disapprove, it is evident that the power when so exercised is derived from the grant of the legislature. Thus granting power, the legislature binds the minority without its consent; and, on the same principle, it may make the duty imperative on both majority and minority in any locality to subscribe for stock, to issue bonds, and to pay taxes levied for the purpose of constructing a railroad. For, if it may bind one citizen without his consent, it may bind all; the rights and immunities of all being no more beyond the legislative power than those of each individual. It therefore rests in the legislative discretion to impose any conditions it may think the public welfare requires to the exercise of such a power. Nor, when it has once acted, has it parted with any portion of its authority. It may always and at any time do what it might have done in the beginning. It may take away any conditions, and make the duty absolute at once, or impose other and new ones at its pleasure.""

$906. There is no distinction in principle between a law authorizing a town to subscribe for shares in a railroad and to issue bonds in payment therefor, and a law directing the same. thing to be done. "In the absence of special constitutional restraints," say the New York Commission of Appeals, "the state itself may build and run a railroad, or may take shares in it. Indeed, in the infancy of such enterprises, the grant of the right of eminent domain to railroad companies was sustained upon the idea that railroads were, in their own nature, public undertakings and of public use, as other highways. It was considered a mere prudential question, to be decided by the state itself, whether it would construct them as public works, by the state officers, or commit that power to private individuals, who should do the work and derive their remuneration from the profits of the enterprise. With these views the state made loans and subsidies in aid of such undertakings; and in the earlier laws for the incorporation of railroad companies, provided for the assumption by the state of the whole enterprise upon terms of payment prescribed in the acts of incorporation. This being so, it is not per

1 Duanesburgh v. Jenkins, 57 N. Y., 177, 190; and see Langhorne v. Robinson, 20 Gratt., 661; People v. Lawrence, 41 N. Y., 137; S. C., 36 Barb., 177; Blanding v. Burr, 13 Cal., 343; Shaw v. Dennis, 5 Gilm. (Ill.), 416; Thomas v. Leland, 24 Wend, 65, Philadelphia v. Field, 58 Penn. St., 320; Thomson v. Lee County, 3 Wall., 330.

ceived how the particular agency employed to effect such a work can change its character." The weight of the later authorities in New York, however, seems to determine that a municipal corporation cannot be compelled without its consent, or that of its taxable inhabitants, to become a stockholder in a railway corporation, or to incur a debt in its behalf, and that a mandatory statute requiring it to issue its bonds without such consent, and to invest the proceeds thereof in the stock of a railroad corporation is unconstitutional. And in the case of Horton v. Thompson (71 N. Y. 513), it was held that an act of the legislature, validating the unauthorized and illegal exchange by commissioners of town bonds for stock in a railroad company was unconstitutional and void, for the reason that the bonds had not been originally issued in conformity with the consent of the tax-payers, and the legislature had no power to authorize or direct the commissioners originally to contract the debt without any consent or action on the part of the town. But the supreme court of the United States, in the case of Thompson v. Perrine (103 U. S. 806), had the same statute (N. Y. Laws of 1871, chap. 809) in question before them, and refused to follow the ruling in Horton v. Thompson, supra; and held that when the act was passed, it was the established doctrine of the highest court of New York, as it was of this highest federal court, that the legislature, unless restrained by the organic law of the state, could authorize or require a municipal corporation, with or without the consent of the people, to aid, by a subscription of capital stock, in the construction of a railroad, having connection with the public interests of the people within the limits of such municipality and to provide for payment by an issue of bonds or by taxation; that defects or omissions, upon the part of such municipal corporation, or its officers, in the execution of the power

Town of Duanesburgh v. Jenkins, 57 N. Y., 177, 188. At page 192 of the case, JOHNSON, C., writing the opinion, reviews the argument in the opinion of GROVER, J., in People v. Batchellor (53 N. Y., 128), to the effect that the legislature could not compel a municipal corporation to take stock in a railroad. The language quoted in the text is approved of in Thompson v. Perrine, 103 U. S., 806. See Rogers v. Burlington, 3 Wall., 663; Freeport v. Supervisors, 41 Ill., 495; Butler v. Dunham, 27 III.. 474.

2

People v. Batchellor, 53 N. Y., 128; Williams v. Duanesburgh, 66 N. Y.. 129; Horton v. Town of Thompson, 71 N. Y., 513; see Gaddis v. Richland County, 92 Ill., 119.

conferred, or in the performance of the duty imposed, could be cured by subsequent legislation-certainly, where the corporation had received the benefits which the original subscription was designed to secure. That, as, therefore, the legislature might, in the original act under which the bonds in question were issued, have authorized or required the bonds to be exchanged directly with the railroad company for capital stock, it could ratify and confirm such exchange, even where originally illegal, so as to make them binding obligations upon the town in favor of all who then held, or might thereafter acquire them in good faith or for a valuable consideration.'

§ 907. Authority to issue without consent of tax-payers not presumed.-There can be no doubt that the legislature can authorize or direct a municipality to contract a corporate debt for a public use without the consent of the tax-payers of the municipal corporation thereto being first obtained. But it will not be presumed that a legislature conferring authority on a municipal corporation to subscribe to a public work, intended it to be exercised without the precedent consent of tax-payers, and if the statute authorizing the subscription provide that the county court "may," for information, cause an election to be held to ascertain the sense of the tax-payers on the subject, may" will be construed as "shall," in so far as to require a vote to be taken as a condition precedent to the validity of the subscription, and bonds issued in pursuance of it."

6.

§ 908. Consent, how given.-How the consent of a town to the imposition of a tax, a subscription of stock for a railroad, or the issuance of its bonds, shall be given, if at all, is clearly in the discretion of the legislature. It has often given it to the majority in number and amount of tax-payers. It may give it to the supervisor or any other officer, since the whole power is of its creation, and since the consent of all the

1 Thompson v. Perrine, 103 U. S., 806.

2 Thomson v. Lee Co., 3 Wall., 327; St. Joseph Township v. Rogers, 16 Wall., 644; Railroad Co. v. Otoe, id., 667; Olcott v. Supervisors, id., 678; Town of Duanesburgh v. Jenkins, 57 N. Y., 177; First Municipality v. Orleans Theatre Co., 2 Rob. (La.), 209; Aurora City v. West, 22 Ind., 89; Bull v. Read, 13 Gratt., 78; Case v. Levy, 5 Call, 139; Thompson v. Perrine, 103 U. S., 806.

3 Leavenworth, &c., R. R. Co. v. Co. Court, 42 Miss., 175; Sternes v. Franklin Co., 48 Mo., 167.

tax-payers or inhabitants but one is powerless to bind a single dissentient, except upon the theory of the complete and plenary power of the legislature in the premises.'

§ 909. Act, when prohibitory merely.-An act of the legislature, forbidding the officers of counties, cities and towns to donate, take or subscribe stock in any railroad or other company, corporation or association, or the loan of their credit, without the previous assent of two-thirds of their qualified voters, and prescribing a punishment for a disregard of its provisions, is merely prohibitory in its character. It confers, of itself, no authority. The inhibition upon the officers of a county, city or town, to loan its credit without the previous assent of others, is not an authority to loan it when such assent is given. And until the legislature authorizes an election, a vote of the people cannot be taken which will bind the municipality or confer upon the municipal authorities the power to make such a subscription. The legislative authority to obtain the popular assent is as essential to the validity of the election as it is to the subscription.

A provision in an act authorizing a county to issue bonds in payment of subscriptions to the stock of a railroad company, reciting that the same should be made payable to the president and directors of the company and their uccessors and assigns, is directory merely, and the bonds are valid though made payable to the company or bearer.*

Where a municipal corporation is authorized by law to issue its bonds to a manufacturing corporation, purchasers of said bonds are bound to take notice as to whether the latter corporation was organized for private purposes."

Where the bonds of a town have been issued to a railroad corporation, in payment for stock, by commissioners appointed under and by a judgment, void for want of jurisdiction, ren

1 Town of Duanesburgh v. Jenkins, 57 N. Y., 177, 191; and see Bank of Rome v. Village of Rome, 18 N. Y., 38.

2 Jarrolt v. Moberly, 103 U. S., 580; Allen v. Louisiana, id., 80.

3 Allen v. Louisiana, 103 U. S., 80; and see Dodge v. County of Platte, 83 N. Y., 218; Ogden v. County of Daviess, 102 U. S., 634; People v. Waynesville Supervisors, 88 Ill., 469.

4 Calhoun County Supervisors v. Galbraith, 99 U. S., 214.

5 Central Branch, &c., Co. v. Smith, 23 Kan., 745; and see Gaddis v. Richland Co., 92 Ill., 119; State v. School District, 10 Neb., 544; State v. Highland, 25 Minn., 355.

dered in proceedings under an act authorizing "municipal corporations to aid in the construction of railroads," an equitable action is maintainable under an act "for the protection of taxpayers against the frauds, embezzlements and wrongful acts of public officers and agents," at the suit of a tax-payer of the town, to restrain the negotiation or payment of the bonds, and to compel their cancellation.'

§ 910. Consent of tax-payers, and other precedent conditions, how determined.-The rule, as announced by the Supreme Court of the United States, in the recent case of the Town of Coloma v. Eaves (92 U. S. 484), may safely be asserted to be the true one, and the one generally recognized, viz.: "Where legislative authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been made on the bonds issued by then and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality; for the recital is itself a decision of the fact by the appointed tribunal." And it has been held that where, after the majority

1 Metzger v. The Attica, &c., R. R. Co., 79 N. Y., 171.

* See Buchanan v. Litchfield, 102 U. S., 278; Comm'rs of Knox Co. v. Aspinwall, 21 How., 544; Orleans v. Pratt, 99 U. S., 676; Hackett v. Ottawa, id., 85; Weyanwega v. Ayling, id.. 112; Brooklyn v. Etna Life Ins C., id., 362: Block v. Bourbon Co. Comm'rs, id., 683; Scipio v. Wright, 101 U. S., 665; Phelps v. Lewiston, 15 Blatchf., C. C., 131; Foote v. fiancock, id., 343; North Bennington Bank v. Dorset, 16 id., 62; Phelps v. Yaces, id., 192; Westermann v. Cape Girardeau County, 5 Dillon, C. C., 112, Cupenter v. Buena Vista County, id., 555; Springport v. Teutonia Sav ags Bank, 75 N. Y. 897; Commonwealth v. Pittsburgh, 88 Penn. St., 65; State v. Columbia, 12 S. C., 370; Greeley v. Jacksonville, 17 Fla., 174; Kennicott v. Supervisors, 13 Wall., 452; County of Moultrie v. Savings Bank, 92 U. S., 631; Marcy v. Township of Oswego, id., 6.7; Town of Queensbury v. Culver, 19 Wall., 92; Bank of Rome v. Village of Rome, 18 N. Y., 38; Same v. Same, 19 id., 20; Gelpcke v. City of Dubuque, 1 Wall, 205; Meyer v. Muscatine, id., 384; Pendleton County v. Amy, 13 id., 5504; Nugent v. The Supervisors, 19 id., 241; City of Lexington v. Butler, 14 id., 282; Warren County v. Marcy, 97 U. S., 93; Nauvoo v. Ritter, id., 359; Daviess Co v. Huidekoper, 98 U. S., 98; Carriger v. Morristown, 1 Lea (Tenn.), 243; Comm'rs v. Bolles, 94 U. S., 104; Cagwin v. Town of