Vol. II.] GARRISON V. THE MAYOR OF NEW YORK. [No. 4. street, there was nothing in the nature of a contract between him and the city. The state, in virtue of her right of eminent domain, had authorized the city to take his property for à public purpose, upon making to him just compensation. All that the Constitution or justice required was, that a just compensation should be made to him, and his property would then be taken whether or not he assented to the measure. The proceeding to ascertain the benefits or losses which will accrue to the owner of property when taken for public use, and thus the compensation to be made to him, is in the nature of an inquest on the part of the state, and is necessarily under her control. It is her duty to see that the estimates made are just, not merely to the individual whose property is taken, but to the public which is to pay for it. And she can to that end vacate or authorize the vacation of any inquest taken by her direction, to ascertain particular facts for her guidance, where the proceeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest, provided such methods of procedure be observed as will secure a fair hearing from the parties interested in the property. Nor do we perceive how this power of the state can be affected by the fact that she makes the finding of the commissioners upon the inquest subject to the approval of one of her courts. That is but one of the modes which she may adopt to prevent error and imposition in the proceedings. There is certainly nothing in the fact that an appeal is not allowed from the action of the court in such cases, which precludes a resort to other methods for the correction of the finding where irregularity, mistake, or fraud has intervened. Until the property is actually taken, and the compensation is made or provided, the power of the sta te over the matter is not ended. Any declaration in the statute that the title will vest at a particular time, must be construed in subordination to the Constitution, which requires, except in cases of emergency admitting of no delay, the payment of the compensation, or provision for its payment, to precede the taking, or, at least, to be concurrent with it. The statute of 1818 would also seem so far to modify the act of 1813 as to require a formal acceptance of the land on the part of the corporation before the title can vest. Strang v. New York Rubber Co. 1 Sweeny, 86, 87. The objection to the act of 1871, that it impairs the vested rights of the plaintiff, and is, therefore, repugnant to the Constitution of the state, is already disposed of by what we have said upon the first objection. There is no such vested right in a judgment, in the party in whose favor it is rendered, as to preclude its reexamination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed; and the award of the commissioners, even when approved by the court, possesses no greater sanctity. Judgment affirmed. Vol. II.] CITIZENS' SAVINGS, ETC., ASSOCIATION v. CITY OF TOPEKA. [No. 4. MUNICIPAL BONDS. MANUFACTURING ENTERPRISE NOT A PUBLIC PURPOSE. CITIZENS' SAVINGS, ETC., ASSOCIATION v. CITY OF TOPEKA. 1. A statute which authorizes towns to contract debts or other obligations payable in money implies the duty to levy taxes to pay them, unless some other fund or source of payment is provided. 2. If there is no power in the legislature which passed such a statute to authorize the levy of taxes in aid of the purpose for which the obligation is to be contracted, the statute is void, and so are the bonds or other forms of contract based on the statute. 3. There is no such thing in the theory of our governments, state and national, as unlimited power in any of their branches. The executive, the legislative, and the judicial departments are all of limited and defined powers. 4. There are limitations of such powers which arise out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. 5. Among these is the limitation of the right of taxation, that it can only be used in aid of a public object, - an object which is within the purpose for which governments are established. - 6. It cannot, therefore, be exercised in aid of enterprises strictly private, for the benefit of individuals, though in a remote or collateral way the local public may be benefited thereby. 7. Though the line which distinguishes the public use for which taxes may be assessed from the private use for which they may not is not always easy to discern, yet it is the duty of the courts, where the case falls clearly within the latter class, to interpose when properly called on for the protection of the rights of the citizen, and aid to prevent his private property from being unlawfully appropriated to the use of others. 8. A statute which authorizes a town to issue its bonds in the aid of the manufacturing enterprises of individuals is void, because the taxes necessary to pay the bonds would, if collected, be a transfer of the property of individuals to aid in the projects of gain and profit of others, and not for the public use, in the proper sense of that term. 9. And in a suit brought on such bonds, or the interest coupons attached thereon, the circuit court properly declared them void. MR. JUSTICE MILLER delivered the opinion of the court. The plaintiffs in error brought their action in the circuit court for the District of Nebraska, on coupons for interest attached to bonds of the city of Topeka. The bonds on their face purported to be payable to the King Wrought Iron Bridge Manufacturing and Iron Works Company, of Topeka, to aid and encourage that company in establishing and operating bridge shops in said city of Topeka, under and in pursuance of section twenty-six of an act of the Legislature of the State of Kansas, entitled "An act to incorporate cities of the second class, approved February 29, 1872;" also another act to authorize cities and counties to issue bonds for the purpose of building bridges, aiding railroads, water power, or other works of internal improvement, approved March 2, 1872. The city issued one hundred of these bonds for a thousand dollars each as a donation, and so it is stated in the declaration, to encourage that company in its design of establishing a manufactory of iron bridges in that city. The declaration also alleges that the interest coupons first due were Vol. II.] CITIZENS' SAVINGS, ETC., ASSOCIATION v. CITY OF TOPEKA. [No. 4. paid out of a fund raised by taxation for that purpose, and that after this payment the plaintiff became the purchaser of the bonds and the coupons on which suit is brought for value. A demurrer to this declaration was sustained by the circuit court, and to the judgment rendered thereon in favor of defendant the present writ of error is prosecuted. The section of the act of February 29, on which the main reliance is placed for the authority to issue these bonds, reads as follows: Section 76. The council shall have power to encourage the establishment of manufactories and such other enterprises as may tend to develop and improve such city, either by direct appropriation from the general fund, or by the issuance of bonds of such amounts as the council may determine: Provided, That no greater amount than one thousand dollars shall be granted for any one purpose, unless a majority of the votes cast at an election called for that purpose shall authorize the same. The bonds thus issued shall be made payable at any time within twenty years, and bear interest not exceeding ten per cent. per annum. It is conceded that the steps required by this act, prerequisite as to issuing the bonds and other details, were regular, and that the language of the statute is sufficient to justify the action of the city authorities, if the statute was within the constitutional competency of the legislature. The single question, therefore, for consideration raised by the demurrer is the authority of the Legislature of the State of Kansas to enact this part of the statute. Two grounds are taken in the opinion of the circuit judge and in the argument of counsel for defendant, on which it is insisted that the statute is unconstitutional. The first of these is, that by section five of article twelve of the Constitution of that state, it is declared that provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit shall be so restricted as to prevent the abuse of such power. The argument is, that the statute in question is void because it authorized cities and towns to contract debts, and does not contain any restriction on the power so conferred. But whether the statute which confers power to contract debts should always contain some limitation or restriction, or whether a general restriction applicable to all cases should be passed, and whether, in the absence of both, the grant of power to contract is wholly void, are questions whose solution we prefer to remit to the state courts, as in this case we find ample reason to sustain the demurrer in the second ground on which it is argued by counsel and sustained by the cir cuit court. That proposition is, that the act authorizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain. Vol. II.] CITIZENS' SAVINGS, ETC., ASSOCIATION v. CITY OF TOPEKA. [No. 4. The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution. If these municipal corporations, which are in fact subdivisions of the state, and which for many reasons are vested with quasi legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the legislature of the state to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; or where there is property or money vested in a corporation of the kind for a particular use, as public worship, or charity, the legislature may pass laws authorizing them to make contracts in reference to this property, and incur debts payable from that source. But such instances are few and exceptional, and the proposition is a very broad one, that debts contracted by municipal corporations must be paid, if paid at all, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid in future, not limited to payment from some other source, imply an obligation to pay by taxation. It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it. If this were not so, these corporations could make valid promises, which they have no means of fulfilling, and on which even the legislature that created them can confer no such power. The validity of a contract which can only be fulfilled by a resort to taxation, depends on the power to levy the tax for that purpose. Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147, 167; Hanson v. Vernon, 27 Iowa, 28; Allen v. Inhabitants of Jay, 60 Maine, 127; Lowell v. City of Boston, S. C. Mass., not yet reported; Whiting v. Fond du Lac, 25 Wis. 188. It is, therefore, to be inferred that when the legislature of the state authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference. With these remarks, and with the reference to the authorities which support them, we assume, that unless the Legislature of Kansas had the right to authorize the counties and towns in that state to levy taxes to be used in aid of manufacturing enterprises conducted by individuals, or private corporations, for purposes of gain, the law is void, and the bonds issued under it are also void. We proceed to the inquiry whether such a power exists in the Legislature of the State of Kansas. We have already said the question is not new. The subject of the aid voted to railroads by counties and towns has been brought to the attention of the courts of almost every state in the Union. It has been thoroughly discussed, and is still the subject of discussion in those courts. It is quite true that a decided preponderance of authority is to be found in favor of the proposition that the legislatures of the states, unless restricted by some special provisions of their constitutions, may confer upon these municipal bodies the right to take stock in corporations created to build railroads, and to lend their credit to such corporations. Also to levy the Vol. II.] CITIZENS' SAVINGS, ETC., ASSOCIATION v. CITY OF TOPEKA. [No. 4. necessary taxes on the inhabitants, and on property within their limits subject to general taxation, to enable them to pay the debts thus incurred. But very few of these courts have decided this without a division among the judges of which they were composed, while others have decided against the existence of the power altogether. The State v. Wapello Co. 13 Iowa, 308; Hanson v. Vernon, supra; Sharpless v. The Mayor, &c., supra; Whiting v. Fond du Lac, supra. In all cases, however, the decision has turned upon the question whether the taxation by which this aid was afforded to the building of railroads was for a public purpose. Those who came to the conclusion that it was held the laws for that purpose valid. Those who could not reach that conclusion held them void. In all the controversy this has been the turning point of the judgments of the courts. And it is safe to say that no court has held debts created in aid of railroad companies, by counties or towns, valid on any other ground than that the purpose for which the taxes were levied was a public use, a purpose or object which it was the right and the duty of state governments to assist by money raised from the people by taxation. The argument in opposition to this power has been, that railroads built by corporations organized mainly for purposes of gain—the roads which they built being under their control, and not that of the state were private and not public roads, and the tax assessed on the people went to swell the profits of individuals and not to the good of the state, or the benefit of the public, except in a remote and collateral way. On the other hand it was said that roads, canals, bridges, navigable streams, and all other highways had in all times been matter of public concern. That such channels of travel and of the carrying business had always been established, improved, regulated by the state, and that the railroad had not lost this character because constructed by individual enterprise, aggregated into a corporation. We are not prepared to say that the latter view of it is not the true one, especially as there are other characteristics of a public nature conferred on these corporations, such as the power to obtain right of way, their subjection to the laws which govern common carriers, and the like, which seem to justify the proposition. Of the disastrous consequences which have followed its recognition by the courts, and which were predicted when it was first established, there can be no doubt. We have referred to this history of the contest over aid to railroads by taxation to show that the strongest advocates for the validity of these laws never placed it on the ground of the unlimited power in the state legislature to tax the people, but conceded that where the purpose for which the tax was to be issued could no longer be justly claimed to have this public character, but was purely in aid of private or personal objects, the law authorizing it was beyond the legislative power, and was an unauthorized invasion of private right. Olcott v. Supervisors, 16 Wall 689; People v. Salem, 20 Mich. 452; Jackson v. Andover, 103 Mass. 94; Dillon on Municipal Corporations, § 587; 1 Redfield's Law of Railways, 398, rule 2. It must be conceded that there are such rights in every free government beyond the control of the state. A government which recognized no such rights, which held the lives, the liberty, and the property of its |