The Emporia news. [volume] (Emporia, Kan.) 1859-1881, 1874-12-18

prevent abuse OF sucn power"
Upon this counsel argues, THAT there
must be some restriction in any act Of the
legislature which purpOrts to confer on
cities tie power OF taxation or assess
ment, has been decided by this court
Hines vs.. City OF LeavenwOrth; . ham,
sas, 204. II the city council of any city
can. SIS the counsel In effect says they can
by . simple re-Ieyy under said section Al,
cure any and all defects arising either
from want OF sufficient authority or OH
er cause" then We say there is no re-
strietion. II this court shall hold that
the construction or effect claimed by the
counsel OF said section Al is the correct
one, then city council may disregard all
restrictions, no matter how wise or salu-
tary, or how well calculated for the pro-
lection Of the property owner. and may
incur any and all manner Of Indebted
ness, and when the taxpayer ohjt cts, and
perhaps seeks his remedy in the courts,
the council may let the matter rest tili
the next animal levy, make 4 re-levy OF
the void tax, and str aightway the whole
thing Is cured. Such doctrine Is mon
strous, and cannot be the law. Hence.
counsel concludes Ihsf Il IL only valid ;"
far as it "applies 10 gases Of ASSESSMENT or
levy of taxes, which were authorized by
law in the first instance, but ere void by
reason of some irregularity or neglect To
comply with the law regulating proceed
ings in such cases, and that as to such
cases only can this section Al make valid
subsequent re-levy or assessment"
1t would seem to be conceded by this
statement of the counsel that this section
was not intrinsieally and absolutely in
valid, but only so in application to GER
tain cases. Now it is well known that
statute may be attacked for unconstitu-
tionality in more than one way. 1t
may he so wholly and directly at vari-
ance with some constitutional provision
that 1t Is, under all circumstances and in
al applications. absolutely void. A law
granting divorce, one reducing the
terms of county officers TO one year, and
one making the state 3 stakeholder in q
banking /. stitutiOn, are examples OF such
void enactments. Again. legislative
act may be entirely valid - to some
classes of cases and clearly void as to 9TH
ers. A law might be void as violating
the obligations of existing contracts. but
valid rs to all contracts which should be
entered into subsequent TO its passage,
and which would, therefore, have no Ie-
gal force except such as the law itself
would allow. CoOIey's Const., Lin. $50.
And again, an act may be fairly suscepti-
BILE of two constructions, one of W hich
conflicts, while the other is in harmony
with the constitution. In the first case
the decisions would be uniformly against
the law and all rights claimed TO be de-
rived therefrom. In the second. the de-
cisions would vary according to the cir
cumstances of the particular case for
which the support of the law was iAvok-
ed; while in the third, that ccnstr Lotion
which supports would be preferred to
that which destroys the law. 1t seems to
us that this section may be placed in the
second class-that it Is valid as applica-
BILE to certain cases and invalid as to 9TH
ers. 1t purports to authorize 4 re-levy In
all cases of OF prior insufficient levy. It'll
is thus curative in its nature. But there
are some things beyond the power to
cure AS to these. it is invalid and mop
ASAAS W SNiS "i'D II
cures all within the power OF cure. Nor
should we look to this section for the re-
strictions contemplated by the section of
the constitution hereinbefore quoted, but
r ather to the original net by which the
power to levy was granted. If there
were no sufficient restrictions In that,
then that act was VOID, and there was
0b iRitiO failure OF power. Bat we
should not expect to find in n merely GU
rative act limitations and restrictions OH
an original grant of power. But what
defects may legislature cure, and is the |
defect in this case within the power Of
cure: Two or three things may lie re.
The original purpose for which |
the power of taxation was invoked was |
not one OF the extraordinary but one Of |
the common purposes of municipal gov |
IL WAS for the purpose OF i'm |
proving one of the thOrOughfares OF the |
city, as TO the difference If any which eX-
lists between those two elias SEES of eases in |
the extent OF the power TO cure. See
Hasbyouek vs.. Milwaukee; 10 Wis, 81
and the comments thereon in the same
court, by Oh. justice Dixon in the subse-
quent case Of Mills vs.. Charlton, % WIS.,,
4I3; and see, also. COoIey's COnst. Linz,
page $50. And note again, there Is MOTH
ing inequitable in subIecting these lots TO
the payment of this assessment. The
work, as 1t appears from the findings, was
well ana cheaply done, ard was q lasting
and valuable Improvement. There was
no fra ud in the making Of the contracts
by which exc essiye and unjust burdens
were imposed. There is no lneQuity In
ment upon the adjoining lots. There was
no partIality or oppression in the aD-
praisement of those lots. In fact, moth
ing appears to inYaiIdate the proceedings
except the mere omission of the engin-
GERS estimate. Again, this defect was
one a. TO 4 matter which might have
been omitted by the legislature In the
first instance. There Is nothing In the
nature of things which requires that an
estimate of the cost be made prior to the
letting OF the contract and the doing OF
the work. 1t may be very proper pre-
caution. but ir is within the unquestioned
power Of the legislature to authorize such
improvements without it. ''If the thing
wanting, or which failed to he done, and
which constitutes the defect In the pro-
eeedings, is something the necessity for
which the legislature might have dis
pensed with by prior statute, then 1t Is
not beyond the power OF the Legislature to
dispense with 1t by subsequent statute"
Co oley's COnst. Linz, al. In May VS..
HOldridge, % Wis, 90, Paine J. says:
This rule must of course be under
stood with the proper restrictions. The
work for which the tax is sought to be
assessed must be of such character that
the legislature Is authorized to provide
for 1t by taxation. The method adopted
| must be liable to no constitu tiOnal obiee-
/ ton. 1t must be such as the legislature
| might originally have authorized had It
| seen nit. With these restrictions, where
work OF this character has been done, I
think it competent for the legislature 10
proceeding, - adopt and ratify the i'm
| pfovement and provide for re-asSessment
OF the tax TO pay it,"
In Mills VS.. Charleton, % Wis, 400
Dixon C. j., referring to this case, says:
alt will be seen by examining the facts
/ IN May VIZ. HOidrIdge, as stated on pages
50 and 90 of the reports, that the original
proceedings were as void for want of Al.
| thOrity in the aldermen as 1t Is possible tC
conceive the original proceedings to have
been here; and yet the power Of the leg
islAture to legalize and authorize the reas
sessment was upheld.''
"The principle upon which these ant
other similar decisions rest is that thu
taxing power, when acting within its le-
gitimAte sphere and unrestrained by pos
tive constitutional provisions, is = far
reaching and unlimited power whiel
knows no stopping place nor moderation
of force until it has accomplished tn
purpose for which it exists, namely, tn
T actual enforcement and collection OF tn
} tax. 1t moves constantly forward TO IT
object until that is accomplished, and