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prior occupancy to mining ground or agricultural land is not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use and vest an absolute monopoly in a single individual. The Act of Congress of 1866 recognizes the right to water by prior appropriation for agricultural and manufacturing purposes, as well as for mining. Its language is: "That, whenever by priority of possession rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same."

diverted or turned from the ditches or canals of such appropriator so as to render the same unavailable." Sess. L. of 1870, p. 57.

Several decisions of the Supreme Court of Montana have been cited to us recognizing the right by prior appropriation to water for purposes of mining on the public lands of the United States, and there is no solid reason for upholding the right when the water is thus used, which does not apply with the same force when the water is sought on those lands for any other equally beneficial purpose. In Thorp v. Freed, I Mont., 652, 665, the subject was very ably discussed by two of the justices of that court, who differed in opinion upon the question in that case, where both parties had acquired the title of the government. The disagreement would seem to have arisen in the It is very evident that Congress intended, al- application of the doctrine to a case where title 684*] though the *language used is not happy, had passed from the government and not in its to recognize as valid the customary law with application to a case where neither party had respect to the use of water which had grown acquired that title. In the course of his opinup among the occupants of the public land un- ion Mr. Justice Knowles stated that ever siren der the peculiar necessities of their condition; the settlement of the Territory it had been the and that law may be shown by evidence of the custom of those who had settled themselves uplocal customs, or by the legislation of the on the public domain and devoted any part State or Territory, or the decisions of the thereof to the purposes of agriculture, to dig courts. The union of the three conditions in ditches and turn out the water of some stream any particular case is not essential to the per- to irrigate the same; that this right had been fection of the right by priority; and in case generally recognized by the people of the Ter of conflict between a local custom and a statu-ritory, and had been universally conceded as tory regulation, the latter, as of superior authority, must necessarily control.

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"So univer

necessity of agricultural pursuits.
sal," added the justice, "has been this usage
that I do not suppose there has been a parcel
of land, to the extent of one acre, cultivated
within the bounds of this Territory, that has
not been irrigated by water diverted from some
running stream."

*We are satisfied that the right [*686 claimed by the plaintiffs is one which, under the customs, laws and decisions of the courts of the Territory, and the Act of Congress, should be recognized and protected.

We, therefore, affirm the decree of the Supreme Court of the Territory.

This law was in force when the plaintiffs in this case acquired their right to the waters of Avalanche Creek. There was also in force an Act of the Territory, passed on the 12th of January, 1865, to protect and regulate the irrigation of land, which declared in its first section that all persons who claimed or held a possessory right or title to any land within the Territory on the bank, margin or neighborhood of any stream of water, should be "Entitled to the use of the water of said stream for the purpose of irrigation and making said claim available to the full extent of the soil for agricultural purposes." Another section provided that in case the volume of water in the stream was not sufficient to supply the continual wants of the entire country, through which it passed, an apportionment of the water should be made between different localities by commissioners appointed for that purpose. This last section has no application to the present case, for it is not (See S. C., "Loan Association v. Topeka," 20 Wall., pretended that there was not water enough in the district, where Avalanche Creek flows, to supply the wants of the country; and the section itself was repealed in 1870. Sess. L. of 1865, p. 367.

THE CITIZENS' SAVINGS & LOAN ASSO-
CIATION OF CLEVELAND, OHIO, Piff. in
Err.,

v.

TOPEKA CITY.

655-670.)

Statute, authorizing towns to make obligations -limitation on legislative power-limitation of right of taxation cannot be exercised for private purpose-only for public purposeprivate manufacturing enterprise-bonds issued for, void.

1. A statute which authorizes towns to contract debts or other obligations payable in money, im

some other fund or source of payment is provided. 2. If there is no power in the Legislature which

In January of that year another Act was passed by the Legislature of Montana upon the same subject, which recognizes the right by prior appropriation of water for the purposes of irrigation, and declares that all controver-plies the duty to levy taxes to pay them, unless sies respecting the rights to water under its 685*] provisions shall be determined by the date of the appropriation as respectively made by the parties, and that the water of the streams shall be made available to their full extent for irrigating purposes, without regard to deterioration in quality or diminution in quantity. "So that the same do not materially effect or impair the rights of the prior appropriator; but in no case shall the same be

passes 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.

*Headnotes by Mr. Justice MILLER.

NOTE. Fower to tax for the purpose of aiding business corporations or enterprises-see note, 14 L. R. A. 478.

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 en. titled 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 court where the case fails 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 appropri

ated to the use of others

8. A statute, which authorizes a town to issue its bonds in aid of the manufacturing enterprise 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 a 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.

[That the town authorities have paid one installment of interest on these bonds, works no es toppel.]

[No. 729.]

Submitted Dec. 8, 1874. Decided Feb. 1, 1875. ERROR to the Circuit Court of the Unit

IN ERROR to the Circuit Court of th

The case is stated by the court.

Mr. Alfred Ennis, for plaintiff in error: Had the legislature of the State of Arkansas the power to enact the laws referred to, authorizing the issuing of the bonds to which the interest coupons sued on belong?

The question is strictly one of legislative power, and its consideration is of sufficient importance to serve as an apology for an allusion to some of the elementary principles of government.

The British Parliament, not subject to the restrictions and limitations of a written constitution, is omnipotent. It is the supreme power of the realm. Its powers are undefined and undefinable. "It can do everything that is not naturally impossible." And what it does, no earthly power except Parliament can undo.

1 Bl. Com., 161; 4 Coke, Inst., 36; 1 De Tocqueville's Democracy in America (Reeves). 2 Am. ed., 80; Eaton v. B. C. & M. R. Co., 51 N. H., 504.

If the British Parliament enact a thing to be done, although it be unwise, impolitic and unreasonable, no power, other than that of Parliament itself, can restrain its operation. The courts are not at liberty to interfere.

1 Bl. Com. 91.

While the Legislative Department of our Federal Government is one of enumerated and limited powers, wherein Congres can exercise no legislative authority unless it is expressly delegated by or shall be necessary to carry into effect the enumerated powers of the Federal Constitution, the Legislative Department of the State Governments possesses all the legislative power not vested in the Federal Government, and may exercise supreme, om

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nipotent and legislative authority, and may enact any law, if not forbidden by the State Constitution, the Constitution of the United States or the laws and treaties made under it.

Township of Pine Grove v. Talcott, U. S. Sup. Court, Oct. Term, 1873, ante, 227; R. Co. v. County of Otoe, 16 Wall., 667, 21 L. ed. 375; McCulloch v. State of Maryland, 4 Wheat., 316; Golden v. Prince, 3 Wash. (C. C.) 313; Beauchamp v. The State, 6 Blackf., 299; The Board of Com. of Leavenworth Co. v. Miller, 7 Kan., 479; Lafayette, M. & B. R. Co. v. Geiger, 34 Ind., 185; S. & V. R. Co. v. Stockton, 41 Cal., 147; Guilford v. Supervisors of Chenango Co., 13 N. Y., 145; People v. Flagg, 46 N. Y. 407; People v. Draper, 15 N. Y. 543; Clarke v. Rochester, 24 Barb., 446; Morrison v. Springer, 15 Ia.. 304; Stewart v. Supervisors of Polk Co., 30 Ia. 9.

ity of an Act of Congress is brought in quesIt may be stated thus: that, when the validtion, reference is had to the Federal Constitution, to ascertain if the power to enact the saine has been conferred: while, on the other hand, when the validity of an Act of the State Legislature is brought in question, reference is had to both the State and Federal Constitutions, to ascertain if the power to enact the same has been forbidden.

Section 2 of the Bill of Rights in the Constitution of the State of Kansas reads as follows "All political power is inherent in the people."

the State of Kansas reads as follows: "The Section 1 of article 2 of the Constitution of legislative power of the State shall be vested in a House of Representatives and Senate."

Section 2 of the Bill of Rights declares all political power to be inherent in the people.

Section 1 of article 2 of the Constitution vests all the legislative power, inherent in the people, in the legislature.

This is not a grant of enumerated and limited powers, as is the case with the Constitution of the United States, but is a general grant of power, and confers upon the Legislature supreme and omnipotent legislative authority, subject only to constitutional restrictions and limitations.

In the case of Pine Grove v. Talcott, decided at the October Term, 1873, of the U. S. Supreme Court, and not yet reported (ante, 227), Justice Swayne, in delivering the opinion of the court, having under consideration the validity of an Act of the Legislature of the State of Michigan, says:

"The legislative power of a State extends to everything within the sphere of such power, except as it is restricted by the Federal Constitution, or that of the State."

See, Bushnell v. Beloit, 10 Wis., 195; People v. Mitchell, 35 N. Y., 551; Evansville, etc., R. Co. v. Evansville, 15 Ind., 395; Aurora v. West, 9 Ind., 75, 22 Ind., 88; V. 8. & Tex. R. W. Co. v. Ouachita, 11 La. Ann., 649; City and Co. of St. Louis v. Alexander, 23 Mo., 483; Taylor v. Newberne, 2 Jones, Eq. (N. C.), 141; Stein v. Mobile, 24 Ala., 591; Whittaker v. Johnson Co., 10 La., 161; Fosdick v. Perrysburg, 14 Ohio St., 472; Cotten v. Co. Commissioners, 6 Fla., 610; Price v. Foster, 4 Harr., (Del.), 479; Piatt v. People, 29 Ill., 54; Maddox v. Graham, 2 Met. (Ky.) 56; Slack v. M. & L. R. Co., 13 B. Mon., 1; Strickland v Miss. R. Co., not reported; L. & N. R. R.

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See, Harding v. Goodlett, 3 Yerg., 41; Stark v. McGowan, 1 Nott. & McC., 387; Lindsay v. Commissioners, 2 Bay, 38; Tipton v. Miller, 3 Yerg., 423.

Co. v. Davidson, 1 Sneed (Tenn.), 637; Com- The Legislature possesses the exclusive powmonwealth v. Perkins, 43 Pa., 400; Bridgeport er to designate the public purpose to which the v. The Housatonic R. Co., 15 Conn., 475; Com- right of eminent domain may be applied. missioners of Knox Co. v. Aspinwall, 21 How., 539, 16 L. ed., 208, and 24 How., 376, 16 L. ed., 735; Bissell v. City of Jefferson, 24 How., 287, 16 L. ed., 664; Woods v. Lawrence, 1 Black, 386, 17 L. ed., 122; see cases reported in 1 Wall., pp. 83, 175, 272, 291, 384, 17 L. ed., 613, 684, 553, 538, 564; 6 Wall., pp. 166, 210, 514, 518, 18 L. ed. 768, 781, 933, 918; 7 Wall., pp. 182, 313, 19 L. ed., 160, 93; City v. Lamson, 9 Wall., 477, 19 L. ed., 725; People v. San Francisco, 27 Cal., 655; Augusta Bank v. Augusta, 49 Me., 507; Wyman v. Macon, 21 Va., 275.

It is not on slight implications and vague conjectures that the Legislature is pronounced to have transcended its powers, and its Acts to be considered void. The conflict between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

See, also, State v. Robinson, 1. Kan., 18; Atchison v. Bartholow, 4 Kan., 124; Board of Com. of Leavenworth Co. v. Miller, supra; Legal Tender cases, 12 Wall., 531, 20 L. ed., 305; Commonwealth v. Smith, 4 Binn. Pa., 123; Freeland v. Hastings, 92 Mass., 585; Oliver v. Washington Mills, 93 Mass., 279; Cheaney v. Hooser, 9 B. Mon., 345; Maddox V. Graham, 2 Metc. (Ky.), 56; Tyler v. People, 8 Mich., 333; People v. Mahany, 13 Mich., 501; Oliver v. Keightley, 24 Ind., 514; Talbot v. Hudson, 82 Mass., 417; Wellington et al., Petitioners, etc., 33 Mass., 95: Ogden v Saunders, 12 Wheat., 270; Dow v. Norris, 4 N. H., 16; Franklin Bridge Co. v. Wood, 14 Ga., 80; Foster v. Essex Bank, 16 Mass., 245; Newland v. Marsh, 19 Ill., 381; Hartford Bridge Co. v. Union Ferry Co., 29 Conn., 210; Eason v. State, 6 Eng., 481; Matter of Clinton Street, 2 Brewst., Pa., 599; Leonard v. Wiseman, 31 Md., 201; Bennett v. Boggs, Bald., 74; Kirby v. Shaw, 7 Pa., 258; State v. Dawson, 3 Hill, S. C., 100; James v. Patton, 2 Seld., 9; McCulloch v. Maryland, 4 Wheat., 316; Clarke V. People, 26 Wend., 599; Sun Mut. Ins. Co. v. New York, 5 Sandf., 10; Lane v. Dorman, 3 Scam., 238; State v. Springfield, 6 Ind., 84; Fletcher v. Peck, 6 Cranch, 128; People v. Suprs. of Orange Co., 17 N. Y., 241.

The judiciary cannot declare a legislative enactment invalid because such enactment is thought to infringe or be repugnant to some latent spirit supposed to pervade or underlie the Constitution, but which is not clearly disclosed. Such would be invoking the aid of a higher power than the Constitution itself.

There is a marked distinction between taxation and eminent domain. Taxation exacts money as the individual share of a justly imposed and definitely ascertained general public burden, for which an equivalent is presumably received in the benefits resulting therefrom; while property taken by right of eminent domain is so taken, not as the individual share of an ascertained general public burden, but as something distinct from and more than such share of the public burdens. The right of eminent domain does not grow out of the right of taxation. The constitutional provisions to the effect that private property shall not be taken for public use without just compensation, has no application or reference to the taxing power.

ers of government and belongs appropriately to The taxing power is one of the inherent powthe legislative department.

McCulloch v. Maryland, 4 Wheat., 428; Prov. Bk. v. Billings, 4 Pet., 514, 561; Brewster v. Striker, 2 N. Y., 29, 419; Guilford v. Supervi sors, 13 N. Y., 144.

Within the limits of legitimate taxation, the legislative discretion is utterly uncontrollable, as it is indefinable in its objects, uses, purposes and extent.

Thomas v. Leland, 24 Wend., 65; Wetumpka v. Winter, 29 Ala., 651; Booth v. Woodbury, 32 Conn., 118.

The section of the Constitution providing that private property shall not be taken for public use without just compenstaion has relerence exclusively to eminent domain and has no reference to the taxing power of the Legislature. The Legislature is the sole judge of the necessity or expediency of exercising the right of eminent domain.

bers v. Satterlee, 40 Cal., 497; Nichols v. See, Guilford v. Cornell, 18 Barb., 615; ChamBridgeport, 23 Conn., 189; Wynehamer v. People, 13 N. Y., 378; Booth v. Woodbury, 32 Conn., 118; Grant v. Courter, 24 Barb., 232; Pine Grove v. Talcott, U. S. S. C., October Term, 1873 (ante, 227).

Legislative enactments authorizing local aid to turnpike and gravel road companies, by assessing a tax, called benefits, upon all real estate within specified distances of either road, and of the termini of the proposed turnpike or gravel road, have been held valid, notwithstanding that such turnpike or gravel road companies were private corporations, organized solely for private gain.

Goodrich v. Winchester & Deerfield Co., 26 Ind., 119; Law v. Madison S. & G. Turnpike Co., 30 Ind., 37; Anderson v. Kerns Draining Co., 13 Ind., 199; Reeves v. Treasurer, 8 Ohio St., 333; State v. New Brunswick, 30 N. J., 395; Livingston v. The Mayor, etc., 8 Wend., 85; People v. Mayor, 4 N. Y., 419; The Prov. Bank v. Billings, 4 Pet., 514; McCulloch v. Maryland, 4 Wheat., 428.

Messrs. Ross, Burns and A. L. Williams, for defendant in error:

At this day it is useless to discuss the question whether municipal corporations may rightfully be taxed to aid in the construction of railroads, and equally useless in this court, to insist that the construction of statutes authorizing such aid is a local, statutory question belonging exclusively to the state courts, and not a question of general law. But it is proper to inquire whether the Acts in question are without the scope of legislative power, or violat any of the fundamental principles of free governments.

It is very commonly said that the Federal Government is one of delegated powers, and the state government of non-delegated or gereral powers. This, in the sense which it is

SUPREME COURT OF THE UNITED STATES.

used, is true, but the argument of counsel for
plaintiff that it is true of Kansas, and that
the Legislature may do anything which it is
not expressly prohibited by the Constitution
from doing, is too broad.

Our Constitution, at least, is a grant of enu-
merated powers. It creates the Legislature, the
Executive and the Court, defines their duties,
grants, and limits their power.

Sec. 1, art. II., says: "The legislative power of this State shall be vested in a House of Representatives and Senate." Then follow many sections prescribing rules for the government of the Legislature, delegating to it certain powers in some matters, and restricting it in oth

ers.

Before this grant of powers, however, the people in their Bill of Rights declare as follows:

"Sec. 2. All political power is inherent in the people, and all free governments are founded upon their authority, and are instituted for their equal protection and benefit. No special privileges or immunites shall ever be granted by the Legislature, which may not be altered, revoked or repealed by the same body, and this power shall be exercised by no other tribunal

or agency.

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"Sec. 20. This eunmeration of rights shall not be construed to impair or deny others retained by the people, and all powers not herein delegated remain with the people."

Under our Constitution, then, with its restrictions and limitations, has the Legislature power to compel, by law, the citizens of Topeka to contribute to the erection and maintenance of bridge shops? Or, to state the question squarely, is such enforced donation taxation or robbery? This power, if it exists, is claimed under the law making power, and the power to levy and collect taxes; and we are defiantly told to point out the precise clause of the Constitution which prohibits its exercise.

OCI. TERM,

Kelley, 11 Minnesota, 496; Reeves v. Treasurer, 8 O. St. 333; Brown v. Foster, 51 Pa. St., 167; Atkins v. Randolph, 31 Vt., 236; Hampshire v. Franklin, 16 Mass., 83.

Whatever other difference of opinion may it will be conceded that, irrespective of constiexist as to the nature and requisites of a tax, tutional provisions, it can only be raised as and that any attempt to compel the payment of revenue for public or governmental purposes, money for purely private purposes is void, no matter by what name the imposition is called.

pose? The courts. It is essentially a judiWho shall determine what is a public purcial question, and no legislative declaration of should have any weight, if, upon an inspection the public purpose of a proposed tax, will or of the statute authorizing such tax, it is apparent that the purpose is purely a private one.

Commissioners of Leavenworth Co. v. Miller, 7 The Supreme Court of Kansas, in the case of Kan., 479, take strong ground in favor of the constitutionality of bonded aid to railroads, and in as careful, well considered and exhaustive examination as can be found in any report, grouped together and stated all the arguments for and against such aid, and arrived at the the public purpose to be attained by the buildconclusion, of course, that "If it were not for ing of such roads, no aid could constitutionally be given them."

Sharpless v. Phila., 21 Pa., 147; Nat. Bank Fond du Lac Co., 16 Wall., 678, 21 L. ed., v. Iola City, 9 Kan., 701; Olcott v. Suprs. of 382; Cooley, Const. Lim., p. 487.

but for convenience of reference, a table of cases, We append hereto, not by way of authority, chronologically arranged by States, containing, of municipal aid to railroads; all of which show we believe, all the authorities on the subject that a tax, to be constitutional, must be for a public purpose.

rison Justices v. Holland, 3 Gratt., (1846) Goddin v. Crump, 8 Leigh, (1837) 140; Har236; Langhorne v. Robinson, 20 Gratt., (1871) 661; Case of Co. Levy, 5 Call, (1871) 139; Bridgeport v. Housatonic R. Co., 15 Conn., (1843) 475; Soc. for Savings v. New London, 29 Conn., (1846) 174; Harvey v. Lloyd, 3 Pa. St., (1846) 331; Com. v. McWilliams, 11 Pa., (1849) 62; Sharpless v. Mayor of Phila., 21 Pa., (1853) 188; Moers v. City of Reading, 21 Pa., (1853) 188; Com. v. Comrs. of Allegheny Co., 32 Pa., (1858) 218; Com. v. Pittsburgh, (1863) 400; Nichol v. Nashville, 9 Humph., 41 Pa., (1868) 278; Com. v. Perkins, 43 Pa., (1848) 252, 271; L. & N. R. Co. v. Davidson Co., 1 Sneed, (1854) 637; Hord v. Rogersville, etc., R. Co. Head, (1859) 208; Byrd v. Ral

Under a Constitution like ours, of delegated and limited powers, sustained by the assertion that "All powers not herein delegated remain with the people," we may well call upon the other side to show the clause which authorizes such legislation. The answer is, "The Legislature is vested with the power to make laws. The power to make laws includes the power to make laws levying taxes; the Legislature passed the law, ordered the taxes to be collected and, therefore, the law is constitutional, the tax is valid." But is a legislative enactment necessarily a law, unless it violates some specific limitations imposed by the Constitution? In Kansas, where the line between legislative and judicial authority is not yet definitely settled in the legislative mind, we have many illustraston, 3 Head, (1859) 477; Justices Campbell tions to show that all enactments, though call- Co. v. K. & K. R. Co., 6 Cold., (1869) 598; ed laws, are not so, even where no constitution- Talbot v. Dent, 9 B. Mon., (1849) 526; Jusal provision, express in its terms, has been tices, etc., v. P. W. & K. R. Turnpike Co., 11 violated. Co., 13 B. Mon., (1852) 1; Maddox v. Graham, B. Mon., (1850) 143; Slack v. M. & L. R. R. 2 Metc. Ky., (1859) 56; Ryder v. A. & S. R. Co. 13 III., (1851) 516; Prettyman v. Tazewell Co., 19 Ill., (1858) 406; Robertson v. Rockford, 21 Ill., (1859) 451; Johnson 24 Ill., (1860) 208; Butler v. Dunham, 27 III., Stark Co.. 24 Ill., (1860) 75; Perkins v. Lewis, (1861) 474; Clarke v. Hancock Co., 27 III., (1862) 305; Piatt v. People, 29 Ill.. (1862) 54; Keithsburg v. Frick, 34 Ill., (1864) 405; Cotten v. Co. Comrs., 6 Fla., (1856) 610, 87 U.S.

The taking of the property of one person and giving it to another, with or without pay, is not within the province of the Legislature, and any attempts by statute to do so is void, irrespective of any constitutional prohibition of such acts.

Cooley, Const. Lim., 530; In the Matter of Townsend, 39 N. Y., 171: Mill-Dam Foundry v. Hovey, 38 Mass., 421; Stinson v. Rouse, 52 Me., 265; Embury v. Conner, 3 N. Y., 511; Harding v. Butts, 18 Illinois, 502; Baker v. 458

V.

1874.

SAVINGS AND LOAN ASSOC. v. TOPEKA.

(1865) 655; Augusta Bank v. Augusta, 49 Me.,
(1860) 507.

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 City issued one hundred of these bonds, for $1,000 each, as a donation, and so it is stated in the declaration, to encourage that in its design of establishing a company manufactory of iron bridges in that City. The declaration also alleges that the interest coupons first due were paid out of a fund raised by taxation for that *purpose, [*657 and that after this purchase 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.

O. W. & Z R. R. Co. v. Comrs. Clinton Co., 1 Ohio St., (1852) 77; The S. & I. R. R. Co. v. Trustees of N. T. Ship, etc., 1 Ohio St., (1852) 105; Cass v. Dillon, 2 Ohio St., (1853) 607; Kelly v. Thompson, 2 Ohio St., (1853) 647; State v. Van Horne, 7 Ohio St., (1857) 327: State v. Union Tp., 8 Ohio St., (1858) 394; State v. Comrs. Hancock Co. 12 Ohio St., (1861) 596; Comrs. of Knox Co., v. The bonds on their face purported to be payNichols, 14 Ohio St., (1863) 260; Fosdial (1863) 472: able to the King Wrought Iron Bridge Manuv. Perrysburg, 14 Ohio St., facturing and Iron Works Company, of TopeShoemaker v. Goshen, T'p., 14 Ohio St., (1863) 569; Police Jury v. Suc. of McDonogh, 8 La. ka, to aid and encourage that company in esAnn., (1853) 341; New Orleans v. Graihle, 9tablishing and operating bridge shops in said La. Ann., (1854) 561; Parker v. Scogin, 11 La. | City of Topeka, under and in pursuance of secAnn., (1856) 629; V. S. & T. R. Co. v. Parish tion 26 of an Act of the Legislature of the of Ouachita, 11 La. Ann., (1856) 649; Du- State of Kansas, entitled An Act to Incorpobuque Co. v. D. & P. R. Co. 4 G. Greene, (1853) rate Cities of the Second Class, approved Feb. 1; State v. Bissell, 4 G. Greene, (1854) 328; 29, 1872; also another Act to authorize cities and counties to issue bonds for the purpose of Clapp v. Cedar Co. 5 Ia., (1857) 15; Ring v. Johnson Co., 6 Ia., (1858) 265; McMillen v. building bridges, aiding railroads, water-power, Boyles, 6 Ia., (1858) 304; McMillen v. Lee Co., or other works of internal improvement, ap6 Ia., (1858) 391; Whittaker v. Johnson Co., proved March 2, 1872. 10 Ia., (1859) 161; Stein v. Mayor of Mobile, 24 Ala., (1854) 591; Wetumpka v. Winter, 29 Ala., (1857) 651; Gibbons v. Mobile, etc., R., 36 Ala., (1860) 410; Strickland v. Miss. Central R. R. Co., (1854) not reported; Williams v. ammack, 27 Miss., (1854) 224; Taylor v. New jerne, 2 Jones, Eq., (1855) 151; Caldwell v. Justices of Burke Co., 4 Jones, Eq., (1858) 323; St. Louis v. Alexander, 23 Mo., (1863) 483; Flagg v. Palmyra, 33 Mo., (1863) 440; St. Jo. & D. C. R. Co. v. Buchanan Co., 39 Mo., (1867) 485; Grant v. Courter, 24 Barb., (1857) 232; Benson v. Mayor of Albany, 24 Barb., (1857) 248; Clarke v. City of Rochester, 24 Barb, (1857) 446; Bank of Rome v. Rome, 18 N. Y., (1858) 38; Gould v. Town of Venice, 29 Barb., (1859) 442; Starin v. Genoa, 23 N. Y., (1861) 439; Clarke v. Rochester, 28 N. Y., (1866) 605; People v. Mitchell, 45 Barb., (1865) 208; S. C., 35 N. Y., (1866) 551; Copes v. Charleston, 10 Rich., (1857) 491; Winn v. Macon, 21 Ga., (1857) 275; Powers v. Dougherty Co., 23 Ga., (1857) 65; Aurora v. West, 9 Ind., (1857) 74; Evansville R. Co. v. Evansville, 15 Ind., (1860) 395; Bartholomew Co. v. Bright, 18 Ind., (1862) 93; Aurora v. West, 22 Ind., (1864) 88; Comrs. Knox Co v. Aspinwall, 21 How., (1858) 539, 16 L. ed., 208; Same v. Wallace, 21 How., (1858) 547, 16 L. ed. 211; Zabriskie v. R. Co., 23 How., (1859) 381, 16 L. ed., 488; Bissell v. Jeffersonville, 24 How., (1860) 287, 16 L. ed., 664; Amey v. Allegheny City, 24 How., (1860) 365, 16 L. ed., 614; Comrs. Knox Co. v. Aspinwall, 24 How., (1860) 376, 16 L. ed., 735; Woods v. Lawrence Co., 1 Black, (1861) 386, 17 L. ed., 122; Moran v. Miami Co., 2 Black, (1862) 722; 17 L. ed. 342; 1 Wall. (1863) 80, 175, 272, 291 and 384, 17 L. ed., 548, 684, 553, 538, 564; 3 Wall., (1865) 93, 294, 327 and 654, 17 L. ed., 33, 38, 177, 79; 4 Wall., (1866) 270, 275, and 535, 18 L. ed., 350, 370, 403; 6 Wall., (1869) 166, 210, 514 and 518, 18 L. ed., 768, 781, 933, 918; 7 Wall., (1868) 181 and 313, 19 L. ed., 160, 93; 9 Wall., (1879) 477, 19 L. ed., 725; Clark v. Janesville, 10 Wis., (1859) 136; Bushnell v. Beloit, 10 Wis., (1860) 195; Pattison v. Yuba Co., 13 Cal., (1859) 175; Hobart v. Butte Co., 17 Cal., (1860) 23; Robinson v. Bidwell, 22 Cal., (1863) 379; French v. Teschemaker, 24 Cal., (1864) 518; People v. Coon, 25 Cal., (1864) 635; People v. San Francisco, 27 Cal.,

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 City in such amounts as the Council may determine: Provided, That no greater amount than $1,000 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 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 5 of article 12 of the Constitution of that State it is declared that provision shall be made by general law for the organization of cities, towns

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