9 Kan. 689 | Kan. | 1873
The opinion of the court was delivered by
'Without express legislative authority the city of Iola would have no power to appropriate money or to loan its credit to aid private persons to establish manufactories either near to or within the corporate limits. This proposition admits of no dispute, and is well settled. Stetson v. Kempton, 13 Mass., 278; Cushing v. Newburyport,10 Met., 510; Cook v. Manufacturing Co., 1 Sneed, (Tenn.) 698; Penn. Pailroad Co. v. Philadelphia, 47 Penn. St., 189; Dillon’s Munic. Corp., § 106. No precedent authority, either by general or special act, was conferred upon the city to pass the ordinance to provide for the holding of the election to determine whether the citizens would extend the proposed aid to the Bridge Manufactory and Foundry. The adoption of the ordinance and the holding of the election were without color of law. But subsequently the legislature passed the act mentioned in the statement of the case, which undertook to legalize the election, and to authorize the issue of the bonds in question. The bonds were issued under the authority of this act, and so the declaration alleges. Their binding obligation upon the municipality depends upon the validity of this enactment, and the question of its validity is raised by the demurrer to the declaration.
The only question therefore is, whether the use for which, taxation in the present ease is authorized is a public or a private-use. The supreme court of the United States in sustaining the-validity of legislative acts authorizing municipal aid to railways*, place it upon the distinct ground that highways, turnpikes*, canals, and railways, although owned by individuals under-public grants, or by private corporations, are pvblici juris; that they have always been regarded as governmental affairs*, and their establishment and maintenance recognized as among" the most important duties of the state, in order to facilitate^ transportation and easy communication among its different parts. Rogers v. Burlington, 3 Wall., 654; Mitchell v. Burlington, 4 Wall., 270; Railroad Company v. Otoe County, supra. Therefore it is, that in favor of such improvements the state may put forth its right of eminent domain, and also-as now established by judicial decisions, unless the right be denied in the constitution, its power to tax. That these acts may lawfully be done is, because, and only because, the uséis a public one, public in its nature, and hence these works are subject to public control and regulation, notwithstanding they may be constructed under legislative authority, and exclusively owned by private persons or corporations. Compulsory taxation in favor of railways, and like public improvements owned.by individuals or companies, is an exercise of power going quite to the verge of legislative authority-Although it is a doctrine that must now be considered as-
That their views are sound, I entertain no doubt, but my -conviction of their soundness has been much strengthened by -the recent decision of the supreme judicial court of Massa
As the only authority for the issue of the bonds in question was an unconstitutional act of the legislature, they are void —void from the beginning, and void into whosesoever hands-they may have come. All persons must at their peril take notice of the power of municipal corporations or officers to-issue securities, and especially is this so where the want of power results from constitutional prohibitions or provisions.. The Floyd Acceptances, 7 Wall., 676; Marsh v. Fulton Co., 10 Wall., 676; Clark v. Des Moines, 19 Iowa, 199; Steines v. Franklin Co., 48 Mo., 167.
The demurrer to the declaration is sustained; and unless-the plaintiff desires to amend, judgment will be entered for-the defendant.
And judgment final was entered for defendant.
[* Sections 1 ancl 2 of article 13 of tlie constitution of Oliio is tlie same as ¿ 1, article 12, of the constitution of Kansas. Sec. 6, article 13, of the Ohio Constitution, is the same .as £5, article 12, of the Kansrs Constitution.]