48 Ky. 526 | Ky. Ct. App. | 1849
delivered llic opinion of the Court.
In September,-1848, Talbot filed his petition in the Jefferson Circuit Court, praying for a writ of prohibition, forbidding Dent,-a- collector for the City of Louisville, to proceed further in coercing the tax assessed upon Talbot’s property in said City, for payment of the subscription of the City,- in the stock of the Louisville and Frankfort Railroad Company.- Talbot had refused-
The writ of prohibition, as used under the common law, seems properly to have been addressed to some Court, forbidding its further proceeding, in a case not within its jurisdiction, and would, therefore, have been an inappropriate remedy for the grievance alleged by Talbot, who might certainly have resorted to the action
The obvious purpose of this enactment was, to protect the City from vexatious and inconvenient obstruction in the collection of her revenue, upon the mere suggestion that the tax demanded was unconstitutional. It, therefore, prohibited those remedies by which, on-that ground, the collection might be obstructed, without the opinion of a competent tribunal, implying at least a doubt as to the validity of the tax, andprescribed, as the only mode of preventing the collection, a remedy substantially founded on such opinion.
It is argued that this is not a City tax within the purview of the statute which has been quoted. The grounds of discrimination are, that it was levied for a particular purpose, and not as a part of the general revenue of the City; that it was to be [collected by a special collector, and not by the collector of the general revenue; that when collected, it was to be paid, not to the City Treasurer, but to the Railroad Company, and that each tax payer was to be entitled to the stock for which he had paid. But it was levied by the City authorities, and in her name, upon the property subject to taxation within her limits, to be collected by the collector, or one of the collectors of the City, and to be paid over, when collected, in discharge of the subscription of stock made by the City, 'and constituting a debt on her part which,
These circumstances make it a City tax; and it surely does not lose that character by the provisions made for its speedy collection and immediate application to its proper object, nor by the circumstance that, in addition to the common benefit to accrue to the City and its citizens, from the accomplishment of the •object for which the subscription was made and the City debt contracted, each tax payer is to be entitled, upon payment of his tax, to a proportional share of the ¡stock subscribed by the City, by which he, perhaps, may be, in the end at least, partially remunerated for the payment of his tax. Nor can it be admitted that the City loses the benefit intended to be conferred by the '24th section of the act of 1836, by appointing more •than one collector, or by entrusting to special collectors, the collection of this special tax.
Since then this action of replevin is founded upon no suggestion that the tax had been paid by the plaintiff, or thatit had not been assessed against him, but was intended merely to question its legality, it comes clearly within the prohibition of the statute. And as the object of that prohibition would be defeated by its progress, with the usual effect to its termination in the ordinary mode, and as, moreover,theplaintiffhadinstitutedin thesameCourt the appropriate, and, perhaps, in the actual condition of things, the exclusive proceeding for obtaining redress, we are of opinion that he has no right to complain of the summary disposition made of his action of replevin. The case is peculiar; andas there was, in o,ur opinion, no abuse of sound discretion in the order and judgment of the Court quashing the writ, and for a restoration of the slaves, the said order and judgment are, therefore, affirmed.
The case, upon the application for the writ of prohibition, presents the broad question whether the Legislature could constitutionally authorize the Mayor and Council of the City of Louisville, with the consent or approbation of a majority of the qualified voters of said City, expressed by vote at a regular election of City officers, and upon a direct submission of the question, after due notice, to subscribe for stock, not exceeding a prescribed amount, in the Louisville and Frankfort Railroad Company, for the construction of a Railroad connecting those two plaees; sueh stock tobe paid for by tax upon property subject to City taxation. This authority is expressly conferred by the 55th section of the act to Incorporate the Licking and Lexington Railroad Company, and the Louisville and Frankfort Railroad ^Company, the latter chanter commencing at section -25, Sessión/acts of 1847, page 47.
.. ..The.B.th section of an act of 1848, to-amend the charter of the Louisville and Frankfort Railroad Company, ' (Session acts, 54,) reciting that the City of Louisville hád, under the previous act, subscribed stock to the amount of $500,000, and that the Company, and the citizens of Louisville had petitioned, and at a public meeting of the citizens, had passed resolutions in favor of raising the subscription of $500,000, by a tax on the reahand personal property of the City, collectable in four year’s, proceeds to authorize the Mayor and Council of said City to assess the real and personal property within the City, annually, for four years, and to levy and collect a tax of one per cent, on such valuation for each of the four years, as taxes of the City are now collected, and apply it, as collected, to the payment of the said $500,000, &c.; and further enacts that each and every person paying any part of said tax, shall be entitled to his pro rata share of said stock, and to have a certificate therefor, as soon as he shall have paid for a full or a half or a quarter share, or shall produce transfers from those who have paid portions, so as to entitle him to a full, a half, or a quarter share. The shares were $50 each, and the proportion to be called in any one year, was limited by the original charter to one
A comparison of these provisions, shows that the amended charter is more favorable to the citizens of Louisville, as tax payers, than the original charter under which the subscription was made, since it not only extends the time of payment, and thus diminishes the rate of annual tax below what it might have been under the original charter, but also secures to the citizen, the portion of stock for which he pays in paying his tax,. Thga amendment is also apparently more just, an be deemed more favorable to all, in denyii^ Mayor and Council the option conceded in the Jlrigijml act, of levying the tax upon either the real or estate within the City, It may be presumed, that even under the original charter, the tax"kw!oid<r have been assessed on both classes of property aVwa§. therein authorized.- And there is nothing in this case-to show that the alteration in this respect operated unjustly or injuriously upon the present plaintiff; nor do we understand that this charge is made aground of objection or complaint in the present case.
Some objection, however, seems to be made to that feature of the amendment which entitles the payer of the tax to a rateable portion of the stock for which the City had subscribed. But if the authority originally given to the Mayor and Council to subscribe for stock not exceeding a prescribed amount, and to pay the amount subscribed by increased taxation on the property within the City be valid, then the subscription made tinder that authority, and within the presmibed limits,was obligatory upon the City and the citizens, and carried with it the right of taxing the property within the City for payment of the subscription, with the effect of securing to the City, in its corporate capacity, the ownership and profits of the stock subscribed in her nam-e.
If the stock were worthless with respect to any profits to be derived from it, still, as when paid for, it imposed no additional burthen upon the holder; and as the tax payer might relinquish it to the City, or transfer it to another, his right to receive it could make no essential change in his condition, or in the nature or bur-then of the contribution, by which he might become eim titled to it; If, on the other hand, the stock were valuable, the surrender of it to the tax payer, whereby his payment was to be facilitated, or to a greater or less extent reimbursed, would certainly be no grievance to hita. And although it is somewhat of an anomaly, for the governing power to levy a tax for a particular purpose, and at the same time to furnish the means of payment to the tax payer, or to reimburse him by a transfer of the very thing which is 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 com tracted the debt or obligation, for the discharge of which the contribution was required. The validity of the tax, and the obligation of the citizen to pay it, depend upon the right of the government to contract the debt or duty, and to discharge it by taxation, and cannot be affected by the disposition which is made of that for which the debt was contracted. And conceding that a subscription of stock by the City authorities in a corporation, whose objects were otherwise wholly unconnected
Then,-without going into- the details of the assess-^ taent and levy of the tax, or of the provisions for transferring shares, and fractional shares,- of stock to the taxpayers, we see nothing substantially objectionable or unequal in them-.- Whether a small tax payer should-be entitled to a certificate of stock, to the value of his payment, though it should be but the hundredth part of a share, or must buy or sell his interest,-if it be less than-a quarter share, cannot affect the constitutional validity of the subscription by t-he City, or of the tax levied for its payment. If the stock is valuable, the presumption-is,- that each tax payer receives, either in stock or a receipt for his tax, which- is, or will be,-vendible, a value proportioned to the amount which he has paid. If the necessities of some may compel them- to sell at a sacrh fice, before the stock has acquired a fixed value, the same would occur, if all- received certificates of stock for their payments, however small.- And the same might-occur with■ regard to any other species of property which the tax payer might possess. Nor can it be assumed,- that this loss will fall more certainly upon the small,-than upon the large lax payer,-or that the former alone will be the victim- of undue speculation. It is im-< possible to guard against all inequalities-in the burthen1 of taxation,- and especially against such as arise from inequality of condition and ability among the tax payers. And, at any rate,-it would seem that any question growing out of the peculiar operation of the system now before us, upon the poor or the small tax- payers, would not? be properly available to one whose tax for one year is near three hundred dollars.
We pass, then, to*1 the fundamental question, whether the Legislature could constitutionally authorize the public authorities of Louisville, with the consent of a 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. And as the right of the Legislature to delegate the pow
Upon the first question, we do not dSem it necessary to make any lahored,argument or discussion. Substantially the same question has been discussed and decided by the Supreme Courts in the States of Virginia, Connecticut and Tennessee; and each .of -these Courts has 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 be increased: Goddin vs Crump, &c. (8 Leigh’s Reports, 120;) the City of Bridgeport vs the Housatonic Railroad Company, (15 Connecticut Reports, 475;) and Nichol, &c. vs the Corporation of Nashville, in the Supreme Court of Tennessee, 1849, (Pamphlet Report.)
These cases decide what must, we think, be conceded, that, in order to characterize a particular work or expenditure, as being within the legitimate local purposes of a local municipal corporation., it is no.t necessary that the work or expenditure should be confined to the local limits of the corporation; but that in the case of a road or canal leading to or near the City, and obviously tending to facilitate its commerce, and secure or increase its commercial business and prosperity, as well as' in the case of an aqueduct or a sewer, tending to promote the health and comfort of the City, it is sufficient
That a Railroad having one of its termini on the Ohio river, within the limits of the City of Louisville, and extending indefinitely into the interior of the State, is a work- of this character, we may well assume. To what extent it is-important, or will be advantageous to that City, is not a judicial question. The practicability of the work, as proposed to be accomplished by the Company and by the subscription of the City, whieh is also a question more propei’ly to be decided elsewhere, is not denied. And so far as the validity of the subscription, and of the tax, depend upon the importance of the road to the interests of Louisville, the question may properly be left to rest upon the concurrent opinions of the Legislature, implied in authorizing it, of the majority of the legal voters of the City, directly and formally expressed in favor of it, and of the Mayor and Council, by whom the subscription was made. It would be needless to state the considerations which tend to show the peculiar importance and advantage of such a work to the City to which it leads. We barely remark, in answer to objections made, that although other portions of the State, and especially those which are adjacent to the proposed road will, undoubtedly, derive advantage from its construction; even this advantage is expected to arise mainly from the increased facility of communication with Louisville, and illustrates the peculiar 'importance of the work to her. She is not interested 'in it merely as a part of the State at large. It is rather ■as a work redounding to her advancement, and to the interest of those whom it will connect with her, that ■the State at large is interested in it. It is not a work ■undertaken by the State, which has no stock in it, but a work undertaken by individual or corporate subscribers, and to which Louisville contributes, on account of its ■special relation to herself.
We cannot doubt, therefore, that the construction of this road is a legitimate object of expenditure and of
The tax, as -levied, being equal upon all, in proportion to the property -of each within the City, we do not understand how the rights of any citizen can have been infringed by the delegation of the exercise of the power, unless it be assumed either, that each citizen has a right to decide authoritatively, whether the tax is levied for a legitimate purpose, and, therefore, whether it is valid or not, or that the rate of taxation as existing when he became a citizen, cannot be afterwards increased so as to affect his property, without his consent. The argument for the plaintiff does not, It is true, specifically urge either of these positions, but appeals to the judiciary, as being invested with the power, and bound by sacred duty, to protect the citizen from unjust and oppressive legislation, though not coming within any of the prohibitory clauses of the constitution. But though, while acknowledging no power or duty in the judiciary, above or beyond the constitution and the laws which accord with it, we feel bound so to construe both the constitution and the laws, as, if possible, to prevent any injustice or oppression to individuals, we perceive no basis for the charge of injustice or oppression in the present case, or for the claim of protection against the operation of the laws of the State and City, now brought in question, unless upon the ground that some right which, under the constitution should be deemed sacred, has been violated. There is no inequality producing injustice or hardship to the plaintiff, nor do we understand 'that there is any real complaint, except that his tax has been increased without his consent, to an amount greater than was previously authorized by law, and for a purpose -which he either disapproves, or considers not to be within the legitimate objects of local -taxation.
But if the obvious relation of the Railroad, for Which this tax was levied, to the City of Louisville is not sufficient to bring it within the discretion of the Legislature and Of the City government to determine whether it be a proper object for expenditure and taxation by the local authorities, no criterion has been furnished of such a character,- as would authorize a judicial tribunal to reject the concurrent opinions which have been inferred to, and pronounce'the local tax illegitimate, and, therefore, unjust and oppressive.- The question is one essentially of fact and of expediency. There is, in the nature of the thing,- no injustice, and but little danger of oppression, in authorizing the local authorities, elected by the local community, to incur expense, and levy an 'equal local tax, for the accomplishment of an object of •local interest, and which they may deem of sufficient importance to justify the additional burthen which they will impose upon themselves and their constituents. If it be an object of local interest, tending to promote the local prosperity, it comes within the objects of the local corporation; and the propriety of promoting it by local taxation, must be determined by the corporation,so far as the Legislature authorizes its action on the subject, and it is not dependent upon the opinion or consent of each Individual. From the nature of the association, the will of the individual is merged in that of the majority, upon all subjects on which the body, as a corporation, has a right to act. And it can only be in a flagrant case of excess of power, if in any, that the judiciary could determine, on its own judgment, in opposition to' that of the Legislature, and of the 'City authorities, and ©f the majority of the individual corpora-tors, that the purpose for which a tax is levied under such authority, is not within the legitimate objects of the corporation, or not a purpose for which a local tax may be imposed. The safety of the individual, consists in the limit upon the power of taxation, as uni-' formly imposed by the Legislature upon the local government, and in the common interest and common judgment of the corporators, or their local representatives. We refer to the opinion of this Court in the case of
Wherefore, the order overruling the prayer for a prohibition, is affirmed.