The Kenosha telegraph. [volume] (Kenosha, Wis.) 1860-1888, 1860-12-20
SUPREME COURT,
Orlando Foster ct al
Respondent,
The City Of Kenosha.

Orlando Foster ct al
Respondent,
The City Of Kenosha.
Appellant.
This complaint was filed by the RESPONDENT on
his own behalf and on behalf Of other land cwn.
ers to restrain the City of Ken0sha from collect
fng special tax of $8 625 levied by the City up
the real estate therein situated for the purpose
ofpaying debt originally contracted by the sock
subscription of the city to the Kcnosha g. BaIolt
k. h. Co. This subscription was made under and
and by -thority of Sec. Z, of act to amend the
charter of The city of Kenosha and Of Se3 a of
the charter and also by virtue of ordinance OF
the common council, submitting the question to
the legal voters, whether lax of ole hundred
and fifty thousand dollars should be levied and
collected for the promotion of the common intert
est of the -ity, in aid of the enosha and Beloi
K r. sc. and authorizing the Mayor to Subscribe
in the name of the city. that amount, to the CAPT
tai stock of the Company, providing nj jority of |
the legal votes was in favor of such tax.
The counsel for the respondent contends that
section 8, of the act TO amend the charter of the
city (which is above referred to- is unconstitu-
tonal, and necessary consequence, that the
action of the common council under that section
was unauthorized and void. This section he in
sists, is in conflict with section 8, Art. Al of the
constitution, and such is our opinion. That pro-
vision of the Constitution reads follows sit
shall be the duty of the Legislature and they are
hereby empowered to provide for the organization
of cities and Incorporated villages, and to restrict
mone1, contracting debts and ioaaiag their ered
it, so as to pre0eAt abuses IN assessment aud taCa
ta0n aud IN contracting debts 6y such municipal
cOypsrati0nS. Section of the act amending the
charter reads The city council shall have pow
er to levy and collect special taxes for any pur
pose aside from what may be specially provided
for in the city charter which may be considered
essential to promote or secure the common interest
of the city, or may borrow on the corporate cred
it of the city for such purposes, any sum of mon
ely for any time, at any rate OF interest not ex-
ceedng ten per centum, and payable at any place
that may be deemed expedient Bonds or scrlps
may be issued therefor, under the seal OF the cor
pOration and the resources and credit OF the city
are pledged for the repayment OF the sums so Dor
rowed with the interest on the same. All such
moneys shall be expended under the direction of
the city council; but no such tax shall be levied
| or money borrowed except IN accordance with the
the provision of section fortyfour of the city char
ter and in all cases where questions under this Sec
are submitted to qualified voters, the amount and
object of the proposed tax or loan shall be spe-
cifcally stated to be voted upon" Chap.
| ITO, Private Laws 1858, page 304l
| Here it will be seen is Unlimited grant OF pc ~
err to the common council of the city, TO levy and
collect special taxes, or borrow money on the cred
it of the city for any purpose whatever, which may
be considered essential to promote the common in
terest of the city The Common Council have au
thority to contract debts to any amount, impose
taxes for any and all conceivable objects and pur
noses embark the finances and credit of the city
common council, will contribute to the wealth,
prosperity trade of the city, or promote the SO
cial and material condition Of its citizens There
is no limitation restriction imposed by the leg
islature upon the power of the corporation to run
in debt or burthen the people with taxes. Il the
common council deem it expedient, and major
ty of the voters of the city will sanction the policy,
the city in its corporate capacity may carry Oh
works of internal Improvement, at home or abroad
so that those WORKS are calculated to stimulate
trade and increase the business of the city. NO
matter how ruinous these special taxes might be
to the owners of real estate, to the minority OF
the tax PAYERS, vet do not see why, under TINS
section of the charter, the Common Council and a
majority of the qualified voters, might not compel
the city to become stockholder in line OF steam
boats to up and down the Lakes Tor transpor-
tation of freight and passengers subscribe tor
stock in Railroads; improve harborsi open roads
and build bridges without or within the city Inn
its erect and operate Touring mills; keep hCtei, or
in short, embark in any mercantile manufacturing
or commercial enterprise which, in the language OF
the charter, may be considered essential 10 pro,
mote secure the common interest OF the CITY,
and pledge the and credit OF the CITY Tor
the repayment of all sums borrowed Tor these pnr-
poses, and impose taxes to meet the same NOW,
the question arises, can the Legislature confer up
on municipal corporation such unlimited power
of taxation, such unrestraned ability TO contract
corporate Indebtedness, and mortgage the real es
tate of the city? If it had merely organized the
city government without imposing any restraint
upon the power of taxation and to raise money,
the corporation could only have imposed taxes and
raised money for the legitimate municipal pur
poses.
The power of the corporation over these matters
would have been limited by the obeject and law
of its creation. A municipal corporation is organ
lied for political and governmental purposes. ai.C
invested with such powers as are necessary or In
cidental for the purposes of local government
The right of taxation only be exercised by the
municipal corporation, to raise money TO meet the
expenses incident to the city government, and The
exercise of the political powers for 10 such 10
iects only does the necessity Of taxation exist
not to enable the city to embark III any enterpriS,
or business which may be deemed profitable or ad
vantageous to the people at large. la this State
the constitution imposes upon the Legislature th
duty when providing for the organization ut cite,
and incorporated villages, to restrict their power
of taxation of borrowing money, contracting d3bt
and oaning their credit to prevent abuses il
assessments ard taxation, and IN contracting debt
by such municipal corporations This provision
of the constitution would be dead letter entirel,
imperative and ofLO effect If section 9, amcndm!
the city charter, can stand For, as already ob
served, that provision OF the charter cOniers upoi
the City Council the most unlimited power to lew
taxes and run in debt. 1t does not coufinc thu
common council to municipal purposes, when ex
L ercising the right OF taxation they had this pow
t er by the Ortrnal charter. That gave the author
ity to levy all the taxes and raise all lie none,
necessary TO carry on and support the city govern
!, ment But this amendment was intended to con
Ter right IdXdIlOH DGyuDu tluI gwen IN llt
charter and for other than municipal purposes. /
: is power to impose special taxes to any amour
i and for any purpose whatever which may be con
sidered essential to promote or secure the common
interest of the city. do not think the Legislature
could confer upon any munclpdl corporation sucl
unlimited such absolute power OF taxation. More
especially is the Legislature restrained from con
ierring such power under a constitution which i'm
poses upon it the duty, in organizing cities and Ill
lagos to restrict their pOrer II t0cotj0n, borrowing
money, and contracting debts 1t is very clear
that this provision of the constitution does not
tain grant of power to the Legislature to organ
lZe cities, but is restraint upon that power The
Legislature possessed the power to incorporate Cit
les. This was incident to its general legislative
lower. This provision undoubtedly placed
in the constitution by its framers with full knOwl-
edge that the Legislature then possessed and would
continue to possess and exercise the power OF au-
thOrizing municipal corporations to levy taxes and
borrow money, and it was intended that the Leg
isature should notsgive this authority without re-
sricting it SO TO prevent abuse anu oppression.
This evidently was the object and design OF the
constitutional provision Now, can the Legisla
ture disregard it entirely Can it confer upon
municipal corporation the right to impose taxes to
any amount and for any purpose? We think not
And therefore, when the Legislature attempts to
confer upon municipal corporation an unTestrict-
cd power to levy taxes and raise money, aside from
and above what may be necessary and proper to
support the local government and for legitimate
municipal purposes, such unlimited grant OF pow
er must be held to be void. Otherwise, no force
or effect is given to the provision of the constiu-
ton cited.
| Nor do we consider if sufficient answer to this
objection, to say that The Legislature properly re-
strcted the power of the corporation to levy taxes
and contract debts, when they provided thatno tax
should be levied, or money borrowed under section
g. unless majority Of the voters should be in ia
vor of levying the tax making the loan. For in
the latter case, the restriction would be one i'm
posed by the people rather than the Legislature.
Besides if majority OF the qualified electors were
in favor of the tax, then the Common Council
would have the power to impose it without limit.
Thus the minority would be oppressed, and at the
mercy of bare majority of the electors. And one
Of the great advantages and blessings of a written
constitution above all others, is that the minority
can invoke its protection against the oppression
and demands of violent majority. Itmay be said
of