45 Ala. 696 | Ala. | 1871
Lead Opinion
A primary question in this case is, the constitutional validity of the law under which the people of the county of Dallas acted in the matter set forth in the
It would be but a waste of time to attempt to show that the general assembly of this State may establish corporations. It would be equally vain to argue that such corporations, when so created, may not be clothed with a power to contract debts, or to enter into such obligations as individuals may enter into. A corporation is an artificial person, and is solely the creature of the law-making power, in this country. And it may exercise such authority, in all matters with which it may deal, as the legislature may think fit to bestow upon it, where the legislative power itself is not limited by some constitutional restriction.— 2 Kent, 273, 276, 277, 278, 275 ; 1 Kydd Corp. 13, 69, 70 ; 1 Bla. Com. 475; Ang. & Ames Corp. 1, 2, et seq.; Dartmouth College v. Wooaward, 4 Whea. 636, Marshall, C. J., arguendo.
The county is a corporation created by law. Like most corporations, its powers are necessarily specific and limited, but such powers as it may exercise, it owes to legislative grant. And the legislature may make such grant as broad as it thinks fit, unless there is a constitutional restriction which confines such grant to a specific limit. The legislature is simply the agency by which the people exercise the sovereign law-making powers remaining to them as citizens of the State, and not abandoned to the government of the whole Union. For, in the two governments, the national and the State governments, the absolute sovereign power of the people to make laws is vested. There is no power for this purpose exist ng anywhere else. Between these the whole sovereignty to make laws is absorbed. And it is beyond question that the people, as the absolute sovereigns, may do what they think best. They are the supreme and irresistible power to make and to
The people of the county are the corporators of the county. — 2 Kent, 274. Like other corporations, they may have their powers restricted or enlarged by statutory enactment. This may be done by general or by special law. And whether done in the one way or the other, the corporators of the county can only be held to be bound in the event they act under authority of the law thus made. The legislature clothes them with the power to act. This the legislature has the power to do. — 24 Ala. 591, supra. And when tne county acts, as all corporations must, when no other mode is prescribed, it must perform its functions through the action of a majority of its citizens entitled to speak in its elections. — Aug. & A. Corp. §§ 84, 499 ; 1 Kydd Corp. 422; 2 Kent, 23tí.
And what the legislature does, is done by the people. The law is, theoretically at least, the united will of all the people of the State, both of those who favor the specific enactment, and of those who oppose it, and also of those who were silent and said nothing. — Dwarris Stats. 657. Then, when tne legislature declares that a county, or the people of a county, may do any particular thing, this is the declaration of all the people of the State and of all the people of the county. They all consent to the declaration, or law, thus made, and agree and bind themselves to carry it into' effect, and they accept all its consequences. This declaration, as long as it remains in force, is the law, unless the people, in some way, have bound themselves not to make such law; that is, have forbidden it in their constitution, which is their organic law. If they have, then the enactment is contrary to the legislative will of the State. It is unconstitutional and void. In such case, the legislative department of the government of the State is presumed to have fallen into an error. This, any and all the departments of the government may do. And the
“ Section 1% That any and every county of the State of Alabama, situate upon, or adjacent to, main or branch lines of the railroads of this State, as such lines are, or may be hereafter located by the companies owning and controlling said roads respectively, is authorized and cm* poiuered to subscribe for, take and pay for the capital stock of such railroad companies of the State as they may deem most conducive to their interests, as hereinafter provided. The said railroad companies, by their president and the majority of their directors, may, in writing, propose to any such county that it shall subscribe for and take an amount of their capital stock, to be named in said proposal, at a certain price per share, and pay for the same in such bonds of the county as shall be set forth in said proposal.”— Pamph. Acts 1868, p. 514, No. 172.
The other sections of this act are merely directions as to the manner in which the “authority ” thus given is to be exercised. If the authority can be given, then undoubtedly the mode of exercising it may be given, and to a corporation like a county it should be given also. The authority is the chief thing. The modes of its exercise are the incidents. And here, as in other cases, the greater necessarily contains the less. Omne majus continet, in se, minus. — Wing. Max. 206. The thing given implies the power to enjoy its use.
If we keep the real point in controversy in this discussion properly in view, it seems to me that there can be no room for doubt. It is this: Can the legislature of this State authorize the corporations mentioned in the caption of the above cited act to contract the obligations therein
There are two sections of the present constitution which, it is urged upon the court by,the learned counsel for the appellees, affect the questions involved in this case. The one is the 25th section of the first article. So much of this as is presumed to be applicable to this discussion is in these words:
“ That private property shall not be taken or applied for public use, unless just compensation be made therefor; nor shall private property be taken for private use, or for the use of corporations other than municipal, without the consent of the owner.” — Const. Ala. 1867, Art. I, § 25, Pamph. Acts 1870-71, p. v.
The other section is as follows:
“The State shall not engage in ivories of internal improvement, but its credit in aid of such may be pledged by the general assembly on undoubted security, by a vote of two-thirds of each house of the general assembly.”— Const. Ala. 1867, Art. IY, § 33, Pamph. Acts 1870-71, p. xii.
I also quote below another section of the fundamental law, which in some measure is connected with the very important question under consideration. It is this:
*732 “ The general assembly shall not have power to authorize any municipal corporation to pass any laws contrary to the general laws of the State, nor to levy a tax on real or personal property to a greater extent than two per centum of the assessed value of such property.” — Const, Ala. 18u7, Art. IY, § 36, Pamph. Acts 1870-71, p. xii.
It can hardly be denied that a county is a “ municipal corporation.” — 2 Kent, 275, marg.; People v. Morris, 13 Wend. 325, 335; Horton, Judge, &c., v. Mobile School Com., 43 Ala. 598; 1 Bla. Com. 116; 4 Bla. Com. 411. Then, counties are excepted out of the prohibition expressed in section twenty-five of the constitution, above cited. This is the effect of the words “ other thau,” before the word “municipal,” in said section. Then, so far as county corporations are involved, the constitution stands in this case as it did before the adoption of the present instrument. And such corporations could be authorized by the legislature of the State not only to subscribe for stock of a railroad company, but also to levy a tax for the payment of the obligation incurred for this purpose.— Gibbons v. Mobile & Great Northern Railroad Company, 36 Ala. 110.
The State undoubtedly may permit works of internal improvement to be constructed within its limits, without engaging as a party therein. It is this that the constitution prohibits. The State is different from a county. And the limitation being applied to the State alone, legal reasoning will not permit it to be extended beyond the State. Expressum facit cessare taciturn. — Broom’s Max. p. 278. The constitution, then, does not intend to fetter the action of the general assembly in its power to grant authority to any other corporations it may create to do what the State, as such, may not do. This also appears from the further fact, that a municipal corporation may be authorized to levy taxes to the extent of Uoo per centum on the value of the property assessed. — Const. Ala. 1867, Art. IY, § 36, supra. This appears from the section of the constitution above cited. And it is the exercise of this power to tax that is most persistently complained of. This power is nob within the control of this tribunal, unless it is carried beyond the limit of “two per centum” of the assessed value
Another objection to the act under discussion is, that its title conflicts with the second section of the fourth article of the State constitution, which is in these words: “ Each law shall contain but one subject, which shall be clearly expressed in its title.” — Const. 1867, Art. IY, § 2. The title to the law in controversy has already been recited. This act was approved December 31st, 1866. — Pamph. Acts 1868, p. 514, No. 172. The above cited section of the constitution of the State has already been discussed, to some extent, in this court. It is settled, that it is a command upon the general assembly which they can not disregard, and is not merely directory. But no rule is yet laid down which defines the stringency with which this command shall be construed and enforced.— Weaver v. Lapsley, 43 Ala. 224; Martin v. Hewitt, 44 Ala. 418 ; Gunter v. Dale County, ib. 639. These latter cases, without impeaching or impairing the able opinion in Weaver v. Lapsley, supra, evidently show that this command is to be liberally and broadly construed. They also acknowledge the right of the general assembly to construe the section of the constitution above referred to, and to fix their own interpretation upon it, to the same extent that may be done by the courts. If this construction may be liberal and large, they have the right so to fix it. This they have done. And it seems to me that this tribunal would pass beyond the wise limit of its powers, when it goes into minute criticisms in order to controvert the accuracy of the legislative interpretation. Yery true, the right to do this may exist; but it is never exercised save in a case wholly free from all reasonable doubt. — Fletcher v. Peck, 6 Cranch, 87. This is a safe rule, and can not lead to a conflict of judgment between two of the chief departments of the government. And for this reason it ought to be inflexibly adhered to.
The true “subject ” of the law in controversy is “ works of internal improvement in this State,” whether by railroads or by navigable streams. From the very birth of the State, these branches of this important subject have been united. They are mentioned together in the act of
The petition alleges that, under authority of the act of December 31, 1868, above mentioned, the Selma & Gulf Railroad company, a corporation regularly and legally organized, made a proposition to Dallas county, in this State, in the manner prescribed by said statute, to take and pay for the sum of two hundred and fifty thousand dollars of the capital stock of said company. An election was ordered and held, to vote on the acceptance of this proposition by the people of the county, as required by the law, when a majority of almost two to one of the people of the county voted to accept the proposition of the company: When this is done, the court of county commissioners is authorized and required to make the subscription voted for in behalf of said county to the capital stock of said company, in the manner, and for the amount set forth in said application, and to deliver to said railroad company, in payment of said subscription, bonds of the county, having not less than ten nor more than twenty years to run, with interest coupons attached for semi-annual interest, payable at such times and places as may be agreed upon between
Let a rule nisi be granted, in accordance with the prayer of appellants’ petition and motion in this court, returnable into this court during the present term, on Thursday after the first Monday in July, in the year 1871, the same being the sixth day of said month of July, 1871, to show •cause, &c.
The Chief Justice concurs in the result of this opinion, but he holds that the provisos to the seventeenth section of the act above referred to are unconstitutional, and that if the title of this law had expressed the subjects of these provisos, then the whole act would have been obnoxious to the constitution, and void.
Dissenting Opinion
dissenting. — I propose to treat exclusively of the powers of the State government in the exercise of the rights of eminent domain and taxation, as modifií d and controlled by the State constitution, so far as they are applicable to the present cause. I shall endeavor
A county, or other municipal corporation, has no inherent right of legislation, and can not subscribe for stock in a public improvement unless authorized to do so by the legislature.
But the legislature of a State, unless restrained by the organic law, has the right to authorize such subscription in a railroad or other work of internal improvement, and to empower the corporation to borrow money to pay for it, and to levy a tax to repay the loan. — Thompson v. Lee County, 3 Wall. 327.
A distinction, now more apparent than real, but of which every one retains a consciousness, between a county and a city, has had no inconsiderable influence in directing the legislation, and in construing the laws, applicable to them. The county has never been more than a civil division of a country for judicial and political purposes, or a circuit or portion of the realm; while the city was once a state or nation itself, as its name signifies. The memory of thi3 independence and greatness is traceable in the charters of cities and acts conferring legislative powers upon them. Their transition to complete subordination to a larger state has not effaced the notion of their sovereignty, or done away with the habit or practice of according to them a local and restricted legislative and judicial power. In Alabama, no such separate existence has ever been claimed for the counties. Their officers have been the executors of the State laws only, and frequently the most important of them have been chosen outside of their boundaries. At no time have they exercised even a semblance of independent authority, or any discretion in their acts. Their duties have been rigidly prescribed by the legislature, and the mode of their performance minutely appointed.
If they are municipal corporations in any sense separable from the State, then section 36, Article IV of the State constitution is without virtue. That section undoubtedly means that the real and personal property of the citizen shall not be taxed to a greater extent than two
The act which authorizes the counties, cities and towns to subscribe for stock in railroads, empowers the counties to collect a tax of one per cent, on the value of real and personal property, and cities and towns to collect two per cent, on the same description of property. Where counties include within their boundaries cities and towns, here is authority given for taxation violative of the above section of the constitution. An act of the legislature is unconstitutional when its full operation would subvert any provision of the constitution. But these corporate bodies have already authority to collect a certain amount of tax indispensable for the proper purposes of their creation. Will it be-said that the limit of taxation is the extent to to which these corporations may subscribe? Does the proposition include both principal and interest of the amount agreed to be paid ? Is that portion which can not be paid at maturity void for want of authority to contract it, or will the creditor have to wait his turn? If he must wait, will the current expenses of the corporation have priority of his demand ? The number of roads .in which a county, city or town may take stock, is unlimited. If subscriptions in several are made at the same time, as may possibly be the case, shall the taxes, when scant, be apportioned amongst them ? I fear a construction so fraught with intricacies fatal to the credit, if not the peace, of the State.
The following are among the legitimate rules for construing statutes which are not modified by any others: First, In respect to remedial laws, the old law, the mischief and the remedy, are to be considered. Second, The intention of the law-giver, deducible from the whole and every part of the law, assigning to the words their natural and obvious signification. — 1 Kent’s Com. 462. The term “ State ” has such a variety of meanings, that the one
The right of taxation is a prerogative of sovereignty, no more extensive or exalted than that of eminent domain. Let it be admitted that its exercise may extend, in degree, to the confiscation of private property. Its full scope and meaning is tersely expressed in the popular aphorism, “ Millions for defense; not one cent for tribute.” It is the duty of the State tó exhaust the means of its citizens in the proper defense of dearer rights, or even their future accumulation of property. But no one will contend that it has any authority to do this, except in cases of imperative necessity. As well may it claim to dispose of their rights of life and liberty. The plain and obvious meaning of a tax is, a contribution imposed by government on individuals, for the service of the State.
The people of a county, in their collective capacity, pos■sess none of the attributes of sovereignty. No legislative power is committed to them. The whole is vested in the general assembly composed of the duly elected representatives of all the counties. So far as they engage in business distinct from the purposes of government, it is as individuals, or a private corporation. To such the legislature ■is forbidden to delegate power to levy taxes. — Const. Ala.
It is only in its municipal character, that a county may contract debts and tax its citizens to pay them. In this sense, the State itself is a municipal corporation, and it is its powers of sovereignty that the county exercises, delegated as an imposition of the duties and burdens of government on particular localities, to be specially benefited thereby. If, in such cases, we say the county is a municipality distinet from the State, then we are nullifying section So, article 4, of the constitution, by embracing one such body in another, with the authority to each to tax the citizens the full extent allowed. If it be only a constituent part of the State, we violate the 33d section of the same article, which forbids the State to engage in works of internal improvement.
Decisions of the supreme courts of several of the Northwestern States, construing provisions of their State constitions, more or less like that contained in the 33d section, above referred to, are quoted in behalf of the applicant. It may be aptly remarked of these authorities, that judicial decisions on new questions are little more than the personal opinions of the judges delivering them. It is only when they survive the criticism of time, that they attain the dignity of precedents. Some of these opinions show the lingering influence of past predilections. For instance, the Ohio court sustained a delegation of power to a county to subscribe for stock in a railroad, in the face of a direct constitutional prohibition in terms against it, although no step had been taken in the exercise of the power when the constitution became operative. The Illinois court, in support of a similar construction, said by way of argument, that the State might authorize others to do what it could not do itself; for example, it could not try a suit, yet it might authorize a court to do so. In several of these cases, there were able dissenting opinions; and in Michigan, the court, through Judge Cooley, the distinguished comment
What is meant by section 33, article 4, of the constitution — “ the State shall not engage in works of internal improvement; but its credit in aid of such may be pledged by the general assembly, on undoubted security, by a vote of two thirds of each house of the general assembly ” — in view of the old law, the mischief and the remedy, and the intention of the convention ? The capacity of the State to engage in such works depends entirely on its command, as a sovereign, of the property of its citizens. It had engaged with them in the banking business, and, in 1836, had signally failed, engulfing the munificent donation of the Federal government for the education of its children, and accumulating a debt which thirty-five years of taxation has not diminished. These taxes were all collected by counties, through the instrumentality of their organization, executing directly the State laws. Debt, taxation, aud consequent discontent, was the mischief. The remedy was to avoid it in the future. Who cared how much the State engaged in business or trade of any kind, if no debts contracted were to be paid by taxation ? What is the basis of the credit which the general assembly is authorized to pledge on undoubted security ? Whether a debt is due by the county or the Slate, does it not strike directly at the credit of the State? Who would trust a State full of bankrupt counties ? Was it not the object of the convention to preserve unimpaired the credit of the State, that it might be used to the utmost advantage ? In view of the fact, that no act of legislation had ever before recognized the counties as distinct from the State, I am obliged to regard it as a forced construction of this section which would now separate them.
Which is most natural and obvious: that a State can create something which has no capacity in itself, and endow it with power to do that which its creator is unable to do ; or that it can not ? Every illustration given in favor of the first of these propositions fails, lecause of some inherent or acquired capacity in the creature to do what the legislature merely regulates, not confers the power of doing.
It is insisted that, by applying the restraint of section 33, article 4, to the delegation of sovereignty as well as to its direct exercise, we prohibit all those enterprises which are usually regarded as pertaining to the ordinary administration of government. This is an admission of the stern spirit of the restriction, suppressing all such issues as look like an evasion of its meaning. There is a difference easily defined between the undertakings of government and the callings of business, though the actor in both be the State. The building of court houses and prisons, and the construction of highways and bridges, are eminently within the province of government, because they are for the use of all, without property in them for any. Even the clearing away of obstructions in navigable streams, or the moderate improvement of their navigation, must devolve upon the State, for the same reason. It can not be left to private expenditure, because the duty of the State to all its citizens forbids the granting of such exclusive privileges as would afford adequate compensation. The boundaries of the duty of the government in this respect, are of course flexible, depending upon the culture and enlightened progress of the people. A wagon or stage coach on the com
