8 Colo. 485 | Colo. | 1885
These causes are both against county treasurers. The former is instituted for the purpose of enjoining the doing of certain acts threatened by the treasurer of Summit county; the latter is a proceeding to compel the performance of a certain act by the treasurer of Lake county. Both arise under the same statute, and will be disposed of in a single opinion. This statute is an act of the fifth general assembly on the subject of revenue; Sess. Laws 1885, p. 315. We are to consider the cases as upon a general demurrer to the complaint and petition;
Two questions are fairly presented for adjudication: First, is that part of the act including the provisos of section 1 and all of section 2 void because inimical to the constitution? .and, second, can the remainder thereof be construed as prohibiting the receipt, for taxes, of county warrants issued prior to July 6, 1885, when the act became a law?
I. The specific objection to which our attention is directed under the first question above stated is that the portion of the act designated therein relates to a subject in no way mentioned or covered by the title, and therefore that it is in conflict with section 21, article 5, of the constitution. Other exceptions are taken to the provisions in question; but inasmuch as we deem this one decisive, they will not be discussed. The title of the act is as follows: “An act to provide for the payment of county and road taxes in cash, and to repeal all laws in conflict therewith.” The first three lines of section 1 declare that “all property taxes levied for county purposes and for road purposes, together with all penalties and costs thereon, shall be payable in cash only. ” The third and last section specifically repeals two existing provisions which authorized the payment of such taxes in county warrants, and then concludes with the usual general clause repealing inconsistent acts and parts of acts.
The foregoing are the only portions of the statute which can possibly be considered as covered by the title. The remainder thereof treats of subjects wholly disconnected from that of the payment of county and road taxes in
II. The second question presented is not so easily answered. Prior to the adoption of the act under consideration it was provided by statute that county warrants should be receivable by the treasurer for ordinary county taxes; and it is contended that the provision requiring all property taxes levied for county purposes to be paid in cash only, cannot be construed as inhibiting the payment of such taxes with orders or warrants issued prior to the taking effect of the act. Counsel for petitioner argué that the statute making such warrants a legal tender for county taxes became a part of the contract represented by them; and that a construction of the act of 1885 which would take from them this quality or attribute would, in effect, impair the obligation of the con
First. The legality, as well as the propriety, of applying the constitutional provision in question to contracts between a municipal corporation and a private party are not undisputed. There are distinguished jurists and eminent essayists who think, with counsel for respondent, that only contracts between private individuals were intended by the framers óf that instrument to be reached by this inhibition. But the supreme court of the United States, in a long line of decisions, have adhered, though not unanimously, to the contrary doctrine, which was first announced in the Dartmouth College Case, 4 Wheat. 518. These decisions may, perhaps, be founded upon a mistaken view concerning the intent of the constitution makers, and the principle announced in them may possibly entail pernicious consequences. But, until that august tribunal shall have retraced its footsteps, the conclusion in question will be accepted by us. We shall assume, then, as correct the proposition that legislation impairing the obligation of a contract between the people, acting in a municipal capacity on the one hand, and a private individual or corporation on the other, may be within the inhibition of the federal constitution.
It is contended, however, that a general law is never a contract. This declaration may be true. It is, nevertheless, also true that sometimes when conditions have been accepted, and acts have been performed, or valuables parted with, thereunder, such a law constitutes a part of the contract, or is inseparably connected with the obligation thereof. New Jersey v. Yard, 95 U. S. 104; New Orleans v. City Hotel, 28 La. Ann. 423; Cooley, Const. Lim. (5th ed.) 346; Bush v. Shipman, 4 Scam. 186; Ogden v. Saunders, 12 Wheat. 213. There is no analogy whatever between statutes authorizing warrants to be received for taxes, and the ordinary laws exempting property from taxation or from sale under execution. The forbearance to levy taxes is usualty a privilege, extended without any consideration whatever, and the exemption from attachment or execution is a gratuitous favor, given solely for the advantage of the individual; while, on the other hand, as already shown, these warrants can only issue where the municipality has received material benefit, and where there is such a debt or obligation as in and of itself constitutes a legal liability. It is also to be observed that the provision authorizing warrants to be received in payment of taxes was unquestionably enacted more for the benefit of the county than for that of the individual. The legislature, in its wisdom, assumed that clothing warrants with this attribute would give them an increased and stable value; and thus
But an effort is made to disclose a distinction between the particular warrant involved in the mandamus proceeding before us, and other county warrants in general. It is said that this warrant represents fees due for services rendered in attendance upon court by the payee as a witness in a criminal case. We are told that the state has power to coerce the rendering of this service for nothing; that it is a duty which the individual owes to the public, and for which he is not necessarily entitled to compensation. Assuming these propositions to be true, an effort is made to show that the statute authorizing payment of fees is similar, so far as’this question is concerned, to the exemption'statutes above mentioned; that, since the state has’ a right to demand these services for nothing, it is just the same as though the legislature ordained a gift to the witness, and the right to revoke such gift cannot be questioned. It would be disastrous to the public weal were we to recognize the doctrine counsel contend for. The logical result of their proposition is that, notwithstanding the statutes providing for these fees, the county may repudiate every warrant issued to witnesses for their services in criminal causes. The propriety of allowing compensation from the public treasury in such cases has been long and generally recognized. That it is a 'necessity in the due administration of public justice, scarcely admits of doubt.
The proceeding or transaction possesses peculiar characteristics. It is wholly unlike an ordinary gift inter vivos; it bears but slight resemblance to a bounty offered or an exemption allowed from sale or taxation. While the state may compel the rendering gratuitously of such services, it has not seen fit so to do. On the contrary, it has offered an inducement in the guise of a promise. It
We shall assume, therefore, that the warrant under consideration represents a valid contract; and it needs no argument to show that the act of 1885, if applied thereto,
We do not underestimate the importance of the subject before us. It is fully understood that we are dealing indirectly with the taxing power of the state; and that only upon the most cogent reasons should this legislative prerogative, even as to the manner of its exercise, be in the least interfered with by us. We subscribe most cordially to the following declarations on the subject by the supreme court of the United States, made in Tucker v. Ferguson, 22 Wall. 521:
‘ ‘ The taxing power is vital to the functions of government. It helps to sustain the social compact, and to give it efficacy. It is intended to promote the general welfare. It reaches the interests of every member of the community. It may be restrained by contract in special cases for the public good, where such contracts are not forbidden. But the contract must -be shown to exist. There is no presumption in its favor. Every reasonable doubt should be resolved against it. Where it exists, it is to*496 be rigidly scrutinized, and never permitted to extend either in scope or duration beyond what the terms of the concession clearly require. It is in derogation of public right, and narrows a trust created for the good of all.”
But -it must be observed that, in the first place, the contract here considered is not strictly in restraint of the taxing power, though it influences the exercise thereof; secondly, that this contract is made out beyond a reasonable doubt. It hardly seems necessary to suggest that we do not hold the legislative acts authorizing the receipt of warrants in payment of taxes irrepealable. We fully recognize the beneficent doctrine that one legislature cannot, in general, tie the hands of its successors. Our position is simply that a provision contained in the statute adopted by one legislature may, when accepted and acted upon by a private citizen or corporation, result in a contract which succeeding legislatures are powerless to repudiate.
Again, it is said that petitioner in this case, being assignee of the warrant, can in no event maintain the action; because, even if the instrument represents a valid contract, yet it is not negotiable. While there is not entire unanimity on the subject, the principle is well established that these instruments, when containing words of negotiability, are assignable. In such case the title and ownership pass to the assignee, and he may bring an action thereon. Several of the states, including Colorado, permit him to sue in his own name and for his own benefit, and the presence or absence of negotiable words in no manner affects his rights in the premises. But the doctrine is also equally well recognized that these warrants do not possess all the usual attributes of negotiable paper. The ownership of the assignee is never discharged of defenses which might have been made against the original payee. Unlike bills of exchange and promissory notes negotiated before maturity, county warrants are liable, in the hands of all persons, to every defense which the county might have interposed in an action brought by
Third. In support of the argument that the statutes authorizing the receipt of warrants in payment of county taxes were themselves unconstitutional and void, counsel advance three distinct propositions: (a) That they are in conflict with section 7, article 10, which prohibits the general assembly’s imposing taxes for municipal purposes, and authorizes that body to invest the corporate authorities with power to assess and collect the same; (6) that they are inconsistent with section 38, article 5, of the constitution, depriving the general assembly of the power to exchange, transfer, release, postpone, or in any way diminish, the liability or obligation of- a person to a municipal corporation; (c) that they are an infringement of section 11, article 2, providing that the general assembly shall not grant any irrevocable immunity.
Except as limited or controlled by constitutional provisions, the general assembly is omnipotent in relation to municipal corporations within the state. It calls them into being and endows them with whatever powers and privileges they possess. If in its judgment advisable, their existence, even, may at any time be absolutely terminated. In these and other particulars it bows only to the superior behests of the people expressed in their organic law. The object in creating these corporations is to better promote the interests of the people in localities than would be possible without them; and the action of the general assembly in the premises must be understood as intended to advance the public good. It may fairly be said that it is a right possessed by this body to adopt such legislation in relation to the making of municipal contracts as will promote the public weal, while- preserving the honor and good faith of the corporate body.
The legislation now objected to had reference to- certain, contracts made by counties. It simply provided that when counties entered into contracts through which ma
We think, in conclusion, that so much of the act of 188o as relates to the payment of taxes in cash, instead of warrants subsequently issued, is constitutional and valid; but that it cannot be so construed as to prohibit the receipt of county warrants in payment of county taxes, which were issued prior to its adoption and under the statutes repealed. As already indicated, we hold, for the reason above given, that the rest of the act is unconstitutional and void.
It follows, therefore, from these conclusions, that both of the demurrers must be overruled. No further plea
Demurrer overruled. ,