Alcorn v. Hamer

38 Miss. 652 | Miss. | 1860

Smith, C. J.,

delivered the opinion of the court.

These were bills filed in the Chancery Court for Yazoo county. The first to restrain the collection of the levee tax assessed under the first section of chapter 1 of the Act of December, 1858, p. 33 : the second to enjoin the sheriff from paying over to the treasurer of the board of levee commissioners the tax collected under the same act, and to recover it back. The ground for relief in both cases is the alleged invalidity of the law.

The bills charge that the said act is unconstitutional and void, because it provided that the question, whether the tax should be levied and collected, should he submitted to the legal voters of the district; because it is an attempt to appropriate money out of the public treasury to works of internal improvement, and was not passed by the majority required by the Constitution to give effect to such laws ; and because, by the third section of the act, the taxes collected for the three first years' from one portion of the district are alone appropriated to the construction of the levee provided for in the act, whilst those to be collected from the other portion of the district, for the same purpose, are appropriated to the discharge of contracts made for the erection of levees under the previously existing laws: which is alleged to be unjust, and against natural right; in violation of the principle of equality of taxation established in the Constitution; and, in effect, the appropriation of the property of the inhabitants of the one portion of the district to the benefit of those of the other, contrary to the Constitution and laws of the land.

A demurrer was filed to the bill of complaint in each case, wdiich was overruled ; and'appeals taken to this court.

The act under which’ these controversies have arisen is the act approved on the second day of December, 1858, entitled “An act to aid in repairing and perfecting the levee of the Mississippi river in the counties of De Soto, Tunica, Coahoma, Bolivar, Washington, and Issaquena.” The first section of which declares “that there be and is hereby levied and assessed a uniform tax of ten cents an acre on each and every acre of land in this State lying” within the boundaries of the levee district ■ as therein ■ created, “ except lands held by the State in trust or otherwise, and school land now exempt from taxation; which tax shall be continued for the period of five years, and shall be payable annually, on or before the first day of April in each and every year, from the first of April, 1859, to the first of April, 1863, inclusive &c. “ Provided, however, that the said tax proposed to be levied and collected in the said counties of De Soto, &c.,” “ shall first be submitted to the legal voters in the district of country proposed to be taxed, on the first Monday in January, 1859, which said election shall be conducted in the same manner, and upon the same notice as other elections, and if a majority of the legal voters, residing in the district of country proposed to be taxed, vote against the said tax, then the same shall not be levied or collected.” By the thirty-first section of the act, it is declared “ that all acts and parts of acts coming within the purview and meaning of this act, be and the same áre hereby repealed, and this act shall take effect and be in force from and after its passage.”

A preceding section of the act, section twenty-nine, provides that it shall be the duty of the governor of this State, as soon as the “ hill is passed and becomes a law, to issue his proclamation to the sheriffs of the counties in which the lands taxed in this act are situated, to hold an election as provided for in the first section of the bill, and the question voted for shall be ‘tax or no tax,’ and on failure of an election being held in any of said counties, then the votes given in the counties in which elections may be held, shall be taken as the sense of the legal voters of the district embraced in this act, as provided in the said first section.”

The act establishes a complete system for the erection of new levees where required, and for repairing and completing the levees already made in the counties designated ; it provides for the appointment of certain commissioners by the boards of police in the counties named in the act. The commissioners thus appointed are to elect a president, secretary, and treasurer; and thus organized, are called the board of levee commissioners. They are to hold meetings at stated times, and are charged with the duty of administering the funds collected under the provisions of the act, and superintending the construction of the levee, its repairs, &c.; and are vested with the capacity to contract, to sue, and be sued ; and have the “power of a body corporate to carry out” the objects intended by the act to be accomplished. The act provides for the assessment and collection of a tax, in certain named counties in the levee district, over and above the tax provided for in the first section; and directs its appropriation. And in no part of the act is it declared that the collection of the tax provided for in the first section shall be defeated by a failure from any cause to hold the election.

The questions presented by the records in these cases are not new in this court. They have been the frequent subjects of judicial investigation in the courts of this confederacy; and the very learned and able examination they have undergone before us, renders the task of decision comparatively a light one.

According to the theory of the government of Mississippi, indeed according to the principles which are universally regarded as fundamental in all the American systems of government, all political power is inherent in the people; and all free government is founded on their authority, and established for their benefit. And hence, that they have an inalienable and indefeasible right to abolish their form of government, or to alter it in such manner as they may deem most conducive to their welfare. Bill of Rights, § 2.

They have, therefore, the undoubted right to delegate as much or as little of this inherent political power as they see proper; and to vest it in such agents or departments of government as they shall choose to designate. The sovereign power of this State, or the people in their national or sovereign capacity, haye ordained a Constitution, and by it have established a government, and clothed it with all the powers which it possesses. It is, therefore, to the Constitution that we must look, for the manner in which they are to be exercised, as well as for the nature and extent of its delegated powers. And hence, in all cases in which the acts of any department of government are brought in question, it must be shown that those acts are authorized by it, or they will be void.

The legislative, judicial, and executive powers of the government of this State are vested in separate and distinct departments. And each department is prohibited from the exercise of powers pertaining to the others. The legislative power of the State is vested in two distinct departments: the one styled “the Senate,” the other “ the House of Representativesand both together, “ the legislature of the State of Mississippi.” Con. Art. 2, §4. The grant to this department is in general terms. It vests it with the whole of the legislative power of the State. No attempt is made in the Constitution to define the term “legislative power;” and, unlike the Constitution of the United States, it makes no attempt at a specific enumeration of the items of legislative power.

In determining, therefore, in a given case upon the legitimacy of the exercise of power by this department, we must consider whether it be in its nature legislative ; and if found to be legislative in its character, it must be held to have'passed under the general grant of legislative power, unless in some other part of the Constitution is found a prohibition or limitation express, upon the exercise of the power, or one clearly and plainly implied. And if, upon looking at all the provisions of that instrument, no such prohibition or limitation is there found, none exists. But as the powers of the legislature are delegated powers, it is not to be doubted, that any act passed by it, which does not fall fairly within the meaning and scope of legislative power, is as clearly void as if it were expressly prohibited. And manifest reasons exist, which render it quite as imperative upon the courts to refuse their sanction to such an act, as to one which violates an express provision of the Constitution. This species of violation is quite as much to be dreaded, and guarded against, as a direct attack upon any principle expressly recognized as a part of the fundamental law; for, as it has been very justly said, “ Attempts of the latter description to violate the Constitution will, generally, be met by instant reprobation, while the stealthy and frequently seductive character of the former is apt to escape detection, until the innovation is made manifest by the infliction of some startling wrong.”

The legislative power, to whatever subjects it may be applied, and whatever may be its extent, is vested exclusively in the Senate and House of Representatives, by the people, in whom it resides. They have, by the highest and most solemn of compacts, the Constitution, voluntarily relinquished their right to exercise it. It can only be reclaimed by an abolition, or an amendment of the Constitution, and the people are the only power competent to do either. To allow the legislature to associate with them in the exercise of the legislative function another tribunal, or to cast' back upon the people their delegated powers, would be tantamount to a subversion of the Constitution, by changing the distribution of the powers of the government, without the consent of the authority by which it was ordained. The proposition, that the legislature can surrender any portion of the authority with which it is vested, or authorize its exercise by any other body, or by the whole people of the State, is alike repugnant to the spirit and positive provisions of the Constitution. It is opposed to the express provisions of the Constitution, for the delegation of the legislative power to the' Senate and House of Representatives, is declared to be exclusive of the other departments, and is necessarily exclusive of every other person or body. It is opposed to the spirit of the Constitution, which is intended for the equal protection of every party to the social compact, who is entitled to demand under its auspices, “that his rights shall be protected, and that his civil conduct shall only be regulated by the associated wisdom, intelligence, and integrity of the whole representation of the State.” And the inability of the legislature to delegate its powers, independent of these considerations, would arise from the principles which apply to every delegation of power requiring rectitude, discretion, and knowledge. Indeed, tbe proposition that the legislative power is incapable of being delegated by the department in which it has been deposited, either to the whole people or to any portion of them', is not denied by any one, and seems so clear that these observations might well have been dispensed with.

Assuming then, as a proposition not to.be disputed, that the legislative authority cannot be returned to the people, nor delegated to any other power; and that no act can be binding as a law, unless it has received its final sanction from the legislative will, we come to consider of the grounds upon which it is alleged that the act in question is invalid.

And, first, it is insisted that the act was not, in fact, passed by the legislature, but was a mere project, submitted to the electors of the levee district, whose force and effect, as a law, was made to depend upon a majority of their votes.

The same objection has been frequently made to the validity of acts assumed, in the argument at bar, to be identical with the act under consideration. The' cases in which this objection was made, and which are strongly relied on as showing the invalidity of the act, are the cases of Rice v. Foster, 4 Harr. 479, decided in 1847, by the Court of Appeals of Delaware; the case of RarJcer v. The Commonwealth, 6 Barr, 507, by the Supreme Court of Pennsylvania, some months afterwards; the case of Barto v. Himrod, 4 Selden, 486, by the Court of Appeals of New York, delivered in 1853; and the case of Maize v. The State of Indiana, 4 Ind. Rep. 342.

The facts in the cases from Delaware and Pennsylvania are, substantially, the same. The existing law of each of these States, provided for granting licenses for the retail of spirituous liquors. The acts which .were held invalid in those cases, .were submitted to the voters of each township, to decide whether licenses should be continued to be granted in such .township; and if decided against, the sale was made criminal. This, in effect, submitted the question, whether the existing laws should be repealed, and a criminal prohibition take their place. Tlie right to repeal a law is as much legislative authority as the power to enact the law in the first place. Hence no argument is required to show that the one is as incapable of delegation as the other. The voters, in these cases, were riot authorized to determine upon the execution of a law in conformity to its provisions, but were vested with the power to decide whether the law should continue to exist. This was, clearly, the view taken in these cases; and while we concur in the correctness of the decisions, after a careful examination,' we think, for reasons which we will hereafter state, that those cases are distinguishable' from the ease at bar.

In Barto v. Simrod, the question was upon the constitutionality of an act of the legislature of New York, in regard to free schools, which was submitted to a vote of the people of the whole State. The terms of the submission were as follow: By the tenth section, it was provided, that “ the electors shall determine by ballot, at the annual election, to be held in November next, whether this act shall or not become a lawand by the fourteenth section, “ that in case a majority of all the votes of the State shall be cast against the law, then this act shall become null and void; and in case a majority of all the votes of the State shall be cast for the new school law, then this act shall become a law, and shall take effect.”

This act was held to be unconstitutional and void, upon the ground that it did not, on its face, purport to be a law as it came from the hands of the legislature, for any other purpose than to submit to the whole people of the State the question, whether its provisions, in relation to free schools, “ should or should not become a law ?” That it was a plan or project prepared by the legislature, “to be submitted to the people, to be passed or rejected.” And hence did not derive its sanction from the legislative will; but depended upon the popular vote for its force and effect as a law.

This case was clearly within the principle laid down in Rice v. Foster, and Parker v. The Commonwealth. We have no doubt as to the propriety of the decision; but we do not think that it is in anywise applicable to the act under consideration.

These cases, as we understand them, and as they have since been interpreted, especially by the courts in Pennsylvania and New York, do not hold the doctrine, that where the act is complete in itself, and goes into effect as a law, though the execution of some of its provisions may depend upon the popular vote of a district or county, is void upon the ground that there has been a delegation of the legislative power to the people of the district or county who are thereby authorized to vote; but that they simply lay down the principle, that an act which is a mere legislative preparation, plan, or project of a law, submitted to the people for their adoption or rejection, is void on that ground. People v. Quarter Sessions, 8 Barr, 395; Commonwealth v. Painter, 10 Ib. 214; Bank of Rome v. The Village of Rome, 4 Smith Rep. 38; Corning v. Green, 23 Barb. 35; Clark v. The City of Rochester, 24 Ib. 447.

It is settled in this court, and too well settled by authority elsewhere to he controverted, that the legislature has the authority for local purposes to impose local taxation, and that the district or extent of country in which, in any case, such taxation may be imposed, may be determined by the legislature; and further, that it may create a district for that purpose; or that it may impose the taxation over parts of territory without the instrumentality of such district.

There is therefore no objection to the act, for the reason, that the district subjected to the taxation is not one of the subdivisions of the territory of Mississippi recognized by the Constitution or laws. The legislature had the right to pass the act, whether the persons to be affected were or were not citizens of the same county, members of the same corporation, or residents of the same political division or district, previously established by the Constitution or the law. Williams v. Cammack, 27 Miss. Rep. 209 (and eases cited).

Was then the act in question an expression of the legislative will, agreeably to the forms of the Constitution ? Did it receive its final sanction from that will, or did it, so far as the tax is concerned, claim its force and efficacy as a law from the votes of the electors of the levee district ?

In most of the provisions of the act it'was mandatory. The assessment of the tax was positive and unconditional, and ample provision was made for its collection. The act made provision for the appointment of officers charged with the administration of the fund arising from the tax, and prescribed the manner in which that fund was to be applied; and by express provision, the act went into force from the date of its passage. It had all the attributes of a law. The act was complete, decisive, and final when it left the bands of the legislature. The power to enact a law, of necessity includes the right to determine the conditions upon which, in a given case, the law is to come into operation. Hence, when there has been no attempt to surrender the legislative function, or to associate another power in the enactment of a law, it would, at the least, be absurd to hold that an act was invalid, for the reason, that its operation was to be defeated or suspended by the happening of the prescribed contingency. The right conferred upon the electors of the district, to determine that one of its provisions should not be carried into effect, was as clearly ascertained, and as much fixed by the will of the lawmaking power, as any provision contained in the act. It seems, hence, too clear for controversy, that the act did not delegate to the electors the right to pass, or even approve it. On the contrary, the vote of a majority against the collection of the tax can only be regarded in the nature of a condition subsequent, which might defeat, but which was never intended to confer upon the act validity, as an expression of the legislative will. It was the act itself which made the vote, and prescribed the consequences to result from it.

The proviso to the first section seems to have been misunderstood, as it was in the argument assumed that the vote of the majority of the electors was essential, to give effect to the provision assessing the tax. It appears to us that the clear and manifest meaning of the proviso is exactly the reverse. A majority of the electors might defeat the collection of the tax, and thus render the act, as to one of its provisions, inoperative; but upon no principle of sound logic can it be held, that the majority vote was intended to give validity, as a law, to the provisions by which the tax was assessed. It was designed to prevent the execution of a law, which by express declaration had previously gone into operation. The act contains no provision, that if no eléction should be held, that it should, in respect to the tax, be defeated. It follows, therefore, with absolute certainty, that it would have remained valid and operative, as a law, if there had been no election held, or no vote given.

The act before us, in this respect, is not materially different from the act providing for the erection and repair of levees in Issaquena county. That act provided for the assessment and collection of a tax upon lands lying within a certain part of that county. By the twelfth section, it was declared, “ that if a majority of the legal voters who are landholders or householders in said county, shall enter a written protest against the provisions of this act before the board of police, at their first meeting after the 4th of July next, setting forth their objections to said act, then this act shall be void, and of no force,” &c. This act was to take effect and be in force from and after its passage.

In the case of Williams v. Cammack, above cited, a case arising under that law, it was objected that it was invalid ; because, by the section above quoted, its effect and operation depended upon a majority of the voters of the county as to whether it should become a law or not. But it was held, Justice Handy delivering the opinion of this court, that “the act in its terms possessed every quality of a complete and operative legislative act. Nothing was required to be done by the people to give it forcé and effect. Being thus complete and effective, the twelfth section provided that if a majority of the legal voters, who were householders or landholders of the county, should enter a written protest against its provisions before the board of police at their first meeting after the 4th of July, the act should become void, and of no binding force. This protest certainly gave no force to the act, but was intended expressly to put an end to its operation. If the provision had been that the act should not have any effect until a majority of the voters should sign their written assent to it, the objection would have more force. But no such condition was annexed to it. Being a local act affecting only the property holders of the particular county and intended for their benefit, it was provided that they should have the privilege of putting an end to its operation in the manner prescribed by the act, otherwise that it should continue. It derived no legislative force from the action of the voters, but quite the reverse.”

After a careful review, we are well assured of the correctness of the decision in that case. It is not only entirely defensible on principle, but it is sustained by a very great preponderance of authority. Every court of this confederacy (with a single exception), entitled to consideration, which have adjudicated upon the validity of legislative acts similarly conditioned, has recognized the correctness of the doctrine laid down in Williams v. Cammack. In the cases of Rice v. Foster, and Parker v. The Commonwealth, in which acts, assumed to be similar to the act under consideration, were held invalid, the reasoning employed to demonstrate their unconstitutionality is a clear vindication of the correctness of the principle held in Williams v. Cammack.

But the courts have gone farther, and with great unanimity have held that where the act is complete in itself, and goes into effect as a law, not depending upon the vote of a district or county, or the members of a corporation, whether it shall be enacted as a law, there has been no delegation of legislative power, but that it is a valid legislative act, although its provisions, or what it commands to be done, may be made to depend upon the contingency of a vote of such district, county, or corporation. As in Pennsylvania, The People v. Quarter Sessions, 8 Barr, 395; Commonwealth v. Painter, 10 Ib. 214. In New York, Corning v. Green, 23 Barb. 35; Clark v. The City of Rochester, 24 lb. 447; Bank of Rome v. The Village of Rome, 18 New York Rep. 38. In Delaware, Stewart v. Jefferson, 3 Harr. 335. In Vermont, State v. Parker, 26 Vermont Rep. 357. In Illinois, The People v. Reynolds, 5 Gilman, 1. In Kentucky, Slack v. Maysville and Lexington Railroad, 13 B. Monroe. In Ohio, The Cincinnati, Zanesville, and Wilmington Railroad v. The Commissioners of Clinton County, 1 Ohio State Reps. 77. In Maryland, Burgess v. Pue, 11 Gill. Rep. In Alabama, Stein v. The Mayor and Aldermen of Mobile, 24 Ala. Rep. 591. In Virginia, Bull et al. v. Read et al., 13 Grattan, 78; and also in Strickland v. The Mississippi Central Railroad (not reported), decided by this court in 1853.

In Parker v. The State (above-cited), the question was upon a license law of 1852, in which it was provided that it should come into force on the second Tuesday of March, 1853, with a proviso “ that meetings of the freemen of the State should be holden on the second Tuesday of February, 1853, to vote their judgment and choice in regard to the act;” and if a majority should vote “no,” “then the act should take effect in December, 1853.” The object of the proviso was, in the event of a negative vote, to suspend the act until the succeeding meeting of the legislature.

The opinion was delivei'ed by a leaxmed judge and able lawyer, who said: “ In this State, the Constitution vests the legislative power in the General Assembly, consisting of the House of Representatives and tbe Senate; and if tbe mode of proceeding, under consideration, is equivalent to giving legislative power to the people at large, it is, no doubt, in conflict with tbe Constitution. But it is not very obvious to us why this should be so regarded, unless it is done as matter of argument, and to justify a foregone conclusion, which is not one of the legal elements of a judicial determination more than it is of a legislative act, that it shall have the sanction of the people. But the law of 1852 did not, even in form, depend upon the vote of the people for its coming into force. The statute in terms was made to come in force just when it did, on the second Tuesday of March, 1853; and if there had been no meetings of the freemen called, or no vote had been talcen, the statute would have become a law just when it did. The only thing made contingent and conditional in the statute was, in one single event, the operation of the law should be suspended until after the next session of the legislature. It may be said this difference is not much. I know that very well. But it is as much as that between a condition precedent and subsequent; and this, in the case of an illegal condition, as it is claimed this was, is quite important. In the former case, the contract or act is rendered void; and in the latter, the condition only is avoided, and the contract or act remains in force. And we do not see but upon sound reasoning and good logic the result must be the same in regard to statutes. We think it must and should be. The condition or proviso was only for suspending the operation of the statute ; and if the legislature had no right to annex any such condition, then the statute will not be affected by it. It might have been wholly disregarded by the people, and the effect must have been the same. The law would have come in force on the second Tuesday in March. And did the taking a vote (which was in the affirmative, but which if it had been in the negative was, it is claimed, of no force, and should consequently have been disregarded) make the legal state of the enactment any different ? We think not. And thus the form of enacting this statute, seems to steer quite clear of the main argument upon which all of the cases have gone, where similar statutes have been held invalid. And in regard to this statute, it cannot, with any show of fairness, be said, that the legislature did not enact the law, and fully pass upon all questions of constitutionality and expediency involved in the subject. And it is admitted, on all hands, that the legislature may enact laws, the operation or suspension of which may be made to depend upon a contingency. This could not be questioned with any show of reason or sound logic.” . . . . “ If the operation of a law may be fairly made to depend upon a future contingency, then, in my apprehension, it makes no essential difference what is the nature of the contingency, so it be an equal and a fair one, a moral and legal one, not opposed to sound policy, and so far connected with the object and purpose of the statute as not to be a mere idle and arbitrary one.” . . . . “ It seems to me that the distinction attempted between the contingency of a popular vote and other future uncertainties, is without all just foundation in sound policy and sound reasoning, and that it has too often been made more from necessity than choice. More to escape from an overwhelming analogy than from any difference of principle in the two classes of cases.”

And in the case of Bull et al v. Reid et al., decided by the Court of Appeals of Virginia, — also cited above, — the question arose, under a statute of that State, which provided, that that portion of Accomac county, known as the first magisterial district, be established as a" district distinct from the rest of the county for a free school. And the County Court was required to order a vote to bo taken in the district “ for or against the establishment of a separate free school system in said district.” If three-fifths of the voters were in favor of it, then it was to be established, and commissioners appointed, who were vested with certain powers, amongst which was the power of taxation. This act was assailed on two grounds: 1. Because the legislature was incompetent to make the operation of a statute dependent upon the result of a popular vote of the district; and 2. Because it had no authority, under the Constitution, to delegate the power of taxation to the board of commissioners -created by the act.

These objections were overruled, and the act held valid. The court, after commenting on the power of the legislature to pass conditional laws, or to make their operation dependent upon some future contingency, declares, that “ it must be for them to judge in what contingency, or upon what condition the act shall take effect. They must have power to prescribe any they may think proper; and if tlie condition be, that a vote of approval shall be first given by the people affected by the proposed measure, it is difficult to see why it may not be as good and valid as any other condition whatever. There can be no inherent vice in the nature of such a condition which shall serve to defeat the act, when it would he legal and effectual if made to depend upon some other condition. To say, in such a case, that the act is made by the voters, and not by the legislature, is to disregard all proper distinctions, and involves an utter confusion of ideas on the subject.” . . . “ But there is a plain distinction between the act to be done by the voters and the legislative function. They have no power to alter or amend the act, or to substitute something else in its place. When it passed the Assembly, with the forms and in the manner prescribed by the Constitution, the legislative function was exhausted; although by its terms it required a vote of approval by the people interested, before it went into operation. But when that vote Wes’ given, and the result ascertained, in the mode prescribed, the act became as operative and effective as if it had simply fixed upon that day for its commencement.”

These two cases serve to indicate the general course of reasoning employed, and state the conclusions at which the judicial mind of this country has arrived on this subject. We are, however, not to be understood as, unqualifiedly, approving all the reasoning of the courts, in reference to the subject, or as sustaining all the conclusions which that reasoning tends to establish. In these cases, as in all the cases which we have cited above, or have examined, the authority of the legislature to make the operation of an act dependent upon the vote of the electors of a district or county, or upon that of the members of a corporation, is based exclusively upon the grant of legislative power in the Constitution. And it would seem to be a proposition too clear for argument, that if the legislature have the right to enact a statute, and make it depend for coming into force upon the vote of a district, or a portion of the people, that the power is not derived, from the fact that the persons who are to vote upon the proposition, are associated together as members of the same municipal body, os as inhabitants of some legal or constitutional subdivision of the territory. For in all cases of a corporation, or quasi corporation, the rights, privileges, and powers of the corporators, or the body appointed to act for it, are conferred in the act creating such corporation. And no one will maintain that, by the passage of an act creating a corporation, the legislative power has been enlarged so as to authorize it to delegate an authority to such corporation, which it was incompetent to confer in the first instance. If the legislature possess the authority at all, it must of necessity derive it from the Constitution, the source whence proceed all of the powers of government.

It is next assumed that the statute under consideration is, in effect, an act appropriating money from the treasury for works of internal improvement; and that, as it was not passed in conformity with the directions of Article 7, Section 8, of the Constitution, which declares that “no money from the treasury shall be appropriated to objects of internal improvement, unless a bill for that purpose be approved by two-thirds of both branches of the legislature; and a regular statement and account of the receipts and expenditures of public moneys shall he published annually.” And hence it is insisted that it is invalid.

A general revenue law', or a law imposing taxation upon the whole people, may be passed by a simple majority vote of the two houses; and a law appropriating money from the treasury for general purposes may be passed by the same vote. The reason is obvious. The whole people are interested in the support and maintenance of government, and the employment and appropriation of the public funds. Hence the authority to impose taxes, and to disburse the public revenue for general purposes may, with safety, be intrusted to a majority of the popular representation. Not so with regard to the appropriation of money for works of internal improvements, ,in which, of necessity, the whole of the people can never, in any given case, be equally interested. Ordinary prudence and foresight, therefore, suggested the provisions of the 8 th section. The framers of the Constitution knew that applications would be made to the legislature, and that sinister influences might be brought to bear, which would induce a majority of its members to consent to appropriations of the money contributed by the whole people to objects of a purely local character, in which only a small minority of any of the municipal subdivisions of the State were interested, unless restrained by some imperative provision. The same reasons are applicable, it is true, when the provisions of that section are considered in reference to the appropriation of money raised by local taxation, for the benefit of those who pay the tax. But it is manifest that they apply with such slight force, that we think it cannot with fairness be asserted, that those provisions were intended to govern the enactment of statutes imposing local taxation, and applying the money for the benefit of the inhabitants of the locality by whom it is contributed. !

And further, we think that the last clause of the eighth section, which declares that “ a regular statement and account of the receipts and expenditures of public moneys shall be published annually,” shows conclusively that the treasuries of the different counties, of districts, and of corporations, by which taxes collected for local purposes must be disbursed, were not present to the minds of the convention ; and hence, that the section was intended to apply exclusively to the public money of the State, which by law is to be deposited in and disbursed from the State treasury located at the seat of government.

From these considerations, it results that the act is not invalid, for the reason assigned.

The third and last objection applies specially to the third section of the act, which provides that the taxes collected, for a definite period, from that part of the levee district not embraced by the boundaries of the counties situated immediately upon the Mississippi river, is alone to bo applied to the construction, &c., of the levee; whilst the taxes to be collected from those counties for the same period are applied to the payment of debts incurred, and to the discharge of contracts made, under the previously existing levee system. These provisions are alleged to operate unequally and unjustly as to that part of the district not contained in the river counties; and, in effect, to be an appropriation of the property of the inhabitants of that part for the benefit of those who reside in the counties of the district immediately bordering upon the river.

If the provisions of the section objected to. are a constitutional expression of the legislative will, we have nothing to do with the alleged inequality and injustice in the distribution and appropriation of the tax assessed and collected under its directions. The complaint may or may not be well founded in fact. The presumption, however, is, that it is not. The theory of the law, and it is the only foundation on which its equity can stand, is, that the inhabitants of the levee district, as created and defined by the act, would be generally and equally benefited by the erection, &c., of the proposed levee upon the bank of the Mississippi river. We judicially know that laws for the leveeing the Mississippi were, for some years, in operation before the enactment of the statute under consideration. Hence if, under the previous laws, taxes were imposed and collected, contracts entered into, and work done in the construction of the levee, it may be supposed that the inhabitants of that section of the district, in whose behalf the complaint is now urged, were as much benefited thereby as those of the counties in the district bordering on the river. If such be the fact, for aught we can perceive, the provisions of the third section may be perfectly equal and just.

However this may be, as the act was simply an exercise of the taxing power, and not an attempt, under the right of eminent domain, to take private property for public use, if it were conceded that the provisions of the third section operated unequally upon the different portions of the district, the courts for that reason would not be authorized to declare them void. It is perfectly well settled that, where any particular county or district is to be benefited by a public improvement, the inhabitants of such county or district may be taxed for the whole expense of the improvement, in proportion to the supposed benefit received by each ; and that in this respect no limitation has been placed upon the taxing power vested in the legislature. Williams v. Cammack, and the cases cited in the opinion.