United States v. Railroad Company (84 U.S. 322)/Dissent Clifford
Mr. Justice CLIFFORD (with whose dissent and views concurred Mr. Justice MILLER), dissenting:
I dissent from the opinion and judgment of the court.
Property owned by a municipal corporation and used as means or instruments for conducting the public affairs of the municipality may not be subject to Federal taxation, as it may perhaps be regarded as falling within the implied exemption established by a recent decision of this court. 
Well-founded doubts, however, may arise even upon that subject, as the tax in that case was levied directly upon the salary of a judicial officer, and the opinion of the court is carefully limited to the case then before the court. But concede, for the sake of the argument, that the means and instruments for conducting the public affairs of the municipality are entitled to the same exemption from such taxation as the revenues of the State, it by no means follows that the private property owned by such a corporation, and held merely as private property in a proprietary right, and used merely in a commercial sense for the income, gains, and profits, is not taxable just the same as property owned by an individual, or any other corporation. Such a right is one which may be of great value to the government in time of war and imminent public danger, and one which the United States ought never to surrender.
Corporations of the kind are very numerous and they may and often do own large amounts of bank stock, bonds, and stocks of railroads, vacant lots and other real estate of great value, and many other species of personal property and choses in action never used or intended to be used as means or instruments for conducting the public affairs of the municipality, and in respect to all such property the right of Congress to pass laws subjecting the same to taxation with the property of the citizens generally is as clear, in my judgment, as it is that the power to lay and collect taxes, duties, imposts, and excises is vested by the Constitution in the national legislature. 
It was decided by this court, in the case of Vidal v. Girard's Executors,  that the corporation of the city of Philadelphia had the power under its charter to take real and personal estate by deed and also by devise, inasmuch as the English statute which excepted corporations from taking such properties in the former mode was not in force in that State; that where a corporation has this power it may take and hold property in trust in the same manner and to the same extent as a private person may do, even though the trust is not strictly within the scope of the direct purposes of the charter of the municipality.
Ten years later this court affirmed that same rule in the case of The Executors of McDonogh v. Murdoch  which gave three millions of dollars to the city of Baltimore and more than a half-million of dollars to the city of New Orleans. Both of those corporations, it was held in that case, were empowered to take the property by devise, as the laws of the respective States do not prohibit such dispositions of property in their favor, affirming the principle that such corporations may take real and personal estate by deed or devise, and that they hold such property in trust in the same manner and to the same extent as private persons, and the statistics will show that such corporations have become the grantees or devisees of vast amounts of personal and real estate, and that many of them still hold and enjoy the same for the income, rents, and profits.
Apply the rule here suggested to the case before the court and it is clear, whether it be held that the tax was levied upon the municipal corporation or the railroad company, that the judgment should be reversed.
Soon after the opinion of the court in the preceding case was delivered, a motion was made by Messrs. Gowen, Biddle, and Cuyler, the counsel of the different railroad companies, in the case of Barnes v. Railroad Companies, decided five weeks before it, for a rehearing of that case; the grounds of the motion being the obvious and irreconcilable contradiction between the language in one of the opinions given in the first case (see supra, pp. 302-3, 309), which opinion the learned counsel assumed to be the opinion of the court-and the opinion of the court in the second case (see supra, pp. 326-7); a contradiction which the counsel exhibited by a juxtaposition of passages in the two opinions.
And now, April 28th, 1873, the Chief Justice announced the order of the court
^14 The Collector v. Day, 11 Wallace, 113.
^15 McCulloch v. Maryland, 4 Wheaton, 434; Louisville v. Commonwealth, 1 Duvall, 295; National Bank v. Commonwealth, 9 Wallace, 353; Veazie Bank v. Fenno, 8 Id. 533.
^16 2 Howard, 127.
^17 15 Howard, 367.