether this judgment of the
Michigan court comes within it. We have said that it does, but it
is equally unnecessary to discuss this at length because the undoubted doctrines of the National Court make it wholly immaterial
whether the judgment in The People vs. Salem or the reasons of
the later case of the People on relation of Bay City against the State
Treasurer are before us. This later judgment has been rendered
since the institution of this action. In addition to the reasons relied
upon in the former decision, it is now said that the law is prohibited by three clauses in the State Constitution, viz.: that which
prohibits the taking of property without due process of law; that
which requires uniformity of taxation, and that which forbids the
STATE to engage in works of internal improvement.
To the almost universal rule before announced, that the courts of
the Union will implicitly adopt those of the States in reference to
local constitutions and laws, there is a single exception in practice,
so rarely occurring that, although firmly established, it is frequently
overlooked. A brief review will demonstrate that as to PAST transactions and contracts, when they will be destroyed by a new local
rule, we have no right to adopt the State judgment if, after careful
study, we have no doubt it is wrong.
In the discussion beibre us, the learned counsel for the defendant
declined all argument of the rectitude of the State decision, and
reposed solely upon the doctrine that its reasons were not subject to




6
review here, and, although it destroyed investments, and, in violation
of the National Constitution, impaired the obligation of contracts, it
was in a plenary and judicial sense obligatory upon this court.
When such consequences occur the rule relied on is never applied.
They constitute the exception, within which we think the case of
Talcott comes. It is one the justice of which will commend itself
to every citizen, and beget nothing but satisfaction so long as it is
rigidly confined to the pressing and necessary inducements to its
establishment.
The cases are numerous, and differ chiefly in the FACTS on which
the court relied in determining that the contracts before them were
based upon rules of law deemed settled when they were made. In
some instances there had been no State judicial decisions establishing the principles on which contracts were founded, but the Supreme Court refused to follow subsequent local rulings, denying
their validity, solely because they were unwarranted and at war
with those general principles upon which all citizens must necessarily rely.
5 Howard, 134, Rowan vs. Runnels, 1847. This case, decided
nearly a quarter of a century ago, is very instructive as to the
degree of local acquiescence and State intrepretation which is
deemed necessary for the protection of a contract made in reliance
upon it. The Constitution of Mississippi, adopted in 1833, provided
that the importation of slaves SHOULD BE PROHIBITED. In 1837
the Legislature, in compliance with the Constitution, passed an act
prohibiting such importation. During the four years prior to the
passage of the law, the traffic proceeded without question but NO
JUDICIAL DETERMINATION was pronounced, either in favor of or
against its validity, until AFTER the contracts before the court had
been made. The suit was upon two promissory notes, the sole
consideration for which was slaves imported into Mississippi and
sold by plaintiff to defendant before the passage of the statute.
In Groves vs. Slaughter, 15 Pet., 449, the Supreme Court had
affirmed the validity of such contracts, although there had been at
that time some judicial determination the other way, by divided
courts in Mississippi. Before this suit was brought, however, the




7
courts of Mississippi had directly and repeatedly ruled that the
CONSTITUTION itself prohibited the importation of slaves without a
statute to enforce it, and that such contracts were void. The question was whether, under these circumstances, the decisions of the
State court were obligatory upon those of the Nation. Not only
had there been no decisions in Mississippi prior to the making of'the contracts on which they had been based, but there were none
of courts involving the same principle in other States. It was the
construction of a purely local clause of the State Constitution.
There had been but one act of the Legislature which impliedly
sanctioned the construction given by the Federal Court. There
had been but four years of practical construction. But as many
contracts had been made and much property transferred in reliance
upon it, the court after a most full argument, refused to follow the
State adjudications which destroyed them. Chief Justice Taney, in
delivering the opinion of the court, says:  "Undoubtedly this
court will always feel itself bound to respect the decisions of the
State courts, and, from THE TIME THEY ARE MADE, will regard
them as conclusive in all cases upon the construction of their own
Constitutions and laws. But we ought not to give them a RETROACTIVE EFFECT, and allow them to render invalid contracts entered
into with citicens of other States which, in the judgment of this
court, were lawfully made."
This decision did not depend upon the fact that the same point
had been before decided by the United States Court. Over and
over again it has receded from its construction of local laws and
Constitutions, when subsequently the State tribunals have ruled
otherwise. Green vs. Lessee of Neal, 6 Peters, 291; Suydam  vs.
Williamson, 24 How., 427; Leffiingwell vs. Warren, 2 Black, 599.
Nor did it proceed on the ground that the contract was in reliance upon Grove vs. Slaughter, for it had been made long before
that decision was rendered.
Rowan vs. Runnels has been repeatedly quoted in subsequent
cases. It is among the most deliberate and frequently approved
judgments of the court. In its circumstances it calls for a far more
liberal application ot the exception to the general iule which




8
requires us to follow the decisions of the State courts than does the
case before us. We could not decide this point adversely to the
plaintiff without assuming to disregard this judgment of the Supreme Court.
18 Howard, 595, Pease vs. Peck, arose upon the construction of
a Michigan statute of limitations. By an error of the printer, the
statute as published had an exception as to persons " beyond seas,"
and this had been supposed to be correct for many years, but it
does not appear that any judicial decisions had been made, based
upon this reading. The Michigan Supreme Court decided that the
manuscript copy, which did not contain the words "beyond seas,"
must govern. The Supreme Court of the United States refused to
follow this construction on the ground that the other view had been
so long supposed to be valid that it had become the basis of contracts,
In 16 How., 69, State Bank vs. Knoop, the Ohio Supreme
Court decided that a statute regulating the taxation of the plaintiff
bank was NOT a contract, and that if such had been the INTENTION
of the law it was in violation of the Constitution of the State.
This judgment, on writ of error, was reversed by the National Court.
It decided that the law did create a contract, and that it was not
prohibited by the local Constitution. Just what is now asked in
the case before us was there done. That the point arose upon writ
of error, and that the contract was created more immediately by a
statute, are immaterial conditions, will fully appear by subsequent
citations. The opinion of Taney, Chief Justice, was delivered in
the case of the Trust Company vs. Debolt, 16 How., 432, at the
same time before the court. It is affirmed, after the most searching
argument in 18 How., 332, Dodge vs. Woolsey; 16 How., 380,State
Bank vs. Knoop 1 Blk. 436, Jefferson Bank vs. Skelly.
1 Wall, 175, Gelpcke vs. Dubuque, was an action on bonds
issued by the city in aid of a railroad company. There had been
prior decisions of the Supreme Court of Iowa holding similar bonds
valid. Subsequently to the making of those in suit, that court
reversed its former rulings and adopting the same conclusions as
those arrived at by the Supreme Court of Michigan in the Salem
A




case, declared the law unconstitutional. Justice Swayne says:
" The same principle applies when there is a change of judicial
decision as to the constitutional power of the Legislature to enact
tbe law. To the rule thus enlarged we adhere. It is the law of
this court. To hold otherwise would be as unjust as to hold that
rights acquired under a statute may be lost by its repeal." And
see following this principle: 4 Wall., 535, Von Hoffman vs. Quincy;
Meyer vs. The City of Muscatine, 1 Wallace, 384; Thomson vs.
Lee County, 3 Wallace, 327; Rogers vs. Burlington, 3 Wallace,
654; Mitchell vs. Burlington, 4 Wallace, 270. In 3 Wall., 294,
Havemeyer vs. Iowa City, the doctrines in Gelpcke vs. Dubuque,
are applied in circumstances going very far beyond the necessities
of the case at bar. The question was whether the law  under
which the bonds were issued had been so published as to make it
effective before the action under it was taken. The State court had
expressly decided, subsequent to the creation of the bonds, that it
had not. A single prior decision had been made which implied
the contrary. But as the Attorney-General of the State had published the law, and action had taken place under it, the Supreme
Court says at p. 303, that the former State judgment was a RECOGNITION of the public character of the act, and the action of the
Executive had been in harmony with it. That prior to the changed
opinion of the court no intimation had been given that they were
otherwise than local, and that it " being posterior to the time the
bonds were issued it can have NO EFFECT UPON THEM."  "We can
look only to the time when the securities were issued." The rule,
it is said, was established upon the most careful consideration, and
would be adhered to.
8 Wall., 575, Butts vs. Muscatine. This case is in principle like
that of Von Hoffman in 4 Wall., 535, where the power of taxation
to pay the bonds was attempted to be taken away by a legislative
repeal of the law which authorized it. In this the same effect was
produced by judicial decisions. When the bonds were issued the
State law, in the opinion of the Federal court, authorized taxation
for their payment, although no State decisions so holding had been
made. BY ADJUDICATIONS of the Iowa courts SUBSEQUENT to their




issue, it was determined that such power did not exist, and the
supervisors therefore refused to assess the tax. Mandamus was
applied for in the Circuit Court of the United States to compel
it. Judge Swayne, in delivering the judgment of the court, after
referring with approbation to the Von Hoffman case, and to the
cases which hold that the REMEDY is part of the contract, says that
HERE, although is is taken away, not by REPEAL, but by JUDICIAL.
DECISIONS, the effect is the same; that in the construction and
protection of contracts the court MUST act independently of the
State courts, and the fact that a STATUTE was concerned could not
vary the result. The rights of the relator, he said, " could no more
be taken away by subsequent judicial decisions than by subsequent
legislation. It is as much our duty to protect the contract from the
one as the other." If the construction ultimately given by the
State court had PRECEDED the issuing of the bonds this would have
been followed.
The two preceding and the following judgments are demonstrative of the adoption by the National courts of a principle broad and
comprehensive; wholly unfettered by  any  narrow  limitations
which will arrest its application this side of the most complete protection of what was done in good faith in  reliance
upon existing law.  No matter what the form of the action, or
howsoever, the court is called upon to coerce directly the action
of local political officials, it will proceed as freely and minutely as
though its action was invoked to correct the refusals of National
officers. Judgment was obtained in the National Circuit Court in
disregard of local judgments. The Supervisors, in obedience to
the State judgments, refused to levy the tax to pay it, and there
was no county property subject to levy to satisfy it. The court
issued mandamus to compel their action, and the State Courts
enjoined it. The officers, obeying the State instead of the National
court's process, refused still to make the assessment. In these
circumstances Amy vs. The Supervisors in 11 Wall., 136, held the
officers INDIVIDUALLY liable for a breach of official duty, in refusing to obey the writs of the National Court, and judgment was
given against them for the amount of the tax it was their duty to




have assessed. The whole proceeding, from the rendition of the
original judgment to that against the contumacious Supervisors,
was in direct conflict with repeated rulings in the State Court upon
every point required to sustain the judgment. See Chicago vs.
Sheldon, 9 Wall., 50; 6 Wall., 166, Riggs vs. Johnson County; 9
Wall., 477, Kenosha vs. Lawson.
Although fully elsewhere considered and not germain to the
present argument it is satisfactory to add that the differing local
judgments are all overruled by the local courts which made them.
It is then not a RIGHT only, but an imperative DUTY, about the
performance of which this court has no possible discretion to administer the law as, after the most full examination in our power,
we believe it to be. This should be made in view of all that effect
which we must ever give to a State decision that we know was
rendered only after the most thorough argument and full and
careful consideration; one which has been made in ignorance of
no single condition of the question answered, but in a deliberate
and conscientious disregard of the most learned, numerous and
persuasive body of opinions ever before given upon any one subject
in the whole history of our constitutional law. It did not involve
a misconception of these opinions, but it was intentionally revolutionary in doctrine. It asserts independence of precedents, and
expressly condemns the old conservative idea of " STARE DECISIS
if the " FIRST JUDGMENT IN THE SERIES " is believed to be wrong.
It of all other judgments presents just that exercise of judicial
authority which has called forth the condemnatory and dissenting
opinions cited by us, and which demand and sustain the ruling
which we feel compelled to make.
The other question is just as conclusively settled by the Superior
Court, whose judgments we must follow, as the one we have thus
far considered. That the law is constitutional, and the contracts
valid and obligatory upon the municipalities making them, and
that it is our duty to enforce them, has been affirmed in nearly
every judgment thus far cited.  We have nothing to decide upon
principle. The law is settled by adjudication, confirming wide and




12
long-continued usage. Certainly, in the Courts of the United
States, the question is no longer open.
In Gelpcke vs. Dubuque, 1 Wall., 205, Judge Swayne, delivering
the opinion of the court referring to the decisions holding such
statutes to be constitutional, says: " The earlier decisions, we
think, are sustained by reason and authority. They are in harmony with the adjudications of sixteen States of this Union.
Many of the cases in the other States are marked by the profoundest legal ability. The late case in Iowa, and two other cases in
another State, also overruling earlier adjudications, stand out, so
far as we are advised, in unenviable solitude and notoriety."
" Where there is no defect of constitutional power such legislation,
in case likes this, is valid. This question, with reference to a statute
containing similar provisions, came under the consideration of the
Supreme Court of Iowa in McMillen vs. Boylks, and again in McMillen ET AL. VS. The County Judge and Treasurer of Lee County.
The validity of the act was sustained. Without these rulings we
should entertain no doubt upon the subject." In Rogers vs. Burlington, 3 Wallace, 663, Judge Clifford, in delivering the opinion
of the court, says:  "Railways, also, as a matter of usage founded
on experience, are so far considered by the court as in the nature
of improved highways, and as indispensable to the public interest
and the successful pursuit even of local business, that a State
Legislature may authorize the towns and counties of a State
through which a railway passes to borrow  money, issue their
bonds, subscribe for the stock of the company, or purchase the
same with a view of aiding those engaged in constructing or completing such a public improvement."  " Decisions to that effect
have very much increased in number within the last few years,
and are constantly increasing, both in the State and Federal
courts, until it may be said that the rule here LAID DOWN PERVADES THE JURISPRUDENCE OF THE UNITED STATES."  See also
M6yer vs. Muscatine, 1 Wal., 384; Thompson vs. Lee Co., 3 Wal.,
327; Havemeyer vs. Iowa Co., 3 Wal., 294; Kenosha vs. Lamson,
9 Wal., 477; 1 Wall., 83, Mercer Co. vs. Hacket; 11 Wall., 136,
Amy vs. Supervisors. These decisions were nearly all made under




13
Constitutions containing every clause which is relied on in that of
Michigan to invalidate the law of Michigan. Nor is there anything in the history of the State which should give these clauses a
peculiar meaning. These decisions are then, virtually, a construction of the Constitution of Michigan which is mandatory upon us.
Much was eloquently said by counsel, in the discussion of this
case, about the evils which would follow a decision in opposition
to that of the State tribunals. We do not anticipate any such
results. The able and experienced lawyers, who constitute the
Supreme Court of Michigan, acted with full knowledge of the
doctrines so firmly established by the National Court. They knew
with certainty that, in the limited class of cases in which bonds
issued before their decision could come before this court, we must
hold them valid. Nor can we believe that they will regret this.
However imperative seemed to them the duty of holding the acts
unconstitutional, and for the future preventing all action under
them, they will be gratified that bonds for which full consideration
has been paid can be made good to the purchaser. Nor do we
believe that the people of the municipalities whom our decision
renders liable will regret it. Rather, we hope, that they will
rejoice that a way has been opened whereby debts contracted with
their assent, and for which they have received full consideration,
may be paid and they relieved from the appearance of repudiation.
And here ordinarily this opinion would terminate; but the
history of the discussion and the circumstances in which the question arises not merely justify, but demand some consideration of
the reasons on which our dissen t rests, irrespective of the decisions
of that court, which we are compelled to follow. It is evident
that, in treating subjects involving the nature of our governments,
the general legislative power of the States and the meaning of
clauses, some of which are as old as Magna Charta, where so
much depends upon the history of their administration, a glance
only can be given to each. Much narrower limits suffice for the
denial of old and familiar truths than for their demonstration. A
portion only of our objections to these judgments can be considered
at all. The high character of the judges who pronounced them,




14
the far more than ordinary public confidence in their conscientiousness and great ability, relieve us from all fear that a plain
statement of the reasons of our dissent will be construed into disrespect. In discussion, opinions are likely to be stated with confidence, but this does not imply that equal intelligence and desire
to be right, might not decide differently.
Having concluded, after much doubt, to add in part our reasons
upon principle, we regret greatly that beyond the consideration of
the points already treated so little discussion was had at the bar.
The defense assumed that it was our duty to follow  the State
ruling, irrespective of its reasons; and the plaintiffs' counsel
deemed it too evidently erroneous to demand more than a reference
to the numerous decisions it opposes. Our own judgment, rendered
in circumstances not permitting that examination which we should
have been pleased to make, must necessarily be somewhat imperfect.
The first and most obvious objection to these judgments is that
they disregard so great a number of antecedent decisions, of the
courts of other States and the United States, directly upon the
point, as to render them  an extraordinary and unwarrantable
departure from well-settled judicial action. The rule which is
denied had, in fact, become a part of " American jurisprudence."
In order to see this clearly, we cite a series of cases decided in
twenty-six States, and all sustaining the doctrines overlooked or
overruled by the Supreme Court of Michigan:
ALABAMA.
(1854) Stein v. Mayor of Mobile,   -   -   - 24 Ala. 591.
(1857) Mayor of Wetumpka v. Winter,        -   29 Ala. 651.
(Plank Road Case.)
(1860) Gibbons v. Mobile, etc., R. R. Co.   -   36 Ala. 410.
CALIFORNIA.
(1859) Pattison v. Supervisors of Ulba Co.   -   13 Cal. 175.
(1860) Hobart v. Supervisors of Beetle Co. -   - 17 Cal. 23.
(1863) Robinson v. Bidwell,   -          -   -   -    22 Cal. 379.
(1864) French v. Teschmaker,   -   -   -   -  24 Cal. 518.
People v. Coon,    -   -   -25 Cal. 635.
(1865) People v. Supervisors of San Francisco,  -27 Cal. 655.
Stockton and V. R. R. v. Stockton,




15
CONNECTICUT.
(1843) Bridgeport v. Housatonic R. R. Co., -    - 15 Conn. 475.
(1860)  Society for Savings v. New London,   -    29 Conn. 174.
DELAWARE.
(1847)  Rice v. Foster,  -    -    -    -    - 4 Harrington, 479.
FLORIDA.
(1852)  Cotton v. County Commissioners of Leon, -  6 Fla. 610.
GEORGIA.
(1857)  Winn v. Macon,-    -             -    -    -    21 Ga. 275.
(1857)  Powers v. Inferior Court of Dougherty Co., - 23 Ga. 65.
ILLINOIS.
(1851)  Ryder v. Alton, etc., R. R. Co.,    -    -    - 13 Ill. 516.
(1858)  Prettyman v. Supervisors of Tazewell Co., -    19 Ill. 406.
(1859)  Robertson v. City of Rockford et al.,    -    - 21 Ill. 451.
(1860)  Johnson v. Starke Co.,    -    -    -    -    24 Ill. 75.
(1860)  Perkins v. Lewis,  -    -    -    -    -    - 24 Ill. 208.
(1861)  Butler v. Dunham,   -    -    -    -    -    27 Ill. 474.
(1862)  Clarke v. Supervisors, etc.,   -    -    -    - 27 Ill. 305.
(1862)  Piatt v. People,  -    -    -    -   -    -    29 Ill. 54.
King v. Wilson, 3 Chicago Legal News.
(1872)  Chicago, etc., R. W. Co., v. Smith.-Decision just rendered
in Supreme Court for Northern Division of Illinois. Not
yet reported.
INDIANA.
(1857) City of Aurora v. West,    -    -    -    -   9 Ind.  74.
(1860)  Evansville, etc., R. R. Co. v. Evansville, -    15 Ind. 395.
(1862)  The Commissioners, etc., v. Bright,   -    - 18 Ind.  93.
(1864)  City of Aurora v. West,   -     -    -    -    22 Ind.  88.
L. M. and B. R. R. v. Geiger, -    -    -    - 34 Ind. 
IOWA.
(1853)  Dubuque and Pacific R. R. Co. v. Dubuque, 4 G. Green. 1.
(1854)  State v. Bissell,  -    -    -    -    -    4 G. Green, 328.
(1857)  Clapp v. Cedar Co., -    -    -    - 5 Clarke (Iowa) 15.
(1858)  Ring v. Johnson Co., -    -    -    -    -   6 Iowa 265.
McMillan v. Boyles, -   6 Iowa 304.
"    McMillan v. Lee Co.,  -   6 Iowa 391.
(1859)  Whittaker v. Johnson Co.,    -    -    -    10 Iowa 161.
Stewart a. Supervisors of Polk Co.-Late case reported in
pamphlet.
KANSAS.
(1871)  County Commissioners v. Miller.




16
KENTUCKY.
(1849) Talbott v. Dent, -                      9 B. Monroe 526.
(1850) Justices, etc., v. Turnpike Co.,   -   11 B. Monroe 143.
(1852) Slack et al. v. Maysville, etc., R. R. Co., 13 B. Monroe   1.
(1859) Maddox v. Graham, -   -   -   -               2 Mete. 56.
LOUISIANA.
(1853) New Orleans, etc., Co., v. McDonough, -  8 La. An. 341.
(1856) Parker v. Scogin,   -   -   -   - 11 La. An. 629.
"    Vicksburg, etc., R. R. Co. v. Onachita, - 11 La. An. 649.
(1854) New Orleans v. Graihle,   -   -   -    9 La. An. 561.
MAINE.
(1860) Augusta Bank v. Augusta, -   -   -   - 49 Me. 507.
MISSISSIPPI.
Strickland v. Mississippi, etc., R. R. Co.-Cited as of 21 (or
27) Miss., 209, and as in 1849.
MISSOURI.
(1856)  City of St. Louis v. Alexandria, -   -       23 Mo. 483.
(1867) St. Joseph R. R. v. Buchanan Co. Ct., -   - 39 Mo. 485.
NEW YORK.
(1857) Grant v. Carter, -   -          -         - 24 Barb. 232.
Benson v. Mayor of Albany, -   -   -   24 Barb. 248.
"    Clark v. City of Rochester, -   -   -     24 Barb. 446.
(1858) Bank of Rome v. Village of Rome, -   -   18 N. Y. 38.
(1859) Gould v. Town of Venice, -   -   -   - 29 Barb. 442.
(1861) Starin v. Genoa,             -              23 N. Y. 439.
(1864) Clark v. City of Rochester,   -   -   - 28 N. Y. 605.
(1865) People v. Mitchell,-   -   -45 Barb. 208.
(1866)  People v. Mitchell,  -    -       -        35 N. Y. 551.
NORTH CAROLINA.
(1855) Taylor v. Newberne,   -   -   -   - 2 Jones Eq. 141.
-A  navigation case.
(1858) Caldwell v. The Justices, etc., -   -   4 Jones Eq. 323.
OHIO.
(1852) Cincinnati, etc., R. R. Co., v. Commissioners of Christian Co.,   -   -         - 1 Ohio St. 77.
"    R. W. v. Township Treasurer,  -   -   1 Ohio St. 105.
(1853)  Cass v. Dillon, -   -   -   -   -   - 2 Ohio St. 607.
Thompson v. Kelley, -   -   -   -   2 Ohio St. 647.
(1857) State v. Van Horn, -  7 Ohio St. 327.
(1858)  State v. Union Twp.,       -   -   -   8 Ohio St. 394.
(1861)  State, etc. v. Commis'rs Hancock Co.,   12 Ohio St. 596.
(1863)  Knox v. Nichols,   -   -   -   -   14 Ohio St. 260.
Fosdick v. Perrysburg, -   -   -   - 14 Ohio St. 472.
"  State v. Goshen, -   -   -   -           14 Ohio St. 569.
B




17
-    riffith v. Co. Commissioners,   - 20 Ohio Appendix, 1.
-~ —       Bloomington R. R. v. Gaiger,-April, 1871, Vol. 4 of Law
Times, State Reps., p. 98.
PENNSYLVANIA.
(1846) Harvey v. Lord, -                        3 Penn. St. 331.
(1849) Commonwealth v. McWilliams, -   -  11 Penn. St. 62.
-Turnpike Case.
(1853) Sharpless v. Mayor of Philadelphia,  - 21 Penn. St. 147.
"    Moers. v. The City of Reading, -   -   21 Penn. St. 188.
(1858) Commonwealth v. Co. Commissioners, - 32 Penn. St. 218.
(1861) Commonwealth v. Pittsburgh, -   -   41 Penn. St. 278.
(1862)  Commonwealth v. Perkins et al., -   - 43 Penn. St. 400.
SOUTH CAROLINA.
(1857) State v. Charleston,       -   -   -   - 10 Rich. 491.
TENNESSEE.
(1848) Nichols v. Nashville,   -   -   -   -9 Humph. 252.
(1854) L. and N. R. R. Co. v. Davidson Co., -   1 Sneed 637.
TEXAS.
San Antonio v. Jones, -   28 Texas 19.
VERMONT.
Cadis et ad. v. Town of Swanton,-Late case; not reported.
VIRGINIA.
(1837) Goddin v. Crumps,         -   -   -   - 8 Leigh. 120.
(1846) Harrison Justices v. Holland,   -   -   3 Grattan, 247.
WISCONSIN.
(1859) Clarke v. City of Jonesvllle, -   -   -   - 10 Wis. 136.
(1860) Bushnell v. Beloit,           -   -   -   10 Wis. 195.
"    Mills v. Gleason, -                         11 Wis. 470.
These cases have been frequently collated and the results announced by elementary writers.  Among others, Judge Cooley, in
his work on Constitutional Law (p. 189 to p. 259), quite fully does
so. After an extensive discussion of many of the cases cited, and
of that large class of authorities embodying the same principle in
reference to the payment of bounties to soldiers, granting aid to
private schools and works beyond the limits of the municipality,
and asserting a distinction beween the cases where the donation is
PERMITTED  and where it is COERCED by the law, he says:  "If
these cases are sound, the limitations which rest upon the power of




the Legislature to compel municipal corporations to assume and
discharge obligations can only be such as spring from the general
principles govering taxation, namely: That the purpose shall be
such as to constitute a proper charge upon the State or PORTION
of the State taxed to accomplish it. But upon this question the
Legislature is vested with DISCRETIONARY  AND  COMPULSORY
POWER. AND ITS DECISIONS ARE NOT SUBJECT TO REVIEW BY THE
COURTS. They must be FINAL, unless CLEAR cases where there is
no ground to adjudge THE PURPOSE to be a proper one for taxation." The whole chapter is a full and unqualified concession that
the purpose of laws like the one under consideration is public,
within the meaning of the taxing power, when the road runs
through the town granting the aid. The cases where no part of it
does so, and where the municipality is COMPELLED, not PERMIITTED
only, to aid work beyond its limits, are thus criticised: "But
those cases which hold it competent for the Legislature to give its
consent to a municipal corporation engaging in works of internal
improvement OUTSIDE its territorial limits, and become stockholders
in a private corporation, have gone to. the limits of constitutional
power in this direction, and to hold that it may go FURTHER and
COMPEL them is introducing a new principle."
On page 536, speaking of taking private property for public use,
he justifies the delegation of the right to private corporations upon
the ground that experience has shown that " these highways can
be BETTER MANAGED for the PUBLIC BENEFIT in the hands of
individuals than in the hands of the State or local muiicipal
officers." He adds that after the Legislature has decided that the
GENERAL BENEFIT is in this mode better promoted, "it would
clearly be pressing a constitutional maxim to an ABSURD EXTREME
to say the public necessity should be provided for only in the way
LEAST CONSISTENT with the public interest, and the fact that the
members have a PECUNIARY INTEREST such as will give the
company the character of PRIVATE, will not prevent the State from
using it to ACCOMPLISH THE PUBLIC OBJECT."  The leading cases
are cited, several of which in express terms put this power and the
taxing power upon the same ground. Judge Cooley quotes with




19
approbation from People vs. Smith, 21 N. Y., 597, what is said by
the learned and politically experienced Judge Denio.  He says:
"The necessity for appropriating property to public use is not a
JUDICIAL QUESTION.  The power resides in the Legislature.  It
may be exercised directly by the statute or delegated to private
corporations established to carry on enterprises in which the public
is interested.  This power stands on THE SAME GROUND as the
TAXING POWER. Both are emanations from  THE LAW-MAKINGPOWER. They are attributes of political sovereignty, ior the exer
cise of which the Legislature is under no necessity to address itself
to the courts. In imposing a tax, as in appropriating property to
public use, the statute itself is' due process of law.'"  Judge
Cooley, as an author, shows that it is a well settled axiom of
American constitutional law that WHAT IS A PUBLIC USE for TAXATION and APPROPRIATION is NOT a judicial but LEGISLATIVE QUESTION. He pronounces the objection "ABSURD," that when the
public object is declared by the Legislature it cannot employ fot
its accomplishment a corporation, because its members  have
private pecuniary interests in its shares. This is not the theory ofj
an author or speculative opinion. He but fairly and intelligently
condenses the unquestioned and numerous judgments he cites. We
know of no decisions to the contrary by courts of last resort, save
in the single State of Wisconsin and the few short-lived ones in
Iowa, now overruled by the court which pronounced them. Those
in Wisconsin are accompanied by qualifications so inconsistent as
to call for their express rejection by the Michigan courts. It may
be said to stand alone, without a concurring, un-overruled judgment
in the nation.
Nor is there anything peculiar in the jurisprudence of Michigan. Its decisions upon the precise principle involved are numerous and pointed.  But we shall the better understand them  if,
before their consideration, we clearly ascertain what it is which
has been aided in the present instance.  It will appear that these
corporations are, in the most strict and full sense, governmental
agencies, and political trustees, having no resemblance to private
mills and hotels, and that the previous local judgments go far
beyond the necessities of the plaintiff's case.




20
Judge Cooley, speaking for the majority of the court in The
People vs. Salem, concedes expressly that such a railroad would
be within the taxing power, provided it was controlled by the
public. But it is asserted that when the shares are owned by
individuals, as the public has no voice in its control, the corporation is strictly private, and the aid is unconstitutional. In the
second opinion he wisely disclaims all distinction betweem  donations and subscriptions to stock. If, therefore, nine-tenths of the
shares are owned by the towns, the aid would be illegal, but if all
are so, it is lawful.
Protesting against the necessity for any such argument, believing
that under all our American Constitutions, the judiciary has no
concern with this clearly legislative question of what shall be the
instrument of accomplishing a public purpose, we respectfully
suggest that the criticism of the learned court, had in the statute
before them, no foundation in fact. The corporations referred to
in the statute were not in any sense, here involved, " strictly
private." Authors who class these corporations as such, because
individuals own their shares, warn the reader against the use of
this classification made in the People vs. Salem. They say most
fully that when they are created for public purposes, perform
public duties and exercise delegated sovereign rights for that purpose, they are public in their nature. As said in Swan vs. Williams, a fourth of a century since, in Michigan, they are QUASI
public, and stand in a distinct class by themselves.
For all time the setting up of a highway or ferry for conveying
persons and property has been deemed, in the common law, a
FRANCHISE, a matter of governmental concern, a part of the subjects in the immediate possession of the political power, and, to
exercise which,' demanded a release of this right by the sovereign,
by special grant or charter. It is not, in its nature or actual
history, like those private avocations of milling, hotel keeping and
traffic, which all may pursue at pleasure unless, in the exercise of'
police power, a restraining statute interferes and requires a license.
3 Kent, 458, says there are certain franchises which are understood
to be royal privileges in the hands of the subject. The right to set




21
up a ferry or a road, and the taking of tolls, is one of them, and in
this the public has an interest. In 2 Black, Coin. 37, it is said
that "A franchise is a branch of royal prerogative in the hands of
the subject," such as the right of taking toll for a bridge, way or
wharf (see vol. 3, 219). In 18 Iowa, Prosser vs. Wapello Co., this
subject is fully discussed by Dillon, J., and the leading English
and American cases cited, showing that a road for tolls, or a ferry
is a franchise, and is held by the citizen when granted as a PUBLIC
OFFICE. At p. 334-5, it is said "That a party cannot set up a
ferry EVEN ON HIS OWN LAND, without the consent of the State."
A long list of State and Federal judgments, over forty in number
are referred to. They show, beyond doubt, that these rights are
held by the grantee as the agent and trustee of the political power;
that they are in no sense private, but continue after, as well as
before, the grant, to be but a portion of the public government.
This well-known rule, in reference to all the ways of transit,
sprang from the essentially public character of the duties connected with their management. The absolute commercial and
business necessity of permanence, when established, forbade, from
the earliest periods, the manifest impolicy of leaving this great
interest to the laws of supply and demand, which, thus far, have
sufficiently supplied the community with inns. So deeply is this
founded in the nature of the thing that, in a large degree, such is
the law  of every country to which our examinations have extended. As civilization advanced, the transmission of intelligence
was ranked in the same category. The public mails of all countries,
and the penalty on the citizen for performing this duty, shows the
difference between these great and pervading agencies and a mill.
Here, as in England, the telegraph may follow. There is something in this whole department soliciting to its control the hand of
political power, which thus far has never released it or suffered it
to fall into the ranks of those interests to which it has, we think
most unwarrantably been likened.  And it is not true, we submit,
that it is in DEGREE only, that these franchises differ in their relations to the public from mills and inns, as is said in People vs.
Salem.  The one is private property; the other is a political




22
function, which, when resting in the hands of government where
originally it resided, or delegated still for the same public use, to
either persons or corporations, ever has been, and of right may be
aided by taxation.  Whether in the immediate possession of the
sovereignty, or placed in legal organizations controlled by public
law for the purpose, it is equally controlled by, and the political
power HAS a voice in its most minute management.
It is for the performance and regulation of this old and familiar
governmental duty, in a mode deemed by the Legislature most
efficient and economical, that in modern times railway and other
corporations have been created. And in the most plenary and
critical sense, under tne General Railroad law of Michigan, they
are parts of the political organism. The entire duty they perform
is a public one, and a charter from the law-making power is necessary to its exercise. A prescribed organization, an amount of
capital to secure the public against failure, and an offer of shares
by public officers under guarded laws to all citizens alike, eminently distinguished these strictly public corporations from private
adventures. The weight of the iron, the speed of trains, the
amount of equipment, the duty of officials, the mode and time of
their election, the apportionment of their duties, and the tenure ofi
their offices, are all fixed by public law.'The time for the commencement and completion of the work, the filing of maps fbr
public information, the power to exercise the highest and most
sovereign right in the government-that of seizing, against the
will and interest of the owner, the farm, the church, and the
homestead-is exercised solely for the public use. In each instance
juries must find not only that the land and materials taken are
necessary for the contemplated way, but that the WAY ITSELF IS
NECESSARY FOR THE PUBLIC. (See Mansfield & Co. vs. Claik, to
be in 22 Mich). They are authorized to cross highways, bridge
navigable streams, and enter the streets of our great cities. The
road must be built from and to the precise places, and pursue in
its whole length the exact route, thus, by successive juries, tound
to be of governmental necessity. These are but portions of the
still more minute regulations contained in the statutes for the




23
cration of these public roads. The control over the mode of construction, the place of location, the continuance of the way, and
the efficiency of operation is not only equal to, but greatly exceeds
that provided by law  in reference to the common highways of
the State.
The road, once constructed is, INSTANTER, and by mere force of
the grant and law, embodied in the governmental agencies of the
State and dedicated to public use. All and singular its cars,
engines, rights of ways and property of every description, real,
personal and mixed, are but a TRUST FUND for the political power,
like the functions of a public office. The judicial personage, the
corporation created by the sovereign power expressly for this sole
purpose and no other, is in the most strict, technical and unqualified sense, but its trustee. This is the primary and sole legal,
political motive for its creation. The incidental interest and profits
of individuals are accidents, both in theory and practice. Every
farthing of its tolls is first to be devoted to paying the public tax,
and to the continuance of the road, its ample equipment and
regular operation as the interests of community, NOT those of shareholders, demand. No matter that a dividend is never paid, that
the private investment is sunk and worthless, that the interest
upon its bonds is not met, and that all its creditors go unpaid,
every dollar of its earnings must nevertheless be applied to keep
up its maximum efficiency, as required by the political power in
the law which created it. The neglect of the smallest of these
duties in which the community is interested will be enforced by
the PUBLIC WRIT of mandamus, and in Michigan by various
statutory proceedings at the suit of the Attorney-General. This
law officer of the State is especially charged by statute with the
duty of enforcing them. That a railroad cannot be abandoned
after it has become one of the thoroughfares of the country, and
that the company will, by proceedings in behalf of the State, be
forced to continue its road and perform all its duties to the public,
is beyond question.
In State vs. New Haven Company (19 Conn., 538) a railroad
company refused to run trains over a part of its road. It was




24
coerced to do so by mandamus. Ellsworth, J., said: "What
right had it to covenant it would not run its cars to tide-water as
its charter prescribes and the public accommodation requires?"
(See 24 N. Y., People vs. Vermont Railway Company; 37 S. C.,
216; 16 Eng. L. and Eq., 327; IBID, 299.) There is nowhere any
conflict, (18 Eng. L. and Eq., 199, York & North Midland Railway Company vs. Regina.) The doctrine is applied in every form
when the corporation neglects the public duties for which it was
created. Among the most stringent applications of this doctrine
is that of Erie County vs. Casey (26 Pennsylvania State, 287), in
which a charter was repealed, and the government took possession
of the road, and it was said to be seizing private property. At p.
307, Black J., says: "This act takes nothing but the road. Is
that private property? It is a public highway, solemnly devoted
to the pubilc use. When the lands were taken, it was for such
use, or they could not have been taken at all."  " Railroads
established upon land taken by the right of eminent domain by
authority of the Commonwealth, created by her laws as thoroughfares for commerce, ARE HER HIGHWAYS. No corporation HAS
PROPERTY IN THEM, though it may have franchises annexed to
and exercisable within them." At page 315, after saying that the
company agreed to build the road as a public highway for the
people, he adds:  "In consideration thereof, the State consented
to clothe the shareholders with a portion of her sovereignty, the
right of eminent domain and the franchise of taking tolls." At
page 324, he says: " Railroads built under authority of law are
public highways. On this principle alone we decided that municipal subscriptions are valid." He proceeds to enumerate a large
number of incidents which attach to them as public, and would
not belong to them as " strictly private" corporations. In Railroad Company vs. Caldwell (39 Penn. St. 337, 339), it was held
that the land of a railroad company could not be levied upon by
a creditor because " of the PUBLIC INTEREST in the corporation."
Its rights, though in some respects private, could not, so far as the
public motive for its creation was concerned, be either granted
away by the company itself, or sold by a creditor. In (9 Watts
c




25
& S. 27, Camden County vs. Bonham) the same ruling is made:' It would defeat the public object for which they were created."
(See 13 S. & R., 101.) In Richardson vs Sibley (10 Allen Mass.,
65) it was decided that a street railway company could not " alienate its property so as to prevent its performing the duties to the
public it was created to perform." See Pierce vs. Emery (32 N.
H., 504). Redfield on Railways, 53, says, in speaking of railroad
corporations in this country, that nothing more is meant in calling
them PRIVATE than that the shares are owned by individuals. He
clearly distinguishes between the public functions and the wholly
immaterial accident here, that citizens own its shares. These
citations could be greatly multiplied.  Most of those hereafter
cited assert the same principle.
They who buy under mortgage or other judicial sales, when such
proceedings are authorized by statute, succeed only to such property rights as remain after all these public duties are performed.
They cannot abandon the road and take away the cars and rails
as they could the fixtures of a mill or the furniture of a tavern.
(2 Redf. on Railways, 514 et sq. and notes.)
The immateriality of the ownership of the shares will appear
from a consideration of how little they control and how very far
they are removed in technical right and practical power from all
the incidents of ownership in reference to the company or its possessions. It is a most misleading and unfounded description of
their relations to say they own either the corporation or its property. The deed of all the corporators will not pass, even in
equity, the corporate lands or rights of any kind. Their admission is not evidence; their knowledge does not charge it; they may
be excluded like any other strangers from its cars and grounds;
they may sue or be sued by it, and so complete and separable is
the legal and equitable character of the stockholders and the corporation itself, that the most deliberate and fair agreements of the
former, or by the promoters of the scheme, that the future company shall do acts when organized, cannot bind the latter, although
the persons so aggreeing own every share in the corporation.
The following cases, being illustrations only of large classes like




26
them, sustain all the foregoing statements, and many other incidents showing the entire absence of all similitude between shareholders' rights to corporate property and those of private owners,
and especially the want of identity between them and the corporation itself. That their admission will not bind it, see 21 Maine,
507; 1st Cow. & H.'s notes to Ph., E., 487, 488; Ang. & Am. on
Corporations, sees. 309, 657-8; 28 Vt., 5 64; 3 Day, 494; 14
Maine, 152.
When notice will affect rights, that all sharehelders have it, is
immaterial. Ang. & Am., sees, 307, 308, and cases cited say
they " do not represent each other in any relation of agency."
See also 9 Barr., 27; 10 Watts, 397; 4 Paige, Chy., 406, 413; 13
Conn., 182; 2 Law Times, N. S., 78.
The deed of all the shareholders will not transfer the corporate
property. Redf. on Railways, 575; 15 Vt., 519; 19 Vt., 230.
The distinctions in equity, where the corporation receives the
benefit and under bills for specific performance will itself be
decreed to convey on the ground of its own agreement by subsequent adoption, do not affect this question. That the relation even
of trustee does not exist in any sense here involved, see Ang. &
Ames, sec. 313 where it is said that " the relation of trustee and
CESTUY QUE TRUST, does not exist between corporators and the
corporation, nor are they in the relation of partners, nor are
they creditors. The corporation is the mere creature of the
law."   This, too, is the  doctrine  of the Court of Equity;
3  Paige 409; 1  Edw. Chy. Rep. 87, and  other cases in
N6w  York; 1 Rhod., 312; 1 Freeman Miss. 161; 30. Eng., L.
and Eq. 130; Smith vs. Poor, 40 Maine 415; 2 Law T., N. S.,
525 Oarr vs. Glasgow Railway Co., and see per Lord Cranworth p.
551, 2. Though all covenant and attempt to bind it, it is impossible in the law; 13 Mass 408, and cases cited ante and post. That
they may sue and be sued by it and contract with it like an entire
stranger; Ang & Ame, secs. 232 233; 3 Hill 391; 2 Doug. (Mich.)
124; 4 Hurl. and Norm. Exchq. 87. Obligations of copartnership,
however equitable and however intended to attach to a corporation
formed to carry on the same business, cannot be made to do so




27
without the agreement of the corporation when IN ESSE. 16 Pick.,
1 New Rep. 34; Dana vs. Girdler, 15 Indiana 219; 6 H. of
Lords, Ca., 417; Lord Mensleydale, p. 423, says: "They are
distinct persons in the law." So substantial and free from all
fiction is their distinct character, that even when the government
itself owns a part or all of the shares, the company may be sued,
though the government cannot be. 8 Watts, 316; 3 McCord, 377;
Bank of the State vs. Gibbs, 9 Wheaton 907; 6 Alabama, 814.
And the judgments in relation to the U. S. Bank in the Federal
courts. That the promoters and launchers of a company cannot
bind it in any way, although all are shareholders, see 27 Conn.,
170; 12 Metc. 311; 28 Vt., 401; 5 Jones Law Reports, 304; 18
Barb., 297; 21 Penn., 221; 1 Head, 30.  But more particularly
on the precise point involved in the last statement, see 39 Law and
Eq., 28, House of Lords, 1857. Lord Cranworth says, in holding
that the company is wholly distinct from its promoters and shareholders, that he is going on " no technicality, but what is the mere
truth." 35 L. and Eq., 92; House of Lords, Preston vs. Liverpool & Co., 35 Law and Eq., House of Lords 1855. S. C., below
De G. and Sm., 743. On appeal in chancery, 1 De G. Mac. &
Gordon, 737. The cases before Lord Cottenham, and the courts
from which appeal lay to his, where an attempt was temporarily
made to override this doctrine in equity, are pointedly overruled.
30 Law T. 34, Williams vs. Habborn & Co.
Citizen shareholders, then, thus remotely connected with, and
whose pecuniary interests are so subordinated by the statutes and
general law to purposes undeniably the proper subjects of municipal aid, can constitute in principle no objection to its application.
In applying to this class of corporations, the familiar principle
that contracts beyond charter powers are unlawful, the courts have
been influenced by the consideration that their functions are
public, and that the objection is taken, not for the shareholders,
but in the interest of the government, See 1 Drew. & Smale, 154;
Attorney-General v. Great North. R. W., 2 Law, T., N. S., p. 653;
35 Eng. L. & Eq., 8, House of L. Reps., Eastern Counties Co. vs.
Hawks, at p. 17. Lord Cranworth, after showing the public charac



28
ter of these corporations, says:  "It is well settled that a railway
company cannot devote any of its funds to other purposes, no
matter howsoever beneficial it may be to shareholders." Coleman
vs. E. Counties Co., 1 Bevan, 1; Solomons vs. Loring, 12, Bevan
339; Baysham vs. E. Union R. W., 7 Law & Eq., 505. In 16
Law & Eq., 180, are a few of the many modern English decisions
on the subject. In 21 Howard, 441, Pearce vs. Madison Co., it is
said that the public has an interest in this question, and the court
takes pains to say that it cites the modern English cases for the
purpose of showing this to be the ground of their judgment. There
is no subject upon which decisions are more numerous. There are
few State Courts which have not repeatedly so ruled, and none
more frequently and stringently than those of Michigan. The
reason is always the same. the public interest. Kent, Angell &
Ames, Redfield, Pierce, Shelford and all elementary writers give
the same reason for the rule. What is done ultra vires, is held
void; if threatened, it is restrained, at the suit of the AttorneyGeneral, because it is a public offense to divert a fund dedicated
by the law to a specified political use. And it is no palliation
that, in the instance, the diversion is beneficial to shareholders.
The public officer must obey the law. On the contrary, the miller
or inn-keeper may employ their money in any way they please,
not criminal or immoral.  When a donation, raised by taxation,
is given to an organization, thus being a part of, and governed by
the political power whose funds are thus absolutely and irrevocably bound to such public duties, not one of the objections which
would arise if it were bestowed upon a private hotel-keeper has, it
seems to us, any application.
It is intimated that if the cars of all other companies could
enter upon and use the road, this, too, would make the difference
between legality and unconstitutionality. Protesting again that
we are utterly unable to see in this anything more than a mere
mode of use, in reference to which the law-making power, beyond
doubt, is the sole judge, as Judge Cooley, as an author, so clearly
shows; nevertheless, we add that this criticism also, we think, as
unfounded IN FACT as the former one-that the public had " no




29
voice" in their management. The general law already provides
for crossings and connections and for compelling  both  if the
corporations refuse them. It is an irresistible implication from
the statute  that the loaded  cars of other roads shall be
received and transported.  In two instances the laws expressly compel it in this State. That under the general law  this
may be done in all cases is certain, and it is equally certain that it
will be enforced by special provisions, if the unenlightened conduct
of these public agents throw impediments in the way of the very
best possible mode for public transit or travel. To-day, the cars
of half the companies in this State are largely off their own roads,
unloading in the distant depots of the country. Thus far, this
plainly implied statutory duty is being satisfactorily performed,
from the absence of all temptation to neglect it. But the law
already forces the companies to prepare for the duty by suffering
connections to be made. Can it be said with reason that the
municipal aid law is unconstitutional, beyond all reasonable doubt,
because the Legislature, having commanded the duty, leaves it
unregulated, only because it believes the present condition better
secures every public interest?
The rule laid down includes every similar corporation in the
State. There are three great public land grant roads in Michigan. They have been mainly built by donations from the national
domain. The State of Michigan acted as trustee in the administration of the fund, and still continues a board of public officers,
and imposes much official action with reference to it upon its
Governor. Extra taxation and duties are demanded in consideration of the selection of the donees by the State. The law creating
them is subject to amendment, and they have been largely aided
by municipal donations. Corporations thus created for great
national purposes; subsidized by the National Government through
the sovereign State, as its agent and trustee; created by law at
the public expense, under the guardianship of high political officers, cannot, we respectfully submit, without an extraordinary and
novel use of common terms, be called " strictly private," and not
to be distinguished in this regard from a mill or country inn.  We




30
submit, also, that the voice and control which the government
retains in the subject of this taxation greatly exceeds that secured
in other familiar instances, the rectitude of which has never been
challenged, and which remain uncriticised by the Michigan Court.
It is therefore not only a public purpose, but the instrumentality
of its accomplishment is most fully controlled by practical governmental supervision. If, therefore, the novel limitation set up in
the People vs. Salem, were true-if, as we cannot suppose, the
Constitution of Michigan forbids the execution of a clearly PUBLIC
PURPOSE through PRIVATE agencies-we do not think the fact that
citizens own the shares is sufficient to bring these corporations
within the rule.
In the light of these familiar doctrines, and the character of
these companies, as before said, we shall the better appreciate the
extent and force of the rulings in Michigan which had so fully
settled the law of that State, in conformity with the old maxims of
American jurisprudence, in disregard of which the People vs.
Salem has been decided.
In the case of the Detroit and Howell Company vs. Fisher (4
Mich., 37), the statute under consideration gave to a company all
the shares which were owned by citizens, the right to take and
use for a plank road the public highway. The constitutional
question was raised, and counsel cited the judgments of other
States, where the same rights had been extended to turnpikes and
other similar companies. The court sustained the power, as it had
previously done in The Attorney-General vs. Detroit and Erin
Company (2 Mich., 138). In neither of these cases was any compensation made to the public. Two other such charters were
granted in the State. The latter case was affirmed in 12 Mich.,
333, Detroit vs. Erin Company. We can discover no difference in
principle between these judgments and the case before the court in
The People vs. Salem. That the roads were in the hands of corporations whose shares were owned by citizens, was not deemed an
objection. In 9 Mich., 327, People vs. State Auditor, it was decided that a donation to salt manufacturers was constitutional,
although the property was wholly owned by individuals, and the




31
government retained no control over the amount or duration of
the manufacturer It was said that as to salt made before the passage of the repealing act, the right could not be divested. In 19
Mich., 259, East Saginaw Company vs. The City, etc., this case is
affirmed.  At p. 275, Cooley, J., for the court, says:  " It was a
bounty law to encourage the manufacture of salt, and when this
was earned it became a vested right, and we fully agree with 9
Mich., 327. In this view we all concur. The first of these latter
judgments necessarily decided the constitutionality of taxation for
aid and donations to a " strictly private business, in which the public had no voice." The People vs. Salem disregarded them. The
same questions must now be decided differently, if that judgment
is adhered to.  An earlier and equally pointed and still more literally applicable case is that in 2 Mi chigan, Swan vs. Williams.
It was objected at the bar that a railroad company, whose shares
were all owned by citizens, could not constitutionally condemn
property, as it was not for public use. It was held not to be a
strictly private corporation, but that it held the land it condemned
and all its rights and franchises, in trust for the public. The
precise point decided by it was, in 20 Michigan, expressly and
definitely ruled the other way. The objection is, that money given
for the use of SUCH a company is not a public, but a private use.
That case overruled the identical objection, and in pointed terms
asserted that it was public.  A  more familiar truth cannot be
asserted than that there are numerous subjects of such a private
and personal nature that they would not sustain the right of seizing private property as for public use, which, at the same time, are
among the familiar and conceded objects of taxation.  When you
have shown that an object is so far public as to authorize the
former, you have exceeded the necessities of the latter.  Swan vs.
Williams not only is conclusive of this case, but goes quite beyond
it in the required legal direction.  It is needless to refer to the
familiar class of cases where the doctrines of Swan vs. Williams
have been assumed to be law by the bar and bench during the
twenty years that they have been administered without question in
Michigan. They are numerous.




32
The practical legislative and departmental action in Michigan
is equally conclusive. Befcre considering it, we will refer to a few
leading judgments and authors to show  that upon principle it
ought to have influenced the State decision, and must, as a matter
of fixed law, guide our own.
It is an axiom in American constitutional law that such departmental and legislative action will conclude the courts in ail cases
where any POSSIBLE interpretation can uphold actual investments
and contracts.  In an early case in the United States Court, Stewart vs. Laird, 1 Wheaton, 351, it is said: " It is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system,
affords an irresistable answer, and has, indeed, fixed the construction. This practical exposition is too obstinate to be shaken or
controlled.  Of course, the question is at rest, and ought not to be
disturbed." In the case of Prigg vs. Pennsylvania, 16 Peters, 621,
Judge Story, speaking of a law, the constitutionality of which had
been acquiesced in for many years, said: "Such uniform  recognition would entitle it to be considered at rest, unless the interpretation of the Constitution is to be delivered over to interminable
doubt throughout the whole progress of legislative and governmental operations." Lord Eldon in 2 Brod. and Bing., 598, says:
" The most enlightened judges who ever sat in Westminster Hall
always gave the greatest weight to what obtained in practice."
See, also, 3 M. and S. Bennett vs. Watson; 7 D. and E., 743. In
15 East, 223, C(ollin vs. Bragg, Lord Ellenbough declared " it
was not from decided cases only where the point had been raised,
upon argument, but also from the practice without objection made,
that we collect the rules of law."  1 Turner and Russell, 87; 3
Russell, 428; 10 Veesey, 272; 3 B. and P., 547; 8 How., 68i; 8
How., 338; 11 Peters, 319; 7 Cranch, 383; 1 Sum., 419; 5 Cranch,
22; 2 Mass., 475; 16 Ohio, 599; 1 Hopk. Ch, 245, and 1 S. and
R., 105, are all pointed in applying this rule.  In 2 Cowen, 552, it
is said: "Upon any sound principle of government, the citizen
has a right to rely upon the action of the sovereignty."  See, also,
1 Wheaton, 351; 6 Wheaton, 418; 10 Wheaton, 63; 12 Wheaton,
D




33
290, and numerous other cases from the State and Federal courts,
cited in Cooley's constitutional limitations at p. 69, which, so far as
the case before us is concerned, are equally decisive in protecting
what has been done in reliance upon practice. They all say in
case of DOUBT it is conclusive. They fully sustain the rule quoted
from one of them by Judge Cooley, and by him  announced as the
fair result of them all, as follows: "If the question involved is
really one of doubt, the force of the legislative judgment, especially in view ot the injurious consequences that may result from
disregarding it, Is FAIRLY ENTITLED TO TURN THE SCALE IN THE
JUDICIAL MIND."  This he lays down, after full review, as a
general canon of interpretation for our American constitutions.
Michigan has most fully adopted this salutary rule. Its courts,
have said, not only that in no case of doubt should a court overrule
the judgment of the Legislature, but have added the additional
reason we are now discussing in its fullest application. In 5 M ich.
468, Clark vs. Mowyer, most of these judgments, and others kindred
to them, are cited and approved. And see, also, 14 Mich., 67.
So obligatory is this rule deemed upon courts, when contracts
have been made in good faith, or when action has taken place to
overturn which would result in great evils, that when they could
see no possible interpretation of the words of the Constitution, or
of statutes, to warrant what has been done, they simply declare
that the fundamental law has been violated, as an indication of
what they would hold in future cases, refusing to apply the rule to
the destruction of what had been done in reliance upon the public
acquiescence. In Ohio, in clear violation of its Constitution, the
Legislature, usurping judicial functions, granted divorces. In 17
Ohio, 446, Brigham vs. Miller, the Supreme Court, in refusing to
declare marriages void, says: " We have said enough to vindicate
the Constitution, and believe the evil will cease." Had it not
ceased, they would have decided a future case differently. In
Illinois a similar principle was applied to the creation of railroad
corporations. In 23 Ill., 207, Johnson vs. Joliette County, the
court said it was too late to make the objection. Property had
been vested upon the action of the Legislature. New  York,




34
Pennsylvania, Massachusetts and other courts, following the English rule, have acted upon a like principle. It is applied in every
department of the law, and guides our private intercourse and
business life. Courts read contracts as parties have construed and
acted upon them. Licenses are implied from  the tolerations of
persons and the public, and the most substantial and valuable
rights are based upon them.  There are no conditions more
loudly calling for a full application of this rule than those attending the interpretation of organic laws. None have, in fact, so
frequently invoked it in actual judgment.
That the Legislative, political and practical business action of
Michigan brings this case far, very far, within the limits of this
kindly and protective rule, the following citations show:  Session
laws of 1838, pp. 101, 108, 252, 259, by which bounties were given
for the manufacture of sugar from beets, for the manufacture of
silk, and authorizing loans of the public money for the benefit of
certain railroad companies. In 1848, also, a law  was passed,
authorizing the Detroit & Erin Plank Road Company to take
possession of the Fort Gratiot Road and construct a plank road
thereon, and other acts of a similar nature were passed in the same
year. See session laws 1848, p. 382. In 1848 State lands were
given for the eiection of churches to such denominations as chose
to apply for them. (Laws of 1848, p. 348.) In 1850, a township
was authorized to take stock in a plank road company.  (Laws
1850, p. 336.)  In 1853, (session laws. p. 125), the county of
Saginaw was authorized to loan its bonds to a plank road company.
In 1855, (Laws, p. 276), certain lots in Lansing were given to
churches. In 1861 (Laws of 1861, p. 283), twenty-five thousand
acres of State swamp lands were given to the German-American
Seminary, of Detroit. To all these laws, fully acted upon, no
word of objection was heard until the unexpected judgment in the
People vs. Salem.
It is a doctrine to which we know of no exceptions, t hat where
one government adopts from another a constitutional clause or a
statute, or re-enacts an old one from its own code, it is presumed
that the practical and judicial construction which it had before




received is also adopted. It would require the most marked and
extraordinary conditions to exclude the operation of this principle.
The public is quite warranted in presuming that this well-known
canon of construction will not be disregarded. (See 1 Ks., 226,
Bemis vs. Beeker; 4 Ks., 353, Stebbins vs. Guthrie; 2 Pet., 1,
Pennock &  Sellers vs. Dialogue; 3 Ill., 288, Campbell vs.
Quinlin; 13 Ill., 17, Rigg vs. Wilton; 19 Ill., 151, Tyler; vs.
Tyler; 21 Vt., 256, Adams vs. Field; 41 Mo., 453, State vs.
Macon County Court; 21 Wis., 247, Draper vs. Emerson, which
are but illustrations from an extensive list.
In 1850, when the Constitution of Michigan was adopted, decisions establishing the validity of municipal aid to railroads had
been made in Connecticut, Kentucky, Pennsylvania and Virginia,
by the highest courts of these States, respectively, without one
opposing decision. And in the following States, as shown by the
briefs of counsel, statutes authorizing municpal aid to private
corporations had been passed under Constitutions, all of which
were like that of Michigan, so far as is material to the decision in
The People vs. Salem.
In Connecticut, Laws of 1837, p. 18; 1838, p. 45; 1842, p. 54.
In Georgia. Laws of 1838, p. 66. In Kentucky, Laws of 1833, pp.
526, 543, 643; 1834, pp. 398, 285; 1836-7, p. 341; 1837-8, p.
98; 1838-9, p, 337; 1848-9, p. 212; 1849-50, pp. 285, 403. In
Maine, Laws of 1848, p, 198; 1849, p. 351; 1850, pp. 461, 530.
In Missouri, Laws of 1847, p. 348; 1849, p. 159. In Mississippi,
Laws of 1848, p. 333. In Illinois, Laws of 1849, p. 33. In
Indiana, Laws of 1842, p. 3; 1850, p. 149. In New York, Laws
of 1837, pp. 457, 341; 1839, p. 313; 1841, p. 329.  In South
Carolina, Laws of 1848, p. 542. In Ohio, Laws of 1838-39, pp.
128, 349, 343, 367; 1841-2, p. 100; 1844-5, pp, 232, 109, 46,
403; 1843-4, p. 103; 1845-6, private, pp. 109, 218, 250; general,
pp. 167, 192, 250; 1846-7, pp. 56, 65, 87, 95. Numerous like acts
are found ini the laws of each year until in 1852, when the new
Constitution went into effect forbidding both State and municipal
aid. In Pennsylvania, Laws of 1848, p. 273; 1849, p. 360. In
Tennessee, Laws of 1847-8, p. 58. In Virginia, Laws of 1847-8,




36
p. 184. The Laws of 1848-9, 1849-50, and 1850-1, are crowded
with acts authorizing subscriptions to the stock of turnpike and
railroad companies by municipalities and by the State. In Michigan, Laws of 1850, p. 336. In most of these States it was customary to grant State aid as well as municipal aid to corporations
engaged in internal improvements.  In Alabama, State aid was
granted; Laws of 1843-4, p. 136, but so far as we have ascertained,
no municipal aid until 1851; Laws of 1851-2, p. 218. In Maryland, State aid was granted; Laws of 1836, chapter 218, sec. 16;
Laws of 1838, resolution 68. In North Carolina, State aid was
granted; Laws of 1844-5, p. 103; 1848-9, p. 138.  In Delaware, State aid was granted; Laws of 1843, p. 521; 1847, p. 137.
It would be no more extraordinary for a local court to go back
of the old readings of Eglish statutes which have been adopted in
this country, than at this day to rely upon the literal meaning of a
well known clause in our organic law adopted from those of the
older States. The Statutes of Frauds, of Uses and Trusts, of Limitions, and other familiar enactments, which so many States adopted
literally, contained in their letter but slight information of the
complex doctrines which the English judiciary has deduced from
them. It would be little less than absurdity to go back to the
words of those laws to learn what our American legislators meant
when they adopted them. The rule is almost without exception
that the Legislature is presumed to enact, with the statutes them.
selves, their judicial and  practical construction.  An hundred
unquestioned judgments so rule. With increased force and practical necessity is the doctrine demanded when a court is called upon
to uphold or destroy the rights of innocent citizens who have relied
upon the rectitude of governmental action.
The opinion in the Salem case disregards another old and well
settled rule limiting judicial authority.
The undoubted opinion of the American judiciary and the bar is
that a court cannot declare a statute invalid unless it is prohibited
by some express provision of the Constitution, or by NECESSARY im
plication; and that its repugnance to justice, to what the court




87
deemed sound policy, or to general principles of jurisprudence furnishes no ground for a refusal to enforce it.
In Cooley on Constitutional Limitations (p. 87, et. seq.) the
learned judge, when speaking as an author, says: "There are two
fundamental rules by which to measure legislative authority in the
States." The first is that "the people must be understood to have
conferred the full and complete power as it rests in the sovereign
power of ally country, subject only to such restrictions as they have
seen fit to impose. The Legislature is not a special agency for the
exercise of specifically defined legislative powers, but is intrusted
with the general authority to make laws at discretion." He quotes
largely from Denio, Ch. J., 15 N. Y., 543, People vs. Draper, and
from 27 Vt., 142, Thorpe vs. Railroad Co., where Redfield, J.,
said:  "The American  Legislatures have the same unlimited
powers as the British Parliament, except where restrained by written constitutions. This must be conceded as a fundamental principle in the political organization of the American States.  We
cannot comprehend how, upon principle, it should be otherwise.
The people possess all legislative power. They have committed it,
in the most unlimited manner, to the Legislature."
At page 159, and onward, he discusses the question, and after
illustrating, by many citations, the carefulness and delicacy with
which the courts have dealt with legislative enactments, he criticises the dicta which intimate a power to annual a law because it
is unjust, or "'at war with the social compact." He says, at p. 168:
"The rule on this subject appears to be that, except when the
Constitution has imposed limits upon the legislative power, it must
be considered practically absolute, whether it operates according to
natural justice or not." To this rule he cites over fifty adjudica_
tions. They are from nearly every State in the Union, including
that of Michigan, and from the National Court. After saying that
the courts have no power to condemn a law because it is against
what may be deemed the spirit of the Constitution and the principles of Republican government, unless in violation of written
limitations, he sums up a farther review of adjudications by saying:
"The accepted theory is,'in every sovereign State there is an




absolute, an uncontrolled power of legislation. In England, this
rests with Parliament; in America, with the people as an organized
body politic.' GRANTING THIS POWER IN GENERAL TERMS, they
must be understood to grant the whole legislative power which they
possessed, except so far as they imposed restrictions." At p. 73 he
adds:  " We have before said, a statute cannot be declared void
because opposed to some supposed general intent or spirit which it
is thought pervades or lies concealed in the Constitution, but unexpressed, or because it violates fundamental principles, if it was
passed in the exercise of a power which the Constitution confers."
That the Federal Constitution is a grant only of specific legislative
powers, while, on the contrary, that of the State confers all powers
except as limited, is explained, and numerous judgments in Michigan and elsewhere, are cited to this familiar distinction. He ably
explains and amply verifies by citations that all GENERAL GRANTS
of power, and especially that of legislation, are unlimited, unless
expressly restricted, and demonstrates, as clearly as history, reason
and authority can demonstrate, that according to the well-known
and universally relied upon elementary principles af American
jurisprudence, a general, unlimited power of legislation, such as is
contained in the Michigan Constitution, does include, beyond all
possible doubt, the power of passing a law authorizing municipalities to exercise a right so common as that of granting aid to railroad companies. He is the most recent and full commentator upon
this precise question, and faithfully condenses the numerous and
concurring judgments which deny the extraordinary judicial power
exercised in the People vs. Salem.
The peculiar jurisprudence of Michigan laid no foundation for
the Judge sitting on its bench to disregard the doctrines so fullannounced by the author.  The contrary will most fully appear.
In 1 Doug. Mich. Rep., 352, Green vs. Graves, it is said: "We
adhere to the rule sanctioned by the Supreme Court of the United
States, that to authorize the judiciary to pronounce a law unconsttutional, the conflict between it and the Constitution must be palpable and established beyond all reasonable doubt." See also 1
Mich., 306, Scott vs. Smart's executors; 4 Mich., 253, People




39
vs. Gallagher; Sears vs. Cottrell, 5 Mich., 254, which are all
equally pointed. In 8 Mich., 333, Tyler vs. People, it is said:
" We should be able to lay our finger on the part of the Constitution violated, and the infraction should be clear beyond reasonable doubt."  And see, to the same effect, 13 Mich., 501, People
vs. Mahony.  In 13 Mich., 151, Twitchell vs. Blodgett, it is said
that "without express limitations the legislative power would have
been as absolute and unlimited  as that of the Parliament of
England, subject only to the Constitution of the United States."
In a State where the judiciary have said that all laws shall be
administered, and all contracts made under them enfo reed, unless
we can " lay our fingers on the constitutional provisions violated,"
and perceive the conflict so plainly that there can be " no reasonable doubt" of its existence; when this identical legislation has
been exercised for half a century by nearly every State in the
Union; when the courts of last resort of some twenty-four States
have solemnly adjudicated its lawfulness, and the National Courts,
having a co-ordinate power in large classes of cases, have condemned a contrary doctrine; and when Michigan, ever since its
organization, has over and over again passed and enforced without
question similar statutes, it seems to us but a mockery of precedent
-a rejection of all the sources from  which alone a lawyer can
learn the law-it is rendering worse than useless, all our libraries
and professional diligence, which can only mislead by their teachings, if, in these conditions, a majority of a court will assume to
say that it has no doubt whatever that all this practical action is a
mistake and a blunder, and that all this judicial decision is ignorance and misapprehension.  What are the sources of that certainty without which it has so often conceded that it had no
authority to annul a statute? No new facts have occurred, and no
new views of any kind are taken, but arguments rejected for nearly
half a century by hundreds of learned and experienced judges are,
without the slightest addition, reproduced. There are certain
terms of fixed technical signification, used also in other senses, in
common use and metaphysical inquiry-" discretion," " reasonable
doubt," " probable cause," " malice," " notice," and the long list




40
of words and phrases, to comprehend which demands the careful
study of a whole department of the law. They are all, from time
to time, grossly misapplied in judgment by adopting the popular
instead of the legal signification. The only sense in which judges
have a right to use the term " reasonable doubt," as to the existence of a legal rule, has little reference to its rectitude or its
origin. Law becomes such, far oftener than otherwise, by simple
administration and successive decisions. And when we look to
the mandatory sources of legal judgment, and to those principles
upon which the citizen has a right to repose, and see the array of
convincing evidence in favor of the validity of the law, the existence of a judicial opinion of its unconstitutionality, beyond all
" reasonable doubt," is logically excluded.
The unexpected length of this opinion, due mainly to the
impossibility of commanding time for its condensation, forbids a
detailed examination of the three additional objections urged in
The People vs. The State Treasurer.
It will occur readily that they are all sufficiently answered by
the citations and arguments already made. They have been raised
and overruled again and again, and unless history cannot settle,
unless, in the language of the Supreme Court, in Priggs' case,
"our constitutions are to be handed over to interminable controversy during the whole course of governmental operations," such
objections should not at this late day be again urged.
It is said such taxation is not "DUE PROCESS OF LAW," which
the Constitution demands. This clause has no reference whatever
to the OBJECTS AND PURPOSES of a statute, but to the MODE in
which rights are ascertained. It is right to decide that A shall
pay his debt to B, and to punish arson and larceny. But it would
not be so to enact directly that the debt should be paid without
affording full trial and defense, or to punish the person for crime
without confronting him  with his witness. In such cases THE
PROCESS OF LAW  would be wanting. To those and analagous
instances only has this clause, old as Magna Charta, ever been
deemed applicable. It is its well settled meaning in Michigan.
In Sears vs. Cottrell, 5 Mich., 251, Judge Manning delivering
E




41
the opinion of the Court, says: "The words'due process of law'
mean the law of the land, and are so to be understood in the
Constitution. By the'law of the land' we understand laws that
are general in their operation and that affect the rights of all
alike, and not a special act of the Legislature, passed to affect the
rights of an individual against his will, and in a way in which the
same rights of other persons are not affected by existing laws."
A similar construction of this phrase is given in Brooks vs. Ellis,
4 Mich., 320.
The objection here is not that DUE PROCESS is wanting, but that
the PURPOSES of the taxation are unconstitutional, no matter by
whatever mode or plenary form it is assessed. The clause invoked,
so far as we can, after much reflection, perceive, has no application to the objection made. In a loose and untechnlcal sense,
whatever is done in disregard of the Constitution is without due
legal proceedings. But so interpreted it becomes meaningless, and
declares only that the Constitution shall not be violated, remitting
us in each violation to some other clause upon which to declare
invalid what has been enacted. It is not so unimportant a feature
in our American Constitutions. It stands there to demand, after
all other provisions are complied with, and legislation and public
administration are confined to the proper objects and subjects of
law, and substantive rights of person and property are all secured,
that the PROCESSES for ASCERTAINING them shall be such in their
substantial features as the common law of England and this
country secured. See 18 Howard, 272, Hoboken Land Company
vs. Murray; Sears vs. Cottrell, (5 Mich., 251).
That the assessment is not, under the local constitution, "uniform taxation," is also said.
The objection is that " all the towns along the road do not contribute," upon some basis fixed by law. As now assessed the
TAXING districts are limited to entire towns and cities. Is there
constitutional power in the Michigan Legislature to prescribe
DISTRICTS for the purpose of local taxation? And if so what are
its limitations?
The best judicial answer is a reference to a long list of judg



42
ments in Michigan concurring with a still longer list in other
States, affirming that in this regard its discretion is unlimited, and
that the courts cannot control it. In Woodbridge vs. The City of
Detroit, 8 Mich., 274, affirming only what had many years before
been as fully decided, Judge Campbell says:
" And there is no restriction upon the Legislature in defining
the size of districts; our road districts are instances of this. And
if a charge is made on a uniform  rule, within any prescribed
district, there can be no very good reason for objecting to it because
the district is large or small, if the rest of the city is made to bear
its own local burdens on a substantially similar basis." Judge
Christiancy, in the same case, on page 308, speaks of the "acknowledged power of the Legislature to establish assessment districts for'local purposes."  These views are fully sustained by the
recent cases of Metz vs. Detroit, 18 Mich., 495, and Hoyt vs. East
Saginaw, 19 Mich., 39; and see also Williams vs. The Mayor, 2
Mich., 560. Unless, then, there is in the nature of the road aided
some characteristic distinguishing it from the objects of other local
assessments, these judgments are quite conclusive. And, we suggest again, what may be unnecessary, that the MODE of assessing
the tax is not invalidated, and the want of constitutional uniformity
is not proven, by asserting the private nature of the enterprise.
The present objection proceeds upon a full concession of the rightfulness of the assessment, if it be, within the meaning of the
Constitution, made with UNIFORMITY WITHIN A DISTRICT which it
is lawful for the Legislature to create. This question NEVER
depends upon the territorial EXTENT of the SUBJECT, a part of
which, on account of local benefit, is aided or I MPROVED by the
tax.   A HARBOR, though a part of the lake or ocean, used by the
citizens of a municipality and also by other parties, and a highway
leading through and from  one city to distant points, are the
Constitutional subjects of aid by local assessments, without extending the DISTRICTS THROUGHOUT the entire length of their common
use. The ROAD, for the purpose of taxation, is divisible even into
streets and blocks, if such is the legislative direction. A contrary
idea is wholly novel, and in this form would be rejected by the




48
learned court, whose objection, carried to its inevitable results,
necessarily denies the rule. The sole justification for all these
local assessments is the real or legally assumed LOCAL BENEFIT ofi
the improvement. If THAT is declared by the LEGISLATURE, or
ascertained by commissioners or juries, or by the citizens in public
meeting, to equal the local tax, it is absolutely CONCLUSIVE upon
the courts. The mode of its ascertainment, the size of the district,
or the character of the improvements, has been, over and over
again, decided to be entirely beyond judicial cognizance. That
OTHER districts and citizens are ALSO interested, and did not contribute, has been in manifold forms, brought to the attention of
the courts, as grounds for attacking the frequently hard and
severe assessments in our cities for paving, grading and sidewalks.
The answer is uniform-equality is impossible. The nature of the
right exercised forbids it. It is enough that a party is benefitted in
legal contemplation to the amount of his tax; it is immaterial
that the performance of his duty benefits others. Nor, say the
courts, can we hear proof that, IN FACT, the assessment exceeds all
increased value to his land. This is a LEGISLATIVE question which
courts cannot control. More familiar truisms than these we do
not know. They are nowhere better settled than in Michigan;
and still, if we understand this objection as made in the last case
of The People vs. The State Treasurer, the decision in it ignores
them all, and insists that SOME UNDEFINED LENGTH OF ROAD must
be selected by law, and each town along it compelled to contribute
upon the SAME BASIS. It seems to be assumed that " THE ROAD,"
the towns along which should all be contributors, is that which
some ONE company constructs and controls. But there may be,
and in this State there are, already several companies organized to
build a continuous line across the State. These may be CONSOLIDATED into a single road and corporation. During construction
the road of each company may be divided into sections, for the
purpose of assessment on stock and control, and become QUASI
corporations. All, again, under the same general law, may be
consolidated with corporations and roads in other States, and
become indivisible portions, like other common highways, of gre at
National thoroughfares.




44
Every consideration, which sustains the decisions in reference to
streets and highways, is applicable here. The ROAD may be from
one State to another-it may be National; but if the Legislature
declares there is a LOCAL benefit, no matter how many others may
be ALSO benefited, the assessment is Constitutional. It often happens that one town is actually-in the estimation of its citizens,
at least-INJURED by a new road creating new business centers in
rivalry of its own. Would it be POLITIC or sensible legislation to
force IT to contribute upon a LEGISLATIVE ARBITRARY decision that
it WAS benefited? A more secure and satisfactory mode than the
decision of its citizens cannot be devised. Again, in some localities the road will so undeniably pay its projectors, or the necessity
of traversing it in order to reach some point beyond it, or to connect existing lines, may be such that the construction is CERTAIN,
and there is no need of aid, or suggestion of aid, in order to secure
it. Shall SUCH towns be FORCED, without ANY necessity, to contribute, because another, somewhat off the line, in order to deflect
the road in its course through its limits, desires to compensate the
projectors for this change in the plans? The theory is NOT to force
all to contribute ALIKE, but far on the OTHER EXTREME: the very
essence of this principle is to suffer each vicinity, by the smallest
payment possible, to secure the benefit. Each locality judges for
itself and buys at the smallest price.
It will not be overlooked that in large numbers of the cases
decided in other States this novel objection might just as well have
been raised; and these cases are, upon well-known principles, precedents against it. The Constitutions of Virginia, Louisiana, Indiana,
Texas, Wisconsin and California, contain similar clauses. It did
not occur to courts or counsel to raise such a question until since
the Michigan decision.  Counsel have presented it in Indiana,
where it has been readily overruled. See L. M. & B. R. R. Co.
vs. Geiger (in pamphlet).
The provisions which forbid the State to engage in works of
internal improvement are also relied on.
As said in reference to all other portions of these judgments, so
this last reason also should have been withheld in view of numer



45
ous decisions declaring it untenable. Similar clauses are found in
the Constitutions of Ohio, Kentucky, Iowa, Kansas, Illinois, California, New York, Texas, Wisconsin and Louisiana, and the courts
of these States have, after elaborate arguments, uniformly decided
that prohibitions upon the State are not such upon the municipalities.
Cass vs. Dillon, 2 Ohio State, 607; New Orleans vs. Graible, 9
La. An., 561; Slack vs. The Maysville & Lexington Railroad
Company, 13 B. Mon., 1; Prettyman vs. The Supervisors of Tazewell County, 19 Ill., 406; Clark vs. The City of Rochester, 24
Barb., 406; Clark vs. The City of Janesville, 10 Wis., 136; Bushnell vs. The City of Beloit, 10 Wis., 195; Pattison vs. Board of
Yuba County, 13 Cal., 175; Dubuque vs. D. &. P. R. R., Co., 4
Greene (Iowa), 1; Stewart vs. Supervisors of Polk County, 30
Iowa, 15; Commissioners of Leavenworth County vs. Miller, Kansas, (not yet reported except in pamphlet).
There is no contrary decision. The question ought to be considered setttled by these concurring judgments.
The frequency with which this power had been exercised before
the adoption of the Michigan Constitution, peremptorily forbids
the legal presumption that the convention intended to prohibit it
by mere implication. At that time, municipal aid to private corporations had been authorized by the Legislatures of fifteen States,
including Michigan, viz.: Connecticut, Georgia, Kentucky, Maine,
Missouri, Misissipi, Illinois, Indiana, New York, South Carolina,
Ohio, Pennsylvania, Tennessee and Virginia.l  The Legislative
action of the State is equally forcible to forbid such an interpretation. Immediately before and after its adoption, this power was
exercised without question.
In 1850, a statute authorized a township to aid a plank road
company.  Some of the members of this Legislature were also
members of the Convention, which subsequently in the same year
formed the Constitution.
The Legislature of 1853 (Session laws, p. 125), some of whose
members were in the Convention, authorized a county to loan its




46
bonds to a plank road company. This was amended in 1855.
These laws are referred to as strong cotemporaneous action only.
Our previous citations show this is but a small portion of the similar
legislation by this State.
At this time, two similar restrictions in Kentucky and Illinois
had been decided not to interfere with such aid by municipalities.
The motives which produced this inhibition in the Michigan Constitution we do not think are those supposed by the learned Supreme
Court. That local municipalities should not aid such works, provided they were controlled by indiviuals, was never intended. A
contrary and unquestioned action existed elsewhere and in Michigan, and was continued immediately after and ever since its adoption without question or doubt. It was their aid and management
by the State as a government, the corruption which there and elsewhere ever attended the letting of contracts, the purchase of propperty, the placing of bonds and the control of funds, which constituted the SOLE OBJECTION. That they could be better managed by
private shareholders was undoubtedly decided, but there is in this
no assertion or the most distant implication that they were not
deemed of high public importance, or that the municipalities of
Michigan should be deprived of rights exercised then and since, not
only by them, but by those of nearly every State in the Union. It
is most certain, judicially we are compelled to say, that had this
been the intention, it would have been said in plain terms. It
would not have been left to implication in a system of laws, which
so unqualifiedly forbade the courts to create such a distinction
without an express inhibition of th6 tax.
No portion of the views expressed by the Supreme Court of
Michigan seems to us less warranted than the assertion of a growing judicial and professional dissatisfaction with the numerous decisions, State and National, which hold municipal aid to private
corporations constitutional.  We are at a loss to imagine the
source of such an impression. To the policy of municipal aid to
internal improvements there has always existed a spirited opposition. Most objects of public taxation at all removed from the
expenses of ordinary administration usually call for much criti



47
cism. This one, peculiarly subject to spasmodic action and local
excess, has provoked its full share, and the legislative conteststhe only constitutional occasion we submit for such discussions -
illustrate the violent difference of political opinion which leading
citizens entertain in regard to it. But so far from the profession
or the public condemning the American judiciary for its consistent
and stable course, or looking to it for relief when the policy of
such aid was condemned, they have conceded that the whole subject was one for new governmental regulation only, and have
accordingly inserted express prohibitions in several modern Constitutions. The few judgments in Wisconsin and Iowa, which
assumed to disregard the established jurisprudence of the country,
did so with an acknowledgment of their own revolutionary character.
The latter court has already receded from its exceptional position.
Prior to the determination of The People vs. Salem, the Supreme
Court of the United States, with all the learning on this subject
before it, in one of the most spirited condemnations of local judgments ever uttered by it, had refused to follow a series of decisions
in Iowa exactly like that now before us. Such action on its part
is never taken save when it is entirely satisfied with the contrary
rulings, and that they were in accordance with " the principles of
American jurisprudence."  So far from their being, during the
last few years, a growing judicial dissatisfaction, not only the
statutes and the action under them, but the decisions of courts sustaining them, were multiplying with increased rapidity. In the
late Constitutional Convention of Michigan, one of its leading and
most learned members, an ex-Attorney General of the State, after
a thorough examination for the purposes of the opinion, said, in
debate, that although he strongly disapproved the political policy
of municipal aid to railroads, and recommended its constitutional
restriction, the existence of such a legislative power, after so many
concurring judgments, " must be considered as settled law."  The
Judges of both of the National District Courts of Michigan were
members of the Convention. There was no dissent from this declaration of the law, nor any intimation that the judiciary could
afford relief. Nearly all the leading members of the bar have




48
thus advised, and there was no professional intimation that the
character of those numerous rulings authorized the local court to
disregard them. We speak with a very large familiarity with the
condition of professional opinion upon this point, and we believe
that since the organization of the State no single judgment has
taken the legal mind with such unrelieved surprise as that from
which we are now compelled to dissent.
The great misapprehension on this subject is strikingly illustrated by the fact that, within a few months after the promulgation
of the opinion in The People vs. Salem, the highest courts of five
States, with its reasonings before them, have refused to follow it.
The judgments of few local courts in our country are of more influence than those of the Supreme Court of Michigan. Their general learning and character entitles them to the high reputation
they have so unquestionably secured. If any judgments could
have stimulated a general dissatisfaction into general dissent, that
before us would have done so. But Vermont, Texas, California,
Indiana and Kansas have all recently disregarded the rulings in
the case of The People vs. Salem. We rejoice that if there may
be doubt whether our decision administers the law correctly, there
can be none that its results are such as the plainest justice requires.
A change is loudly demanded in our Constitutions, which shall
in some degree limit the distructive effect of judicial interpretation
upon contracts made by the citizens in reliance upon action of the
sovereign power of the State.  Without this, the list of cases
already referred to where it was said that Constitutional criticisms
came too late, and those yielding blindly to practical construction
with little reference to the clause construed, must be greatly
lengthened. Without some organic remedy, the indications are
that the courts, from the abundance of the law's technicalities, its
presumptions of law when the proof of actual fact is excluded,
its estoppels IN PAIS when good faith closes the mouth of objection
because the hand is full of another man's money, will deduce some
rule which will enable them to declare an act unconstitutional and
at the same time protect past transactions and an innocent community from the consequences of its invalidity. We think, indeed,
F




49
that no greater step in the law's growth is now needed for that
purpose than the one taken by the learned Supreme Court of
Michigan in the repressive policy it deemed it its duty to enforce.
And this, in its practical effect, is the whole scope of those decisions
of the Supreme Court of the United States, which we now follow.
There is no attempt to mould the institutions of the State in violation of the opinions of the local courts. The rule adopted is so
narrowed in its application, and so respectful and kindly in its
adaptation to the relations in which it is administered, that thus
far, in our harmonious history, the power which upholds it has
hardly attracted general attention. Resorted to only when the
claims of good faith demand it, in each instance of its exercise all
severe criticism is silenced.
Talcott's bonds, bought in reliance upon the sovereign action of
the State, action taken in conformity with principles which the Court
of last resort in the Nation had before their issue decided to be part
of the National jurisprudence, are enforced. Should he, to-morrow,
bring here other bonds, the steps to create which had been taken
since the State judgments holding them invalid, he would be told
that those judgments were not subject to criticism here; that this
Court would administer their doctrines, in all their results, wholly
irrespective of our own opinions.
Nor will any conflict of jurisdiction result. When a subject has
been finally decided by one tribunal, it is RES ADJUDICATA, and the
other will never rejudge it. If A's bonds are held invalid by a
State tribunal, no other court will, in a second suit upon the same
bonds, entertain the question. There can be no conflict if the
citizens yield, as all those of Michigan undoubtedly will, a ready
obedience to the judgment of each court, State or National, which
has jurisdiction in the instance. There will be none of those
anticipatory rulings, or of that retrospective legislation intended
to cut off the power of satisfying the final process of this court
which has been so intelligently and promptly rendered abortive
elsewhere.




50
OPINION BY JUDGE WITHEY.
Edward B. Talcott vs. The Township of Pine Grove. Withey,
District Judge:
The opinion of the Court, pronounced by my brother Emmons,
is complete and exhaustive of every question touched upon in the
decision or discussed at the bar. I can add nothing which will
strengthen that opinion; and yet, the methods by which I have
reached conclusions embrace so very limited a range of discussion,
and are so disregardful of many of the questions elaborately
explained in the opinion of the Court, as announced by the very
learned Circuit Judge, as to induce me to state briefly the views I
have taken in reaching a result in this cause. In saying this I
am not to be understood as dissenting from the views expressed by
my brother Emmons.
The Supreme Court of the United States have, in repeated decisions, settled the following propositions:
1. That the United States courts will always respect the decisions of the State courts, and, from the time they are made, will
regard them as conclusive in all cases upon the construction of
their own Constitution and laws.
2. But the Courts of the United States will not give to the decisions of a State court a retroactive effect, and allow them to invalidate contracts entered into with citizens of other States, which,
in the judgment of the courts of the United States, were lawfully
made; and this principle applies to all contracts which come within
the jurisdiction of these courts: Rowan vs. Runnels, 5 How., 138;
Ohio Life Insurance and Trust Company vs. Debolt, 16 How.,
432. The doctrine of these cases has been frequently reasserted.
3. The broad proposition that the sound and true rule is, that if
the contract, when made, was valid by the laws of the State, as
expounded by all the departments of its government, and admin



51
istered in its courts of justice, its validity and obligation cannot be
impaired by any subsequent act of the Legislature or decision of
the State courts: Ohio Life Insurance and Trust Company vs. Debolt, sUPRA; Gelpcke vs. The City of Dubuque, 1 Wal., 206.
4. The Supreme Court of the United States has repeatedly held
that, in the absence of some provision in the State Constitution
prohibiting it, the Legislature has power to authorize municipalities to issue bonds in aid of railroads designed to benefit the public
interests of the locality.
In Gelpcke vs. The City of Dubuque, 1 Wal., 203, the court
says, "Where there is no defect of constitutional power, such
legislation  *  *  *  is valid," citing Wilkinson vs. Leland, 2d
Pet. 626; Sutterlee vs. Matthewson, 2d Id. 380; Baltimore & S.
R. Co. vs. Nesbit, 10 How., 395; White Water Valley Canal Co.
vs. Vallette, 21 How., 425.
From the foregoing principles, firmly established by the repeated
decisions of that judicial tribunal whose adjudicitions are a law unto
this court, I proceed briefly to state my conclusions:
There is, confessedly, no provision of the State Constitution
expressly prohibiting legislation to authorize the issue of municipal
aid in bonds. In the absence of the two decisions made since the
bonds involved in this litigation were issued I should not hesitate
to hold that there is nothing in the organic law of the State which
could be construed as prohibitory of that legislation. The opinion
of the court in this case abundantly justifies this conclusion.
But the Stae court having recently held, in one case at least, that
there is want of legislative power to pass the law, because of the
restraining effect of certain constitutional provisions, it is clear
that as to all bonds issued after the date of such State decision
the courts of the United States are bound to follow the State
Court, as the effect of its decision upon future issues is precisely as
though the law had been repealed.
Nevertheless, as to bonds issued prior to the time of the State
decision, in view of the principles already stated, a different rule
prevails. If there had been a construction by all the departments




of the State government in favor of the legislative power to pass
such laws, and if that construction has been uniform, acted upon
and acquiesced in by the public, then the State law afforded a
valid basis for the contract made by the township of Pine Grove,
represented by these bonds, and the rule of comity, which requires
the Federal courts to adopt the decisions of the State tribunals in
reference to local laws, cannot be invoked to defeat a recovery
here, nor can it be successfully asserted that the State decisions
declaring the law invalid are, on any ground, binding on this
Court.
We are not called upon, by anything presented in this c-se, to
decide whether, in the absence of such practical construction, under
our view of the power of a Legislature, in the absence of limitations in the organic law of the State, the Federal tribunals must or
must not hold all bonds issued prior to the State decisions valid.
Now, that there had been a construction by all departments of
the State government in favor of the legislative power to enact the
law authorizing municipalities to issue bonds to aid railroads, and
that such construction had, up to the decision of the Salem case by
the State court, in 20 Michigan, been uniform, acted upon and
generally acquiesced in by the public, admits of no doubt. As far
back as 1838, under the then Constitution, which was silent on the
subject of legislative power in this regard, a law was passed giving
bounty for the manufacture of sugar from beets; for the manufacture of silk, and authorizing loans of the public money for the
benefit of railroad companies.
In 1850 a township was authorized to take stock in a plank-road
company. In 1853 a county was authorized to loan its bonds to a
plank-road company. In 1865 the Legislature authorized municipal aid to railroads. Following this, up to 1860, are numerous
laws to authorize municipal aid. A  law of 1859 gave a bounty
often cents a bushel to salt manufacturing companies. I need
not enumerate other instancesto show the uniform assertion of
the Legislative Department of its powers under the Constitution
In 1867 the Attorney-General of the State gave his opinion to
the Legislature of its power to pass laws authorizing municipal aid




53
to railroads. All the Governors of the State exercising Executive
functions when such laws were passed, except one, have approved
those aid and bounty laws.
The Supreme Court of Michigan have, in more than one
instance, decided questions which, by analogy and upon principle,
have contributed largely to uphold and sanction such deparmental
construction. The People vs. The Board of State Auditors 9
Mich., 327, in 1861. The East Saginaw Manufacturing Company
vs. The City of East Saginaw, 19 Mich., 275, in 1869.
In Twitchell vs. Blogett, 13 Mich., 127, it was, in substance,
held, that to declare an act of the Legislature unconstitutional
there must be some express provision of the organic law which is
violated, which must be pointed out, and the act must be so clearly
in conflict with the provision as to be free from reasonable doubt.
I do not understand the State court to claim, in the recent cases,
when the aid law was under consideration, that this law violates
any express provision of the Constitution.
But I have said enough to indicate the grounds upon which I
hold the legislative, executive and judicial departments of the
State to have upheld, prior to the decision of the Salem case, the
legislative power to pass the law in question. I shall take no time
to show that the departmental construction has been acted upon
and generally acquiesced in by the people of the State, by the'legal
profession, by bankers and by capitalists and financial men of
every class. This is well known by all whose business interests
have turned their attention to the subject.
I desire, however, to mention one exhibition of public opinion,
as demonstrating what the general construction as to the power of
the Legislature has been. The Constitutional Convention of 1867,
composed of one hundred members, from all parts of the State, and
embracing gentlemen of intelligence from various pursuits and professions, had this subject under consideration.  The journals of
that body exhibited the fact that there was entire harmony of
views; that, as the Constitution then stood, there was no restraint
upon legislative action in allowing municipal aid to railroads.




54
Hence, the only provision submitted by the Convention to be
voted on, as part of the proposed new Constitution, was of limitation, to prevent the Legislature authorizing a municipality to
pledge its credit in aid of railroads beyond ten per cent. of its
assessed valuation.
On the faith and stability of such a condition of public opinion,
having its basis in a long series of Legislative enactments, sanctioned by the Executive branch, and, as I think, may be justly
asserted, approved by the courts of justice of the State, the plaintiff became the owner of the bonds in this case, and in my opinion
is entitled to judgment.




OPINION OF JUDGE LONGYEAR.
In the case of Taylor against The City of Battle Creek, Judge
Longyear gave the following opinion:
On a full and careful consideration of the course of decision in
the Supreme Court of the United States upon the question of the
binding character of State decisions affecting questions arising
under State statutes, I deduce the following rules, which I think
are established by those decisions:
1. That such State decisions will be adopted as rules of decision
in the Federal courts upon all questions and in all cases relative to
transactions arising after such State decisions were made.
2. That such State decisions will also be adopted as rules of
decision in the Federal courts in relation to transactions arising
before such State decisions were made, in all cases in which such
State decisions do not, in their effect and operation, in any manner
conflict with the Constitution of the United States or any act of
Congress.
3. That when there is such conflict such State decisions are not
adopted as rules of decision in the Federal courts.
4. That where a State statute by its terms constitutes in and of
itself a contract or a basis of a contract by the State, or where
such statute purports to authorize or empower municipalities,
public or private corporations, or citizens to enter into contracts,
and such contracts have been entered into in good faith, a decision
of a State court afterward made, declaring such statute inoperative
and void, or in any manner so construing such statute as to invalidate such contracts so previously entered into, or in any manner
impairing their obligation, is PRIMA FACIE in conflict with that
provision of the Constitution prohibiting a State from passing any
law impairing the obligation of contracts. (Art. I., sec. 10.)
5. That in such cases as last above named, the Federal courts




will go behind the State Court decision and inquire whether, in the
state of the law as practically construed by the Legislative, executive and judicial branches of the State government, at the time
the transactions in question took place, such transactions constitute
a contract; and, if so, the Federal courts will then enforce such
contracts, independently and irrespectively of such State Court
decision.
I deduce these propositions from a long line of decisions of the
Supreme Court, commencing with the case of Rowan vs. Runnels
(5 How., 134), in 1847, and ending with Butz vs. The City of
Muscatine (8 Wall., 575), in 1869. These cases are so fully stated,
commented upon and elucidated in the opinion of my brother Emmons that it is quite unnecessary for me to notice them further.
That this case falls within the third, fourth and fifth propositions I think is clearly, fully and conclusively shown by the exhaustive opinions of Judges Emmons and Withey in the case of
Talcott vs. Pine Grove; and, therefore, without comment or argument of my own, I fully concur in their opinion and judgment, that
the demurrer must be overruled.
In the case against The City of Port Huron, Judge Longyear,
on a subsequent day, ordered the demurrer to be overruled.
G