Police Jury ex rel. New Orleans, Opelousas & Great Western Railroad v. Succession of McDonogh

8 La. Ann. 341 | La. | 1853

Slidell, C. J.

On the 12th March, 1852, an Act was passed by the legislature of this State, entitled, An act providing for the subscription by the parishes and municipal corporations of the State, to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of the stock so subscribed. It is in these words :

“ Section 1. Be it enacted by the Senate and House of Representatives of the State of Louisiana in General Assembly convened, That it shall be lawful for p0jjce jurjes an(j Municipal Corporations of this State to subscribe to the stock of corporations undertaking works of internal improvements, under the laws of the State, on complying with the provisions of this Act.

Section 2. And be it further enacted, &c., That all ordinances passed for such subscriptions, shall contain the following provisions, to wit: lo. A statement of the number and amount of the shares proposed to be subscribed. 2o. The levy of a tax on the landed estate, situated in the parish or municipal corporation, sufficient to pay the amount of said subscription, and specifying the rate of the taxation and the peripd or periods when it shall be payable.

Section 3. Be it further enacted, &c., That no ordinance passed under the provisions of this Act shall be valid, or take effect, until it shall have been approved and ratified by a majority of the voters on whose property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the, Police Jury, or municipal corporation, passing the ordinance, and said Police Jury, or municipal corporation, shall prescribe the manner of holding such election, and shall cause to be furnished to the commissioners of the same, a -properly certified list of the authorized voters, and such election shall be preceded by a notice of thirty days, published in one or more newspapers in the parish or municipal corporation where such election shall be held; provided however, that if such ordinance shall be rejected by the majority of the voters, it shall be lawful, at any subsequent period, again to take the sense of the voters, in the same manner as at the first election, and at intervals of not less than six months.

Section 4. Be it further enacted, &c.; That if any subscription be made under the terms of this Act, the stock, so subscribed, shall not belong to, nor be administered by the parish or municipal corporation by which the subscription shall be made, but said stock shall belong to the taxpayers who shall have paid therefor; and the tax receipt of each taxpayer shall entitle him to a certificate, transferable-by delivery from the corporation, to which subscription has been made, for an amount equal to the amount of his tax paid; provided, however, that said Police Jury, or municipal corporation, shall be empowered to require such bond and security, and in such sums, from the sheriffs or collectors of said tax, as they may deem necessary.”

The present suit is brought by the Police Jury of the Right Bank to collect the amount of the tax assessed on lands within its jurisdiction, to meet its subscription to the stock of the New Orleans, Opelousas and Great Western Railroad Company, under an ordinance, alleged in the petition to have been approved and ratified pursuant to the statute, after an election, and other proceedings in conformity therewith.

The answer of the defendants raised the question of the constitutionality of the statute and ordinance. The parties being desirous to speed the final decision of the cause, signed an agreement that judgment pro forma should be entered in favor of the defendants, reserving to the plaintiffs their right of appeal. Under this agreement the cause was submitted in the Court below, and the Court considering the agreement, it was adjudged and decreed, that there be judgment for the defendants, and that 'the plaintiffs pay the costs of suit. On motion of the plaintiffs, an appeal was ordered on the usual conditions; and the transcript being returned to this Court, an early hearing was asked, under the statute providing for summary hearing in certain-cases.

The argument here has been confined to the question of the constitutionality of the statute and ordinance, which we have considered with the care due to the great public importance of the subject.

The right of the legislature to delegate the power of taxation, for local purposes, to municipal authorities, is established in this State, and in our sister States, by an uninterrupted train of legislative precedents and judicial decisions. The necessity and propriety of such delegation are obvious. The Supreme jurisdiction has not leisure nor information to take cognizance of, and manage, all the matters which concern a particular locality. The interests of a particular town, or county, are best understood, and can be best administered by its inhabitants, or persons of their choice, selected under legislative authority. Our own statute books, and those of our sister States, are filled with Acts creating these political corporations, whose powers are emanations from the legislative will, and subject to be enlarged or curtailed by that will, from time to time, as the wisdom of the legislature may dictate.

But it is said that, in the present case, the legislature has attempted to delegate to municipal bodies a power to tax for a purpose not local; that the constitution intended to confine the raising of money from the people for general purposes, to one body, the General Assembly of the State, and that body cannot evade the performance of the duty and shift the responsibility upon others.

This makes it proper to inquire, what is a local purpose, and how far the particular enterprise which this taxation was intended to aid, could, as regards the municipal corporation which is plaintiff in this .cause, be considered as concerning if s local interests and welfare.

This question is not a new one. On the contrary, it has been frequently subjected to rigorous judicial investigation, and its answer may be satisfactorily found in (he illustrations which are presented in decided cases.

Thus in the case of Goddin v. Crump, 8 Leigh’s Virginia Reports, the improvement of the James and Kenawha rivers was considered, as regards the city of Richmond, a local purpose, by reason of its connection with the commercial prosperity of that city ; and, therefore, it was held that the legislature had not violated the constitution of Virginia in authorizing the city of Richmond to subscribe to the James River and Kenawha Company, to borrow money wherewith to make the subscription, and to levy a tax for the purpose : of paying the interest and redeeming the principal.

In the consideration of the question, Tuolcer, J. observed : “In the case of water-works, though the same be ten miles off, the Act for introducing tho water is fairly a corporate act, because the want is experienced in the heart and through all the wards of the corporation, and the benefit is experienced within the limits, though the operations by which it is introduced are carried on without. So, too, the l'emoval of the bar in James river, above Warwick, ■would be fairly a corporate act, since it would greatly redound to the advantage of Richmond, -would benefit its trade, and diminish the charges which encumber and embarrass it. Eor though the work would be done beyond the limits of the city, the consequences or effects of it would be felt throughout its borders.

“ If then the test of the corporate character of an act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed measure is likely to conduce to the public interest of the city ? Is it this Court, whose avocations little fit it for such enquiries ? Or is it the mass of the people themselves—the majority of the corporation acting (as they must do, if they act at all,) under the sanction of the legislative body ? The latter assuredly.”

In the case of Nichol v. The Mayor of Nashville, the precise purpose in question was considered; and it was held that the legislature of Tennessee had the constitutional power to authorize the corporation of Nashville to take stock in the Nashville and Chattanooga Railroad; that the making of the road was a legitimate corporate purpose of the corportion; and that it was legally authorized to pay for its subscription to the stock of the road, in either of the modes pointed out by the statute.

In the subsequent case of Talbot v. Dent, 9 B. Monroe, 626, the main question in the cause was, whether the legislature could constitutionally authorize the public authorities of Louisville, with the consent of the majority of the voters of the city, to subscribe for stock in the Louisville and Frankfort Railroad Company, and to pay for it by increased taxation upon the citizens. In the discussion of that question, one of the incidental points of inquiry was, whether in that instance the power was delegated and exercised for a purpose properly local, or within the legitimate objects of the local corporations. The Court considered the point as not requiring any labored argument. Substantially the same question, it said, had been discussed and decided by the Supreme Courts in the States of Virginia, Connecticut and Tennessee; and each of those Courts had affirmed the power of the legislature in their respective States, to authorize a subscription of stock, involving the power of taxation for its payment, by the corporate authorities of a city, under special legislative sanction, for the construction of a work of internal improvement, by which the facility of access, and of transportation to and from the city, is to bo increased.

A signal exercise of this legislative power was exhibited in a statute enacted in 1848, authorizing the city of Philadelphia, the county of Allegany, the cities of Pittsburg and Allegany, and the municipal corporations of Philadelphia county, to subscribe for shares of the capital stock of the Pennsylvania Railroad Company, to borrow money to pay therefor, and to pay the principal and interest so borrowed. The exercise of this authority necessarily entailed additional taxation upon the inhabitants of the places designated. Before that statute, the right of a municipal corporation to subscribe for stock was strongly contested. A member of the bar, acting upon the invitation, which was made by this Court to the profession, to afford us assistance in the important constitutional question before us, has favored us with an opinion, prepared with his characteristic ability, by a jurist whose reputation is national. It is an opinion well worthy of perusal by those who desire to know the just limits of municipal power, when not aided by express legislation. But we are told by the Supreme Court of Pennsylvania, that, after the enactment, no one has contested the right of those municipal corporations to subscribe for the stock, and on its faith millions of dollars have been subscribed. See Commonwealth v. Williams, 1 Jones, 71.

' If the decisions cited be true exponents of the law, as we think they are, their application to the present case is obvious. The contemplated Railroad passes through the territorial limits of this corporation, and has one of its termini there. If the enterprise is successful, the results which have been experienced in other towns and sections of the Union, may he realized here. Its facilities of commerce may be enhanced, an impulse to industry within its limits be given, its population be augmented, its lands rise in value. Whether these prosperous results will ensue, is in the womb of the future. But it is evident that the legislature expected them, and it is clear that the Police Jury, and a majority of the voters so thought. The legislature plainly declared such an enterprize to be within the range of their corporate purposes—the Police Jury, acting under the legislative sanction, declared by their ordinance them opinion that the measure would conduce to the interest of their locality, and a majority of the taxpayers have concurred in that opinion. Whether their expectation is false, or well founded, is not, under such a state of legislation, a judicial question. We take it to be a well settled principle, that if the legislature can constitutionally exercise a power, it is to be presumed by the judiciary, in just deference to a co-ordinate branch of the government, that, in the particular case it was exercised discreetly, and with a deliberate and just regard to the interests of its citizens. See the opinion of Chief Justice Sham in Norwich v. The County Commissioners, 13 Pick. 62.

The peculiar nature of this work certainly can make no difference in the question of constitutional power. A few years ago railroads were unknown. But if the legislature in former years had authorized the construction, by a private corporation, of an ordinary road traversing the States, and had given permission to the Police Juries, through whose territorial limits it passed, to contribute to its completion by taking stock and by local taxation, if they thought it advantageous, we question whether any one in the community would have disputed such a grant of power upon the ground that such a road did not involve a local purpose. Surely the principle cannot be affected by the magnitude of the outlay, the extent of the enterprise, or the peculiar means by which the transportation of persons and property is to be effected. The subject of roads is a matter which, since the foundation of our government, has been submitted, in some form, by the legislature to the action of Police Juries, and this from the obvious consideration of their intimate connection with local wants and local purposes.

The defendants suggest another objection to this tax, which they say is to be found in the articles 108 and 109 of the constitution of 1852. Those articles are as follows: “Art. 108. The State shall not subscribe for the stock of,

nor make a loan to, nor pledge its faith for the benefit of any corporation, or joint stock company, created or established for banking purposes, nor for other purposes than those described in the following article.

“ Art. 109. The legislature shall have power to grant aid to companies or associations of individuals, formed for the exclusive purpose of making works of internal improvement, wholly or partially within the State, to the extent only of one-fifth of the capital of such companies, by subscription of stock or loan of money, or public bonds, but any aid thus granted shall be paid to the company only in the same proportion as the remainder of the capital shall be actually paid in by the stockholders of the company; and in case of loan, such adequate security shall bo required as to the legislature may seem proper. No corporation, or individual association, receiving the aid of theJState, as herein provided, shall possess banking or discounting privileges.”

The constitution of 1852 was not in existence when the Act of 12th March, 1852, was passed. That Act is not inconsistent with the letter nor the spirit of the constitution of 1852, and consequently remained in force after its adoption, under the conservative effect of article 143. It is inadmissible to suppose that the Convention, which assembled after the psssage of that law and closed its labors on the 31st July, 1852, was ignorant of its provisions. One of the reasons why a change of constitution was desired, as is well known and forms a part of our political history, was the popular wish to disembarrass legislation from some of the trammels of the constitution of 1845. One of them was a prohibition to pledge the faith of the State for the payment of any bonds, bills, or other contracts or obligations for the benefit or use of any person or persons, corporation, or body politic whatsoever. In this respect a grave change was made by the constitution of 1852, whether wisely or imprudently time will determine. The legislature was authorized thereafter to grant State aid to companies or associations formed for the exclusive purpose of making works of internal improvement, wholly or partially within the State. The Opelousas, and the New Orleans, Jackson and Great Northern Railroads were already projected. The subject of internal improvements then occupied intensely the public mind. The people, assembled in Convention, were determined to place it in the power of future legislatures to foster and encourage them; a power which has since been exercised. It is unreasonable to suppose that the Convention, thus employed in advancing the momentous cause of internal improvement, desired to withdraw aid, already provided in the form of local taxation. Their object, on the contrary, was to originate a further stimulus by State aid, discreetly limiting, however, the extent to which State aid should be furnished. According to sound principles of interpretation, the action of the Convention of 1852 was rather an affirmance than a repeal of the existing law of March 12, 1852.

It is true the statute of 1852, imposes no limit of amount upon the subscriptions of municipal corporations; while the subsequently adopted constitution of 1852 does limit the grant of State aid. But it is clear this difference involves no constitutional repugnancy; and on the score of policy and prudence, there was a reason for limiting the power of the legislature, who were to impose a burden upon the entire population for purposes which might result in unequal advantages to portions of its inhabitants; while in the matter of local taxation, there was a safeguard in a greater identity of interests, and in the control of the vote of the taxpayers.

In concluding our remarks upon this branch of the subject, we desire not to be misunderstood. We would not be considered the advocates of a latitudinarian construction of municipal power in the matter of taxation, which is, perhaps, the greatest function of government in a republican country. We take this case as it is, not a grant of authority to tax, to be deduced from implication, but emanating from an express and unequivocal declaration of the legislative will. See Stetson v. Kempton, 13 Mass. 283; Parsons v. Goshen, 11 Pick. 398; Anthony v. Inhabitants of Adams, 1 Metcalf, 287.

Having thus considered the general power of the legislature to delegate to local political corporations the power to levy taxes of this nature, it remains to inquire, whether the conditions with which this grant of power is accompanied vitiate the grant—whether any invasion of the constitutional rights o* individuals is involved in the peculiar mode in which the exercise of the power delegated is commanded to take place.

In considering this branch of the subject, we will first examine the objection which is made to the submission of the ordinance to the approval of the taxpayers, in the manner specified in the statute.

Is such a submission really inconsistent, as was suggested at bar, with the genius of our institutions ? If the Legislature could constitutionally confer on the Police Jury authority to pass a taxing ordinance, it would seem rather a safeguard against oppression, than the reverse, to qualify the power of requiring it to be exercised with the approbation of a majority of those who are to bear the burden. Certainly, one would be inclined, with much show of reason, to suppose that a system, sanctioned by the legislative will, and tested by a long experience in one of the oldest States in this Union—a State which was amongst the foremost in the struggle for constitutional liberty—could not well be inconsistent with the principles of representative government. If we look to Massachusetts, how do we find municipal matters managed there ? If any change is to be introduced into the existing state of things, or if they wish to undertake any new enterprise, the Selectmen are obliged to refer to the source of their power. If, for instance, a school is to he established, the Selectmen convoke the whole body of the electors on a certain day, at an appointed place; they explain the urgency of the case ; they give their opinion on the means of satisfying it, on the probable expense, and the site which seems most favorable. The meeting is consulted on these several points; it adopts the principle, marks out the site, votes the rate, and confides the execution of its resolution to the Selectmen. De Tocqueville, p. 65. White’s Digest of the laws of Massachusetts, p. 1147.

The system practiced in Massachusetts is not unknown in other States.

Thus, in Burgess v. Pue, the suit arose in Maryland out of a seizure on execution for school taxes, which had been voted for at a meeting of the taxable inhabitants of a school district. In the statement of the case, and upon which the cause was argued, it was objected that the acts to provide for the public instruction of- youth in primary schools throughout the State were unconstitutional and void, because the validity and operation of the same, in any county of the State, was dependant on the votes of a majority of the voters of each county.

The point was made that the acts in question destroyed all accountability for the power of taxation, contrary to the fourth section of the bill of rights, and also that they imposed taxes without the consent of the Legislature, contrary to the twelfth section of the bill of rights.

The remarks of the Court upon these points seem to us equally applicable to the present controversy under our own Constitution. “We think,” said the Court, “ there was no validity in the constitutional question which was raised by the appellee’s counsel in the course of his argument relative to the competency of the Legislature to delegate the power of taxation to the taxable inhabitants, for the purpose of raising a fund for the diffusion of knowledge and the support of primary schools. The object was a laudable one, and there is nothing in the Constitution prohibitory of the delegation of the power of taxation in the mode adopted, to effect the attainment of it. We may say that grants of similar powers to other bodies, for political purposes, have been coeval with the Constitution itself, and that no serious doubts have ever been entertained of their validity. It is, therefore, too late at this day to raise such an objection. The ground of the objection taken in the argument to the constitutionality of the tax, seemed to be that the act of the Legislature delegating the power of taxation to the taxable inhabitants, was a violation of the fourth and twelfth sections of the bill of rights, the first of which provides 1 that all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct,’ and the last, ‘that no aid, charge, tax, fee or fees, ought to be set, rated or levied under any pretence, without consent of the Legislature.’ It is not perceived how the act in question can be deemed a violation of either of those principles of the fundamental law. The tax was certainly levied with the consent of the Legislature, because the power to impose it emanated from the legislative department of the government, and was expressly given by a law passed for that purpose; and there is nothing in it which can be considered as in the slighest degree impairing the responsibility of the law-making power to their constituents for the due and faithful execution of the trust confided to them ; because, if deemed to be unwise or inexpedient, an expression of the popular will to that effect was all that was necessary to procure its repeal. 2 Gill’s Reports, 19.

So, in Ohio, a tax was resisted as illegal and void which had been assessed by the trustees of a township, upon a vote of the majority of the electors, to meet a subscription for the capital stock of a plank road company, under authority to that effect of an act of the Legislature incorporating the company. For the. complaining tax payers, it was insisted, just as here, that the portion of the charter of the company which authorized the trustees of townships to subscribe stocks, upon the vote of a majority of the electors, was opposed to section four of article eight of the Constitution of Ohio, which declares that ‘ private property ought and shall ever he held inviolate, but always subservient to the public welfare, provided, a compensation, in money, be made to the owner ;r that it took from the minority their property without their consent, and without compensation, and also compelled them to become stockholders in a private corporation, and subject to all its burdens. For the respondents, it was contended that the law fell under the taxing power of the Legislature, and was designed to aid the public improvement of a section of the State by local taxation, with the consent of a majority of the people, and it was urged that large sums had been subscribed by the counties, cities and towns of the State, under laws like the one then under discussion, or differing only in the circumstance that in that law the tax-payer had a right, but was not compelled to receive stock for the tax he paid. The resistance of the complainants was unsuccessful; the Court saw no cause for issuing an injunction. Western Law Journal, vol. 7, 220.

Several instances of valid conditional laws are noticed by the Supreme Court of Pennsylvania, in the case of Father v. the Commonwealth, 6 Barr, 507, which was cited as an authority in their favor by the counsel for the defendants, but which, if attentively examined, will be found to be the reverse. In that opinion the case of taxes for school purposes was noticed, and the validity of laws on that subject, which subjected the levy to the approbation of the inhabitants of the respective school districts, was expressly recognized. The same remark applies to the case of Rice v. Foster, 4th Harrington, 495-8. The subject was also noticed by the Pennsylvania Court in 8 Barr, 395, and 10 Barr, 216, in which a strong illustration of the faculty of conditional legislation is cited.

The act of Congress of 9th July, 1846, submitted the question of the retro-cession to the State of Virginia, of the county of Alexandria, in the District of Columbia, to a vote of the qualified electors of that county. Virginia had previously enacted a law signifying her willingness to take back the county, whenever the same should be retroceded by the Congress of the United States. Congress enacted the law of 9th July, 1846, submitting the question to the qualified electors, providing the machinery for the election, and enacting that if a majority of the electors should be against accepting the provisions of the act, it should be void and of no effect; but if á majority of voters should be in favor of accepting, then it should be in full force. Arid in that event it should be the duty of the President to inform the Governor of Virginia of the result of the election, and that the law was consequently in force. After stating the facts of that case, the Supreme Court of Pennsylvania forcibly remarks: “ Many of the most profound constitutional lawyers of the Union were in Congress at that time; and the State of Virginia never hesitated to accept the retrocession, because the Congress of the United States delegated to the people the decision of the question. This act, under all the circumstances, must, therefore, be considered as high authority as a precedent in the development of the constitutional functions of the legislative power.” See also the opinion in the case of Strickland v. the Mississippi Central Railroad Company, recently decided, and in which many of the questions in this case were ably considered.

Several instances of conditional legislation are to be found in our own statute books.

Thus, in 1839, the question of the removal of the seat of justice from the town of St. Erancisville, and its establishment at another point in the parish of West Feliciana, was submitted to the vote of the people of the parish. Acts of 1839, p. 53. Similar legislation respecting the parish of Avoyelles will be found in the Acts of 1842,'p. 284; respecting the parish of Calcasieu, 1843, p. 88; respecting the parish of Vermillion, 1848, p. 25. See also the Acts respecting the consolidation of the municipalities of New Orleans, Nos. 202 and 241, Acts of 1850.

In conclusion upon this point, we have to say that we find nothing in the statute of 1852 repugnant to the Constitution, or the spirit of representative government; and it seems to us a (!matter of surprise that the caution of the' Legislature, in its grant of the taxing power, should be made a subject of reproach. We think; on the contrary, there was a praiseworthy discretion in thus allowing the voice of the people of the respective parishes to be expressed, instead of authorizing the local authorities to conclude definitively the imposition of a burden for a novel and untried purpose.

It is said that, although the Police Jury might subscribe for stock itself, it could not subscribe for stock for any one of the inhabitants, nor for all the inhabitants in their individual capacities; that the intent and effect of the law is to force individuals to take and pay for stock in a railroad, whether they wish it or not; whether they think the enterprise likely to be beneficial or not; and that such a proceeding is mere spoliation for the benefit of a private corporation.

This reasoning and these assertions misinterpret the purpose of the law, and involve a docti’ine subversive of all taxation.

The purpose of the law was to enable political corporations to aid, by taxation, in the completion of public improvements, which, it was supposed by the Legislature, would redound to their local advantage.

The burden imposed was a tax, with regard to which each citizen has not a right to decide authoritatively for himself alone, whether the tax is for a useful purpose, and will redound to his individual advantage. If each citizen can be permitted to complain that his tax has been increased, without his individual assent, and for a purpose which he individually disapproves, all government wouy pe at an on(j_ The will of a legal majority is not tyranny. It is the good of the community to which we belong which warrants a tax affecting our property. Of this public good, the Legislature, in taxation for general purposes, and the duly constituted local authorities, acting under the express will of the Legislature, in a local sphere, and for local purposes, are the judges. The argument for the defendant confounds two distinct powers, the power of taxation, and the power of taking private property for public use. In the latter case, previous compensation must be made. In the former, though in taking a man’s money for taxation you do take his property, the compensation is considered as simultaneously given in the benefit, which, as a citizen, he enjoys in common with his fellow-citizens, in the public welfare and the public prosperity, to the' advancement of which the money is to be applied. Such is the theory of taxation. It may be abused; but its exercise cannot be judicially restrained, so long as it is fairly referrable to the taxing power. See Thomas v. Leland, 24 Wendell, 69, and the opinion of Chief Justice Marshall in the case of the Provimdence Bank v. Billings, 4 Peters, 563.

In Nichols v. Mayor, &c., of Mashville, the controversy arose under an act of the Legislature of Tennessee, by which the Mayor and Aldermen were authorized to subscribe for shares in the Nashville and Chattanooga Railroad Company, the money to be raised from the taxes of the corporation. The Supreme Court of that State observed, if the majority of the corporators be desirous to aid in making the road, and the Legislature will grant them the privilege of doing it, upon what principle shall the minority interfere and prevent it? Minorities are protected against the illegal act of majorities, but they must submit to those which are legal.

The objection made to the law upon the ground that the stock subscribed for by the respective Police Juries is to go to the tax-payers, as provided in section fourth, seems to us untenable. In the understanding of practical men, this is surely no grievance. Its manifest object was to lesson the burden of the taxpayer. If the stock should prove worthless, it imposes no additional burden upon the holder ; it involves him in no further responsibility. But if the stock should prove valuable, such value would be so much virtually taken from the burden of the tax. “ It is true,” as was said by the Supreme Court of Kentucky, in Talbot v. Bent, in the discussion of the same point, “it is somewhat of an anomaly for the governing power to levy a tax for a particular purpose, and at the same timq in a measure reimburse him by a transfer of the thing paid for by the tax ; still, if the government were under a valid obligation to pay, and had the right to meet this obligation by a tax upon its citizens, a contribution, rateably assessed and levied for this public object upon all the property of the citizens, would not lose its character of a tax, nor be less obligatory upon individuals, because the payment of it would entitle them respectively to corresponding portions of the thing for which the government had contracted the debt or obligation, for the discharge of which the contribution was required.”

We may add that it is a fact, notorious in the recent history of our country, that this principle has been resorted to in many parts of the Union, and was recommended in the railroad conventions which assembled in New Orleans from all parts of the State, before the passage of the law of 1852.

We have thus examined the points which have been presented by the defence. We are of opinion that they are all covered by decisions of the tribunals of our sister States, the rights of whose citizens are controlled and protected by Oonstitutions similar to our own. With the assistance of these lights, and of the learned and elaborate arguments of the counsel on both sides, we have applied the test of our own Constitution to the statute of 1852, and the ordinance set forth in the petition, and we are unable to discover any constitutional ground for exempting the defendant from the payment of the tax for which the suit is brought. It is almost superfluous to repeat here a principle which has become an axiom in constitutional law. It is true that if a statute, passed by the Legislature, is not warranted by the powers vested in that body, such act cannot have the force of law, and it is the solemn duty of the Judiciary so to declare it, when an attempt is made through the Judiciary to enforce it. But this is a most grave judicial power, not to be exercised lightly, nor in any case where it cannot be made to appear plainly that the Legislature has exceeded its powers. In just deference to a co-ordinate department of the government, it is always to be presumed that a statute is conformable to the Constitution, and has the force of law, until the contrary is clearly shown.

Norwich v. County of New Nampshire, 13th Pickering, 61. The State v. the Judge of the Fifth Judicial District. 5 Annual, 758. Ogden v. Saunders, 12 Wheaton, 270.

It is, therefore, decreed that the judgment of the District Court be reversed, and that this cause be remanded for further proceedings according to law, the defendant to pay the costs of the appeal.

Ogden, J.

A question having been raised as to our jurisdiction over this case, in the form in which it is brought before us, I am requested by the Court to state the views which are entertained by us on that branch of the case. No objection has been raised on this point by the appellees, nor, indeed, could any have been made by them in good faith, as by the agreement entered into under which the pro forma judgment was rendered below, the right of the plaintiffs to their appeal was expressly reserved; but the question has been argued by other counsel than those retained in the cause, in printed briefs, which they have thought proper to file. The arguments advanced by them, I am free to admit, did at first strike me as worthy of grave consideration, the question before us being one concerning the constitutional power of a co-ordinate branch of the government. I thought it particularly necessary that we should be clear in our judgment as to a question involving the constitutionality of our own proceeding, in entertaining a jurisdiction said to bo in violation of that Constitution. I have, therefore, carefully examined the subject, and I have come to the conclusion that the case is presented to us in a shape in which we are bound to exercise the appellate jurisdiction conferred upon us by the Constitution. The objections urged are, that by the Constitution, our jurisdiction is appellate only, and that by entertaining this appeal from a pro forma judgment rendered by agreement in the Court below, we are substantially entertaining original jurisdiction, which is denied to us by the Constitution, and, also, that by law, a party cannot appeal from a judgment confessed by him. It is very evident that this last objection could only be made by the parties to the appeal. In the Supreme Court of the United States, the law is well settled that no appeal, or writ of error can be prosecuted except from a final judgment, and yet they have entertained and decided appeals from interlocutory orders, when no motion was made to dismiss the appeal. The right of appeal to this Court, by the Constitution, extends to all civil cases, when the matter in dispute shall exceed three hundred dollars; if the matter in dispute is less than three hundred dollars, con sent of parties would not confer jurisdiction; but where the amount is sufficient, and a judgment has been rendered by a Court from which an appeal lies, the parties may consent to bring the case before us without the observance of all the technical rules prescribed by law, this Court having always the right to insist on the observance of such forms as they may deem requisite for the proper hearing and determining of the cause. The appeal in this cause is taken from a final judgment of an inferior Court, and in a case where the matter in dispute exceeds three hundred dollars, and our jurisdiction is complete, unless it can bo made out that we are assuming original jurisdiction. A judgment has certainly been rendered in the Court below which is final in its nature, and, unless reversed on appeal, will bo conclusive between the parties. That judgment was rendered in favor of the defendants on their plea that the act of the Legislature, which was the basis of the plaintiffs’ action, was unconstitutional and void. The judgment appealed from affirms the validity of that plea, and, in substance, declares the act of the Legislature to be void. The defendant’s plea presented a question of law purely; the case was submitted to the Court, and the agreement of the parties to have a pro for ma judgment rendered, relieved the Judge from the necessity of doing more than to pronounce the judgment, and facilitate the parties in presenting the question involved for final decision in this Court. A party may appeal from a judgment rendered in his favor, and at his own instance, to correct any errors in it; a fortiori he may appeal from a judgment rendered against him to correct any errors, although he may have consented to that judgment, unless he has renounced the right of appeal.

Suppose, for instance, that the plaintiffs really believed that the plea set up by the defendant was good in law, and consented to the judgment sustaining the plea, why should he not be allowed his appeal, if ho subsequently thought the appeal was bad. The judgment having been rendered with his consent does ' not make it less a judgment, nor can it be correctly said that this Court, under such circumstances, would render an original judgment when they decided on the appeal. It has been held that a judgment, without reasons, supports the 'plea of res judicata, and is not void until the nullity be pronounced on appeal, or by judgment in the Court which rendered it; and the Court on appeal, in reversing a judgment containing no reasons, will proceed to decide the cause and assign their reasons. See cases of Legueda v. McDonogh, 6 N. S., 514. Fulton's heirs v. Welsh et al,, 7 N. S., 257.

The forms of law, in bringing this case before us for the exercise of our appellate jurisdiction, have not been violated. The case has not been brought originally here, nor has any judgment been originally pronounced by this Court. But it is contended that, substantially, we are assuming original jurisdiction, because the judgment below was rendered pro forma, by consent of parties, in order to bring the case up more speedily. That such a practice might be so abused as to be liable to this objection, is conceded; but when the parties are acting in good faith, and the case is presented on questions of law alone, arising out of the pleadings, and requiring no evidence or investigation of facts, we do not see that the practice is liable to abuse. It might be desirable to us to have the reasons of the Judge of the first instance, but, in conformity with the practice of the Supreme Courts of other States of the Union, and of the Supreme Court of the United States, we think we may exercise the discretion of entertaining appeals from pro for ma judgments, rendered by consent in such a case as this. See case of Municipality No. 2 v. Duncan, 2d An. R. The constitutionality of an act of the Legislature of the State of the greatest public importance, is drawn in question, and we ought not to shrink from the performance of the duty which is imposed on us, as the highest Court of law in the State, of pronouncing either in favor or against it. Chief Justice Taney, in the case of the United States v. Stone, 14 Peters’ R., 524, in speaking of the practice which had obtained in that Court of sending cases before them on a pro forma certificate of division of opinion, for the purpose of obtaining the opinion Of the Supreme Court, says, the Court do not object to a practice of that description when applied to proper cases, and on proper occasions. It is true, in that particular case, the Court refused to take jurisdiction, and remanded the cause; but the reason was that the Circuit Judge had not been present on the trial in the Court below, and the division of opinion was entered pro forma by the District Judge alone exercising Circuit Court j urisdiction. The Chief Justice properly condemned the practice, and uses this language: “A loose practice in this respect might render this Court substantially a Court for the original decision of all causes of importance; when the Constitution and the laws intended to make it altogether appellate in its character, except in the few cases of original jurisdiction enumerated in the Constitution.” We have, therefore, the high authority of the practice of that Court whose jurisdiction, like our’s, is only appellate, except in certain enumerated cases, for entertaining an appeal from a proforma judgment rendered by consent, in order to obtain the opinion of this Court when the cause is one of importance and difficulty, and we will take care that no loose practice grows up in this respect, from which the evil is apprehended of the Court becoming one of original jurisdiction.