#### Talbot *vs*Dent. Same *vs*Same.

Appeal from the Jefferson Circuit.

*Writs of Prohibition.- Taxation. Legislative Powers*

Replevin. Prohibition *Case*123.

*September*25.

decision^ the Ciicuit Court.

Chief Justice Mabs hall

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-*527payment, on the ground that the statutes of the Legislature of Kentucky authorizing the subscription and taxation were unconstitutional, and the acts and ordinances of the City in pursuance thereof, void; and the collector having seized two slaves belonging to him as a means of coercing the tax, he prayed for a prohibition on the same ground. The petition and the response, which was immediately filed, refer to and exhibit the acts, ordinances, &c. necessary for presenting the question as to the statutes referred to; and while the Court had the petition under advisement, Talbot having filed the requisite affidavit, sued out his writ of replevin from the same Court, for the recovery of one of the slaves, which had been seized as above stated, and on executing the usual bond, the slave was delivered to him by the sheriff. Dent thereupon filed his affidavit, setting forth the foregoing facts, and that prohibition, and not replevin, was the appointed legal mode of questioning the constitutional validity of the tax, and obtained a rule upon Talbot to show cause why the writ of replevin should not be quashed, and the slave restored, and Talbot be fined for a contempt. From this affidavit, and Talbot’s response to the rule, it is obvious that his action of replevin was based upon the same ground as his petition for a prohibition, and was intended merely to question the validity of the Legislative acts, under which the tax was demanded. On the hearing of this last rule, the Court discharged Talbot from the contempt, but quashed the writ of replevin, and ordered a return of the slave to Dent; and afterwards overruled the prayer or motion for a prohibition on the other rule.

The common law remedy by writ of prohibition, is given to arrest a proceeding in an inferior Court in a ease not within its jurisdiction, and is not an appropri*528ate remedy to test the legality of a law levying a tax, by preventing the officer from .proceeding to collect the tax — but the writ is given for such purpose by statute in Louisville anrl replevin forbidden.

*527The two cáses having been brought to this Court by Talbot, and heard together, we have given a connected history of both, and shall dispose of each in this opinion.

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 *528of replevin therefor, if it had not been for the provision made by the 24th section of an act of 1836, “to establish a Police Court in the City of Louisville, and to amend the charter of said City:” *(Session Acts,*287.) That section enacts that “no bill in chancery shall be filed, nor writ of replevin sued out by any person whose property has been seized by the collector of Louisville for the City taxes assessed against him, except it be on the direct allegation of payment of such taxes before distress made, or upon the allegation that no tax has been assessed against him; *Provided*that, should any person desire to try the validity of any such tax, it shall be lawful to apply to the Jefferson Circuit Court for a writ of prohibition, as other writs of prohibition are obtained, and try the validity of the tax in that mode of proceeding.”

A taximposedby the corporation of the city of Louisville, to raise a fund for a Railroad to Frankfort, is a city law within the meaning of the city charter, and replevin cannot there be maintained for property distrained for its payment

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, *529in this branch of the case, must be assumed to have been contracted without a violation of the constitutional ■rights of the citizens, and for purposes beneficial to •them,.and within the general object or end of their incorporation.

The provisions of the amended, statute authorizing the tax for Railroad stock and making it stock in theroad, was not a violation of the rights of the tax payers but to their advantage.

If the taxing power exist and a tax be rightfully levied, it is not rendered invalid by a provision by law for its repayment or partial repayment to the tax payer or because the benefit might not be equal in its operation.

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.

*530The .power of the Legislature to delegate ,t,p local corporations the power of taxation for local purposes, is well established by legislation and judicial sanction.

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 *531half. The same charter had expressly authorized the City of Louisville to raise the amount- which it might subscribe, as it might be called for by the Company, by tax on the real and personal estate, or either, within the City, or by, borrowing . it, in which latter case, they were authorized to provide for the payment of the principal and interest by taxation, as-in the other case.

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.*532And We do not perceive the force of the argument by which it can be contended,- that the authority to levy and collect the tax is invalidated, and the obligation to-pay it destroyed, because, with the assent of the City* the citizens who shall actually pay the tax by which her debt for the stock is to be discharged, and to receive from her the stock itself,- for which they shall have-paid.

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 *533With the interests of the City, with the view ef paying, for the stock by future increased taxation on the citizens, and dividing it out among them, in proportion to-their respective payments of the tax,.would, as an assumption of agency for individuals, in a matter of mere individual interest, be highly objectionable, and, perhaps, incapable of being made valid, even by Legislative-sanction ; it cannot be admitted, that the transaction? before us is brought within this description by the fact-that the City, in levying the tax for the discharge of her obligation, incurred by subscribing, for the stocky proposes to surrender the stock itself to the payers of the tax. Even if this condition of surrendering the? stock had been included in the original charter of the? Railroad Company, authorizing the City to subscribe and pay for the stock by taxation, and had been one of the terms on which the subscription was consented to by the voters of the City, and- made by the Mayor and Council, it could not have been thence inferred, that the'true nature and effect of the proceeding, was merely to make the tax payers of the City,.stockholders in anew and foreign . corporation. In the-, first place, it could not be presumed that the Legislature would have sanctioned,'or that a majority of the voters would have assented to, or that the City authorities would have attempted or desired, the imposition of such a burthen upon the citizens, against the consent of any, for the? mere purpose of affecting their private interests and-condition, without any motive, or prospect of advantage to the city at large; but the contrary of all-this-may be safely assumed. And, in the next place, the-Railroad Company was not incorporated merely for the purpose of making profit to the stockholders, but for the accomplishment of an object apparently of peculiar interest to the City of Louisville; and it may be taken as certain, that her subscription was made with the view, mainly, of securing the accomplishment of that object. And her proposing to surrender the stock to the tax payers, is not only consistent with this conclusion, but tends to confirm it, as it was divesting herself of some advantage, obviously for the purpose of inducing a *534prompt discharge of the very heavy burthen of taxation? to be imposed upon the citizens, whereby the execution* of the work would be expedited.

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*535er of taxation for local purposes, -to the regularly constituted local authorities, is too well established, both by Legislative precedents, and by judicial decisions, to be now denied, and is, in fact, conceded on all sides in the present ease, the question stated resolves .itself into the enquiry, first: Whether., in the .present .instance, the power is delegated and exercised for .a purpose.properly ]ocal, or within the legitimate -objects of the local corporation? .and, .second: Whether, if it be so* any invasion of the constitutional rights .of individuals is involved* either in the circumstances under which .the power was delegated,.or in those which have .attended its exercise?

The Legislature have constitutional authority to grant to town co rp o r a t i o n s power to tax the propertyof towns' or cities, for-the construction of works of internal improvement, for facility of access to and transportation to and from the town or city: (8 *Leigh’s Bep.*120; 15 *Connecticut Bep.*475, (t-c.; *Ten. Sup. Court.)*A Rai l-road to a city is such work.

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 *536that the object to be accomplished be so connected with the City and its interests, as to conduce obviously, and in a special manner, to their prosperity and advancement.

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 *537taxation, by the City of Louisville, that she might, even without a special act for the purpose, have contributed to it from her surplus revenue, as coming within the legitimate objects of her original corporation; and that under a special authority for the purpose, she'might, as she has done, contribute to it by a subscription of stock, involving future increased taxation, provided no right of her citizens is infringed thereby.

The constitution and laws should, if possible, be so construed as not to work inequality and injustice to citizens.

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.

*538Taxation by a local corporation lor a local purpose, and tending to promote the local prosperity, is within the scope of the corporate powers of city corporations, when sanctioned bythe legislative authority, though not consented to by eaehindividual to be -affected thereby — the will of the majority is to govern when it is referred to the decision of those to be affected;

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 *539*Cheany vs Hooser,(9 B. Mon. ante,*338,) upon thesubject -of local taxation, as having an important bearing on the objection which has been stated. With regard to the right of the individual to oppose otherwise than by his vote, the increase of taxes beyond the rate existing when he became a citizen, or acquired his property, nothing need be said. All experience is against it; and it is repudiated by the exigencies of every growing town in this and other countries. And as the right of taxation, or of increasing the taxes for any special purpose, so far as either is legitimate, does not depend upon the individual will of each citizen who is to be subjected to it, and even a majority cannot impose a tax upon the minority, except as authorized by the constitution and laws, we have referred to the vote of the majority in this case, not as giving authority to the Legislature, but as demonstrating, with the other facts,, the existence of a peculiar local interest in the object to be affected by the tax. Of what class of citizens that majority was composed, the record does not inform, us; nor is it material to the question of power. Those-who expressed their opinion, were the legally qualified voters of the City, and by its constitution their will*, within the sphere of the corporate authority, determines, sooner or later, the action of the corporate body.. And the very fact that the money to be raised by the tax, was not to be expended within the city, and that the benefit to be derived from it was, therefore, to be felt in the effects of the contemplated work, upon the-property and business of the City, tends to prove, that no motive disconnected with, or opposed to, the interests of the property holders and business men, operated to produce the expression of opinion in favor of the subscription. If there was a difference of opinion among them in this, as in other questions coming within the range of the corporate powers, the wishes and opinions of the minority must yield to those of the majority..

*Pirtle*4" *Speed and Loughborough*for appellant:; *■Guthrie*for appellee. ■

Wherefore, the order overruling the prayer for a prohibition, is affirmed.