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of sovereignty, the power of the State to govern men and things within the limits of its dominion." 1 As a general rule, police regulations are not made with a view to raising revenue, and the amounts paid by those to whom they apply are such only as will be sufficient to defray the expenses of enforcing the regulations. But "when owners of urban property are required to construct and keep in repair, and free from obstructions, the sidewalks in front of it, or owners of city lots are required to pay the expense of sewers constructed in front thereof," the difference between the two is hard to be perceived, and we feel inclined to rest both powers upon the sure foundation of Judge Taney, the sovereignty of the State to govern men and things within the limits of its dominion.

§ 10. Power of Courts.-The power of the courts to declare void an act of the legislature, in the absence of express constitutional limitations, is an exceedingly delicate one, and should be exercised with the greatest caution; but of its existence there can be no doubt. It is a conceded principle as to the States of the American Union, that all sovereignty resides in the people. This sovereignty is distributed among the different departments of government-legislative, executive, and judicial. It results from the nature of this government that the power of the legislature is not unlimited. It cannot exercise executive or judicial powers. Each department, in the absence of express limitations, is supreme while exercising its proper functions; neither can exercise the powers of the other. So strongly is this principle impressed upon the American people, that one of the new States has embodied it in express terms in its fundamental law. The Constitution of Minnesota distributes the powers of government into legislative, executive, and judicial, and declares "that no person belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others, except in the instances provided for in the Constitution." 4

§ 11. English and American Courts.-At an early day, the English courts undertook to declare void acts of parliament, on the sole ground that they were repugnant to natural justice or morality. In Day v. Savage (Hob. 85), where a custom of the city of London was pleaded, and it was claimed by the defendant that the custom

'Taney, J., in License Cases, 5 How. (Curtis' Cond. U. S.) 525.

? Cooley on Const. Limitations, 3d ed. p. 588, notes 3 and 4, and authorities. This subject will be examined in more detail, under the powers of municipal corporations when exercising the delegated powers of taxation or police.

Sedgwick's Stat. and Const. Law, 2d ed. 132-137, 151, 152, and authorities cited. 4 Sanborn v. Rice, 9 Minn. 273.

was, in such cases, to refer the issue taken upon such plea to the mayor, &c., of the city of London to certify the custom, the court held, that, although the custom was confirmed by parliament, yet an act of parliament made against "natural equity," as to make a man a judge in his own case, is void in itself. The later cases do not question the supremacy of parliament.' In America, however, there has been a disposition to adhere to the earlier English cases.* The reason of the difference is manifest. In England, the encroachments upon private right were made by the executive, often supported by pliant judges; the great battle for private right and individual liberty was fought by the house of commons, and when these were placed upon a firm foundation, every Englishman instinctively regarded parliament as the great bulwark against oppression. But, in this country, the danger to private right and individual liberty has been that legislatures, influenced by popular passion and prejudice, or controlled by combinations of vicious men, should disregard everything that opposed their wills. And the courts have been looked to by the people as a protection from arbitrary acts of the legislature. While this is true, it will be found that the cases which are referred to do not sustain so broad a proposition as is laid down in Hobart. Where the act is clearly a judicial act-where it appropriates private property for public use without compensation, or appropriates private property for a private purpose in any manner, where it assesses taxes for a private purpose-the courts do not hesitate to hold the act void.s

§ 12. Opinions of Marshall and Ruggles, JJ.-Taxes can only be imposed for a public purpose; they cannot be imposed for a private purpose. There are strong expressions to be found in many cases which scem to favor the idea that the taxing power is without limit, so far as the control of the courts is concerned. The authority quoted is the opinion of Judge Marshall in McCulloch v. Maryland,1 and of Judge Ruggles in People v. Mayor of Brooklyn. "The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the government acts upon its constituents. This is, in general, sufficient security against erroneous and oppressive taxation. The people of the State, therefore, give to their government a right of taxing themselves and their prop

1

'Sedgwick's Stat. and Const. Law, 2d ed. 125, 127.

2 Id. 128-130.

Id. 151, 152; see for rules on the subject, Robertson, J., in Lexington v. McQuillan's Heirs, 9 Dana, 513; Black, J., in Sharpless v. Mayor of Philadelphia, 21 Penn. St. 168, 169; People v. Batchellor, 53 N. Y. 128; Mayor and Council of Newark v. State, July No. Am. Law Reg. 1874.

4

4 Wheat. (Curtis' Cond. U. S.) 434.

54 N. Y. 426, 427.

erty; and as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislature and the influence of the constituents over their representatives to guard them against its abuse." In the case in which this language is used, a tax law was declared void, not because of any conflict with the express provisions of the Constitution of the State or of the United States, but because of an implied conflict between the powers conferred upon the federal government and the tax law. It was decided that a bank was a necessary and proper instrumentality to be used in conducting the financial affairs of the federal government, and that the sovereignty of the State did not extend to instrumentalities of the federal government, as, by the compact between the States, that government was to be supreme within the limits of the powers vested in it. An attentive consideration of the language, in connection with the facts of the case itself, will show that Judge Marshall intended to assert no such proposition as is attributed to him. It is undoubtedly true, that "the exigencies of the government cannot be limited," and, as a general rule, the people prescribe no limits to the exercise of this right. I suppose by exigencies is meant the necessity of the government for revenue for the purposes of government; to this there is no limit, and the abuse of this must be corrected by the influence of the constituents on the legislature. But I cannot suppose that this able jurist meant to say that the legislature could impose taxes for a private purpose, and that there was no remedy in such case but the one named; it seems to me that the true meaning to be attached to the language is, that when taxes are imposed for a proper governmental purpose, the amount, the subjects and mode of imposition are vested in the legislature alone.

Judge Ruggles, after quoting from Judge Marshall's opinion just cited, proceeds: "It must be conceded that the power of taxation and of apportioning taxation, or of assigning to each individual his share of the burden, is vested exclusively in the legislature, unless this power is limited or restrained by some constitutional provision. The power of taxing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment; and the power of apportionment is therefore unlimited, unless it be restrained as a part of the power of taxation.” 3

This was a case of local assessment for grading and paving a

14 Wheat. (Curtis' Cond. U. S.) 434.

3 People v. Mayor of Brooklyn, 4 N. Y. 426, 427.

2

* Id. 426, 435.

street, and it was claimed that taxation should be general, and embrace all persons within the State, or some district or territorial division of the State. In the connection in which it was used, and as a general proposition, the doctrine laid down is sound, but it does not support the cases which claim unlimited power for the legislature as to taxation.

13. Public Purpose a Question for the Courts.-Whether the purpose is a public one is a question for the courts,' and is precisely similar to the question of public use in the exercise of the right of eminent domain. This must be so from the nature of the case. If the legislature can determine whether the use is a public one, then the safeguards in the bill of rights and constitutions of the States and United States for the protection of private property are valueless.2 The legislature cannot, by declaring the use to be public, when it is within the Constitution a private use, authorize the property of one citizen to be taken from him and given to another; but when the use for which the property is desired is in its nature public, the legislature is the supreme and final judge, whether the public necessity or benefit is such as to call for the exercise of the power; whether the time is a fitting one; what particular property may be taken, and in what manner, in respect to instrumentalities to be employed for the purpose, whether State officers, individuals or corporations..

The acquisition of lands for the purpose of speculation or sale by a railroad, or to prevent interference by competing lines or methods of transportation, or in aid of collateral enterprises remotely connected with the running or operating of the road, are not such purposes as authorize the condemnation of property. A railroad having a lease of land may, when the proper running and operating of its road and the interests of the public require permanent structures for its depots, acquire the fee in the land under power of eminent domain.5

1 §§ 23 and 24, cases when use declared private. Hammett v. Philadelphia, 65 Penn. St. 146.

2

Sedgwick's Stat. and Const. Law, 2d ed. 443, note a. It is strange that any respectable judge should have expressed such an opinion, because it emasculates the constitutional safeguard, and places private property at the mercy of the legislature. If this opinion were correct, the conceded doctrine that the legislature cannot authorize private property to be taken for a private use would be overthrown. Tyler v. Beecher, 44 Vt. 651; Spring v. Russell, 7 Greenl. 273; Williams v. School District, 33 Vt. 271.

In the Matter of Peter Townsend, 39 N. Y. 174; Costar . Tide-water Co., 3 C. E. Green (N. J.) 63; Bankhead v. Brown, 25 Iowa, 540; Sadler v. Langham, 33 Ala. 326-328; Loughbridge v. Harris, 42 Ga. 500; Talbot v. Hudson, 16 Gray, 421; Concord Railroad v. Greeley, 17 N. H. 47.

Andrews, J., Rensselaer & Saratoga Railroad v. Davis, 43 N. Y. 137.

5 N. Y. & H. R. R. Co. v. Kip et al. 46 N. Y. 546.

14. What is a Public Purpose?-While it seems to be conceded, in the majority of cases, that the purpose for which taxes are imposed must be public, as opposed to a private purpose, there is great diversity of opinion as to what constitutes a public purpose. The classes of cases in which the question principally arises are donations or subscriptions by municipal corporations to railroads and agricultural colleges, the extension of city boundaries to include lands used for agricultural purposes and subject them to city taxes, and bounties paid to soldiers to avoid a draft. An examination of the principles on which these cases are based will aid us in ascertaining the limits of the public purpose.

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