2. That in some cases, in view of the twofold character of such bodies, as being on the one hand agencies of State government, and on the other, corporations endowed with capacities and permitted to hold property and enjoy peculiar privileges for the benefit of their corporators exclusively, the legislature may permit the incurring of expense, the contracting of obligations, and the levy of taxes which are unusual, and which would not be admissible under the powers usually conferred. Instances of the kind may be mentioned in the offer of military bounties, and the payment of a disproportionate share of a State burden in consideration of peculiar local benefits which are to spring from it.1 3. But it is believed the legislature has no power, against the will of a municipal corporation, to compel it to contract debts for local purposes in which the State has no concern, or to assume obligations not within the ordinary functions of municipal government. Such matters are to be disposed of in view of the interests of the corporators exclusively, and they have the same right to not enforceable in the courts, depends on the legislative conscience, and the judiciary will not interfere unless in exceptional cases. Unquestionably the legislature may decide what taxes shall be levied for proper purposes of local government. Youngblood v. Sexton, 32 Mich. 406. 1 The subject of military bounties has been sufficiently referred to already. As to the right to permit a municipal corporation to burden itself with a local tax for a State object, we refer to Merrick v. Amherst, 12 Allen, 500; Marks v. Trustees of Pardue University,37 Ind. 155; Hasbrouck v. Milwaukee, 13 Wis. 37. The first was a case in which, in consideration of the local benefits expected from the location of the State agricultural college in a certain town, the town was permitted to levy a large local tax in addition to its proportion of the State burden, for the erection of the necessary buildings. The second case was of a similar nature. The third was the case of permission to levy a city tax to improve the city harbor, a work usually done by the general government. There are cases which go further than these, and hold that the legislature may compel a municipal corporation to do what it may thus permit. Thus, in Kirby ". Shaw, 19 Pa. St. 258, it appeared that by an act of April 3, 1848, the commissioners of Bradford County were required to add $500 annually, until 1857, to the usual county rates and levies of the borough of Towanda in said county, for the purpose of defraying the expenses of the courthouse and jail, then in process of erection in that borough. The act was held constitutional on the principle of assessment of benefits. In Gordon v. Cornes, 47 N. Y. 608, a law was sustained which "authorized and required" the village of Brockport to levy a tax for the erection of a State normal school building at that place. It is to be said of this case, however, that there was to be in the building a grammar-school free to all the children of proper acquirements in the village; so that the village was to receive a peculiar and direct benefit from it, besides those which would be merely incidental to the location of the normal school in the place. But for this circumstance it would be distinctly in conflict with State v. Haben, 22 Wis. 660, where it was held incompetent for the legislature to appropriate the school moneys of a city to the purchase of a site for a State normal school; and also with other cases cited in the next note. It must be conceded, however, that there are other cases which support it. And see, as supporting the last case, Livingston County v. Weider, 64 Ill. 427 ; Burr v. Carbondale, 76 Ill. 455; Liv. ingston County v. Darlington, 101 U. S 407. determine them for themselves which the associates in private corporations have to determine for themselves the questions which arise for their corporate action. The State in such cases may remove restrictions and permit action, but it cannot compel it.1 1 A city cannot be compelled to erect buildings for a county; but it may be permitted to do it if it so elects. Callam v. Saginaw, 50 Mich. 7. There are undoubtedly some cases which go to the extent of holding that municipal corporations and organizations are 80 completely under the legislative control, that whatever the legislature may permit them to do, it may compel them to do, whether the corporators are willing or not. A leading case is Thomas v. Leland, 24 Wend. 65. In that case it appeared that certain citizens of Utica had given their bond to the people of the State of New York, conditioned for the payment into the canal fund of the sum of $38,615, the estimated difference between the cost of connecting the Chenango Canal with the Erie at Utica, instead of at Whitesborough, as the canal commissioners had contemplated; and it was held within the constitutional powers of the legislature to require this sum to be assessed upon the taxable property of the city of Utica, supposed to be benefited by the canal connection. The court treat the case as "the ordinary one of local taxation to make or improve a public highway," and dismiss it with few words. If it could be considered as merely a case of the apportionment between a number of municipalities of the expense of a public highway running through them, it would have the support of Waterville v. County Commissioners, 59 Me. 80; Commonwealth v. Newburyport, 103 Mass. 129; and also what is said in Bay City v. State Treasurer, 23 Mich. 499, where it is admitted that over the matter of the construction of such a highway, as well as the apportionment of expense, the State authority must necessarily be complete. It has been considered in subsequent New York cases as a case of apportionment merely. See People v. Brooklyn, 4 N. Y. 419; Howell v. Buffalo, 37 N. Y. 267. The cases of Kirby v. Shaw, 19 Pa. St. 258, and Gordon v. Cornes, 47 N. Y. 608, referred to in the preceding note, it will be perceived, were also treated as cases merely of apportionment. How that can be called a case of apportionment, however, which singles out a particular town, and taxes it for benefits to be expected from a highway running across the State, without doing the same by any other town in the State, it is not easy to perceive. In Commissioners of Revenue v. The State, 45 Ala. 399, it appeared that the legislature had created a local board consisting of the president of the county commissioners of revenue of Mobile County, the mayor of Mobile, the president of the Bank of Mobile, the president of the Mobile Chamber of Commerce, and one citizen of Mobile, appointed by the governor, as a board for the improvement of the river, harbor, and bay of Mobile, and required the commissioners of revenue of Mobile County to issue to them for that purpose county bonds to the amount of $1,000,000, and to levy a tax to pay them. Here was an appointment by the State of local officers to make at the expense of the locality an improvement which it has been customary for the general government to take in charge as one of national concern; but the Supreme Court of the State sustained the act, going farther, as we think, in doing so, than has been gone in any other case. In Hasbrouck v. Milwaukee, 13 Wis. 37, approved and defended in an able opinion in Mills v. Charleton, 29 Wis. 400, the power of the legislature to compel the city of Milwaukee to issue bonds or levy a tax for the improvement of its harbor was distinctly denied, though it was conceded that permission might be given, which the city could lawfully act upon. Compare also Knapp v. Grant, 27 Wis. 147; State v. Tappan, 29 Wis. 664; s. c. 9 Am. Rep. 622; Atkins v. Randolph, 31 Vt. 226. In People v. Batchellor, 53 N. Y. 128, the Court of Appeals, through an able and lucid opinion by Grover, J., denied the validity of a mandatory statute compelling a town to take stock in a railroad corporation, and to issue its bonds in exchange therefor. The authority to permit the town to do this was not discussed, but, taking that as admitted, it is declared 4. And there is much good reason for assenting also to what several respectable authorities have held, that where a demand is arches, splendid columns, and perpetual fountains, and require in the act creating them that every owner of property within the city limits should give his individual obligation for his proportion of the cost, and impose such costs as a lien upon his property forever? What would be the public judgment of such an act, and wherein would it differ from the act under consideration?" And again: 'Here, then, is a case where taxes may be assessed, not by any corporate authority of the city, but by commissioners, to whom is intrusted the erection, embellishment, and control of this park, and this without consent of the property owners. that municipal corporations, in the making or refusing to make arrangements of the nature of that attempted to be forced upon the town in question, were entitled to the same freedom of action precisely which individual citizens might claim. This opinion reviews the prior decisions in the same State, and finds nothing conflicting with the views expressed. In People v. Mayor, &c. of Chicago, 51 Ill. 17, s. c. 2 Am. Rep. 278, it was denied, in an opinion of great force and ability, delivered by Chief Justice Breese, that the State could empower a board of park commissioners of State appointment to contract a debt for the city of Chicago, for the purposes of a public park for that city, and without the consent of its citizens. The learned judge says (p. 31): "While it is conceded that municipal corporations, which exist only for public purposes, are subject at all times to the control of the legislature creating them, and have in their franchises no vested rights, and whose powers and privileges the creating power may alter, modify, or abolish at pleasure, as they are but parts of the machinery employed to carry on the affairs of the State, over which and their rights and effects the State may exercise a general superintendence and control (Richland County v. Lawrence County, 12 Ill. 8; Trustees of Schools v. Tatman, 13 Ill. 30), we are not of the opinion that that power, such as it is, can be so used as to compel any one of our many cities to issue its bonds against its will, to erect a park, or for any other improvement to force it to create a debt of millions; in effect, to compel every property owner in the city to give his bond to pay a debt thus forced upon the city. It This case should be read in connecwill hardly be contended that the legislation with the following in the same State, ture can compel a holder of property in Chicago to execute his individual bond as security for the payment of a debt so ordered to be contracted. A city is made up of individuals owning the property within its limits, the lots and blocks which compose it, and the structures which adorn them. What would be the universal judgment, should the legislature, sua sponte, project magnificent and costly structures within one of our cities, triumphal - "We do not think it is within the constitutional competency of the legislature to delegate this power to these commissioners. If the principle be admitted that the legislature can, uninvited, of their mere will, impose such a burden as this upon the city of Chicago, then one much heavier and more onerous can be imposed; in short, no limit can be assigned to legislative power in this regard. If this power is possessed, then it must be conceded that the property of every citizen within it is held at the pleasure and will of the legislature. Can it be that the General Assembly of the State, just and honest as its members may be, is the depository of the rights of property of the citizen? Would there be any sufficient security for property if such a power was conceded? No well-regulated mind can entertain the idea that it is within the constitutional competency of the legislature to subject the earnings of any portion of our people to the hazards of any such legislation." and all in the same direction. People v. Common Council of Chicago, 51 Ill. 58; Lovingston v. Wider, 53 Ill. 302; People v. Canty, 55 Ill. 33; Wider e. Fast St. Louis, 55 Ill. 133: Gage v. Graham, 57 Ill. 144; East St. Louis v. Witts, 59 Ill. 155; Marshall v. Silliman, 61 Ill. 218; Cairo, &c. R. R. Co. v. Sparta, 77 Ill. 505; Barnes v. Lacon, 84 Ill. 461. See also People v. Common Council of Detroit, 28 Mich. 228. That the legislature may com asserted against a municipality, though of a nature that the legislature would have a right to require it to incur and discharge, yet if its legal and equitable obligation is disputed, the corporation has the right to have the dispute settled by the courts, and cannot be bound by a legislative allowance of the claim.1 pel a municipality to levy a tax for a local road, see Wilcox v. Deer Lodge Co., 2 Mont. 574. The case of People v. Batchellor, 53 N. Y. 128, seems to us clearly inconsistent with Thomas v. Leland, supra. But, on the other hand, the case of Duanesburgh v. Jenkins, 57 N. Y. 177, goes to the full extent of holding that a subscription of a town to a railroad, made on condition of subsequent assent of the town thereto, may be relieved of the condition by the legislature and enforced against the town, though the original subscription was by a commission which the town did not choose. It is a little difficult, therefore, to determine what the law of New York now is on this subject, especially as in New York, &c. R. R. Co. v. Van Horn, 57 N. Y. 473, the power of the legislature to make valid an ineffectual individual contract is denied. But leaving out of view the New York cases, and a few others which were decided on the ground of an apportionment of local benefits, we think the case in Alabama will stand substantially alone. Before that decision the Supreme Court of Illinois were able to say, in a case calling for a careful and thorough examination of the authorities, that counsel had "failed to find a case wherein it has been held that the legislature can compel a city against its will to incur a debt by the issue of its bonds for a local improvement." People v. Mayor, &c., 51 Ill. 17, 31. See also cases pp. 601, 602, infra. 1 It was held in People v. Hawes, 37 Barb. 440, that the legislature had no right to direct a municipal corporation to satisfy a claim made against it for damages for breach of contract, out of the funds or property of such corporation. In citing the cases of Guilford v. Supervisors of Chenango, 13 N. Y. 143, and People v. Supervisors of New York, 11 Abb. 114, a distinction is drawn by which the cases are supposed to be reconciled with the one then under decision. "Those cases and many others," say the court, p. 455, "related not to the right or power of the legislature to compel an individual or corporation to pay a debt or claim, but to the power of the legislature to raise money by tax, and apply such money, when so raised, to the payment thereof. We could not, under the decisions of the courts on this point, made in these and other cases, now hold that the legislature had not authority to impose a tax to pay any claim, or to pay it out of the State treasury; and for this purpose to impose a tax upon the property of the whole State, or any portion of the State. This was fully settled in People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; but neither that case nor the case in 13 N. Y. 143, in any manner gave a warrant for the opinion that the legislature had a right to direct a municipal corporation to pay a claim for damages for breach of a contract out of the funds or property of such corporation, without a submission of such claim to a judicial tribunal." If by this is meant that the legislature has power to compel a corporation to tax its citizens for the payment of a demand, but has not the authority to make it a charge against the corporation in any other mode, the distinction seems to be one of form rather than of substance. It is no protection to the rights or property of a municipal corporation to hold that the legislature cannot determine upon a claim against it, if at the same time the corporation may be compelled by statute to assume and discharge the obligation through the levy of a tax for its satisfaction. But if it is only meant to declare that the legislature cannot adjudicate upon disputed claims, there can be no good reason to find fault with the decision. It is one thing to de. termine that the nature of a claim is such as to make it proper to satisfy it by taxation, and another to adjudge how much is justly due upon it. The one is the exercise of legislative power, the other of judicial. See Sanborn v. Rice, 9 Minn. 273; Commonwealth . Pittsburgh, 34 Pa. St. 496; Plimpton v. Somerset, 33 Having concisely stated these general views, we add merely, that those cases which hold that the State may raise bounty moneys by taxation, to be paid to persons in the military service, we think stand by themselves, and are supported by different principles from any which can fairly be summoned to the aid of some of the other cases which we have cited. The burden of the public defence unquestionably rests upon the whole community ; and the legislature may properly provide for its apportionment and discharge in such manner as its wisdom may prescribe. But those cases which hold it competent for the legislature to give its consent to a municipal corporation engaging in works of public improvement outside its territorial limits, and becoming a stockholder in a private corporation, must be conceded on all hands to have gone to the very limit of constitutional power in this direction; and to hold that the legislature may go even further, and, under its power to control the taxation of the political divisions and organizations of the State, may compel them, without the consent of their citizens, to raise money for such or any other unusual purposes, or to contract debts therefor, seems to us to be introducing new principles into our system of local self-government, and to be sanctioning a centralization of power not within the contemplation of the makers of the American constitutions. We think, where any such forced taxation is resisted by the municipal organization, it will be very difficult to defend it as a proper exercise of legislative authority in a government where power is distributed on the principles which prevail here. Legislative Control of Corporate Property. The legislative power of the State controls and disposes of the property of the State. How far it may also control and dispose Vt. 283; Gage v. Graham, 57 Ill. 144. But the power to decide upon the breach of a contract by a corporation, and the extent of the damages which have resulted, is less objectionable and less likely to lead to oppression, than the power to impose through taxation a claim upon a corporation which it never was concerned in creating, against which it protests, and which is unconnected with the ordinary functions and purposes of municipal gov ernment. In Borough of Dunmore's Appeal, 52 Pa. St. 374, a decision was made which seems to conflict with that in People v. Hawes, supra, and with the subsequent case of Baldwin v. Mayor, &c. of New York, 42 Barb. 549. The Penn sylvania court decided that the constitutional guaranty of the right to jury trial had no application to municipal corporations, and a commission might be created by the legislature to adjust the demands between them. See also In re Pennsylvania Hall, 5 Pa. St. 204; Layton v. New Orleans, 12 La. Ann. 515. In People r. Power, 25 Ill. 187, it was held competent for the legislature to apportion the taxes collected in a county between a city therein and the remainder of the county, and that the county revenues "must necessarily be within the control of the legislature for political purposes." And see Portwood v. Montgomery Co., 52 Miss. 523. |