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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."i 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 govern. ment 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

* Id. 426, 435.

1 4 Wheat. (Curtis' Cond. U. S.) 434.
People v. Mayor of Brooklyn, 4 N. Y. 426, 427.

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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.? 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

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1 88 23 and 24, cases when use declared private. Hammett v. Philadelphia, 65 Penn. St. 146.

Sedgwick's Stat. and Const. Law, 2d ed. 443, note a. It is strange that any respect. able 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 lowa, 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.

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.?

$ 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

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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 1, 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 ". Forsythe Co. 67 N. C. 367; John v. Cincinnati, &c. R. R. 35 Ind. 539; Stockton, &c. R. R. ". Stockton, 41 Cal. 147; Bntler 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. ". Smith, 62 Ill. 268, 274 ; Gelpke v. Dubuque, 1 Wall. 175; Ib. 83; Ib. 384; Sedgwick Stat. & Const. Law, 2d ed. 429, 430), p.: 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.”1 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

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Sharpless v. Mayor of Philadelphia, 21 Penn, St. 169, 170.

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