This was a suit for an injunction to restrain the defendants from diverting the water of a stream known as Avalanche Creek, in the Territory of Montana, to which the plaintiffs assert a right of prior appropriation for the purposes of irrigation. In their amended complaint, they allege that in the year 1866, they and their predecessors in interest took up for settlement and cultivation certain farms, designated by them as "ranches," on the public lands of the United States, near the creek in the County of Meagher in that Territory; and that they or their predecessors in interest, have ever since occupied and cultivated the same; that it was necessary to irrigate the land for its successful cultivation, and to raise grain, hay and vegetables; that they, accordingly, during that year and the following spring, constructed at great labor and expense, a ditch by which they intersected the creek a short distance from its junction with the Missouri River, and conveyed its water to their farm and used it for irrigation; that at this time the water was not appropriated by any person and was subject to appropriation by them; that by their ditch they appropriated the water to the extent of five hundred inches according to the measurement of miners; that this amount was necessary to the successful cultivation of the land, and by means of it they and their predecessors in interest were enabled to cultivate their farms and raise large and valuable crops of grain, hay and vegetables. They further allege that, subsequent to this appropriation by them and during the years 1867 and 1870 and the intervening period, the defendants erected dams across the creek above the head of their ditch, and diverted the water of the stream, and thereby wholly deprived them of its use and enjoyment, preventing the cultivation of their farms and rendering them useless; that had the water been permitted to flow unobstructed by the dams of the defendants, there would have been a sufficient supply for irrigating and cultivating the farms. They therefore seek the aid of the court, to restrain the defendants from diverting the water, except so much as may be in excess of the five hundred inches appropriated by them. To this complaint the defendants demurred on the grounds: 1, that the cause of action alleged was barred by the Statute of Limitations; and, 2, that the complaint did not state a cause of action. The record does not disclose what disposition was made of the demurrer, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the presumption is that it was abandoned. The answer filed denied the several allegations of the complaint, except the one which averred the possession by the plaintiffs of their farm. The record before us is a very defective one, and presents the case obscurely. Gathering. however, what we can from its imperfect statements, it would seem that at the May Term of the District Court of the Territory, in 1871, previous to the final hearing, which was had at the subsequent July Term, a jury was called in the case, to which certain questions were submitted and its answers taken. The jury found, substantially, that parties by the name of White and Porvais, prior to September or See 20 WALL. U. S., BOOK 22. October, 1866, had appropriated the water of the creek to the extent of thirty-five inches; that these parties, during one of those months, gave the plaintiffs and their predecessors the right to connect with their ditch and to extend and enlarge the same; that the plaintiffs and their predecessors commenced such enlargement during those months, and increased the capacity of the ditch to two hundred and fifty inches; that White and Porvais afterwards, in 1867, sold their water right and ditch to the defendant, Stafford; that the defendant, Basey, had no interest in privity with the other defendants, and diverted the water for his own use by agreement with the plaintiffs, and that neither of the other defendants had diverted the water to the injury of the plaintiffs previous to the commencement of the action. Upon these special findings, both parties moved the court for judgment; the defendants that the complaint be dismissed; the plaintiffs that a decree pass in their favor. On these motions the court heard the whole case, "on the pleadings, evidence and proceedings therein, and the findings of the jury," and rendered a decree adjudging that the defendant, Stafford, was entitled to thirty-five inches of the water, and that as against the defendants, saving this amount, the plaintiffs were entitled to two hundred and fifteen inches of the water, and decreed an injunction against any diversion of the water by the defendants, which would prevent its flow to this extent in the stream to the ditch of the plaintiff. In rendering this decree, the court disregarded a portion of the findings of the jury and adopted others and this action was approved by the Supreme Court of the Territory, and constitutes one of the errors assigned here for the reversal of its decree. By the organic Act of the Territory, the district courts are invested with chancery and common law jurisdiction. The two jurisdictions are exercised by the same court, and, under the legislation of the Territory, the modes of procedure up to the trial or hearing are the same whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state in ordinary and concise language" the facts of his case upon which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings, when the case is called for trial or hearing, whether it will submit them to a jury, or pass upon them without any such intervention, must depend upon the jurisdiction which is to be exercised. If the remedy sought be a legal one, a jury is essential unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. Sometimes in the same action both legal and equitable relief may be sought, as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages, a jury would be required; but upon the propriety of an injunction, the action of the court alone could | tended diversion of the water by one propriebe invoked. The formal distinctions in the tor, and its conveyance for mining purposes to pleadings and modes of procedure are abolished; points from which it could not be restored to but the essential distinction between law and the stream; that the government, by its silent equity is not changed. The relief which the acquiescence, had assented to and encouraged law affords must still be administered through the occupation of the public lands for mining; the intervention of a jury, unless a jury be and that he who first connected his labor with waived; the relief which equity affords must property thus situated and open to general exstill be applied by the court itself, and all in- ploration, did in natural justice acquire a betformation presented to guide its action, whether ter right to its use and enjoyment than others obtained through masters' reports or findings of who had not given such labor; that the miners a jury, is merely advisory. Ordinarily, where on the public lands throughout the Pacific there has been an examination before a jury of States and Territories, by their customs, usages a disputed fact, and a special finding made, the and regulations, had recognized the inherent court will follow it. But whether it does so or justice of this principle, and the principle itself not must depend upon the question whether it was at an early period recognized by legislation is satisfied with the verdict. This discretion to and enforced by the courts in those States and disregard the findings of the jury may undoubt- Territories, and was finally approved by the legedly be qualified by statute; but we do not find islation of Congress in 1866. The views there anything in the Statute of Montana, regulating expressed and the rulings made are equally approceedings in civil cases, which affects this plicable to the use of water on the public lands discretion. That statute is substantially a for the purposes of irrigation. No distinction copy of the Statute of California as it existed is made in those States and Territories by the in 1851, and it was frequently held by the Su- custom of miners or settlers, or by the courts, preme Court of that State, that the provision in in the rights of the first appropriator from the that Act requiring issues of fact to be tried by a use made of the water, if the use be a beneficial jury, unless a jury was waived by the parties, one. did not require the court below to regard as conclusive the findings of a jury in an equity case, even though no application to vacate the findings was made by the parties, if in its judgment they were not supported by the evidence. That court only held that the findings, when not objected to in the court below and the judge was satisfied with them, could not be questioned for the first time on appeal. Still v. Saunders, 8 Cal., 287; Goode v. Smith, 13 Cal., 81; Duff v. Fisher, 15 Cal.,376; see, also, Koppikus v. St. Cap. Comrs., 16 Cal., 248; and Webber v. Marshall, 19 Cal., 447. In the case of Tarter v. Spring Creek Water and Mining Co., 5 Cal., 397, decided in 1855, the Supreme Court of California said: "The current of decisions of this court go to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, Acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes; and others of like character. This pol The question on the merits in this case is whether a right to running waters on the pub lic lands of the United States, for purposes of irrigation, can be acquired by prior appropriation, as against parties not having the title of the gov-icy has been extended equally to all pursuits, ernment. Neither party has any title from the and no partiality for one over another has been United States; no question as to the rights of evinced, except in the single case where the riparian proprietors can, therefore, arise. It will rights of the agriculturist are made to yield to be time enough to consider those rights when those of the miner where gold is discovered in either of the parties has obtained the patent of his land. The policy of the exception is obvithe government. At present, both parties stand ous. Without it the entire gold region might upon the same footing; neither can allege that have been inclosed in large tracts under the the other is a trespasser against the government pretense of agriculture and grazing, and eventwithout at the same time invalidating his own ually what would have sufficed as a rich bounty claim. to many thousands would be reduced to the proprietorship of a few. Aside from this the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land." Per Heydenfeldt, J., 5 Cal., 397. In the late case of Atchison v. Peterson [ante, 414], we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water Ever since that decision it has been held gento use, or took the necessary steps for that pur-erally throughout the Pacific States and Terripose, was regarded, except as against the gov- tories that the right to water by prior appropriernment, as the source of title in all controver- ation for any beneficial purpose is entitled to sies respecting it; that the doctrines of the com- protection. Water is diverted to propel mamon law declaratory of the rights of riparian chinery in flour mills and saw-mills, and to irproprietors were inapplicable, or applicable only rigate land for cultivation, as well as to enable to a limited extent, to the necessities of miners, miners to work their mining claims; and in all and were inadequate to their protection; that such cases the right of the first appropriator, the equality of right recognized by that law exercised within reasonable limits, is respected among all the proprietors upon the same stream and enforced. We say within reasonable limwould have been incompatible with any ex-its, for this right to water, like the right by 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 communityof 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, agricult ural, 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.' shall the same be 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, 1 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 application of the doctrine to a case where title had passed from the government and not in its application to a case where neither party had acquired that title. In the course of his opinion Mr. Justice Knowles stated that ever since the settlement of the Territory it had been the custom of those who had settled them It is very evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the pe culiar necessities of their condition; and that law may be shown by evidence of the local customs, or by the legislation of the State or Ter-selves upon the public domain and devoted any ritory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control. 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 1st 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 ap portionment 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 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. 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 controversies respecting the rights to water under its 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 irrigat ing 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 part thereof to the purposes of agriculture, to dig ditches and turn out the water of some stream to irrigate the same; that this right had been generally recognized by the people of the Territory, and had been universally conceded as a necessity of agricultural pursuits. "So universal," 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 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. Cited 99 U. S., 381; 101 U. S., 252, 276; 104 U. S., 424; 111 U. S., 390, 392; 53 Cal., 138. *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 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. *Head notes by Mr. Justice MILLER. 3. There is no such thing in the theory of our gov- nipotent and legislative authority, and may en ernments, state and national, as unlimited power in act any law, if not forbidden by the State Con any of their branches. The Executive, the Legislative and the Judicial Departments are all of lim-stitution, the Constitution of the United States ited and defined powers. or the laws and treaties made under it. 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 en5. 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. titled to the name. 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 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 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 estoppel.] [No. 729.] Submitted Dec. 8, 1874. Decided Feb. 1, 1875. N ERROR to the Circuit Court of the Unit IN ERROR to the Circuit Court of the 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 belonged? The question is strictly one of legislative power, and its consideration is of sufficient im portance to serve as an apology for an allusion to some of the elementary principles of govern Court, Oct. Term, 1873 (ante, 227); R. R. Co. Township of Pine Grove v. Talcott, U. S. Sup. v. County of Otoe, 16 Wall., 667 (83 U. S., XXI, 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. R. Co. v. Geiger, 34 Ind., 185; S. & V. R. R. Co. v. Stock ton, 41 Cal., 147; Guilford v. Supervisors of Che nango 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. It may be stated thus: that, when the valid ity of an Act of Congress is brought in ques tion, reference is had to the Federal Constitution, to ascertain if the power to enact the same has been conferred; while, on the other hand, when the validity of an Act of the State Legis lature 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." Section 1 of article 2 of the Constitution of the State of Kansas reads as follows: "The 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 pow er, 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. R. Co. v. Evansville, 15 Ind., 395; Aurora v. West, 9 Ind., 75, and S. C., 22 Ind., 88; V. S. & 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 Ia., 161; Fosdick v. Perrysburg, 14 Ohio St., 472; Cotten v. Co.Com missioners, 6 Fla., 610; Price v. Foster, 4 Harr (Del.), 479; Piatt v. People, 29 Ill., 54; Mad dox v. Graham, 2 Met. (Ky.), 56; Slack v. M. & L. R. R. Co., 13 B. Mon., 1; Strickland v Miss. R. R. Co., not reported; L. & N. R. R. The Legislature possesses the exclusive power to designate the public purpose to which the right of eminent domain may be applied. 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. The taxing power is one of the inherent powers of government and belongs appropriately to the legislative department. Co. v. Davidson, 1 Sneed (Tenn.), 637; Common. | no application or reference to the taxing power. wealth v. Perkins, 43 Pa., 400; Bridgeport v. The Housatonic R. R. Co., 15 Conn., 475; Commissioners of Knox Co. v. Aspinwall, 21 How., 539 (62 U. S., XVI., 208), and 24 How., 376 (65 U. S., XVI., 735); Bissell v. City of Jeffer son, 24 How., 287 (65 U. S., XVI., 664); Woods v. Lawrence, 1 Black, 386 (66 U. S., XVII., 122); see cases reported in 1 Wall.. pp. 83, 175, 272, 291, 384 (68 Ù. S., 613, 684, 553, 538, 564); 6 Wall., pp. 166, 210, 514, 518 (73 U. S., XVIII., 768, 781, 933, 918); 7 Wall., pp. 182, 313 (74 U. S., XIX., 160, 93); City v. Lamson, 9 Wall., 477 (76 U. S., XIX., 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 (79 U. S., XX., 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 McCulloch v. Maryland, 4 Wheat., 428; Prov. Bk. v. Billings, 4 Pet., 514, 561; Brewster v. Striker, 2 N. Y., 29, 419; Guilford v. Supervisors, 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 compensation has reference 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. See, Guilford v. Cornell, 18 Barb.,615; Chambers v. Satterlee, 40 Cal., 497; Nichols v. Bridgeport, 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 corporatioms 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 violate 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 general powers. This, in the sense which it is used, is true, but the argument of counsel for plaintiff, |