The opinion
J. R. Swan, J.
I concur with the judgment of the majority of tbe court in this case, but for reasons somewhat different from those stated by Justice Brinkerhoff.
There is nothing in the provisions of the constitution of 1851, nor in the laws passed in accordance with it, which would require any property to be taxed which had been previously exempted by express legislative stipulation or pledge of public faith.
For this reason, I do not think the university lands were liable to taxation.
In regard to the constitutional question made in this case: Inasmuch as the new constitution of Ohio provides against the legislature granting any privileges or immunities which may not be altered or repealed, the question before us has but little practical importance; for our decision can only operate upon legislation before the constitution took effect.
Before the constitution of 1851, and from the first organization of the States of the Union, and their adoption of constitutions, down to the year 1851, the legislatures of different States, and among others the legislature of Ohio, by law, as in the case before us, undertook to exempt certain property, by special statute, from future taxation. These exemptions were generally *440 granted as inducements for citizens to vest their private property in public enterprises. In the early struggles of new settlements, to open roads, build bridges, and support institutions of learning, neither private fortunes nor public revenues, could supply the urgent wants of the State. Investments in these enterprises, while they furthered the prosperity of the country, were quite worthless as a source of private dividend to stockholders. The State being without the necessary revenue to make appropriations of money, and capitalists not finding in them the sources of profit, these public enterprises depended, almost entirely, upon the public spirit and self-sacrifice of citizens who were willing to appropriate their private property to public uses, without any expectation of a profitable return in dividends. The legislature, to encourage and induce this sacrifice, frequently stipulated in the acts incorporating turnpike, bridge, and other companies, that these public works should not be taxed. The general assembly believed that these exemptions were obligatory upon the State. The citizens of the State entertained the same belief, and embarked their private means on the faith of that belief. From the time of the organization of the State, down to the year 1851, the question as to the power of the legislature to do this, was frequently brought before the Supreme Court of the United States, the courts of this State, and the courts of different States in the Union ; and it was determined that such exemption was within the constitutional power of the legislature. The State of Ohio v. Com. Bank Cin., 7 Ohio Rep. pt. 1, 125 ; The State of New Jersey v. Wilson, 7 Cranch 164 ; Gordon v. Appeal Tax Court, 3 How. 133 ; Osborn v. Humphrey, 7 Conn. 335 ; The State of New Jersey v. Branin, 2 Zabriskie 485; Phil. and Wil. Railroad v. Maryland, 10 How. 393 ; Providence Bank v. Billings et al., 4 Pet. 514 ; State Bank of Ohio v. Knoop, 16 How. 396 .
Repeated legislation, the solemn adjudications of the courts, and public opinion, all concurred in holding that such exemption was a contract which the State could not violate. Under these circumstances, and with these guaranties of public opinion, legislation, and the decisions of the highest tribunals of the country, and at a time, too, when the subject was not within the vortex of *441 party politics, citizens were induced to vest their private means in public enterprises; and, as in the case now before this court, to enter into contracts which they are not permitted to violate, based upon, and in fact, in many cases, paying an equivalent for, an exemption from taxation.
If there be any cases in which a court should adhere to previous adjudications, it is in my opinion those which have induced the principal department of the government to enact laws under which, and upon the faith of which the people have acted, and vested their property.
The recognition of the power of the legislature to violate the plighted faith of the State, could be of no practical importance whatever, unless the legislature exercised the power. The moral difference between the abstract recognition of a constitutional power, and the exercise of that power, is too obvious to need remark ; and it is perhaps unnecessary to add, that there is no citizen so lost to a sense of State pride and common honesty, as to desire his representative to dishonor him and the State, by a violation of the plighted good faith of the State. Upon this subject, none of the members of this court, or of any other court, could entertain a difference of opinion.
If, however, courts recognize this power in the legislature, they must necessarily sanction its exercise.
Now, as a mere abstract principle and logical deduction growing out of the nature of the legislative power of taxation, it would have accorded with my own views of constitutional law, for courts and legislative bodies to have adopted, originally, as a constitutional rule, the principle that one general assembly could not, by contract or otherwise, exempt property from taxation, so as to restrain a subsequent legislature from making an assessment upon the same property.
If so originally held by courts and legislatures, those who were to be affected by the exercise of legislative violation of pledges and stipulations, would at least have known from the beginning, the hazards upon which they embarked their property, and that they had nothing to rely upon but the good faith of the State.
But it was not so originally held. It was held otherwise, by *442 the courts of this State, until 1853, when judicial interpretation clothed the legislature with this new constitutional power. The court of Pennsylvania have since adopted the logical deductions of our judges upon this question.
I concede the force of these logical deductions ; but they do not justify an alteration of an established constitutional rule, repeatedly declared by courts, settled by the practice and interpretation of legislatures ; and under which, and'upon the belief of its inviolability, citizens have for fifty years vested their property and entered into contracts.
In this view, the decision of this court in Bingham v. Miller, 17 Ohio Rep. 445 , is directly applicable. In that case, the court held, that although they were of the opinion that the legislature had no constitutional power to grant a divorce, yet the power had been so long exercised by the legislature, that the court felt constrained to sanction it.
A court which alters settled constitutional rules, is engaged in the appropriate duties of a constitutional convention ; but when, in so doing, the court sanctions and permits the exercise of a new legislative power, whereby public faith may be violated, it may, indeed, improve the constitution ; but it may be also inviting thp legislature to sacrifice a still more important element in the happiness and prosperity of a people — its prablic morals and unsullied public honor.