the cases on this subject. In a case where was questioned * the validity of the State law confirming township action [* 489] which granted gratuities to persons enlisting in the mili tary service of the United States, the Supreme Court of Connecticut assigned the following reasons in its favor: "In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary; and this is not that case. "Second. If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice, and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords, or other mementos for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned. "Third. The government of the United States was constituted by the people of the State, although acting in concert with the people of the other States, and the general good of the people of this State is involved in the maintenance of that general government. In many conceivable ways the action of the town might not only mitigate the burdens imposed upon a class, but render the service of that class more efficient to the general government, and therefore it must be presumed that the legislature found that the public good would be thereby promoted. "And fourth. It is obviously possible, and therefore to be intended, that the General Assembly found a clear equity to justify their action."1 1 Booth v. Woodbury, 32 Conn. 128. See to the same effect Speer v. School Directors of Blairville, 50 Penn. St. 150. The legislature is not obliged to consult the will of the people concerned in ordering the levy of local assessments for the public purposes of the local government. Cheaney v. Hooser, 9 B. Monr. 350; Slack v. Maysville, &c., R.R. Co., 13 B. Monr. 26; Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 353. Compare People v. Common Council of Detroit, 27 Mich. And the Supreme Court of Wisconsin has said: "To justify the court in arresting the proceedings and in declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable; so clear and palpable as to be perceptible by every mind at the first blush. . . It is not denied that claims founded in equity and justice, in the [* 490]* largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities."1 But we think it clear in the words of the Supreme Court of Wisconsin, that "the legislature cannot. . . in the form of a tax take the money of the citizen and give to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute." 2 Or, as stated by the Supreme Court of Pennsylvania, "the legislature has no constitutional right to... levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of the legis lative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them."3 And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription, " such an enactment would not be legislation at all. It would be in the nature of judicial action, it is true, but wanting the justice of notice to Brodhead v. City of Milwaukee, 19 Wis. 652; Mills v. Charlton, 29 Wis. 411; Spring v. Russell, 7 Greenl. 273; Williams v. School District, 33. 2 Per Dixon, Ch. J., in Brodhead v. Milwaukee, 19 Wis. 652. See also Lumsden v. Cross, 10 Wis. 282; Opinions of Judges, 58 Me. 590; Moulton v. Raymond, 60 Me. 121; post, 494 and note. Per Black, Ch. J., in Sharpless v. Mayor, &c., 21 Penn. St. 168. See Opinions of Judges, 58 Me. 590. parties to be affected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings; it would much more resemble an imperial rescript than constitutional legislation: first, in declaring an obligation where none was created or previously existed; and next, in decreeing payment, by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions." 1 1 Tyson v. School Directors of Halifax, 51 Penn. St. 9. See also Grim v. Weisenburg School District, 57 Penn. St. 433. The decisions in Miller v. Grandy, 13 Mich. 540, Crowell v. Hopkinton, 45 N. H. 9, and Shackford v. Newington, 46 N. H. 415, so far as they hold that a bounty law is not to be held to cover moneys before advanced by an individual without any pledge of the public credit, must be held referable, we think, to the same principle. We are aware that there are some cases, the doctrine of which seems opposed to those we have cited, but perhaps a careful examination will enable us to harmonize them all. One of these is Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143. The facts in that case were as follows: Cornell and Clark were formerly commissioners of highways of the town of Guilford, and as such, by direction of the voters of the town, had sued the Butternut and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then refused to reimburse them these costs. Cornell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legislature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the succeeding town meeting. The voters decided that they would not tax themselves for any such purpose. Another application was then made to the legislature, which resulted in a law authorizing the county judge of Chenango County to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It authorized the commissioners to make an award, which was to be filed with the county clerk, and the board of supervisors were then required, at their next annual meeting, to apportion the amount of the award upon the taxable property of the town of Guilford, and provide for its collection in the same manner as other taxes are collected. The validity of this act was affirmed. It was regarded as one of those of which Denio, J., says "the statute book is full, perhaps too full, of laws awarding damages and compensation of various kinds to be paid by the public to individuals, who had failed to obtain what they considered equitably due to them by the decision of administrative officers acting under the provisions of former laws. The courts have no power to supervise or review the doings of the legislature in such cases.” It is apparent that there was a strong equitable claim upon the township in this case for the reimbursement of moneys expended by public officers under the direction of their constituents, and perhaps no principle of constitutional law was violated by the legislature thus changing it into a legal demand, and compelling [* 491] *The Supreme Court of Michigan has proceeded upon the same principle in a recent case. The State is forbid its satisfaction. Mr. Sedgwick criticises this act, and says of it that it "may be called taxation, but in truth it is the reversal of a judicial decision." Sedg. on Stat. and Const. Law, 414. There are very many claims, however, resting in equity, which the courts would be compelled to reject, but which it would be very proper for the legislature to recognize, and provide for by taxation. Brewster v. City of Syracuse, 19 N. Y. 116. Another case, perhaps still stronger than that of Guilford v. The Supervisors, is Thomas v. Leland, 24 Wend. 65. Persons at Utica had given bond to pay the extraordinary expense that would be caused to the State by changing the junction of the Chenango Canal from Whitesborough to Utica, and the legislature afterwards passed an act requiring the amount to be levied by a tax on the real property of the city of Utica. The theory of this act may be stated thus: The canal was a public way. The expense of constructing all public ways may be properly charged on the community specially or peculiarly benefited by it. The city of Utica was specially and peculiarly benefited by having the canal terminate there; and as the expense of construction was thereby increased, it was proper and equitable that the property to be benefited should pay this difference, instead of the State at large. The act was sustained by the courts, and it was well remarked that the fact that a bond had been before given securing the same money could not detract from its validity. Whether this case can stand with some others, and especially with that of Hampshire v. Franklin, 16 Mass. 83, we have elsewhere expressed a doubt, and it must be conceded that, for the legislature in any case to compel a municipality to assume a burden, on the ground of local benefit or local obligation, against the will of the citizens, is the exercise of an arbitrary power little in harmony with the general features of our republican system, and only to be justified, if at all, in extreme cases. The general idea of our tax system is, that those shall vote the burdens who are to pay them; and it would be intolerable that a central authority should have power, not only to tax localities, for local purposes of a public character which they did not approve, but also, if it so pleased, to compel them to assume and discharge private claims not equitably chargeable upon them. See the New York cases above referred to criticised in State v. Tappan, 29 Wis. 674, 680. See also Shaw v. Dennis, 5 Gilm. 416. The cases of Cheaney v. Hooser, 9 B. Monr. 330; Sharp's Ex. v. Dunavan, 17 B. Monr. 223; Maltus v. Shields, 2 Met. (Ky.) 553, will throw some light on this general subject. The case of Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350, is also instructive. The Cypress Pond Draining Company was incorporated to drain and keep drained the lands within a specified boundary, at the cost of the owners, and was authorized by the act to collect a tax on each acre, not exceeding twenty-five cents per acre, for that purpose, for ten years, to be collected by the sheriff. With the money thus collected, the board of managers, six in number, named in the act, was required to drain certain creeks and ponds within said boundary. The members of the board owned in the aggregate 3,840 acres, the larger portion of which was low land, subject to inundation, and of little or no value in its then condition, but which would be rendered very valuable by den by the constitution to engage in works of public im- [* 492] provement, except in the expenditure of grants or other property made to it for this purpose. The State, with this prohibition in force, entered into a contract with a private party for the construction by such party of an improvement in the Muskegon River, for which the State was to pay *the [* 493] contractor fifty thousand dollars, from the Internal Improvement Fund. The improvement was made, but the State officers declined to draw warrants for the amount, on the ground that the fund from which payment was to have been made was exhausted. The State then passed an act for the levying of tolls upon the property passing through the improvement sufficient to pay the contract price within five years. The court held this act void. As the State had no power to construct or pay for such a work from its general fund, and could not constitutionally have agreed to pay the contractors from tolls, there was no theory on which the act could be supported, except it was that the State had misappropriated the Internal Improvement Fund, and therefore ought to provide payment from some other source. But if the State had misappropriated the fund, the burden of reimbursement would fall upon the State at large; it could not lawfully be imposed upon a single town or district, or upon the commerce of a single town or district. The burden must be borne by those upon whom it justly rests, and to recognize in the State a power to compel some single district to assume and discharge a State debt would be to recognize its power to make an obnoxious district or an obnoxious class bear the whole burden of the State government. An act to that effect would not be taxation, nor would it be the exercise of any legitimate legislative authority.1. And it may be said the contemplated draining. The corporate boundary contained 14,621 acres, owned by sixty-eight persons. Thirty-four of these, owning 5975 acres, had no agency in the passage of the act, and no notice of the application therefor, gave no assent to its provisions, and a very small portion of their land, if any, would be benefited or improved in value by the proposed draining; and they resisted the collection of the tax. As to these owners the act of incorporation was held unconstitutional and inoperative. See also The City of Covington v. Southgate, 15 B. Monr. 491; Lovingston v. Wider, 53 Ill. 302; Curtis v. Whipple, 24 Wis. 350; People v. Flagg, 46 N. Y. 401; People v. Bacheller, Albany Law Journal, Aug. 23, 1873; People v. Common Council of Detroit, 27 Mich. Ryerson v. Utley, 16 Mich. 269. See also People v. Springwells, 25 Mich. 153. |