Ohio Valley Iron Works v. Town of Moundsville

| W. Va. | Jul 7, 1877

Moore, Judge,

delivered the opinion of the Court:

The main question tor our consideration is the legality of the issuance of these bonds.

The act under which they purport to have been issued was intended to put in operation the eighth section of article 10 of the Constitution of 1872; which said section was construed by this Court in List v. Wheeling, 7 West Va. 503, in which it was held that said section, “is not addressed alone to the Legislature, but is addressed to the several counties, cities, etc., and all other departments and persons in the State, and took effect and became binding and operative, so far as it is prohibitory and restrictive in its provisions, upon counties, cities, etc., on and from the 22d day of August, 1872,” and that said section was not intended to, and does not in anywise interfere with, or prevent the levying, collecting, and expenditure, annually, by authority of law, by the proper legal authorities of the several counties, cities, etc., taxes for county, city, etc., purposes, and to do, and cause to be done, whatever is necessary or proper for that purpose, including the making, or causing to be made, contracts touching the expenditure of the taxes so levied and collected annually, and the like.” That construction of the said eighth section, Avhen taken in' connection with the ninth' section of the same article, makes it evident that it was not the intention of the Constitution to authorize the Legislature to empower cities, towns or municipal corporations to issue bonds for other than municipal or corporate purposes. If the proposition contended for by the appellantbe true, that the legislative act referred to gave the town of Moundsville power to issue bonds for the aid of individual interests, or private purposes and gain, to be paid by taxation, it would be clearly a subversion of the implied reservations of individual rights; it would be the exercise of an arbitrary power contrary to the theory of our government, contrary to the manifest intention of the Legislature in creating the act referred to, and the spirit of the Constitution of the State, and in direct antagonism to the adjudications, almost innumerable, by the courts of highest authority. As has been well said: “ To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation; This is not legislation. It is a decree under legislative forms.” The principle has been so often adjudicated it is not necessary to cite other authority than the case of Loan Association v. Topeka, 20 Wallace 655, in which Mr. Justice Miller elaborates the question and cites the leading cases thereon.

In the case before us, it is conceded, and the record shows, that the donation of the bonds to the company were without consideration, that they were in aid of private enterprise solely, that the town had no stock, or other interest in the company, received none of the profits, had no cofitrol over its affairs, but had voluntarily made a gratuitous donation of the bonds which were expected to be paid by taxation. I am satisfied that such a transaction was not within the meaning of the legislative act relied on, but was contrary to the spirit of the Constitution and to the fundamental principles of private rights, and that said bonds are illegal,. null and void. The judgment of the circuit court should be affirmed with costs and damages, $30.

JudgmeNT Affirmed.