20 Mont. 1 | Mont. | 1897
There are a number of errors assigned in this record. The action of the court in striking out parts of appellants’ answer is complained of. It is contended that the law referred to in the statement was not enacted in accordance with the requirements of the constitution. But we agree with the counsel for respondent that the only question presented for our determination is as to the constitutionality of the last two provisos of subdivision 64 of section 4800 of the Political Code. W e shall not, therefore, discuss any minor matters involved, but proceed to an investigation of the real issue presented.
The two provisos involved constitute part of the law in relation to the legislative powers of incorporated cities and towns in this state. They read as follows :
‘ Provided, that whenever a franchise has been granted to, or a contract made with, any person or persons, corporation or corporations, and such person or persons, corporation or corporations, in pursuance thereof and in good faith, have established and maintained a system of water supply, the city
‘•Provided, that no city or town having a water supply furnished by private parties, under a contract or franchise entered into, or granted by the city or town, shall proceed to the erection or construction of a water plant to be operated by it, but in case the city or town shall desire to own and operate its water supply it shall acquire the plant already in operation therein as herein provided. ’ ’
Has the legislature, by this enactment, undertaken to impose upon the city of Helena and its inhabitants an obligation unauthorized by the constitution, without the consent and against the will of the city council and the legally constituted authorities of the city ?
By the first of these two provisos it became the duty of the city, before taking action to procure a water supply to be owned or controlled by the city, to pass an ordinance notifying the plaintiff, the owner of the water supply system then in operation, that it desires to purchase the plant and franchise of the plaintiff upon such terms as might be agreed upon, and in case of disagreement the city would proceed to acquire the plant of plaintiff by condemnation proceedings. The second proviso makes it absolutely incumbent upon the city, and all cities similarly situated, to purchase whatever water plant or system is in operation and owned by any person or corporation under contract entered into with or franchise granted by the city or town, at the time such city or town decides to procure, own, or control a water system of its own. If any city
D scussing and distinguishing the questions here involved, Judge Cooley, in People v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 206, says :
‘In People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103, we considered at some length the proposition which asserts the amplitude of legislative control over municipal corporations, and we there conceded that, when confined, as it should be, to' such corporations as agencies of the state in its government, the proposition is entirely sound. In all matters of general concern there is no local right to act independently of the state ; and the local authorities cannot be permitted to determine for themselves whether they will contribute through taxation to the support of the state government, or assist when called upon
But we also endeavored to show in People v. Hurlbut that, though municipal authorities are made use of in state government, and as such are under complete state control, they are not created exclusively for that purpose, but have other objects and purposes peculiarly local, and in which the state at large, except in conferring the power and regulating its exercise, is legally no more concerned than it is in the individual and private concerns of its several citizens. * * * We also referred in People v. Hurlbut to several decisions in the federal supreme court and elsewhere, to show that municipal corporations considered as communities endowed with peculiar functions for the benefit of their own citizens, have always been recognized as possessing powers and capacities, and as being entitled to exemptions, distinct from those which .they possess or can claim as conveniences in state government. If the authorities are examined, it will be found that these powers and capacities, and the interests which are acquired under them are usually spoken of as private in contradistinction to those in which the state is concerned, and which
Upon the same question Chief Justice Breese, in People v. Mayor, etc., of Chicago, 51 Ill. 17 — a case involving the question as to whether the city of Chicago could be compelled without its consent to assume a local indebtedness — said:
‘ ‘If the principle be admitted thac the legislature can, uninvited, of their mere will, impose such a burden as this upon the city of Chicago, then one much heavier and onerous can be imposed ; in short, no limit can be assigned to legislative power in this regard. If this power is possessed, then it must be conceded that the property of every citizen within it is held at the will and pleasure of the legislature. Can it be that the general assembly of the state, just and honest as its members may be, is the depositary of the rights of property of the citizens? Would there be any sufficient security for property if sucha power was conceded? Nowell-regulated mind can entertain the idea that it is within the constitutional competency of the legislature to subject the earnings of any portion of our people to the hazards of such legislation. ’ ’
“No case amid the multitude which have been cited by the relators goes to the extent of this, and, with our understanding of the constitution, no warrant is found there for such legislation. Rather than attempt to compel submission to such a law, surely, the alternative should be presented to the city, to be deprived of its corporate franchises, for cases, if such legislation is sanctioned, may arise where a city would prefer such deprivation in preference to incurring a debt which might prove greatly detrimental to their prosperity, or wholly ruinous. ’ ’
Judge Breese was discussing the power of the legislature to impose these local burdens or debts upon cities or towns under the constitution of Illinois, and concludes that the legislature has no such power.
Section 5, art. 9, of the Illinois constitution, under which the decision referred to was rendered, gave the power to cities and towns to assess and collect taxes for corporate purposes.
The provision of our constitution upon the subject is as follows : “The legislative assembly shall not levy taxes upon the inhabitants or property in any county, city, town, or municipal corporation for county, town or municipal purposes,- but it may by law vest in the corporate authorities thereof powers to assess and collect taxes for such purposes.” Const, art. 12, § 4.
It will be seen that our constitutional provision is much stronger, and goes much further in favor of the powers of cities and towns to assess and collect municipal taxes, than does the Illinois constitution. Our constitution says the legislature shall not levy taxes upon the inhabitants or property in any city or town for municipal purposes. It cannot be disputed that the indebtedness sought to be imposed upon the
Speaking of such legislation. Judge Cooley, in People v. Common Council of Detroit, supra, says: “The constitutional principle that no person shall be deprived of property without due process of law applies to artificial persons as well as natural, and to municipal corporations in their private capacity, as well as to corporations for manufacturing aud commercial purposes. And when a local convenience or need is to be supplied in which the peop.e of the state at large or. any portion thereof outside the city limits, are not concerned, the state can no more, by process of taxation, take from the individual citizens the money to purchase it, than they could, if it had been procured, appropriate it to state use. To this extent the corporate right appears to us to be a clear and undoubted exception to the general power of control which is vested in the state.
‘ ‘Whoever insists upon the right of the state to interfere and control by compulsory legislation the action of the local constituency in matters exclusively of local concern should be prepared to defend a like interference in the action of private corporations and of natural persons. It is as easy to justify, on principle, a law which permits the rest of the community to dictate to an individual what he shall eat, and what he shall drink, and what he shall wear, as to show any constitutional bads for one under which the people of other parts of the state, through their representatives dictate to the city of Detroit what fountains shall be erected at its expense for the use of its citizens, or at what cost it shall purchase, and how it shall improve and embellish, a park or boulevard for the recreation and enjoyment of its citizens. The one law would rest upon the same fallacy as the other, and the reason for opposing and contesting it would be the same in each case.”
‘ ‘The burden imposed by this law upon a fractional part of this state is tenfold heavier than the legislature can impose upon the people of the whole state, without their previous consent, manifested by a vote at a general election. In view of this wise and salutary provision of the-constitution, can it be seriously contended that the legislature can. exercise the assumed power to force one and all the municipalities of the state to incur debts amounting to millions of dollars by one da h of the legislative pen, for corporate purposes, when, to meet the most urgent demands of the public, and provide for the general welfare, they cannot create a debt against the state exceeding the sum of $50,000? The proposition is so inconsistent with the spirit and plain intention of this provision that it can receive no favor in this court.
‘ ‘How can we hold, in view of the protection this clause was designed to give the people of the whole state, that the people of a particular municipality can be subjected to a corporate debt without the consent either of the people to be taxed or their corporate authorities ?
“The protection of the whole implies, necessarily, the protection of all its organized parts, and the whole cannot be secure while all or any of its parts are exposed to danger. What is the real value of this provision of the constitution, if the legislature inhibited from incurring a debt beyond $50,000 on behalf of the state may force a debt tenfold or one hundred fold greater (for there is no limit to the power) upon all the cities of the state? We can perceive none. Where these
These two decisions from which we have quoted so largely, delivered by two of the ablest jurists that this country has produced, are leading cases upon the questions involved in this appeal. These two distinguished judges declare that the cases have been exhaustively argued by the best lawyers of the respective states. These cases are, in our judgment, absolutely conclusive of the one question presented by this appeal, namely, the constitutionality of the compulsory statute under which this action is prosecuted. See, also People v. Batchellor, 53 N. Y. 128; 13 Am. Rep. 480, 1 Dill. Mun. Corp. (4th Ed.) § 72 et seq.
It is conteixded by appellants that the law in questioix is void, because in violation of section 13, art. 15, of the constitution, in that ‘ it imposes oxx the people of the city a new liability in respect to transactions or considerations already passed. ’ ’
At the time of the enactment of this law the city was under no obligation to buy the plaintiff ’s water plant. The fact that the plaintiff had established, was the owner of, and was controlling and operating, its plant under the contract with, or franchises granted by, the city, at the time of the enactment of the law, constituted no valid consideratioxi for this compulsorv indebtedness. If this constituted a considera
It is contended that the moral obligation of the city to assume this compulsory indebtedness is sufficient to support the law and relieve it of its unconstitutionality, if it be in conflict with the constitution.
But we are unable to see Avhat moral obligation the city is under, or has ever assumed, that would bring the law under the rule contended for by counsel for respondent. The city never agreed to continue for all time to buy water of the plaintiff. It expressly reserved the right- to do otherwise. Plaintiff’s plant may not be capable of furnishing an ample supply of wholesome water for the inhabitants of the city, cither now or as the city may expand and increase in population in the future. The plant and system may be practically worthless. It may be so involved in debt and incumbered that the plaintiff could convey no title for any sum proportionate to its real value. To purchase the plant might so increase the indebtedness of the city as to exceed the constitutional limit, or, at any rate, so as to become ruinous to the inhabitants of the city. The city may be able to procure a water system and supply for half what plaintiff ’s plant would cost. Is there any such moral obligation on the part of the city disclosed in this case as would justify this court in compelling it to assume the indebtedness necessary for it to assume in order to purchase plaintiff ’s plant, and tax the people for the money to meet such indebtedness, in total disregard of all these possible and probable events ? Shall it be said, in obedience to this law, that the city authorities, the legal representatives of the inhabitants of the city, have no discretion in the premises, but must obey, notwithstanding disaster and oppressive taxation and ruin may come upon the people as a consequence ?
The judgment and order appealed from are reversed, and the cause remanded,, with directions to dissolve the injunction and dismiss plaintiff ’s complaint.
Reversed.