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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.”
§ 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
People v. Township Board of Salem, 20 Mich. 452; People v. Stat Treasurer, or Bay City v. State Treasurer, 23 Id. 499; Hansen v. Vernon, 27 Iowa, 28; overruled in Stewart v. Polk, 30 Id. 9.
Whiting v. 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.
* 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. 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 inay 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.
$ 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,
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. 156; Gordon v. Cornes, 47 N. Y. 613. 3 Curtis v. Whipple, 24 Wis. 350.
* This was during the war of 1812. • Stetson v. Kempton, 13 Mass. 272.
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. 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
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.
Speer v. School District, 50 Penn. St. 150; Ahl v. Green, 57 Id. 432; State v. Collector, 2 Vroom, 189; 8. c. 4 ld. 450; Taylor v. Thompson, 42 Ill. 9.
3 Thomson v. Pittson, 69 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.
execution of an impending draft. When made as a loan to the town or county on the faith of repayment, the act authorizing the repayment is valid," but when made by individuals on their own account, and not on the credit or by the authority of the municipality, the act is invalid. “To direct the repayment of money voluntarily paid by the association to aid its own members, would not be legislation ; such an act would be unconstitutional in declaring an obligation where none previously existed, and then decreeing payment by directing the money or property of the people so sequestered to make payment; it would much more resemble an imperial rescript than constitutional legislation." 3
The curative power of subsequent statutes has been carried to its utmost extent in some of these cases. A town voted a bounty tax; Grim was assessed and paid under protest, and brought suit to recover the tax paid to the collector. Afterward the legislature passed an act validating the vote of the town; it was held that if the legislature has the antecedent power to authorize a tax, it can cure by a retroactive law an irregularity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested.
$ 21. Bounty Acts, when Invalid.—These cases are based on the theory that military service due by the citizens of the several States to the United States is an individual duty, resting upon a certain class of citizens, and that the State has no constitutional power to levy an involuntary tax on those not subject to military duty. In the Kentucky cases it was held that all those who aided in procuring the passage of the act to authorize the issuing of bonds to be paid by taxation, to refund the bounties paid to volunteers, were bound; they were estopped by their acts to deny the constitutionality of the act. The Wisconsin case is peculiar; Lent was mustered into the service of the United States on the quota of Oshkosh, Winnebago county, but whether upon that of the city or town of that name is not clear. The treasurer of the city of Oshkosh paid Lent the bounty of $300, believing he was cred
1 Weister v. Hale, 57 Penn. St. 474; Hilbish v. Catherman, 64 Id. 164; Johnson v. Campbell, 49 III, 316; Cass Township v. Dillon, 16 Ohio, N. S. 570.
· Tyson v. School Directors, 61 Penn. St. 9; Miller v. Grandy, 13 Mich. 540; Perkins *'. Milford, 59 Me. 315.
3 Thompson, J., in 51 Penn. St. p. 22. A bounty association of Halifax township raised money by voluntary contribution to pay bounties to volunteers to save the township from draft, at a meeting at which the president had stated that the county commissioners had refused to levy a tax for such purpose. These payments were construed as loans to the township.
* Wiesenburg School Directors v. Grim, 57 Penn. St. 433. 5 Ferguson v. Landram, 1 Bush (Ky.) 548 ; 8. C. 5 Bush, 230; State v. Tappan, 29 Wis. 672. * Cypress Pond Draining Co. v. Hooper, 2 Metc. (Ky.) 350.
ited to the city. He afterward ascertained that Lent was credited to the town, and not to the city of Oshkosh. He sued the town, but did not
An act of 1869 made it the duty of the judge of the Tenth circuit to hear and determine the amount paid to Lent, with interest thereon at seven per centum to December 1st, 1869, and costs and expenses incurred in the matter by the treasurer, and directed the award of the judge to be filed with the clerk of the supervisors of Winnebago county, who was to deliver it to the town clerk of Oshkosh, and it was made his duty to add the amount of the award to other taxes to be collected in that town for 1869, and the treasurer of the town was directed to pay it over, when collected, to the treasurer of the city. The court, while admitting the power of the legislature to confer on counties and towns the authority to raise money by taxation, to pay bounties, when voluntarily imposed by a majority of the citizens thereof, or by consent of the municipality, evidenced in some manner, held that the legislature could not compel such action by the municipalities, even if there was a moral obligation upon the town to pay the money. But the tendency of the argument of the court is to show that the obligation to perform military service is purely an individual one.
Commissioned officers are not included in the bounty acts.
$ 22. Drainage and Levee Cases.-Some of the cases hold that the purpose of reclaiming large tracts of swamp or marsh land, so as to fit them for cultivation, is a public purpose, for which the right of eminent domain and taxation may be exercised, and that it is the prerogative of the legislature to decide whether a scheme of improvement of this character is of such public utility as to justify a resort to the exercise of these powers ;? while others hold that a tax cannot be levied upon any portion of the public, for the construction of a drain which merely benefits the land ; even the owner of the land benefited cannot be taxed to improve it; he must be left to improve it or not as he may choose. Public considerations, such as draining for the purposes of health, must be involved to justify such legislation. In Kentucky, where no question of health was involved, it was said to be an appropriation of private property to use of private individuals, a case of palpable and flagrant inequality in the burden imposed. Within
Shackford v. Newington, 46 N. H. 415.
• Tide-water Co. v. Costar, 18 N. J. Eq. (3 C. E. Green), 518, 521; Egyptian Levee Co. v. Hardin, 27 Mo. 495 ; Daily v. Swope, 47 Miss. 367; Alcorn v. Hamer, 38 Id. 662; People v. Nearing, 27 N. Ý. 306.
People v. Supervisors of Saginaw, 26 Mich. 22; Anderson v. Kerns Drainage Co. 14 Ind. 199, 202; Reeves v. Wood Co. 8 Ohio, N. S. 333. An act for laying out drains, without limiting it to cases in which public good requires, it is invalid as being for a private use.