voting taxes by those who are not to feel them, especially when the expenditure may be confided to those who have no interest personally or as corporators, and who will presumably be concerned only to the extent that they can make a personal profit of the taxes which others are to pay.

In another recent case in New York, it is decided that the legislature may require a village to levy a special tax to be expended in the construction of a state educational institution at that locality. This decision is based upon the sovereign power of the state to tax and apportion the public burdens, a power which, unless it is subject to implied limitations, would enable the legislature of a state to require its capital town to construct the state house, another town to construct the state prison, and so on, to the entire relief of the state at large. It has been seen that a decision in Wisconsin is opposed to the one just cited, and that derives strong support in more recent cases in Illinois' and Michigan.3

The New York cases which have been mentioned find abundant justification in an earlier case in the same state, and could not well have been decided otherwise without rejecting that as an authority. The facts in that case were the following:

Certain citizens of Utica, in order to secure the connection of the Chenango canal with the Erie at their place, entered into a bond conditioned to pay to the state some $38,000, the estimated increased expense in bringing the canal to that point, instead of to another which had been proposed. Having thereby secured the location, the legislature then interfered for their relief, and required the amount of the obligation to be assessed as a tax upon the real estate of the city of Utica. Was this a constitutional tax? The supreme court of the state held that it was. "The general purpose of raising the money by tax was to construct a canal, a public highway, which the legislature believed would be a benefit to the city of Utica as

1 Gordon v. Cornes, 47 N. Y., 608.

2 Livingston County v. Weider, 64 Ill., 427, is specially referred to. This case is commented on and explained in Burr v. Carbondale, 76 Ill., 455, in which it was held competent to permit a locality to vote special aid to a state building. See, also, Hensley v. People, 84 Ill., 544; Livingston Co. v. Darlington, 101 U. S., 407.

Callam v. Saginaw, 50 Mich., 7.

such, and, independently of the bond, the case is the ordinary one of local taxation to make or improve a highway."1

How far the principle of this case can be carried beyond the exact state of facts upon which it was decided is a question of the highest interest. Would it, for instance, have been within the power of the legislature to compel the city of New York to bear the whole cost of the Erie canal? or to construct at its own cost the Erie railroad? Or might the whole cost of the Hoosac tunnel be thrown upon Boston? Or might Chicago or St. Louis be compelled to construct a system of railways through the state, on the ground that in the opinion of the legislature the railways would specially benefit the city which was made a terminus? If a power to require such expenditures can rest in the hands of any legislature, restrained only by a sense of the responsibility of its members to their constituents, there is always a possibility that the members may at some time discover that a majority of the constituencies would be pleased to see the power exercised 2

1 Thomas v. Leland, 24 Wend., 65, 67, per Cowen, J. Under the principles of this decision it might, perhaps, be held that the legislature had the power to require the refunding by the municipalities of commutation moneys, or moneys paid to procure substitutes, where the effect was to relieve the municipality from a draft. The purpose of the payment, so far as it went to aid the government by money or men, was public; and yet as such payments are made by parties for their own advantage, a law levying taxation to refund them is judicially declared to resemble "an imperial rescript," rather than constitutional taxation. Thompson, J., in Tyson v. School Directors, 51 Pa. St., 9, 22. In Perkins v. Milford, 59 Me., 315, 318, Appleton, Ch. J., in denying the authority to authorize the refunding of commutation moneys by towns, says: "The money was voluntarily paid, and without expectation of repayment. It was a gift-so understood, so intended by all the parties subscribing. It was no advance or loan to the town with the expectation of repayment. Whether the gift was to the soldiers enlisting, or to the town, makes no difference. The naked question recurs, Can the town raise money to give to individuals? This is not a gift to any public purpose. It is a gift as a recompense for past generosity. If a town can give to A. it can give to B. If it can give little it can give much. If it can give, then every man holds his estate subject to the will of the majority, who can give away as much or little as they please. Taxation is for public purposes, and for those the right of the government to impose taxes is unlimited. Taxation is imposed by the state to meet its exigencies. But taxes to meet the plaintiff's claims would be taxes for a private purpose, for a gift to an individual."

2 In Freeland v. Hastings, 10 Allen, 570, 580, Bigelow, Ch. J., speaking of the right of the state to apportion among the municipalities the expense of

Another recent case in New York seemed to interpose a check to the unlimited power of the legislature over the taxation of municipal corporations. The point of the decision was, that towns could not be compelled to give aid to railroad corporations by subscribing to their stock. The decision was an able one, and made by the court of last resort. But this de

cision, so far as in the nature of things it would be possible, was shortly afterwards qualified, and, as it would seem, overruled by the assistant court, called the commission of appeals. The case decided by this court asserts a power in the legislature broader and more absolute than has ever been applied in this country, by any court of corresponding jurisdiction and dignity, whose decisions have fallen under our notice. The point of the decision was, that where the legislature had once empowered a commissioner, appointed for a town, but not by it or by any town officer or authority, to subscribe for the town to the stock of a railroad corporation, on the condition precedent of obtaining the assent of a majority of the resident tax payers, the legislature had full power afterwards to remove the condition and empower the commissioner to bind the town by a subscription without it. "As it is obvious," say the court, "that all the property of a town, as an artificial being, is public property, and must usually have proceeded from the exercise of the power of taxation, and as the private rights of individuals residing in the town can only be affected through the exercise of the power of taxation, it follows that the substantial power of the legislature, through the power of taxation, is broad enough to sustain the requirement to a town to aid in the construction of a railroad, in the construction of which, in the judgment of the legislature, it has a public interest. And if it may do this directly by the imposition of a tax,

highways, etc., says: "Perfect equality in the allotment of public burdens is unattainable. If they are distributed on just principles, applicable alike to all on whom they are imposed; if no undue discrimination is made among those on whom a charge or duty is laid; if no tax is assessed which is disproportionate, or without the assent of the people or their representatives,' substantial equality will be attained, and no legal or constitutional right or privilege will be violated or evaded." This seems to us an admirable statement of the principles governing the imposition by the state of burdens upon the municipalities.

1 People v. Batchellor, 53 N. Y., 128, opinion by Grover, J.

and the direct and immediate employment of the money raised, it is not perceived how the issuing of bonds, with the only contingency of taxation to follow, can be beyond the legislative power, nor how the more remote possibility of becoming chargeable by reason of holding stock can alter the case."1

As the commissioner who made the subscription was not a town officer, nor a town agent with the town's consent, it is manifest that he was able to accomplish what was said by the eminent Pennsylvania judge whose views have been quoted, to be "impossible in the nature of things"-a contract without the consent of the parties.2

It must, we should suppose, be conceded that the doctrine that the legislature may do anything to which it gives the form of taxation, and which is not expressly forbidden by the constitution, is necessarily corrupting in practice. It constitutes a standing invitation to corrupt classes of the state to flock to the state capital with schemes for enriching themselves at the expense of localities; and it would be remarkable if they were not often successful. Perhaps, if the state were owner of important public works, a more tempting attraction might thereby be presented, and the municipalities be left unmolested. But even this might prove otherwise, for the evils of vicious legislation are likely to increase and multiply in every direction when once it is admitted that they are subject to no legal restraints, and that the central authority may legislate on local matters which concern only the locality, and concerning which the members acting will know nothing except as interested parties may undertake to inform or misinform them.

All the property of a municipal corporation may be assumed to come from taxation. If any of it comes from gift or grant, it is not believed that the nature of its ownership is any dif ferent on that account, unless the gift or grant was charged with a trust. It is public property, but public for the purposes of the municipality, and not for the purposes of the state. If

1 Johnson, Com., in Duanesburgh v. Jenkins, 57 N. Y., 177, 187. The decision in the case reversed the decision in supreme court made by Judges James, Bockes, Rosecrans and Potter.

2 Black, Ch. J., in Sharpless v. Philadelphia, 21 Pa. St., 147, 165. See, also, what is said by Mellen, Ch. J., in Bowdoinham v. Richmond, 6 Greenl., 112, 114.

any of it has been raised for special purposes, under state authority, the state may compel its proper application. The state must have a power of direction, also, in cases where municipal · powers are so modified as to preclude the contemplated purpose being followed; but it is believed to be an unsound doctrine that the legislature of the state may, for that reason or any other, apply it to state uses, or even to local uses, against the consent of the people concerned. Mr. Justice Story early expressed the view that the legislature, changing, modifying, enlarging or restraining the local powers, must secure the property for the uses of those for whom, and at whose expense, it was originally purchased.' There can be little doubt that this is the view that has been generally acted upon, and that any other is, to say the least, less safe, either to the general interests of the state or of the municipalities. It is very true, as has often been said, the fact that a power is liable to abuse is no argument against its existence; it would only constitute a reason which should influence the people to expressly withhold the grant of power when framing their constitution. But when it is considered that the states in general have not been accustomed to exercise such a power, and that its existence is inconsistent with any substantial constitutional protection to local self-government-that feature of the American representative system which has usually been looked upon as the corner-stone of all-and must leave the municipalities at the mercy of legislative majorities, it may justly be questioned whether the recognition of the power is not an innovation. It is not to be forgotten that the power in question is "a power to destroy" an expression which loses none of its force when

1 Terrett v. Taylor, 9 Cranch, 43, 52. "It may also be admitted," he says, in Dartmouth College v. Woodward, 4 Wheat., 518, 594, “that corporations for mere public government, such as towns, cities and counties, may, in many respects, be subject to legislative control. But it will hardly be contended that, even in respect to such corporations, the legislative power is so transcendent that it may, at its will, take away the private property of the corporation, or change the uses of its private funds acquired under the public faith. Can the legislature confiscate to its own use the private funds which a municipal corporation holds under its charter, without any default or consent of the corporators?" And, again, on p. 698, he says of the state: "It cannot recall its own endowments granted to any hospital, or college, or city, or town." See, also, the discussion in Merriwether v. Garrett, 102 U. S., 472.