41 Cal. 147 | Cal. | 1871
Lead Opinion
An Act was passed by the Legislature at its late session, and approved on the first day of April, 1870, which is en
In substance it directs the municipal authorities of the City of Stockton to donate three hundred thousand dollars to a company who propose to build a certain railroad, having a permanent terminus in the city itself, at its water front. Under the provisions of the Act the bonds of the city for the entire sum are to be placed in the hands of three gentlemen named in the Act, who are thereby created a Disbursing Board, and who are to deliver the bonds to the company in designated sums, from time to time, as the work shall progress. These bonds are to bear annual interest, accruing at a fixed rate; and to pay this interest, as well as to discharge the principal sum mentioned in the bonds, the Act directs the municipal authorities of the city to levy an annual tax, in the same manner in which city taxes for general municipal purposes are collected, etc. The authorities of the city have pursued the directions given them by the Legislature, so far as to prepare and deliver the bonds to the Disbursing Board; but they now refuse to levy the tax to pay the accruing interest thereon.
To compel them to do this the present application for a mandamus is made by the railroad company.
The application is resisted by the city upon a single ground—“that said Act of April 1, 1870, and all the provisions thereof, are, and ever have been, repugnant to, and in violation of the Constitution of the State of California.”
It is thus made apparent that the case here must turn wholly upon the question of constitutional power in the Legislature to enact the statute, and that our duty begins and ends with a consideration of the mere point of law presented.
This is so obvious that no one will controvert it. It is so plain of itself that no reasoning nor process of demonstration
It is unavailing, therefore, that the counsel for respondents should come here to complain that “it is notorious that the facility of influencing legislative bodies is such that the passage of any measure can be secured through the usual appliances;” for even if, unfortunately, this be true, it is also true that we have no authority to reform these “ legislative bodies,” nor to call them to account for the manner in which they may have conducted the public business intrusted to their hands. Questions, too, which regard the mere policy of the statute—inquiries as to whether it is in itself a wise law or a foolish law; whether its anticipated operation will be to promote or to retard the true prosperity of the people—are not for us to consider; for these, and other questions cognate to these, involve the field of m.ere political inquiry, which it does not become us to enter, and which we cannot enter, except we overleap the barriers by which the limits of our rightful authority are plainly defined.
We have deemed it proper to say thus much in limine, in order that our purposed silence in regard to these matters, concerning which it is our duty to be silent here, may not be misconstrued or misunderstood.
The case before us requires an examination at our hands
The authority of the judiciary in this country to consider of the extent of the legislative power in the enactment of laws was formerly denied in toto, and it will be remembered that in the early days of the Federal Constitution some of the most distinguished public men, among whom was Mr. Jefferson, maintained the opinion that no Court had the rightful authority to declare a statute unconstitutional which had received the sanction of the popular will, acting through its chosen representatives. It is known, too, that an impeachment of a Judge of a State Court of the highest grade was, at a later period, instituted for an attempt upon his part to uphold this power, admitted to be anomalous, and that upon his trial but a single vote was wanting to his conviction of the charge of usurpation of authority in his office.
Though the power itself is now admitted, it is, nevertheless, conceded to be always one of the utmost delicacy in its exercise, and never to be exerted except when the conflict between the statute and the Constitution is palpable and incapable of reconciliation. To this effect the authorities are substantially uniform.
In Santo v. The State of Iowa, 2 Iowa R. 208, Mr. Justice Woodward, in delivering the opinion of the Supreme Court of Iowa, unanimous on this point, said:
“ For some time after the establishment of the State Government, it was doubted whether the judiciary possessed authority to declare and hold an Act of the Legislature unconstitutional and void, and the exercise of the power was declined by some Courts. And now, although the power is universally admitted, its exercise is considered of the most delicate and responsible nature, and is not resorted to unless the case be clear, decisive, and unavoidable.”
And said the Supreme Court of Indiana (4 Ind. 344): “ Such questions (involving the constitutionality of statutes) are
See, also, Rice v. Foster, 4 Harrington, 479; Fisher v. McGier, 1 Gray, 1; Commonwealth v. William, 11 Penn. 61, where the Supreme Court of Pennsylvania say: “ Of late years it has been much the fashion to impeach the action of the legislative bodies as unconstitutional, when it happened not to accord with the party’s notion of propriety and abstract right. This is very frequently done in sheer oblivion of the doctrine that express prohibition or necessary implication is essential to oust the State Legislature of authority.”
We think that the adjudications in this Court give the correct definition of the judicial power to declare a statute unconstitutional, as how maintained by the general current of authority. It is said (12 Cal. 384) that it “should never be exercised unless there be a clear repugnancy between the inferior and the organic law.”
Again (17 Cal. 30): “ But the legislative department, representing the mass of political powers, is no further controlled, as to its powers, or the mode of their exercise, than by the restrictions of the Constitution. Such restriction must be shown, before the action of the Legislature, as to fact or mode, can be held invalid.”
Again (17 Cal. 551): “But it is equally well settled that this power (to declare an Act of the Legislature unconstitu
The law-making power is, in its essence and nature, the supreme power in the State, and the Legislature, in its exercise, impersonates the aggregated sovereignty of the people themselves.
Hence it results that the Legislature is politically omnipotent, except in those particulars in which its power has been limited, qualified, or absolutely withdrawn by the provisions of the Federal or the State Constitution. Said Chief Justice Black, in speaking of.this feature of our organized political system: “ If the people of Pennsylvania had given all the authority which they themselves possessed to a single person, they would have created a despotism as absolute in its control over life, liberty, and property as that of the Kussian Autocrat. But they gave a portion of it to the United States, specifying what they gave, and withholding the rest. The power not given to the Government of the Union was bestowed on the Government of the State, with certain limitations and exceptions expressly set down in the State Constitution. The Federal Constitution confers powers expressly enumerated; that of the State contains a general grant of all powers not excepted. The construction of the former instrument is strict against those who claim under it; the interpretation of the latter is strict against those who stand upon the exceptions, and liberal in favor of the Government itself. The Federal Government can do nothing but what is authorized expressly or by clear implication; ]the State may do whatever is not prohibited.” (Sharpless v. Mayor of Philadelphia, 21 Penn. St. R. 160.)
Whenever, „ therefore, it is alleged that a statute which has been enacted in due form by the legislative department of the Government of this State is, indeed, in excess of its authority to enact, it is necessarily the allegation of an exception to the contrary of an admitted general rule; and, therefore, the construction is “ strict against those who stand upon the exception, and liberal in favor of the Government itself.”
Hence, when we are called upon to declare that there was no authority for the Legislature to enact a particular statute, it is necessary that we be pointed to the clause or clauses of one or the other, or both, of these Constitutions, supposed to have taken away the power entirely, or limited it to something else than the subject to which the Legislature has applied it. It will not do to talk about the “ spirit of the Constitution” as imposing a limitation upon the legislative power. The limitation ought to be something definite in itself—as definite as a sum to be subtracted from a larger one, in order to ascertain a balance.
The “ spirit of the Constitution ” as an interdiction upon legislative power was repudiated by this Court, in Patterson v. Board of Supervisors of Yuba County, 13 Cal. 182, in which Mr. Justice Daniel, of the Supreme Court of the United States, is mentioned as having said that “ if Judges were to adopt the notion that a law might be declared unconstitutional because of its supposed repugnance to the spirit of the Constitution, they ought to employ a rapping medium to procure authentic revelations from that spirit.” The “ spirit of the Constitution,” as a means to ascertain the powers of other departments, would partake too much of the personal spirit of the individual Judges chosen for the
The rule which requires that an alleged limitation upon the powers of the State Government should appear either by the words which the people have employed for that purpose, or by an implication necessarily flowing from those words, and without which the words themselves cannot have their natural force and fair import, is firmly established.
It assumes, and correctly assumes, that it was the intention of the people that their representatives should exercise all political power, except such as the people themselves have singled out, and have either forbidden to be exercised at all, or permitted to be exercised only upon certain conditions, and under stated circumstances.
If, however, there-be among the great powers of government a single one upon which, more than upon any other, we would anticipate that the intended limitation of the power would have found exact and careful expression upon the face of the Constitution itself, that one would be the power involved in the case at bar—the power of taxation; for it is notorious that in this country and elsewhere (everywhere that government has found an organized existence among men), it has, more than any other, perhaps more than all other powers together, proven to be the exhaustless source of political disquiet and disturbance in the body politic. Its
To go back somewhat less than three hundred years in the history of the country from whose political polity many of the most important features of our own system have been derived, we find an important tax controversy pending upon the point of the power to impose taxes upon the people, and the particular inquiry was, whether that power belonged to the King, by virtue of the royal jirerogative, or was only to be exercised by the people themselves, through their representatives in Parliament.
It was in 1606 that Bates’ case arose, upon an information in the Exchequer, in which the question was distinctly presented. It was recognized as one of surpassing importance to the English people, and, in his argument against the asserted power of the Crown in that case, Mr. Yelverton gave expression to the popular view of the day .when he said: “It is not what we shall be called, or how we shall divide what we have, but whether we shall have anything or nothing.”
Bates’ case was determined by the Court in favor of the Crown, as were other like cases which followed—among them the celebrated case of Hampden concerning the ship money. The controversy thus waged in the Courts led at last to the long and disastrous struggle which culminated in the overthrow of the Government and the establishment of the Protectorate.' That all taxes must be laid by the people, through their representatives in Parliament, has been since firmly maintained in England. At the Restoration, even, amid the general national joy at the welcome event, it was not forgotten to resolve, that to tax in any other manner than “in Parliament is against the law of the land.” The House
In this country the Revolution, as is well known, originated in the same idea, so firmly fixed on the popular mind, that taxation should be imposed on the people only through their chosen representatives. Hence, in organizing the Federal Government, the House of Representatives was given the sole power of originating bills for taxation (Const. U. S., Art. I, Sec. 7); and various constitutional provisions upon this particular subject are to be found in the State Constitutions of some thirty-three of the States, in some of which the rule, that measures of taxation must originate only in the popular branch of the Legislature, is preserved, and in the others qualified or abrogated altogether.
It would be somewhat strange, in view of this history, if it should, after all, appear that those who framed the Constitutions of the State Governments in this country, and especially that of the State of California, should have, through, mere inattention, failed to limit the power of taxation in every respect which was deemed practicable. We accordingly find in the Constitution of California, in section thirteen, Article II, an important limitation, not, indeed, upon the extent of the power itself, but upon the mere mode upon which it is to be exerted. Taxation is thereby required to operate equally and uniformly, and upon the ad valorem principle. Ho attempt was made to limit the power itself in the hands of the State Government. The Convention at Monterey knew very well that such an attempt would be an attempt upon the safety of the government which it was their purpose to establish—not imperil.
Taxation originates in the financial necessities of government. Those necessities are in themselves illimitable by human agency. The means of the supply, to be adequate,
Hamilton, in elaboration of this truth, says: “ Money is with propriety considered as the vital principle of the body politic—as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the pommunity will permit, may be regarded as an indispensable ingredient in every Constitution. From a deficiency in this particular, one of two evils must ensue; either the people -must be subjected to continual plunder as a substitute for a more eligible mode of supplying the public wants, or the Government must sink into a fatal atrophy, and in a short course of time perish.” (Federalist, Ho. XXIX.)
The possible financial necessity of the Government may require all the wealth within its limits. The extent of the actual necessity is for the Legislature to determine in all cases; this is political power. It is the power to exhaust the substance of the people by a levy equal in amount to their aggregate wealth. Hence it was aptly said by Chief Justice Marshall, more than fifty years ago, in speaking of the power of taxation, as it existed under the American Constitutions in his day, that “the power to'tax involves the power to destroy.” (McCulloch v. The State of Maryland, 4 Wheaton, 316.)
In the same case, the same great authority adds (p. 428):
The, Convention at Monterey understood well that they had not limited the power of taxation in the State Government, and they understood, too, the reason why they could not venture upon the experiment. This is seen by section thirty-seven, Article IV, where they provide for restricting the power of municipal corporations to impose taxes. This restriction of the power of taxation in the hands of municipal corporations could be safely imposed, because the safety of the State was not supposed to be committed to the municipalities, in general charged with duties of a mere local and police character. That the Convention would have imposed a similar or some limitation upon the taxing power of the State, had it been considered advisable at that day, cannot be doubted, for they limited the public indebtedness to a fixed sum, except under peculiar and named circumstances (Article VIII); and they utterly prohibited the loaning of the public credit for private purposes under any circumstances whatever (section ten, Article XI); but they omitted, and evidently ex industria, to place any limitation upon the mere power of the State to impose taxes. The principle upon which taxation is to be imposed by the State Government is pointed out by the Constitution, but the extent to which it may be carried is left unlimited, except by legisla
The “ public use,’.’ though mentioned in the Constitution, is not mentioned with reference to the power of taxation, or in connection with any limitation upon that power contained in that instrument.
It is declared (section eight, Article X) that private property shall not be taken for “public use” without just compensation. Ho constitutional definition of the words “public use ” is, however, given in that instrument.
For much the same reason as that already mentioned, concerning limitation upon the power of taxation in the hands of the State Government, the “public use,” upon which the power of eminent domain was to be exerted, seems to have been left, in large measure, to the determination of those who were clothed with its exercise, in view of possible contingencies with which they might be called to deal, rather than to attempt its restriction by anticipation.
“Public use,” “public purpose,” and “public policy ” are much the same in import. “Public policy”—the policy upon which governmental affairs are conducted for the time being—is legislative policy in the main, and “public use” and “public purpose ” are largely dependent upon this policy—notoriously varying in our country, from time to time, with the accession to power of political parties, differing from each other as to the system of measures best adapted to promote the interest of the State. The resolve of a legislative body, by which a tax is imposed, or private property taken, is, therefore, necessarily a legislative determination, that a public use is to be promoted by the tax, or the taking directed; and such a determination is the determination of a merely political question by the political department of the Government.
The Legislature, in the case before us, having determined the construction of the contemplated road from Stockton to
If we could review the legislative determination upon that point at all, a question would necessarily arise as to the extent to which that review could be carried here. Could we substitute our judgment upon the point for that of the legislative department absolutely, as we sometimes substitute our judgment for that of a Court from whose judgment an appeal has been prosecuted to this Court? If it was the intention that we should do so, it would seem that the law should have pointed out some mode by which we could get before us, in an authentic form, the facts and circumstances upon which the legislative department proceeded in the particular case. In the absence of a knowledge of these facts and circumstances we would ordinarily be unable to say that an error had been committed at all. A case might, indeed, be presented in which it might appear, beyond the possibility of a question, that a tax had been imposed, or the property of a citizen had been taken for a use or purpose in no sense public; or, in the language of Chancellor Walworth (5 Paige, 159), “ where there was no foundation for a pretense that the public was to be benefited thereby,” and in such case it would be our duty to interfere and afford relief. But should we interfere in any other than such a case, we would but substitute a policy of our own for the
The Legislature of Tennessee, in pursuance of a policy of its own, had seen fit to declare that a grist mill, grinding for toll, was a mill for public use—therefore the Court held it to be such. But the Legislature had not declared that a sawmill or a paper mill, however conducted, should be considered a public mill—therefore the Court could not hold them to be other than private in character. This case arose and was decided nearly forty years ago. The Court did not, at that day, undertake to announce a policy of its own and set it up against the policy of the legislative - branch of the Government. It did not argue,, either, that the circumstance that the miller operated the mill for his “private profit,” and received, one eighth of the grist for grinding, necessarily made the mill private, and not public, in point of constitutional law; nor did it stop to inquire whether, if a grist mill operated in- that way was indeed to be considered a public mill, it ought not to follow that a paper mill or a sawmill, working on the same terms, would also be public. The Court seems to have been of opinion that legislative policy has something to do with determining “public use” and “public purpose,” and that it was just possible that Tennessee legislative policy might determine that the erection of grist mills in that State would promote a public purpose there, which would not be pro
In the Sharpless case, supra, Chief Justice Black (speaking of the Acts under which Philadelphia aided in the construction of certain railroads), expressed this view when he said: “ But it is not our business to determine what amount of interest Philadelphia has in either of these improvements. That has been settled by her own officers and by the Legislature. For us it is enough to know that the city may have a public interest in them, and that there is not a palpable and clear absence of all possible interest perceptible by every mind at the first blush. All beyond that is a question of expediency—not of law—much less of constitutional law.” In Connecticut the rule by which the Court interprets the legislative action in such a case was declared in Booth v. Town of Woodbury, 32 Conn. R. 128. The Town of Woodbury was supposed to be bound to furnish thirty-two men to serve in the Federal army, under the call of the President during the late' civil war. The Selectmen of the town, under instructions of a town meeting, proceeded to raise, on account of the town, some six thou
Upon a similar question before it, the Supreme Court of Wisconsin expresses substantially the same views. It said: “To justify the Court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which funds are raised must be clear and palpable—so clear and palpable as to be perceptible by every mind at first blush.” (Broadhead v. The City of Milwaukee, 19 Wis. R. 652.)
In Schenley v. City of Alleghany, 25 Penn. R. 130, the Supreme Court of Pennsylvania say “ that the exercise of the taxing power by the Legislature must become wanton and unjust—be so grossly perverted as to lose the character of a legislative function—before the judiciary will feel themselves entitled to interpose on constitutional grounds.
In his work on constitutional limitations (p. 488), Judge Cooley (perhaps the ablest living commentator upon constitutional law) says: “It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden is the legislative department of the State, * * * and in determining this question the Legislature cannot be held to any narrow or technical rule. Certain expenditures are not only absolutely necessary to the continued existence of the Government, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The officers of the Government must be paid; the laws printed; roads constructed, and public buildings erected; but with a view to the general welfare of society, it may also be important that the children of the State should be^ educated, the poor kept from starvation, losses in the public service indemnified, and incentives held out to faithful and fearless discharge of duty in the future by the payment of pensions to those who have been faithful public servants in the past. There will, therefore, be necessary expenditures, and expenditures which rest upon considerations of policy alone, and in regard to the one as much as to the other the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive.” Again (at page 487), the same author, after stating that taxation can be imposed for public purposes only, says: “In this, however, we do not use the word public in any narrow and restricted sense, nor do we mean to be understood that when the Legislature shall overstep the legitimate bounds of their authority the Courts can interfere to arrest their action. .There are many cases oí unconstitu
Other, and like authorities, might be cited upon this point, but we think that without further reference to them it is plain enough that when the Legislature has determined \ a given purpose to be a public purpose, we must so consider it, unless we can see at first blush that it is not possible that - it could be such. The field of legislative policy is vast in extent. It embraces in its ample range whatever can be supposed to promote the interest of the body politic, enhance the public revenue by increasing the values of objects to be taxed, facilitate the free interchange of commodities, or improve the social, moral, or physical condition of the community. These, and almost innumerable other and like purposes, favorably affecting, it may be, some particular individuals more directly than others, and benefiting particular interests or localities to a greater degree than other particular interests or localities, are supposed in the general judgment of mankind to be in some degree promotive of the material welfare of the State, and therefore fall within the constitutional power of the Legislature, as being purposes of a public character, to be fostered and advanced in its discretion. Within this broad range it is for the Legislature to select such objects as in its judgment may appear as deserving the munificence of the Government, and in so doing “ the Legislature, as we have seen, cannot be held to any technical or narrow rule.” It will not probably surprise any one to be told that the discretion to determine what is and what is not in this sense a public- purpose is confided to the Legislature, and that in the exercise of this discretion that body may, and, indeed, habitually does, clearly over
Again: who has come to deny the validity of the legislative appropriation by which thousands of dollars have been and are being annually paid to General Sutter for his “private profit,” as the respondent’s counsel would express it? It is no answer to say that the appropriation of 1852 was prompted by a commendable sentiment of humanity, and that the pension to General Sutter is but the expression of the public gratitude towards a distinguished citizen whose personal kindness and generous conduct have justly won for him the popular esteem. These motives, however worthy in themselves, cannot be made to supply the requisite constitutional authority to give away the public moneys.
If the three, hundred thousand dollars claimed by this railroad company be regarded as a mere gift of that much of the public moneys, it must, nevertheless, be upheld by the same construction of legislative power which would support the pension to Sutter. There is no provision of the Constitution which will authorize the gift to Sutter and deny it to the railroad company. The power to select the object of legislative bounty belongs to the Legislature itself, as well as the power to fix the amount to be given away. It will be difficult to draw the line of constitutional distinction between the legislative gratuity to Sutter for reasons of a
We have mentioned the pension to Sutter, and the aid to the overland emigration of 1852, because they are prominent, but at the same time not exceptional instances of the exercise of legislative authority in the general history of the State Government under its present Constitution. Many other and similar instances may be mentioned. Premiums payable out of the public moneys have been habitually offered for the encouragement of mere private industry. The production of sugar from sorghum, the manufacture of molasses, the production of flax, hemp, cotton, tobacco, hops, raw silk, and the manufacture and production of various other articles by private parties and for “private profit,” were stimulated by the offer of large sums from the public treasury, by the “Act for the encouragement of agriculture and manufactures in California.” (Acts 1862, p. 415.) This policy is further maintained by the Act of April, 1866 (p. 660), “ for the encouragement of silk culture in California,” by which premiums are offered by the State for the growing of mulberry trees and production of silk cocoons, and the constitutionality of the Act was not eveu questioned here in The Attorney General v. The State Board of Judges, 88 Cal. R. 291, but the statute was substantially reenacted in 1868 (p. 699); and an examination of the legislative Acts will disclose other like instances of the habitual expenditure of the public moneys, the validity of which no one has undertaken to call in question. In view of this public history, it cannot surely be claimed in any quarter that legislative authority to expend public moneys in the State was ever understood to be confined to merely keeping the Government in motion.
In the case at bar, it determined the Stockton and Visalia Eailroad to be a road for public use, and that, as such, the City of Stockton might donate three hundred thousand dollars towards its construction.
As we have already said, under the rule laid down by this Court in Napa Valley Railroad Company v. Napa County, 30 Cal. 437, this legislative determination is conclusive upon this Court. It was there held that “ railroads concern the public interest as matter of legal judgment,” and that when the Legislature had determined that a particular road in fact concerns the public interest, its determination in that respect is not open to be reviewed by this Court.
Upon that authority we are precluded from any examination into the principal question which the respondent has argued here.
But even if the rule were otherwise the result would be the same. Should we undertake to review the legislative determination that this road concerns the public interest we could not disturb it, unless we are prepared to say that there is absolutely no possibility, that the proposed road from Stockton to Visalia could in any degree promote the public welfare, and that there is an utter absence of all possible public interest in the enterprise, and that all this is so palpable as to be perceptible to every mind at the first blush.
We are to say this of a highway traversing a considerable portion of the State, and connecting two important com
In either case, however, the power must rest for support upon the public use to be promoted; and a quasi public use will not be sufficient in the one case more than in the other. Such a use as a quasi public use is unknown to the Consti
That Court accordingly upheld the validity of a tax imposed upon the real estate in the City of Mobile for the purpose of raising three hundred thousand dollars, and donating it to a railroad company who were constructing a railroad to run from the city in the direction of the mouth of the Ohio Eiver.
In fact, we think that -it may be said that the entire cur
It is not denied, for instance, that the State may, in the exercise of the power of eminent domain, take from the unwilling proprietor the lands necessary for the building of this road—a road to be operated by a corporation for its “private profit;” that is conceded by all the authorities. Yet such a talcing can only be supported upon the theory of a “public use” to be promoted by building the contemplated road.
Can there be a “use” which is sufficient, in a constitutional point of view, to seize the property of one, and at the same time insufficient to authorize taxation upon the property of all? If so, we have not found it.
In 1851 the Court of Appeals of the State of Yew York held that the public use which would support the exercise of the power of eminent domain would also uphold the power of taxation, and that really the power of taxation was in itself only one mode of taking private property for public use.
Upon this point the Court said: “ Private property may be constitutionally taken for public use in two modes: that is to say, by taxation and by right of eminent domain. * * * The right of taxation and the right of eminent domain rest substantially upon the same foundation. * * * Taxation exacts money or° services from individuals as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain is taken, not as the owner’s share' of contribution to a public burden, but as so much beyond his share.”
We know that a distinction has, of late, been attempted between “public use ” for purposes of eminent domain, and “public use” for purposes of taxation. In order to maintain the distinction, its authors have invented a new use, which is not exactly a public use, nor yet a private use, but
Those who have originated the phrase “quasi public use,” have, however, omitted to give it a definition. Quasi, we understand to mean “ as if,” “ as though,” “ as it were,” etc. A quasi public use may be said, therefore, to be a use “ as if” a public use, “as it were ” a public use, “as though” a public use, but of course in reality not a public use at all. In fact, the term is employed for the sole purpose of distinguishing a mere fictitious public use from a real public use, and thereupon it is argued that the unbroken line of authority which concedes that the power of eminent domain may be exerted in favor of the road as being for public use, does not establish that the power of taxation may be exercised for the same purpose, because it is said that the public use which will support-the. former is not actual, but merely feigned—only quasi—but that the public use which is requisite to authorize taxation must be something more.
The result is that the license by which amitizen holds his money is of a higher and better character than the license by which he holds his land—reversing the rule by which the law is supposed to regard things real rather than things personal, and a “public use” to which one may lawfully refuse to contribute his money to-day is nevertheless one to which he may be compelled to surrender his house to-morrow.
But two or three of the Courts in the United States have in fact attempted to maintain a proposition so absurd in
“ The right to exercise the power of eminent domain in behalf of railroads and other improvements of public utility is recognized by all Courts, and denied by no one. While admitting the right it is said that the Legislature has no constitutional power to levy a tax on. the property of the citizen in aid of a railroad corporation, because it is a mere private enterprise.
“It has been abundantly shown that the object for which the right of eminent domain is exercised is a public one, for public utility, for ‘ public use,’ within the meaning of the Constitution; and that this right can be exercised in behalf of these corporations on no other grounds. If, then, the building of a railroad is a public object, só as to authorize the taking of the private real projierty of the citizen—the highest species of property—for a right of way, is it any less a public object for the purpose of receiving aid, through the medium of taxation, to assist in building the road upon such right of way? The right of eminent domain and the taxing power are both sovereign powers. The former is limited to public use by express words in the Constitution. The latter is not, nor is it limited at,all. * * * Conceding, however, that the taxing power ought not to be exercised except in behalf of a public object, it is unquestionable that it may be exercised for public purposes—for any object that will justify the exercise of the right of eminent domain.
“If the State can, for any purpose, take the land of a*184 citizen, it may tax him for a like purpose. The object or purpose should' be a public one in either case. But it would be absurd to say that the right of the citizen to prevent his property from being taken for other than public uses, which is secured by express constitutional limitation, may be overridden; but that his right to save his money from being applied, through the process of taxation, to other than public uses, which right is not embodied in the Constitution, must be respected. * * * If the taxing power cannot be constitutionally invoked in aid of railroads, neither can the power of eminent- domain.
“If the Act under consideration is in conflict with the Constitution in that it taxes the people in aid of the construction of railroads (or rather allows the people to tax themselves), then all the legislation in this and every other State exercising the power of eminent domain in behalf of railroads and other like internal improvements are unconstitutional, and all the adjudications of the Courts, for more than a century sustaining such exercise of the right of eminent domain, are based upon false premises, and are erroneous.”
The able opinion from which we have thus quoted at such length is the more interesting in view of the fact that it is apparently the conclusion of a struggle between the Legislature and the Courts, of some eighteen years duration in the State of Iowa, waged with varied success upon the very question now before us.
In the beginning of that struggle, which was in 1853, those who opposed the right of the people to vote upon the question of local taxation, placed it upon the ground it yet really occupies, notwithstanding the effort to mask it under an impossible distinction between a “public use” and a “quasi public use,” so called. The argument which questions the legislative authority in this respect rests upon a fear, real or feigned, that the popular vote in a particular
The Court determined in that case that an Act which authorized a popular vote with a view to the imposition of local taxation for local improvements was constitutional. In 1862, however, and after the personnel of the Bench had been completely changed, the question was again presented, and a similar Act was then held unconstitutional, and much upon the rich and poor idea announced by Mr. Justice Kenney in 1853. The Court said in 1862 that the expressed opinions of the supreme tribunals of some fourteen or fifteen of the States had reached conclusions “not satisfactory to the inquiries and consciousness of the public heart,” and it declared that the question would continue to obtrude itself upon the Courts until a decision was arrived at which “will leave the capital of private individuals * * .* under the control and dominion of those who have it, to be employed in whatever field of industry and enterprise they themselves may judge .best.” (State of Iowa v. County of Wapello, 13 Iowa R. 393.)
It is said, however, that in the ease at bar the act is not “taxation” within the meaning of the Constitution, because it is “ simply taking the money of one man and giving it to another,” and that therefore it is not the raising of money to meet “the public consumption or expenditure,” nor to provide “for the use of the State, nor for the use or benefit of the State Government.” This proposition is based upon the alleged fact that the corporation which is to receive this money is a private and not a public corporation, and that the road itself, when built, is to be operated by the corporation for its own benefit and profit.
The general power of the State Government to build such a road as this one is admitted. The authority to build it upon the basis here adopted is denied; it is claimed that the power to construct the road cannot be exercised through the agency of the railroad corporation. It is not the power to construct, but the mode of its exercise, which is thus questioned. We might put this objection at rest by simply repeating the language of Judge Baldwin in delivering the unanimous opinion of this Court in a case already cited (17 Cal. 30): “ But the legislative department, representing the mass of political powers, is no further controlled as to its powers, or the mode of their exercise, than by the restriction of the Constitution.” What provision of the Constitution has declared that the Legislature, in the prosecution of an enterprise per se of an admitted public character, shall employ no private agency, or shall take care that no private
Too much prominence in argument here has, however, been imparted to this view to justify us in thus passing it by, conclusive as we deem the answer already given. At every step in the discussion upon the part of the city, we meet the multiform proposition that “public use ” and “private profit ” cannot go hand in hand in the prosecution of this enterprise; that there is a fatal antagonism between the two; and that the moment that “private profit” lifts itself into view upon one side of the proposed work, “public use” must disappear from the other. In a case involving the same objection, the Supreme Court of Massachusetts said: “But it is said that this grant was made upon the petition and for the sole benefit of an individual, and was not needed for the accommodation of the public. It is doubtless true that the leading motive of the defendant in erecting the bridge was private profit, and so almost all other enterprises, many of which have resulted in great public improvements, have originated in motives of private gain.” To our minds, however, the fallacy involved is so apparent that neither illustration nor argument can set it in a clearer light. It is exposed by a mere reference to the usual and ordinary mode of conducting the public business. Government habitually moves through the agency of employes in executing its purposes; these employes must be compensated in some way; and here we come, unavoidably in every instance, upon the spectre' of “private profit,” which must, upon this view, frighten the Government from the prosecution of any public enterprise whatever.
If an incorporated stage company, for instance, should put in a bid for carrying the mails at a fixed compensation, would any one doubt that it was the sole purpose of the company to obtain for itself a portion of the public moneys? Would
We have instanced a familiar case by way of illustration. It might be indefinitely extended into.all the varied circumstances in which Government is to be supplied—to public printing, army stores, etc.—in all which private profit is the avowed motive on the one side, and the “public service” the true object on the other.
In 1831, the case of Beekman v. Saratoga and Schenectady Railroad Company, 3 Paige, 73, was decided by Chancellor Walworth. In that case it appeared that a railroad company, in constructing their road from Saratoga Springs to Schenectady, had seized upon certain real estate in the exercise of the power of eminent domain. There, as here, no question was made but that the State of ¡New York might have built the proposed road herself, and might have appropriated the land in question, and applied the public moneys also for that purpose. The objection of Van Vechter, for the complainant (whose pleasure grounds around his country residence had been invaded), was that “the defendants are a private corporation, and the road when made will be private property; it will not be for public use, but for the private use and emolument of the company,” etc. In fact, the argument of the counsel for the complainant upon
The power to compensate the private agency thus employed is therefore clear enough, and if this be so it must be admitted that the measure of that compensation and the mode in which it is to be afforded are mere details which will vary with the prevailing habits of the public service, the condition of the public treasury, or the mere policy which would seem to recommend one plan of making compensation as preferable to another plan. Suppose, for instance, that the entire gross proceeds of the business are to be paid into the treasury of the State, and the “private agency” by which the road was built and is operated is to receive from the State a sum equal to a fixed per centum of the ascertained cost of the road, with or without allowance for deterioration by use, as the case may be, or that the net profits earned by the road are to be equally divided between the State and the “private agency,” or that the gross proceeds paid into the treasury shall be returned to the agency after certain deductions are there made; or suppose that the State is to have the authority to require that sufficient means of transportation for all persons and prop
The legislative and executive departments of the Government seem to have deliberately reached the conclusion that a “ public use ” was to be promoted by the construction and, operation of a railroad such as the Stockton and Visalia road is designed to be, and, even if in so doing they have abused or mismanaged the constitutional authority over the subject, that circumstance would afford no justification to us for the assumption of unauthorized powers for the correction of such abuses.
ÍTo amount of supposed public good to follow would excuse us for the usurpation of powers not belonging to the judicial department of the Government. “ There is always some plausible reason (says Bronson, J.) for the latitudinarian constructions which are resorted to for the purpose of acquiring power—some evil to be avoided, or some good to be attained by pushing the powers of Government beyond their legitimate boundary. It is by yielding to such influences that Constitutions are gradually undermined and
The power of the State Government to foster and regulate internal improvements is unquestionable. Should we, in this instance, deny to the legislative department the possession of this power, or should we attempt to narrow its clear constitutional scope by applying to it the arbitrary measure of our own views of wise policy in the conduct of public affairs, we would, in the hope of accomplishing a temporary good, permanently mar the symmetry of the structure of the Government itself, so far at least as a decision of ours could be permitted to work such an unfortunate consequence to the State. Though late events have awakened the general public attention to an anxious consideration of the extent of the legislative power upon this subject, those events have not as yet fixed a new limit to the power itself as it has heretofore existed, nor would they justify us in stepjfing aside from the well beaten track which we follow to tread upon the new and strange paths into which some, though few, 'of our brethren of the bench have, we hope, but temporarily wandered.
No propositions in the case can be affirmed with greater confidence than that, under Constitutions substantially like ours, railroads, though operated by private companies, are by -mere legal conclusion, for “public use;” that the power of eminent domain, confessedly exercisihle only in behalf of “public use,’-’ may therefore be exerted in behalf of railroads under legislative permission; that as fostering the “public use,” aid maybe extended to the construction of such roads by means of the power of eminent domain or of
Upon authority, and upon principle- as well, we think that the Act in question cannot be said, by us to be, in any sense, unwarranted by the Constitution, or beyond the authority of the Legislature to enact.
It is ordered that the writ of mandamus issue as prayed for.
Concurrence Opinion
I concur with Mr. Justice "Wallace in the result at which he has arrived, and for the most part in his reasoning; but without attempting an elaborate investigation of the questions discussed by him, I propose, nevertheless, to state, very briefly, the points which, in my opinion, are decisive of the action.
In the performance of this duty it is not doubted by any one that the State may itself construct these highways, and defray the cost of them out of the public treasury or by the imposition of a special tax for that purpose. ¡No one questions that such a tax would be for a public purpose. But, instead of itself performing the work by its agents, employed and paid for that pmpose, the State may avail itself of the aid, energy, and skill of private corporations, and construct highways which, in the opinion of the Legislature, will promote commerce, develop the resources of the county, and increase the general prosperity. It is on this theory only that the exercise of the right of eminent domain can
From its decision on this point there can be no appeal to the Courts, and the only remedy for an abuse of its powers in this respect must be found at the ballot box or'in an amendment of the organic law. Assuming, therefore, that it is solely on this theory that the exercise of the right of eminent domain can be invoked on behalf of private railroad corporations (a proposition which I deem to be thoroughly well established both on reason and authority), I think it follows as a logical sequence that the same principal which enjoins upon the Legislature the duty of providing convenient highways for the people, and in furtherance of that end justifies the exercise of the right of eminent domain in behalf of private railway corporations, must, of necessity, authorize the imposition of taxes to aid in the construction of the road. If the use of the land taken is public, the purpose of the tax is also public, and for precisely the same reason, inasmuch as they both spring from and are founded on the duty of the State to provide highways for the public convenience, and are both intended solely to promote that object.
Both being designed to accomplish the same result, to wit, to promote the construction of a highway, which the Legislature, in the performance of its duty, has determined to be a work of public utility, and in furtherance of the public prosperity, if the use for which the land is taken is to be deemed a public use, I think it is impossible to resist the conclusion that the purpose for which the tax is levied is a public purpose. In respect to the question whether the use in the one case or the purpose in the other
. Second—If any question of constitutional construction can be said to be settled by the weight of authority, it is, that under State Constitutions almost identical, in this, respect, with our own, the Legislature has the constitutional power to authorize municipal corporations to subscribe for stock in private railroad corporations, organized to construct a road passing through, or terminating within, the territorial limits of the municipality; and to levy a tax to pay for such'
In very few of the States has this power been more broadly asserted, or more persistently maintained, than by the Courts of this State; and if the rule of stare decisis is to have any weight on such a subject, the question should be considered as no longer open to debate in this Court. With an unbroken line of decisions on this point, running through so long a period, and emanating from Courts of the highest’ authority in this country, it is now too late to inquire whether the question has been settled properly or otherwise. The repose and good order of society demand that when a question of this character has been firmly settled, by a long series of judicial decisions, it should not be opened to further discussion in the Courts. In such cases, if the interpretation of a clause of the Constitution by the judiciary, which has been long acquiesced in, and repeatedly reaffirmed, shall be found to operate injuriously, it would be better to obviate the difficulty by an amendment of the, organic law rather than to encounter the evils, which invariably flow from sudden and frequent changes in the construction by the Courts of constitutional provisions. Assuming it, therefore, to be definitely settled, so far as judicial interpretation can settle such a question, that the Legislature has the constitutional power to authorize municipal corporations to subscribe for the stock of private railroad companies, and to levy a tax for the payment of such subscriptions, it only remains to be determined whether there is any difference in principle between a tax levied to pay for a sub
If the work to be accomplished be confessedly of a public nature, as contradistinguished from a private enterprise, there • can be no doubt of the constitutional power of the Legislature to promote its construction by contributions from the public treasury; or if the work be local, then by authorizing the particular municipality in which the proposed improvement is located, to aid it by subscriptions of stock, to be paid for by taxation; and, as already stated, this proposition is now too firmly established to admit of debate. But
It cannot be denied that it is extremely difficult to define, with exact precision, the line which limits the constitutional power of the Legislature in authorizing the imposition of taxes by municipal corporations, to promote the construction of local improvements by private persons or corporations; and it is obviously a power which is capable of great abuse. That it has been frequently and grossly abused in some of the States of the Union is attested by the enormous debts which have thus been created, and the popular discontent which has ensued. In several of the States the evils resulting from legislation of this character had become so intolerable as to lead to amendments of their Constitutions, limiting or clearly defining the powers of the Legislature in this respect; and this is, manifestly, the-,„only effective remedy. In a popular Government, like ours, where the tenures of office are short, and changes are constantly occurring in those who make and administer the laws, the only security against such abuses will be found in an amendment of the organic law. Under its existing provisions the Courts are, in a great measure, powerless to remedy the evil.
Concurrence Opinion
I concur in the order solely upon the ground that I cannot now .regard the questions involved in this ease as open questions in this State under our Constitution as it is. This Court having, by a uniform line of decisions, commencing with Patterson v. Marysville, 13 Cal. 175, sustained and sanctioned laws substantially obnoxious to the same constitutional objections as the statute involved in this case, the questions should be considered settled. Could I regard the questions involved as original in this State, I should not hesitate in
Concurrence Opinion
I concur in the order made in this case solely upon the-ground that I regard the question as settled by the previous decisions of this Court, as well as by the almost unbroken current of authorities in other States. I differ from much of the reasoning of my associates, and if the question were new, should be inclined to agree with the respondent upon the main question discussed. To -overturn the almost" unbroken line of decisions now, however, would not establish a rule of decision, but would make an exception merely, in the current of authorities. It would shake the confidence of every one in the stability of judicial decisions, and would add nothing to the force of the limitations upon legislative power. The people can readily circumscribe this power without doing violence to established precedents or destroying the confidence of the community in that branch of the Government which should be least influenced by popular pressure.
