New Orleans Republican., 1871-04-06

baid ~ ebtain reoFuits loes ~ wuk. The
tax Wa IN each cases suntained, but upon
the d:t;inctly .;a. .sS ,s,, ,spinios that Tie z
been void. Tyson ct q ". School Directors,
etc., 81 Pennsylvania, 9. In this case the
court remarked that . law imposing tax
tor . private purpose. would much moro
resemble an imperial resefipt than cenetftu-
Nona1 GRislation. Booth W. 1wnM Wtod-
bury, 81 Connecticut, ll6. Freelana ".
Hastings, 10, Allen (MassachusettsA so. In
this case the doctrine was clearly announced
that tho Legislature has NO power to impose
tax which would inure to tho exclusive
benefit Of particular individuals. /" It IL
hardly necessary to say that . statute
designed to accomplish such purposes would
be against common right, and would trans
oend the authority conferred on the Legis-
lature by the constitution"
/ So Mr.. Justice Cooley, after reviewing the
nature Of the taxing power, after conceding
that the only limitation beyond the express
restrictions Of the constitution il that the
levy must be for psblic purpose, remarks:
There arc cases where it is entirely p0ssi-
BILE for the Legislature 80 clearly to exceed
the bounds of due authority that we can
not doubt the right of the courts to inter
fere to check what can only be looked upon
|
Of the case is such that judicial process can
afford relief. An unlimited power to make
any and everything lawful which the Legis-
lature might see TT to call taxation would
be, when plainly stated, an unlimited power
to plumber the citizen" Constitutional
Limitations, p. 4N.
So, again, he says: "When, therefore, the
Legislature directs the levy Of tax for
purpose not public, and which can not be
properly made public burden, - we
must conclude that they are exercising an
authority not conferred in the general grant
Of legislative power, and which is. there
fore, Unconstitutional"
These principles were clearly announced
by Judge Cooley, as the organ of the Su-
preme Court of Michigan, in the case OF the
People ex rel. the Detroit and Howell
Railroad Company vs. the Township Board
Of Salem, recently decided; American Law
Review, October, 1870, p l26; also by Chief
Justice Dillon, Of the Supreme Court Of
Iowa, in the case of Hanson VI. Vernon,
1869, American Reports, 2l5; and sub
sequently by Judge Dillon in 1871, from the
bench Of the Circuit Court Of the United
| States, district Of Iowa; Chicago Law jour-
nal, January q, 1871. These decisions have
been severely criticised because they also
| determined that acts authorizing municipal
aid to railroads involved taxation for private
purposes. st..E
Another important case was decided by
the Supreme Court of Wisconsin in 1859.
The Legislature authorized the town Of JEFF
| fers0n to raise q tax for private educa-
tional institution. 1t was contested. Chief
Justice Dixon said: ~ 80 ~,
''It strikes US, at the first blush" that this
| Is not the levy and collection of money for
public purposes. It is not the kind of
public benefit and interest which will au-
thorize . resort to the power Of taxation.
| And so the law was held invalid because
the public had mo- interest in the object for
which the money was proposed to be raised.
The court cited the case Of Philadelphia Vs.
Wood, 80, Pa. 73, as sustaining the prin-
cipIe.
| tiles I have been obliged to select at ram
dom. Numerous other cases and authors
could be cited if time and space would per-
NIT. think, however, that the doctrine
limitations upon the power of the Legisla-
lures Of the States beyond the explicit re-
strictions imposed by their constitutions
and the constitution of the United States;
| that these limitations arise out of the nature
Of the Legislative power" vested in the as
semblies by the State constitutions.
believe that the weight OF re-
the courts are bound to declare invalid any
act which at first blush," upon its face,
appears to have been passed not for public
purposes. not for the good of the people, but
for the private advantage of one or more
persons. .'sat
Is the law No. 50, under which these re-
lators claim, such an actl have already
said that l have no doubt, judging alone
from the face of the statute, that it makes o
simple donation to MIR. Nixon, and that the
people have no interest or advantage in the
disposition. The question then arises, is
there any difference in principle between
an act making an appropriation cut Of the
public treasury, and an act levying tax
1t is clear to me there is none. The unlim-
tied power of taxation for public purposes
is conceded. Here the legislative discretion
can be levied and collected of one, two or
three per cent 'for the purpose of sustain
ing the government of the State"
and then, if this money can
be used for the private advantage of the
benefciaries of the legislature, the evil
would be none the less Experience in this
country proves to what fearful corruption
this power would lead. If sufficient ma
tiOrity of the members of the assembly can
be got together in q ''ring," they can
agree to pass any bill, and the whole rev.
enue of the State could thus be diverted to
the purpose of enriching the members. do
not think that the courts in this country
can be induced to decide that, in the exer-
cise of the law-making power, the legisla-
ture has the constitutional right to rob and
steal either for the advantage of the mem
bers or for others.
The views have here expressed lead me
to the following conclusions:
l. The auditor, as the general accountant
of the State, may properly decline TO issue
| his warrant upon the treasury for a claim
which appears to him to be- Illegal or in
valid.
2. The State, by tho Attorney General,
may properly intervene in o mandamus
suit which has been instituted to compel the
State Auditor to warrant upon the treasury
in payment of claim against the State.
In such Intervention the State may urge
the unconstitutiOnality of an act Of the
General Assembly.
3. An appropriation made by the Legis-
lature, in the exercise of the Legislative
power, which is to be paid out Of the general
funds to be derived from the current reve.
nues, is not an increase of the debt OF the
State in contemplation Of the third amend
ment to the constitution of the State. The
act under which relator's claim il, then moi
violation Of the article of the constitution,
limiting tho debt Of the State to twenty,
; five millions.
4. The act of the Legislature entitled ear
act for the relief OF j. .. Nixon, late State
Printer" is, upon it's face, IA bill xpprOpria
sing money out Of the public treasury exclu
lively for private purpose; the people Of til.
State, for whom tho Assembly exercise
. the legislative power, have no interest ant
can derive no advantage from said apprO
| priatiOD, bat are nevertheless required Il
nav IL from the tn xt,s levied ,lnOn their nron