82 Vt. 5 | Vt. | 1909
This is an appeal from proceedings by the city of Burlington to acquire by the right of eminent domain certain lands and premises on the shore of Lake Champlain belonging to the defendants, for the purpose of a public wharf. The proceedings are under No. 262, Acts of 1906, which purports to authorize the city, as the convenience of the inhabitants and the public good may require, to construct and maintain upon the shores of said lake within the limits of said city or in the waters of said lake adjacent thereto, a public wharf, and to keep the approaches thereof at all times in a proper and safe condition for the landing, loading, and unloading of boats and vessels, subject to the Constitution of the United States and the laws made in pursuance thereof regulating commerce, and to the admiralty jurisdiction of the Federal courts.
The act further provides that any person dissatisfied with the award of the council may appeal therefrom to the county court of the county for a rehearing as to the necessity and convenience of the proposed action of the council, and the taking of land or other property therefor, and the damages awarded, and that such proceedings shall be had in said court as are provided by law for the assessment of damages for land taken for highways; but that nothing in the proceedings shall prevent the council from entering upon such lands and constructing and maintaining such wharf after its award is made and the amount thereof tendered as provided, when the appeal is upon the question of damages only.
Before any action is taken by the council under the act, a meeting of the voters is to be called, to see if the city will vote to procure by construction or otherwise and maintain a public wharf in accordance with the act; and if it does so vote, then the council is to carry the vote into effect, and may borrow money therefor on the credit of the city.
The defendants moved to dismiss the proceedings for that, among other things not now insisted upon, the city has no lawful right to build, maintain, and operate a public wharf and become a public wharfinger; and for that said act is invalid and void because it purports to confer upon the city the primary right to determine the necessity for such wharf, the extent of the taking,
First, as to the right of the city. The defendants concede that a municipality may be authorized by law to construct and operate a private wharf; that it may provide any proper facilities for loading and unloading goods, like coal for its schools, public buildings, etc., as an individual might do; but say that to enter upon any public business is foreign to the purpose for which it was created; that municipalities are created and organized for certain governmental ends that meet the demands of their inhabitants in their every-day life, but not for the purpose of. undertaking a public business whereby they enter into competition with the world at large, and incur liabilities and earn revenue like individuals; that if the city of Burlington can take on the character of a public wharfinger, it can build and operate a line of steamboats, and become a common carrier, or build and operate a railroad, or, in short, assume any public character outside the primary purpose of its charter, and wholly foreign to the purpose of its organization.
But it cannot be said that the construction of public wharves by cities and towns bordering on navigable waters is beyond, and wholly foreign to, the purposes for which they are created; for all cities and towns are created for the purpose of performing such governmental functions as the State may for convenience devolve upon them. It cannot be doubted that the State itself, in the absence of constitutional inhibition, can build, or aid others in building, wharves for public use and in aid of trade and commerce; and it is equally clear that whatever the State can do in this behalf, it can delegate to a municipality to do, with proper limits, for the law is, by all the eases, that except where there are constitutional limits upon the Legislature, it is practically absolute. Cooley, Const. Lim., 6th ed., 200 et seq. This doctrine has often been announced by this Court, and was acted upon in Bennington v. Park, 50 Vt. 178, where it was held that the Legislature could authorize a town to bond itself to aid in the building of a railroad out of the State. It is there said that if towns are empowered by the Legislature to aid in the construction of railroads and to levy taxes for that purpose, they are acting in that behalf merely as the agents or appointees of the State, exercising a power of taxation conferred upon them by the State, a power which, in the very nature of things, could
But under Article 9 of our Bill of Rights, no law can be made to raise a tax unless the purpose for which it is raised appears evident to the Legislature to be of more service to the community than the money would be if not collected. This means that the purpose for which the tax is raised must be a public purpose. But whát is a public purpose within that meaning, is a question for the Legislature to decide, and concerning which it has a large discretion, which the courts can control only, if at all, in very exceptional cases, and this is not such a case. Cooley, Const. Lim., 6th ed., 153.
These principles are applicable and controlling here, and therefore it must be held that the act in question, if otherwise valid, confers upon the city the authority claimed.
Second, as to the validity of the act in respect of the manner of taking. The defendants claim that it is invalid in this regard, for that it makes the city a judge in its own case, and does not afford the landowners interested that due process of law guaranteed by the Constitution; that it confers upon the city the right to determine the necessity for taking the land, the extent of the taking, and the damages to be paid therefor, with no right of appeal from its action, and compels the party injured to institute original proceedings at his own expense to obtain relief; that the hearing provided for in the act is not before a disinterested tribunal, and that the landowner is never entitled
But it is incorrect to say that there is no appeal from the action of the city, for the statute expressly provides for an appeal therefrom to the county court on every question involved therein. Hence the case is entirely unlike Stearns v. City of Barre, for there the statute left the extent of the taking to the final determination of the officers of the city making the condemnation, and for that reason, and that alone, it was in that respect held invalid. But here the statute leaves nothing to the final determination of the officers of the city making the condemnation, but gives a right on appeal to a rehearing before an impartial tribunal on every question in which the defendants are interested, and provides an adequate way in which that right can be exercised to the fullest extent in the regular course of procedure in such cases in the courts of justice. This is the due process of law guaranteed by the Constitution. State v. Stimpson, 78 Vt. 124, 62 Atl. 14, 1 L. R. A. (N. S.) 1153. And it makes no difference that the defendants had to institute original proceedings at their own expense in order to appeal, for that is but a reasonable regulation of the mode of exercising the right, and not a denial nor an infringement of the right. It is like In re Marron, 60 Vt. 199, where we held that the statute requiring a respondent who appeals from the judgment of a justice in a criminal case to procure copies of appeal at his own expense if he would enter his appeal in the county court where alone he can have a trial by a common law jury of twelve men, is a reasonable regulation, not infringing the constitutional right of trial by jury.
Judgment affirmed and cause remanded.