The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1873-03-08
vNc EXTRAORDINARILY !!!u!!. Of RAILROAD

unc InsrlIunoNAll1y OF RAILROAD
SUBSIDIES.
Dse,siss Of ths SsyFsns Court q sssen
gaS
QOpnion BY Judge Cooley
.,v,vxs COURT OF NScmioAH.-rRE PEoPE TX REL
rwE DxraOir AND HOWELL u. H. 90. Z. THE TOWN
SNIP SOARD o. sALE1
II IL Fundamental principle In the law Of taxation
that taxes must BE- laid Tor psblie and not mcf'
statue authorizing the levy snd collection Of .
tax to aid railway companies In the construction 81
their roads, violates the fundamental principle aud
void.
A statute which undertakes to confer upon ma
Iorty Ut the vOters Of township authority TO vote
TAX, the proceds Ut which are u be given 70 rsway
corporations to aid IN the construction o. Ioaos 20 l
through the township. II not mn enactment author
The nsture a"d evient Of the taxing power, aud the
Limitations upon II, discussed BY eoo'cy''
This wss = motion for Xandamus. In
1894 the legislature passed an act allowing
certain townships u pledge their credit "
cid In the construction Of certain railroads
Tue electors Of the townships We're author.
lied 10 hold meetings to determine what
amount should be raised for this purpose,
and the form, mode OF issuing, and other
particulars relating to the securities ny winch
the credit was 70 he gwen: Laws OF leo4'
p. 90.
Under this act the township Of Salem
voted Aid 10 the extent of five per centum OF
lie assessed valuation; but the meeting Ut
which tho vote was taken was irregular for
want of sufficient notice. and special act
of the legislature was obtained 10 lcgalIZe
the came Tue township board refused u
issue the securities voted, claiming that the
act of 1854 was IN excess Of legislative au>
ii,,rity. aud tue, efOrc unconstitutional aud
void, and that the township vote was IN con.
seouence y nullity. The railroad company
thcrcupon applied for writ OF nandamus
70 compel the delivery Of the securities.
understand that, In order 10 render valid
burden imposed by the legislature under
IN exercise Of tho power Of taxation. the
following requisites must appear:
/. II must he imposed fors public and not
. mere private purpose. Taxation lisa mode
Of raising revenues for public purposes only
and, Is Is said In sOmcOf the cases, where It Is
prosl,tutcd 10 objects In no way connected
with the public interest or welfare. it ceases
to he taxation and becomes plunde:: Sharp
Iesi v. Nayor, 81 Penn. st. 1853; Grim "
Wsissnberg School District, 81 Penn. st.. a33;
Broodhsad '. Xilseaukee, 0 Wis. Oj2.
g. The tax must be laid according 10 some
rule of Mpportionmcnt; not arbitrary or by
caprice. but 50 that the burden may be made
to fall with something like impartisIity up.
on the persous Or property upon which 1t
justly and cqui,ably should rest A state
burden 70 not to be imposed upon any ter
ritory smaller than the whole state, nor .
county burden upon any territory smaller
or greater than the county. Equality
In the imposition Of the burden Is Of the
very essences Of tho power itself, and though
absolute equality aud absolute justice arc
never s,tsinablc. the adoption of some rule
tending to tha. end Is indispensable: " -
'. kIlpaukee, 10 Wis, 2jS; Ryers {.
Utaey, 10 Mich, 200; Mcrriek " Anherst,
IL Allen 6Ol. ..s.
g. As corollsry from the preceding, If
the tax 10 imposed upon one Of the municipal
sui. divisions Of the state only, the purpose
must not only 10 public purpose, - re-
CARDS tho people of that sub division. but u
must also be local, that IL to say. the people
Of that municipality must have special and
peculiar interest in the object 70 he accom-
plishcd, which will make i, just, proper and
equitable that they should bear the burden,
rather than the state at large, or any more
considerable portion Of the state; Weasv.
Weston, ~ No., 2Ss; Cosingto" '. South.
gate, ii B. Mou., 4ol; No.tord ', Unger, 8
Iowa, 81.
The three principles here stated are fun.
damentsl maxims In the law Of taxation.
They inhcrs - conditions In the power to
impose any taxes whatsoever, or to create
any burden for which taxation isto provide;
and It 10 only when they arc observed that
the legislative department 10 exercising an
authority over this subject which It has re.
ceived from the people, aud only then 10
that supreme legislative discretion OF which
the authorities speak called into action.
No discretionary power In that department
10 % absolute, and no judgment It can pro.
nounce 10 % conclusive, - 10 preclude tue
citizens contesiing II whenever he believes
his rights have been invaded by y disregard
Of any Of these conditions. The duty Of
considering such . question Is both IN.
welcome and undesirable, but It 10 not
duty which can be avoided, and We have no
disposition to postpone its performance.
In the present case Il appears that the Oh.
jet Of the burden II not 10 raise money for
. purpose Of general state interest. Its Oh.
ject, on the contrary, 10 to create demand
which shall he burden upon . small por.
ton Ut the state only. On the ground of
local benefit small district Of tho state 10
to be taxed to encourages local enterprise,
which II 10 supposed will he Of such peculiar
local advantage that this district, rather
than the state at large, or any greater or
smaller portion Of tho state, should con.
tribute 10 Its construction. The road, when
constructed, 10 nevertheless to be exclusive.
y private property, owned. controlled and
operated by . private corporation for the
benefit of ito own members, and 10 be sub.
ject to the supervision and control of the
state only ~ other private property IL, with
such few exceptions ~ the state In granting
incorporate powers, has stipulated for. 10
order 70 secure impartiality In the manage.
,nent Of Ito business, and 10 prevent cxtor>
ton. Primarily, therefore, the money.
when raised, 10 u benefit private corpora.
ton, 70 odd TO It's funds and increase it,
property; and the besedt 70 the public 10 to
b secondary aud incidental. like that which
springs from the building Of . grist mill,
the establishment Of factory, tho openins
Of public Inn, OF from any other private
enterprise. which accommodates local
want, and tends to increase local values.
Ihavc sid that sailroads q of.sa spo,.es
Of ~ species Of public highway. They
are such In the sense that they accommodate