CHAPTER II. PURPOSE MUST BE PUBLIC. § 15. Validity of Railroad Subscriptions by Counties, etc.The question as to the validity of donations in aid of railroads, canals and turnpikes, or subscriptions to their stock by counties, cities or other municipal corporations, arises upon acts of the legislature delegating to them the authority to do these acts and to raise the money by taxation levied upon persons and property within their respective limits. No question is made as to their power in the absence of legislative authority; they are mere political subdivisions of the State, made for the purpose of more conveniently administering the government, and have only such powers as are delegated. But the question is, has the legislature the power to authorize taxes to be imposed for such purposes? The weight of authority is so great in favor of the validity of such acts, that the question may be considered as firmly settled as it can be by judicial decision,' but whether the majority have the better of the reasoning has been doubted by able law writers.2 § 16. Leading Case, Sharpless v. Mayor of Philadelphia.-Argument of Ch. J. Black. "It is the duty of the State to provide for the administration of justice, the preservation of the peace and the protection of the country from foreign enemies. Schools, colleges and institutions for the promotion of the arts and sciences, not absolutely necessary, but highly useful, are also entitled to a public patron Sharpless v. Mayor of Philadelphia, 21 Penn. St. 147; Slack v. Maysville R. R. Co. 13 B. Monroe, 26; Hasbrouck v. City of Milwaukee, 13 Wis. 37; Louisville & Nashville R. R. Co. v. County Court of Davidson, 1 Sneed, 637; Davidson et al. v. County Com'rs, 18 Minn. 482; Com'rs of Leavenworth Co. v. Miller, 7 Kan. 479; Perry v. City of Keene, 15 Am. Law Reg. (N. H.) 397. See in 7 Kans. 503-506, collated the decisions of twenty-six States, affirming the validity of subscriptions and donations to railroads, in order of time when made; San Antonio v. Jones, 28 Texas, 19; Walker v. City of Cincinnati, 21 Ohio, N. S. 14; Stewart v. Polk, 30 Iowa, 9, reversing Hansen v. Vernon, 27 Id. 28; In the Matter of Peter Townsend, 39 N. Y. 139; Langhorne v. Scott, 20 Gratt. 661; Hill v. Forsythe Co. 67 N. C. 367; John v. Cincinnati, &c. R. R. 35 Ind. 539; Stockton, &c. R. R. . Stockton, 41 Cal. 147; Butler v. Dunham, 27 Ill. 474; St. Joseph, &c. R. R. v. Buchanan Co. Court, 39 Mo. 485; State v. Linn Co. Court, 44 Id. 504; Thompson v. Lee Co. 3 Wall. 327; Chicago, Dan. & Vin. R. R. Co. v. Smith, 62 Ill. 268, 274; Gelpke v. Dubuque, 1 Wall. 175; Ib. 83; Ib. 384; Sedgwick Stat. & Const. Law, 2d ed. 429, 430, n.: 2 Redf, on Railways, 496-498. ? 2 Redf. on Railways, 398, n. 2; Cooley's Const. Lim. 3d ed. 213, 214, n. 3. age enforced by law. To aid, encourage and stimulate commerce, domestic and foreign, is a duty of the State; it is on this principle that a mint or post office is established, and that a navy is supported to keep open the highway of nations. Canals, bridges, roads and other artificial means of passage and transportation from one part of the country to the other have been made by the sovereign power at the public expense, in every civilized State of ancient and modern times. "It being the duty of the State to make such public improvements, if she happen to be unable or unwilling to perform it herself to the full extent desired, she may accept the voluntary assistance of an individual or number of individuals. The company may be private, but the work they are to do is a public duty, and along with the public duty there is delegated a sufficient share of the sovereign power to perform it. The right of eminent domain is exercised in behalf of these companies; this can only be done for a public purpose. If a railroad, canal or turnpike, when made by a corporation, is a mere private enterprise, like the building of a tavern, store, mill or blacksmith's shop, whenever they take lands against the consent of the owner, they are guilty of a flagrant trespass. "If the construction of a railroad be a public duty, not only the right of eminent domain may be used, but the taxing power also; if the legislature may levy the taxes directly, they may delegate the power, especially to those peculiarly benefited." None of the cases on the subject present the question in a better light than the opinion of Judge Black, as to the purpose being a public one. The other branch of the subject, as to the authority of the legislature to impose upon one or more towns or counties the burden of constructing a public improvement, will be considered hereafter. § 17. Argument against Municipal Taxation for Railroads.The argument is, that taxation must be for a public purpose, if not it becomes plunder; it must be laid according to rule. State burdens on the whole State, county or city burdens upon the county or city; a tax on a subdivision of the State must not only be for a public purpose, but be local; the people of that district must have a special and peculiar interest in the object. The incidental benefits to result from the proximity to a railroad or being the terminus of a railroad do not constitute the purpose a public or governmental one; it is the circumstance that taxes are contributions demanded for the use of the government, and not for private uses, that confers upon the power to 1 Sharpless v. Mayor of Philadelphia, 21 Penn. St. 169, 170. tax its peculiar character. A railroad in the hands of a private corporation is no more operated for a public purpose than a manufactory, a newspaper establishment, or any other means for carrying on by individuals of a business which, while private in its nature, nevertheless supplies a public need. The power, if it exists at all, must come from the plenary power of the legislature over the whole subject of taxation; it is not aided by municipal votes; the legislature has the same power to enforce without their assent as with it. Some of the courts hold that a subscription to stock is valid upon the ground that the owners of the railroad cannot, without reasonable excuse, refuse to receive and transport passengers and freight, that the State retains the power to regulate and control the franchise and limit the amount of tolls it shall be lawful to charge, and that to the extent of stock subscribed by the municipality it owns the road, and it may be said to be public property, and the use of the road a public use, while they hold that this public use is not such as to justify a donation.3 § 18. Real Difference.in the Cases.—An attentive examination of the cases will show that there is really but one opinion as to the construction of a railroad being a public purpose, so as to justify taxation upon the whole State, either for the purpose of subsidizing such companies or of building it by the State. It is but an improved highway, and the propriety of opening roads, that the citizens of a State may communicate with each other for the purposes of business or pleasure, has never been questioned in any country. But the real point of difference has been as to the power of the legislature to impose the burden, or a portion of the burden, of the construction of such roads upon the people of a particular locality, either with their consent or without it, or, in other words, whether the power of apportioning taxation is absolute or has its limits. Some confusion has been produced by an argument adduced to show that the purpose is a public one, to wit: that the right of eminent domain is exercised in favor of it. To that it is replied, that this right is exercised in favor of mills or water-courses, which are no more for a public purpose than sites 1 People v. Township Board of Salem, 20 Mich. 452; People v. State Treasurer, or Bay City v. State Treasurer, 23 ld. 499; Hansen v. Vernon, 27 Iowa, 28; overruled in Stewart v. Polk, 30 Id. 9. 2 Whiting. The Sheboygan & Fond du Lac R. R. 25 Wis. 196, 197, 209; Sweet v. Hurlbut, 51 Barb. 312; West River Bridge v. Dix, 6 How. (Curtis' Cond. U. S.) 546, cited in 25 Wis. 209, to sustain view of public use. 3 The right of the State to regulate tolls and the extent of the power, even when the Constitution provides expressly for it, is a question surrounded with many difficulties. See discussion of Potter Act, Law Review, October, 1874, and January, 1875. 4 Redf. 13 Am. Law Reg. 500; Redf. on Railroads, vol. 2, 396. for steam mills, hotels or churches-mere public conveniences; that the purpose is not a governmental one, as it is not the duty of the State to provide for such things; and the tendency of the decisions now is against the mill acts.1 Should it be true that this argument is unsound, the real groundwork of the doctrine, the duty of the State to provide the means of communication by highways, is not touched; and it may well be doubted if the mill acts were not based on firm ground at the time they originated. When the use of steam had not been developed to its present vast extent, the country was sparsely settled, the roads mere paths, and communication with different parts of the country slow, water-mills to grind the grain into flour might well have been considered a public necessity, and the State might well exercise its power to compel the owner of the land opposite a site selected for a mill, to yield it upon compensation being made. § 19. Schools and Colleges, Public and Private.-Taxation for schools and colleges is fully sustained as a public purpose, although there may be grave doubts as to the power of the legislature to impose the burden of supporting a school upon a particular locality.* While this is true of public schools or colleges under the control of the State, private schools, whose property is owned by individuals or a corporation, cannot be aided by taxation. The incidental benefits resulting to the people of a town from the location therein of any private business or institution, are not such as to justify the exercise of the taxing power. The interest of the public must be a direct public benefit or interest.3 § 20. Validity of Bounty Acts.—At an early day it was held that towns have no authority in time of war, when there is danger of hostile invasion, to raise money to give additional wages to the militia, and for other purposes of defense. It is the duty of the State to give the protection and raise the money necessary from the people of the whole State. The bounty acts, during the late war, are all of them concessions of this principle; they either delegate to cities, towns, townships and villages, the power to raise taxes for the purpose of paying bounties to volunteers or drafted men, or they validate the action of those subdivisions of the State previously had on the subject. And the question is not, Were the towns authorized to act? but, 1 Cooley's Const. Lim. 3d ed. 536, and notes; Redf. 13 Am. Law Reg. 497-499. Merrick v. Inhabitants of Amherst, 12 Allen, 500; Marks v. Pardue, 37 Ind. 155; Gordon v. Cornes, 47 N. Y. 613. 3 Curtis v. Whipple, 24 Wis. 350. • Stetson v. Kempton, 13 Mass. 272. 4 This was during the war of 1812. Had the legislature the power to raise taxes for such a purpose? Was it a public governmental purpose? In Booth v. Woodbury, the act was to secure the votes of towns to raise money to assist persons drafted under the act of Congress, either by paying them money to procure commutation of service, to procure substitutes, or to be paid to them or their families should they be mustered into service. The basis of the decision was that every citizen of a State is bound to take up arms in defense of his country; the selection of a class between certain ages is arbitrary and based upon expediency alone, and although the State is not bound to aid the United States in raising an army for national defense, yet the general good of the people of the State is involved in the maintenance of the general government to such an extent that the legislature may properly act for the promotion of this general good. If it be true that the legislature cannot tax the people for a gratuity where no possible public benefit would be produced, yet if there is the least possibility that the gift will be promotive of the public welfare, it becomes a question of policy, and the determination of the legislature is conclusive. Bounties are similar to gifts to the unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants of swords, and other mementos for past services, involving the general good indirectly and in a slight degree, but which are frequently made and never questioned.1 Distinctions are drawn in many of the States as to the period when the bounty is paid. While the quota called for is not filled and the State is liable to draft, it is said that the payment of bounties to volunteers exempts the State from a burden which is common to all its citizens, and which all should assist in paying. But when a person has been drafted, the burden which before rested upon the whole State has been transferred in the mode prescribed by law to certain individuals; they owe an individual duty to the State, and a payment to such person is for his own benefit and not that of the public. A number of cases hold that sums of money paid by individuals for substitutes cannot be refunded; the payment in such case is for their own benefit, not for the public relief." A distinction is drawn in the repayment of sums advanced by individuals or associations for bounties to volunteers, to prevent the 1 Booth v. Woodbury, 32 Conn. 128; Moulton v. Raymond, 60 Me. 121; Broadhead v. Milwaukee, 19 Wis. 624; State v. Richland Township, 20 Ohio, N. S. 362. 2 Speer v. School District, 50 Penn. St. 150; Ahl v. Green, 57 Id. 432; State v. Collector, 2 Vroom, 189; s. c. 4 Id. 450; Taylor v. Thompson, 42 II. 9. 3 Thomson v. Pittson, 59 Me. 545; Taylor v. Thompson, 42 Ill. 9; Shackford v. Newington, 46 N. H. 415; Kunkle v. Franklin, 13 Minn. 127. 4 Kelly v. Marshall, 69 Penn. St. 319; Freeland v. Hastings, 10 Allen, 570. |