stitutions, 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 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. State v. Wapello, 13 Iowa, 388; Hanson v. Vernon, 27 Ia. 28; Sharpless v. Mayor, 21 Pa. St. 147; Whiting v. Fond du Lac, 25 Wis. 188. In all these 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 as 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 the purpose 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 private 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. But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difliculty in holding that this is not such a public purpose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the inn-keeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the business men of the city or town."

The purpose for which local governing bodies may be authorized to lay and collect taxes must be not only public in character, but must, generally speaking, relate strictly to the locality concerned. In other words, a State may not compel a local body to levy a local tax for the benefit wholly or in considerable part of another community.24

"Con

24 In Morford v. Unger (8 Iowa, 82) the Supreme Court of Iowa say: ceding to the General Assembly a wide range of discretion as to the objects of taxation, the kind of property to be made liable, and the extent of the territory within which the local tax may operate, there must be some limit to this legislative discretion, which, in the absence of any other criterion, is held to consist in the discrimination to be made between what may reasonably be deemed a just tax, one which a just compensation is provided in the objects to which it is to be devoted, and that which is palpably not a tax, but which, under the form of a tax, is the taking of private property for the public use without just compensation. If there be such a flagrant and palpable departure from equality in the burden imposed, if it be imposed for the benefit of others, and for purposes in which those objecting have no interest, and are, therefore, not bound to contribute, it is no matter

§ 269. Power of Congress to Appropriate Money.

A parity of reasoning would seem to provide the principle that inasmuch as taxes must be for a public purpose, an appropriation of the proceeds of taxes should be for a public purpose. Furthermore, it would seem to be not unreasonable to argue that the Federal Government being one of limited enumerated powers, Congress has not the authority to appropriate money except as required for the performance of the duties thus constitutionally laid upon it. In fact, however, the limitation that an appropriation should be for a public purpose has been without practical effect, as the courts have in no case attempted to hold invalid an appropriation by Congress on the ground that it has been for a purpose not public in character; and, as regards the restriction that appropriations shall be in aid of enterprises which the Federal Government is empowered to undertake, the doctrine has become an established one that Congress may appropriate money in aid of matters which the Federal Government is not constitutionally able to administer and regulate.

The authority of Congress to appropriate money for internal improvements within a State, although the Federal Government has not itself the authority to construct or operate such improvements, is discussed by President Monroe in connection with the veto in 1822 of the Cumberland Road Bill, and by President Jackson in his veto in 1830 of the Maysville Turnpike Bill.

In a paper entitled "Views of the President of the United States on the Subject of Internal Improvements," submitted in connection with his veto, President Monroe takes the position that though Congress has not the constitutional power to provide for the construction or operation under federal direction of roads, canals or other internal improvements within the States, it has the power to appropriate money in aid of such improvements. in what form the power is exercised - whether in the unequal levy of the tax, or in the regulation of the boundaries of local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the Constitution designed to protect private rights against aggression, however made, and whether under the color of recognized power or not." Cf. McGehee, Due Process of Law, 231.

The constitutional grant to Congress of the power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States," he very correctly argues does not operate to vest in the General Government any additional powers of control, but solely to authorize that government to raise revenues and to appropriate money to the purposes specified. These purposes, however, he maintains, are broad enough to enable Congress to appropriate money in aid of enterprises which the General Gorernment cannot undertake or directly control.25

25 Monroe's argument is as follows: "A power to lay and collect taxes, duties, imposts and excises, subjects to the call of Congress every branch of the public revenue, internal and external, and the addition to pay the debts and provide for the common defense and general welfare gives the right of applying the money raised—that is, of appropriating it to the purposes specified according to a proper construction of the terms. Hence it follows that it is the first part of the clause only which gives a power which affects in any manner the power remaining to the States, as the power to raise money from the people, whether it be by taxes, duties, imposts, or excises, though concurrent in the States as to taxes and excises, must necessarily do. But the use or application of the money after it is raised is a power altogether of a different character. It imposes no burden on the people, nor can it act on them in a sense to take power from the States or in any sense in which power can be controverted, or become a question between the two Governments. The application of money raised under a lawful power is a right or grant which may be abused. It may be applied partially among the States, or to improper purposes in our foreign and domestic concerns; but still it is a power not felt in the sense of other power, since the only complaint which any State can make of such partiality and abuse is that some other State or States have obtained greater benefit from the application than by a just rule of apportionment they were entitled to. The right of appropriation is therefore from its nature secondary and incidental to the right of raising money, and it was proper to place it in the same grant and same clause with that right. By finding them, then, in that order we see a new proof of the sense in which the grant was made, corresponding with the view herein taken of it."

Having explained that the grant is one of simply a power to appropriate, Monroe then considers the extent to which this power may be carried. He writes: "It is contended on the one side that as the National Government is a government of limited powers it has no right to expend money except in the performance of acts authorized by other specific grants according to a strict construction of their powers; that this grant in neither of its branches gives to Congress discretionary power of any kind, but is a mere instrument in its hands to carry into effect the powers contained in the other grants.

In President Jackson's veto of the Maysville Road Bili practically the same constitutional position as that taken by Monroe is assumed; the appropriation in this case, however, is vetoed upon the ground that the improvement in question was, in the To this construction I was inclined in the more early stage of our Government; but on further reflection and observation my mind has undergone a change, for reasons which I will frankly unfold. The grant consists, as heretofore observed, of a twofold power the first to raise, the second to appropriate, the public money—and the terms used in both instances are general and unqualified. Each branch was obviously drawn with a view to the other, and the import of each tends to illustrate that of the other. The grant to raise money gives a power over every subject from which revenue may be drawn, and is made in the same manner with the grants to declare war, to raise and support armies and a navy, to regulate commerce, to establish post-offices and post-roads, and with all the other specific grants to the General Government. In the discharge of the powers contained in any of these grants there is no other check than that which is to be found in the great principles of our system, the responsibility of the representative to his constituents. If war, for example, is necessary, and Congress declares it for good cause, their constituents will support them in it. A like support will be given them for the faithful discharge of their duties under any and every other power vested in the United States. The power to raise money by taxes, duties, imposts, and excises is alike unqualified, nor do I see any check on the exercise of it other than that which applies to the other powers above recited, the responsibility of the representative to his constituents. Congress knows the extent of the public engagements and the sums necessary to meet them; they know how much may be derived from each branch of revenue without pressing it too far; and, paying due regard to the interests of the people, they likewise know which branch ought to be resorted to in the first instance. From the commencement of the Government two branches of this power, duties and imposts, have been in constant operation, the revenue from which has supported the Government in its various branches and met its other ordinary engagements. In great emergencies the other two, taxes and excises, have likewise been resorted to, and neither was the right nor the policy called in question. If we look to the second branch of this power, that which authorizes the appropriation of the money thus raised, we find that it is not less general and unqualified than the power to raise it. More comprehensive terms than to "pay the debts and provide for the common defense and general welfare" could not have been used. So intimately connected with and dependent on each other are these two branches of power that had either been limited the limitation would have had the like effect on the other. Had the power to raise money been conditional or restricted to special purposes, the appropriation must have corresponded with it, for none but the money raised could be appropriated, nor could it be appropriated to other purposes thar those which were permitted. On the other hand, if the right of appropriation had been restricted to certain purposes, it would be useless and