which compulsory taxation is found necessary, in order to compel a municipal corporation or political division of the state to perform properly and justly any of its duties as an agency in state government, or to fulfill any obligation legally or equitably resting upon it in consequence of any corporate action, the state has ample power to direct and levy such compulsory taxation, and the people to be taxed have no absolute right to a voice in determining whether it shall be levied, except as they may be heard through their representatives in the legislature of the state.1 Doubtful cases. Where a county is divided, and property and debts are to be apportioned, political considerations are involved, and the legislature must directly or indirectly pass upon them. But when demands are asserted against municipal corporations, growing out of contracts, or upon such grounds as might give rights of action against individuals, it is at least questionable whether the legislature may pass upon the facts, adjudge the corporation liable, and proceed to enforce payment by taxation. Such action, as against a natural person, would be clearly judicial, and therefore beyond the legis lative competency; and it could only be sustained in the case of municipal corporations on the doctrine that their powers and rights are wholly at the legislative disposal; a doctrine dangerous in government, and, as we think, unsound in constitutional law. The opinion has sometimes been expressed that these corporations were entitled to the constitutional benefits of an ordinary trial. But this is denied in other cases, and perhaps a hearing before some court or board of audit might be all the corporation could demand. But such a hearing, if 1It is competent, by special statute, to compel one county to levy a tax in order to refund to another county the fair proportion of the expenses which have been incurred by the latter in trials concerning the distribution of the proceeds of sales of property lying in both. Lycoming v. Union, 15 Pa. St., 166. If a city exercises to the utmost its power of taxation, and the amount raised is not more than enough to pay necessary current expenses, no part of this can be applied on city bonds. Tucker v. Raleigh, 75 N. C., 267. 2 See ante, p. 162. See Sanborn v. Rice County, 9 Minn., 273; People v. Haws, 37 Barb., 440; Plimpton v. Somerset, 33 Vt., 283; Gage v. Graham, 57 Ill., 144; State Tappan, 29 Wis., 664. V. In re Pennsylvania Hall, 5 Pa. St., 204; Borough of Dunmore's Appeal, 52 Pa. St., 374; Layton v. New Orleans, 12 La. An., 515. Compare Com local municipal government is a matter of substance, they must be entitled to. It is not believed that the liability of the corporation must be made to turn on legal questions purely. On the contrary, it is more consistent with the dig nity and honor of government that all demands against the public shall be settled on broad grounds of equity, instead of being tested by technical rules; and auditing boards are generally, with the utmost propriety, empowered to govern their action by equitable considerations. This only is maintained: that the legislature is not a proper auditing board as between the municipalities and third persons, though it may undoubt edly prescribe the rule of liability for all cases. Nature of municipal corporations. Before considering some other cases, it may be well to refer briefly to the general nature of municipal corporations. Primarily these are public and their powers governmental. They are created for convenience, expediency and economy in government, and, in their public capacity, are and must be at all times subject to the control of the state which has imparted to them life, and may at any time deprive them of it. But they have or may have another side, in respect to which the control is in reason, at least, not so extensive. They may be endowed with peculiar powers and capacities for the benefit and convenience of their own citizens, and in the exercise of which they seem not to differ in any substantial degree from the private corporations which the state charters. They have thus their public or political character, in which they exercise a part of the sovereign power of the state for governmental purposes, and they have their private character, in which, for the benefit or convenience of their own citizens, they exercise powers not of a governmental nature, and in which the state at large has only an incidental concern, as it may have with the action of private corporations. It may not be possible to draw the exact line between the two, but provisions for local conveniences for the citizens, like water, light, public grounds for recreation, and the like, are manifestly matters which are not provided for by municipal corporations monwealth v. Pittsburgh, 34 Pa. St., 496. In Vasser v. George, 47 Miss., 713, 720, Simrall, J., claims very broad authority for the legislature in adjusting claims against municipalities. 1 Merriwether v. Garrett, 102 U. S., 472. in their political or governmental capacity, but in that quasi private capacity in which they act for the benefit of their corporators exclusively. In their public, political capacity, they have no discretion but to act as the state which has created them shall, within constitutional limits, command, and the good government of the state requires that the power should at all times be ample to compel obedience, and that it should be capable of being promptly and efficiently exercised. In the capacity in which they act for the benefit of their corporators merely, there would seem to be no sufficient reason for a power in the state to make them move and act at its will, any more than in the case of any private corporation. With ample authority in the state to mould, measure and limit their powers at discretion, and to prevent any abuse thereof, their action within the prescribed limits, in matters of importance to themselves only, it would naturally be supposed, should be left to the judgment of their citizens and of their chosen officers. And this has been the view on which the several state legislatures have in general acted. The largest liberty of action has been permitted to municipal bodies in matters of local concern, and very seldom has the disposition been evinced to interfere any further than was deemed necessary to prevent an oppressive exercise of local powers, and to confine them to proper local purposes. And in those cases in which municipal corporations have been allowed to vote taxes for purposes not strictly local, but on the grounds of special local benefit, the legislation has seldom gone beyond giving permission to vote them if the electors of the locality should choose to do so. Whenever the legislation has gone further than this, the courts have generally held that the legislative power of control has 1 This twofold nature of municipal corporations has often been commented upon and been made the ground of important decisions. See Bailey v. New York, 3 Hill, 531; Milhau v. Sharp, 15 Barb., 193, per Edwards, P. J.; Lloyd v. New York, 5 N. Y., 369, 375, per Jones, J.; Storrs v. Utica, 17 N. Y., 104; People v. Batchellor, 53 N. Y., 128, per Grover, J.; Western Savings Fund Society v. Philadelphia, 31 Pa. St., 175; Touchard v. Touchard, 5 Cal., 306; Holland v. San Francisco, 7 Cal., 361; San Francisco Gas Co. v. San Francisco, 9 Cal., 453; Western College v. Cleveland, 12 Ohio St., 375, 377, per Gholson, J.; Jones v. New Haven, 34 Conn., 1, 12; Hewison v. New Haven, 37 Conn., 475, 483; Detroit v. Corey, 9 Mich., 165; People v. Hurlbut, 24 Mich., 44; People v. C'ommon Council of Detroit, 28 Mich., 228, 238; Hasbrouck v. Milwaukee, 13 Wis., 37; Atkins v. Randolph, 31 Vt., 226. been exceeded. In a leading case in Vermont, the legislature provided for the appointment, by a county commissioner, of a town agent, who should be empowered to purchase liquors on the credit of the town, and sell the same for such purposes as were admissible under what was known as the prohibitory liquor law, accounting to the town for the proceeds. The act was held invalid; the court declaring that "courts that have gone farthest in sustaining laws of state legislatures, against the restrictive provisions of state constitutions, repudiate entirely the idea that a person, whether natural or artificial, can be compelled by legislative enactment to become a party to, or to be subjected to liability upon, a contract." A like doctrine has been strongly asserted in Massachusetts, where in a case in which the legislature had taken steps looking to the establishment of a pecuniary demand against a municipal corporation, without its consent, the court declared - having the municipal corporation in view as the party to be charged — that "it is not in the power of the legislature to create a debt from one person to another, without the consent, express or implied, of the person to be charged," and that if the attempt were made, "it would not be within the power of any judicial court to enforce such an act." A similar ruling was made in Maine in a similar case. In Wisconsin, the power of the legislature to force taxation upon the people for objects not within the customary grant of local powers for governmental purposes has been pointedly denied in cases in which the objects contemplated were presumptively of great local importance and value; one case, being that of an improvement of the city harbor," 1 Atkins v. Randolph, 31 Vt., 226, 236, per Barrett, J. In this case Chief Justice Black is quoted, who, in that opinion of his in Sharpless v. Philadel phia, 21 Pa. St., 147, 165, which asserts legislative supremacy in matters of taxation in very strong, if not extravagant, language, nevertheless interposes this caution: "I do not say, however, that a contract between two individuals, or two corporations, can be made by the legislature. That would not be legislation. Besides, it would be impossible, in the nature of things; for the essence of a contract is the agreement of the parties.” 2 Hampshire v. Franklin, 16 Mass., 76, 84, per Parker, Ch. J. And see Richland v. Lawrence, 12 Ill., 1, 8. 3 Brunswick v. Litchfield, 2 Greenl., 28, 32; Bowdoinham v. Richmond, 6 Greenl., 112. 4 Hasbrouck v. Milwaukee, 13 Wis., 37. In this case, Dixon, Ch. J., speak ing of the power of the legislature to make a contract for a municipal cor and another that of a state normal school, to be located in the city, whose money, collected for local school purposes, the state directed should be appropriated to its erection. In Michigan, the authority of the state to appoint agents who, without the consent of a city, might issue obligations binding upon it for the purchase and embellishment of a public park for its citizens, was denied on like grounds. In Kansas, where county officers poration against its will, says: "It is certainly unnecessary at this day to enter into an argument or to cite authorities to show that, under a constitutional government like ours, the legislature has no such power." This decision is defended in an able opinion by the same learned judge, in Mills v. Charlton, 29 Wis., 400. See, also, Knapp v. Grant, 27 Wis., 147; State v. Tappan, 29 Wis., 664. 1 State v. Haben, 22 Wis., 660, per Dixon, Ch. J. "Was it competent," it was inquired in this case, "for the legislature, without the assent of the city or its inhabitants, thus to divert the funds raised and in the hands of the treasurer for the purpose of erecting a suitable high school building, and to declare that they should be appropriated, not for that purpose, but for the purpose of purchasing a site for a state normal school in the city? We are clearly of the opinion that it was not. It is well settled as to all matters pertaining to vested rights of property, whether real or personal, and to the obligation of contracts, that municipal corporations are as much within the protection of the federal constitution as private individuals are. The legislature cannot divest a municipal corporation of its property without the consent of its inhabitants, nor impair the obligation of a contract entered into with or in behalf of such corporation." 2 People v. Common Council of Detroit, 28 Mich., 228. And see People v. Hurlbut, 24 Mich., 44. In this last case, in answer to an objection that there was no express saving of municipal rights in the state constitution, the following remarks are made (p. 107): "Some things are too plain to be written. If this charter of state government which we call a constitution were all there was of constitutional command; if the usages, the customs, the maxims, that haye sprung from the habits of life, modes of thought, methods of trying facts by the neighborhood, and mutual responsibility in neighborhood interests, the precepts which have come from the revolutions which overturned tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or legislature at a distance to do so; if a recognition of all these were to be stricken from the body of our constitutional law, a lifeless skeleton might remain, but the living spirit, that which gives it force and attraction, which makes it valuable and draws to it the affections of the people, that which distinguishes it from the numberless constitutions, so called, which in Europe have been set up and thrown down within the last hundred years, many of which, in their expression, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone |