thereof; they brought suit for the amount against the town, and were defeated; the legislature passed an act directing their claim to be submitted to the electors at a town meeting, the decision to be final and conclusive; upon such submission it was rejected; afterward an act was passed authorizing commissioners to determine and award the amount paid and expended by Cornell and Clark, and directing the board of supervisors of the county to assess the amount awarded upon the taxable property of the town, and cause it to be collected and paid in satisfaction of the claim. The act was held valid. Denio, J.:1 "The legislature is not confined, in its appropriation of the public moneys, or of the sums raised by taxation in favor of individuals, to cases in which a legal demand exists against the State. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity." Gordon v. Cornes was the establishment of a normal school in the village of Brockport, under an act by which the village furnished the land and buildings, and furniture to a specified amount, for which the village was taxed. The expenses of conducting the school were borne by the State; there was a grammar school attached, free to all the children of the village; the normal scholars were selected by the superintendent of public instruction from every part of the State. "The establishment of the school may well have been deemed by the legislature a benefit to the locality, as well as the State at large, and the furnishing of the land and buildings and furniture by the village may have been considered no more than its just contribution toward such benefit." 3 § 29. Principle of the New York Cases.—All of these cases recognize the principle of special benefit to the locality upon whose inhabitants the tax is imposed; first, that of a canal terminating at the city; second, local assessment for paving and grading streets; third, sewer for a city; fourth, that of money laid out and expended at the instance of the town, which created a moral if not a legal obligation upon them to pay; and fifth, a case of a school, in which the provision for the grammar school at least was for the direct benefit of the inhabitants of the village taxed. This is the view taken of these cases by Rapallo, J., in the last case. He says: "It would be going too far to deny that the provisions of the Constitution, which declare that no person shall be deprived of property without due process of law, and that private property shall not be taken for public use without just compensation, would afford protection to the citizen against 1 13 N. Y. 149. 3 Rapallo, J., Id. 613. Gordon v. Cornes, 47 N. Y. 608. 4 Ib. 612. impositions made nominally in the form of taxes, but which were in fact forced levies upon individuals, or confiscations of private property; as for instance, if the general expenses of the government of the State, or of one of its municipal divisions, should be levied upon the property of an individual or a set of individuals, or perhaps a particular district. Cases of this description might be imagined in which an act would fall within the express prohibitions of the Constitution. But to raise the constitutional question would require an extreme case, where no apportionment of the tax with reference to benefit should be attempted and no discretion on the subject exercised, but one set of individuals or one district should be confessedly and arbitrarily required to pay for benefits conferred upon others who bore no proportion of the burden." § 30. Cases in other States similar.—The same principle is contained in the decisions of other States. In Illinois, commissioners were appointed to levy a special tax on property in Rockford precinct, to repair and maintain a bridge across Rockford river, at Rockford.1 In California, where the charter of a city limited the debt of the city to $50,000, an act of the legislature appointing persons to examine claims against the city, and providing the means of funding the debt thus ascertained, though in excess of $50,000, was held valid. In the same State, an act of the legislature, creating a new county out of the limits of an old one, ascertained the amount of indebtedness to be assumed by the new county, but did not provide for the payment of interest. The principal was paid to the assignee of the debt, and a subsequent act provided for the payment of interest to the assignee. This latter act was held a valid exercise of the taxing power; the money was raised for a county purpose, and there was a moral obligation on the county to pay the interest. In Pennsylvania, an act of the legislature appointed a commission to erect a bridge over the Schuylkill at Philadelphia, and to create a loan for that purpose, and required the council of the city of Philadelphia to provide for the payment of the loan and interest by a tax on the inhabitants of the city and county of Philadelphia. Judge Read, delivering the opinion of the court, says: "The legislature could undoubtedly build this bridge 3 1 Shaw v. Dennis, 5 Gil. (Ill.) 405, citing Thomas v. Leland, 24 Wend. 65. 2 Blanding v. Burr, 13 Cal. 343, citing 24 Wend. 65, and 13 N. Y. (3 Kern.) 143. 3 Beals v. Amador Co. 35 Cal. 624, citing the same cases as 13 Cal. 343; Hampshire v. Franklin, 16 Mass. 83. In the creation of a new county, the old county succeeds to all rights of property and obligations; after the division, such rights cannot be divested by a subsequent act, without consent of the old county. 4 City of Philadelphia v. Field et al. 58 Penn. St. 320, 325. over a navigable river at South street, and pay for it by moneys proceeding from loans or taxes, and in doing it they might employ commissioners to erect it. It is one step further to impose the cost of erection on the city and county through which the river passes and empties itself into the Delaware, and across which the bridge is thrown, connecting the east and west banks of the Schuylkill upon which Philadelphia is built. It becomes, in fact, a bridge of necessity, connecting two growing portions of the city, and forming a part of a continuous highway from the Delaware to the remotest parts of West Philadelphia. The city has an area of one hundred and thirty square miles, 800,000 souls, and the question is, cannot the State place the cost of this great public improvement upon a locality and a population directly benefited by it?" It was held valid. § 31. Agricultural College; Levee and Drainage Cases.-Congress, by act of July 2, 1862, donated a certain amount of the public lands to the several States, for the benefit of agricultural colleges to be established therein, with a proviso that no part of the fund realized from the lands should be applied directly or indirectly to the purchase or repair of buildings.1 The States, generally, which availed themselves of the benefit of the act, in making provision for the erection of the necessary buildings, placed the whole, or a large part, of the cost of the erection upon the cities or towns selected as sites for the colleges; the acts have been held valid, on the principle of special benefit. Bigelow, J., says: "It is within the just and proper limits of the authority granted to the legislature to lay and assess taxes, to raise money for a public object, on a particular town, district or section, which may reasonably be expected to derive some peculiar or special advantage or benefit from an expenditure of money, which will not be enjoyed to the same degree by other portions of the State." So, in another case, it was said, although the college was open to all citizens of the State, yet there were local benefits, such as diminution of expense of attending college, and increase in the number of educated and intelligent people, growing out of the proximity to the college, to justify the local tax. The levee and drainage cases, so far as they are held valid, are all based upon the principle of special benefit,* and so are the cases of local assessment for the grading and paving of streets. In a case where a bridge was to be built, which, according to the general law, fell upon the town in which it was situated, it was held proper, in the discretion of the legislature, to provide that a portion of the expense should be borne by the whole county, and a portion by the town.1 And where a turnpike was taken for a highway, the expense was placed upon the town." § 32. Acts Invalid because of Want of Local Benefit.—The cases heretofore considered have been upheld by the courts because of the special or local benefit; there is another class in which the acts have been held void for want of this benefit. The Constitution of Michigan prohibits the State from engaging in works of internal improvement, except in the expenditure of grants made to it by the United States; there was a fund from that source, and an act was passed to improve the Muskegon river, and $50,000 appropriated from that fund; the contract was made and work performed. The treasurer refused to pay the contract price because the fund was exhausted. It was claimed that the fund had been misappropriated, and an act was passed to levy tolls on the commerce of the Muskegon and raise the $50,000. The act was held void. If the fund had been misappropriated, the whole State should pay the tax imposed to reimburse it; the burden cannot be justly imposed upon one county or the commerce of one river. "Taxation cannot be exercised in an arbitrary manner; it is of the essence of all taxation that it should compel the discharge of the burden by those upon whom it rests."4 A company was incorporated for the improvement of the navigation of the Kentucky river and its tributaries. The county courts of the counties bordering on the Kentucky river, or interested in its navigation, were authorized by act of legislature to subscribe for stock in the company and levy a tax on the taxable inhabitants of the county to pay the subscription. Garrard county bordered on the river, and its county court subscribed to the stock $100,000. Taking the rule of local benefit, as laid down in People v. Township Board of Salem, as correct, the court says: "Testing the essential question in this case by the foregoing rule, it is difficult to see how the advantages of slackwater navigation on the border of a county can be brought within the range of local objects and benefits of such peculiar and common interest to the community as to render them proper objects to be attained by local taxation. It is not every private, nor even public convenience, nor every facility for particular classes of business, industry or enterprise, however 'Inhabitants of Norwich v. County Commissioners of Hampshire, 13 Pick. 60. 4 valuable to those who may seek to profit by it, that is of general and peculiar benefit to a whole community. The improvements being made to the State Capitol at Frankfort, rendering it more attractive, and furnishing an increased assurance of the continuance of the seat of government in it, are, no doubt, of much benefit to its citizens; but surely this incidental local benefit could constitute no sufficient ground for imposing on them, as a local community, any part of the cost of these buildings." 1 § 33. Similar Cases.-The cases heretofore discussed in sections 23 and 24 not only involved the question whether the purpose was public or private, but the further question whether the benefit which it was admitted would accrue to the localities in which the enterprises were sought to be established, was of such a character as to justify the imposition of a tax upon those localities. And it was held that the incidental benefits accruing to a city or town from the establishment of a saw-mill, an iron foundry, a hotel, a private school, a brick manufactory, or the improvement of a large district of a populous city recently destroyed by fire, were not such as would justify the imposition of a tax upon those localities for such objects. The principle of local benefit has been carried further in Pennsylvania than in any other State. Broad street in Philadelphia was paved under authority of law. Afterward an act of Assembly required the city to occupy the street for its entire length for the uses and purposes of a public drive, &c., and directed the cost of the improvement to be paid by the owners of property abutting on the street. The act was held void so far as it directed the cost to be imposed upon the owners of property abutting on the street. The principle of local assessments upon properties benefited was recognized-taxation upon benefits conferred, but not beyond them. The original paving of a street was within the principle, but when a street is once opened and paved, this assimilates it with the rest of the city and makes it a part of it; all the particular benefits to the locality, derived from the improvement, have been received and enjoyed. The repairing of streets is as much a part of the ordinary duties of the municipality for the general good, as the cleaning, watching and lighting of the streets. In another case, where the legislature authorized the construction of a 1 Garrard County Court v. Navigation Co. 10 Am. Law Reg. 151, 155, 158; s. c. Ib. 161-165, note of Judge Redfield; Kirby v. Shaw, 19 Penn. St. 258. In this last case, the expense of erecting a court house and jail for a county were placed upon the borough in which the buildings were situated, and the tax was held valid, on the ground of local benefit to the borough in excess of other parts of the county. This ruling is contrary to the current of authority in other States, and even in Pennsylvania. 2 ? Hammett v. Philadelphia, 65 Penn. St. 146; s. c. 3 Am. Rep. 615. |