LOAN ASSOCIATION v. TOPEKA 20 Wall. (87 U.S.) 655 (1875)

The Supreme Court has frequently resorted to higher law doctrine to buttress an opinion, but only twice in its history, in terrett v. taylor (1815) and in this case, has it relied exclusively on the higher law as the ground for decision. An 8–1 Court, in an opinion by Justice samuel f. miller, held unconstitutional a Kansas statute that authorized the city of Topeka to issue public bonds, payable by taxes, for the benefit of a private company that built iron bridges. In the absence of some usable clause of the Constitution, Miller relied on judicially implied limitations on government power "which grow out of the essential nature of all free governments" and protect individual rights "without which the social compact could not exist." Topeka and the state legislature had believed that attracting a bridge company promoted public prosperity as did a railroad or a public utility, but because the Court saw only an improper exercise of the tax power "to aid private enterprise and build up private fortunes," it called the statute "a robbery" of the public. Taxation, the Could held, can be exercised only for a public use or public purpose. Justice nathan clifford, the sole dissenter, believed that judicial review should be exercised only when the Constitution imposed a prohibition either express or necessarily implied, but not when the Court believed that a legislature had violated "natural justice" or "a general latent spirit" supposedly underlying the Constitution.

Leonard W. Levy
(1986)