Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1878-05-11

W ~ ~ IL VI anu county II
levied upon such road in the county, although
It's taxable value might be Il half million of dol
lars. This section would seem to be clearly
obnoxious both to sections Is and II, article Il
OF the Constitution of 1865, in thIs-tliat to the
extent that the revenue, dsrIvable from II tax on
such road and its property for county purpo- es.
Is taken from the county treasury and diverted
10 the payment Of bonds issued for IA township,
every citizen OF such county IS male in effect,
ami in fact. TO contribute that much more TO the
treasury of the county than they would other
wise have To pay and thus II township subsGrIp-
ton would be converted into n county subscrip-
ton not upon the vote of twO-thirds of the
qualified voters OF the county but on the vote Of
two-thirds of the voters of II township thereof.
To give this provision effect would overthrow
the very object of section IL, which WAS to pre-
vent the citizens of u county from being taxed to
pay Y railroad subscription except upon the
assent OF tw"-thirds OF the voters OF such county.
To the extent that section ) wiihdruws the state
tax on such roads. and applies 1t To the payment
ola township subscription, every citizen of the
state In effect and in fact is required to pay IL
part of such subscription. when section IL ofthe
constitution declare, THAT the credit of the
State shall not be given or loaned in aid of any
answer 10 this TO say that this 10 not giving or
loaninE the credit Of the state. We agree. that ii
Is not done directly, but that ii Is done indirectly
10 Clear; for what is the difference between Civ
ing this tax directly to the railroad corporation
and giving it to u township to pay a Gebt con-
tractei 10 such corporation 7 Can that be done
indirectly which Ii forbidden to be done di-
rectly?
1t SO, constitutional inhibitions accomplish
nothing, and organic laws may be SGT at nausht
by the mcrest evasion.
We admit the power of the general assembly
TO control and dIspos. OF the iunds and reve-
nues Ofthe stale In its fullest and broa,le.t sense;
but when II ls limited and restricted by the con-
stitution it Is to be exercised only in conformity
thereto. and not simply according to legislative
will. We arprehend that Il law declaring that
10 per cent. OF tho state taxes should be diverted
from the state treasury. and applied to the pay
ment of township subscriptions to the stock OF
railroads thereafter to b- partly built thereby,
would be clearly vi0lAtiye of section IS
The object of the inhibition imposed by sec
ton IS was to relieve the people Of the state
from the imposition or pay ment OF any taxes
into The state treasury to meet uny obligation
which might In The future be contracted by the
state, either In giving or lending its credit to or
becoming u st"ckhoiier in any corpO alton. and
this object We think it edectually acGOmrlishes
by absolutely forbidding such iebts to be there
after made.
II under it the general assembly could not give
nor lend the credit Of the state. nor authorize
the state to become . stockhDldrr, and raise by
taxation money To pay such indebtedness, when.
to Say th' least, the state would get as u consid-
Grafton the stock thus paid Tor, il would seem 10
be absurd to sa. that; notwithstnnd ng the pro
hibition. they might 10y law raise revenue ami
be-tOw II as = Eruiuity On such corporation. or
gave II u u township. 10 pay II debt which they
could NOT authorize to be contracted on behalf OF
the state. Section s Of the act does this. II de-
clare5 TO the people of the township that,
although We cannot give nor loan the credit OF
stock subscribed IN n corporation. We authorize
YOU 10 give and become stockholders therein,
anu Will give YOU the revenues oil the STALE to
meet the obligation.
The fifth s-ction Of the act of 1863 IS the COM
pensRtory section OF the act and may bc said to
sustain the same relation to the whole act that
th- consideration clause IN q contract sustains
to the whole contract. Under its provisions. the
people of the township, were led to suppose
that IN subscribing stock to II railroad they could
IN no event become losers. Hs the tax provided
for its payment IN said section would not only
discharge the debt but ultimately secure TO th'm
in all time to come n school fund over and above
that Possessed by other townships.
To declare this clause unconstitutional and the
remainder constitutional would he like ieCiar-
ing The consideration clause OF Il contract void
and upholding the contract it was intended 10
support, and would, We think, be in disregard
OF the rule laid down in Cody on Con. Lin,
lIS, that when y part of II statute IL uncOn-
.tltuiional. that fact does not authorize the
courts 10 declare the remainder void. uniess all
the provisions are connected in subject matter
del ending on each other, operating together FOR
the same purpose. or otherwise so connected in
meaning that 1t cannot be presumed that the
III" other The hith section OF this act being
the part evidently intended TO induce the sub
scrIriion, the payment OF which IL provided for.
We MAJ reasonably presume that the general AS
s-mhly would never have passed the law with
this n"c'Ion left ont.
Hence, MS tn. provisions contained therein ar.
connected in subject matter with The other pro-
Visions ui the act, Olci ate together AID are uni
ted IN purpose. the whole act il Contaminated
with the vice of the 9Th section. and must tail
with it
1t is also argued that the act of lS6S IL void be-
cause the general Assembly had no power To au-
thorize townships, as organized in tins state, To-
subscribe Ia the capital stock of corporations
und Issue bonds or impose II tax to pay it.
This question is not free from difficulty The
right or power Of the Legislature. of n state to au-
th"riz" aid IN the construction of railroads has
not, as We think, been rNtepded OF applied to
any other than municipal, public or qia-l cor
pOrutlons. and We think it may he affirmed that
no case ID To he foMni, where the point here
raised WAS presented and considered. IN which
it has b,eH a~djuigei that such an authority can
he iplpU atat I IA v taWA II, naf IA win "a Ytln
rate. or quasi corporate. existence. Under our
law townships OF the various counties have no
any OF the incidents or powers OF n corporation;
they can neither sue nor be sued, contract or be
contracted with, but are mere geographical Iii
visions of u county made principally for election
purposes, IN each Of which the people may elect
= constable and two Justices OF the peace. /, is
declared IN tsection lO4, page 2ls, Dill. on Cor.
that II long line of unbroken decisipns-in the
courts of most OF the -tates-ias established tn.
pr,Dclpl. that in the absence of special restrIc-
live constitutional provisions it i. competent for
the legislature to authorize Il municipal or pub
lie corporation to aid in the construction of rail-
ways running near or to, or through them, by
subscribing 10 their stock and taxing the lnhab-
itAnts or the property within their limits, to pay
the Indebtedness thereby incurred An exam
ination of the cases cited from twenty or mere
states. rs authority for the text We think discloses
the fact that In no one of them WAS such authority
conferred on my other than a municipal or pub
lie corporation. When in any case cited the all
thority WAS conferred upon q township. such
township had a corporate ext tence, and could
contract. sue and be sued rs a county, city or
town: This being so; We cannot consent to ex-
far rs to saw that the legislature Of this state could
confer an authority to MID in the construction OF
a railway to u township having no corporate cx-
i,tenc.. and sustaining only tho same relation
t. u county that the ward of city does to the
city.
Counties. cities, towns and townships only.
when they were corporations. were the only
Glasses Of political subdivisions of the states
upon which it had been a,ijudgcd the legislature
had nnweF IN cnnfeF the right IN ali IN the CON
structiOn of railroads by subscribing TO their
capital stock. and paying therefor bv the is-u-
Ance of bonds and taxation. In other words. II
had only been held, when the constitution of lS65
was framed. that unless Il state constitution con-
tanned restrictions on the power of the legisla
ture, itlnIEht confer the right on counties. cities.
towns and townships. when such townships had
Corporate existence. To become stockholders in
railways. and lend their AID TO such enterprises.
And, AS IN this state townships hal no such
corporate being. rs the towns of New England
states. or the townships OF many of the western
states; but, "a before stated, were mere ger-
graphical subdivisions of counties, and hence
the members of the convention were not called
upon, nor was II necessary that they should I'M
pose a restriction on legislative power Is 10 such
townships. because II hsd not been then aijuiI-
Gated. (lithouRh the courts had gone 10 extreme
lengths on this subjeCO, that the legislature OF y
state could confer the right 10 aid in the con-
strnetien of u railroad on any mere geographical
uD-division OF the state not rising to the dignity
At least Of y quasi corporation.
While the decisions of courts of tho highest
character in three fourths of the states have es-
tAOiishen tue right OF u Stale legislature, unless
forbidden by organic law. to exercise the rx-
traordinary power Of authorizing municipal
corporations to impose taxes and contract
debts for the purpose of constructing ilwSvs.
the doctrine was IN most cases dissentcd from
by eminent judges. and has always met with
much professional disarproval. lDill on Corp.
II On original proposition, We would hold that
such power did not exist at all: but 1t has been
for so long a tima settled the other way, and so
repeatedly decided that, to the extent that these
decisions have gone, the question is no longer
open for discussion, and the rights acquired
under them cannot be ovrrthrown.
But the question as to Whe.ner the power eS-
listed in the legislature to confer the right on any
other than q municipal or quasi corpor alton is
not of that character. and we are inclined to
deny that such power existed either under the
constitutions of lS20 or 1885,,
" hile we conceis that II has been established
by the courts that railways are such public i'm
prOveInents rs would authorize a delegation of
the taxing power 10 municipal corporations, We
do not cOncede that this principle has been so
far extended As to justify . delegation oil 1t to u
township, q mere geographical subdivision OF a
county. and in no sense q corporation. If SO,
may not . majority Of the citizens of u congress
sionnl township, which il n legal subdivision oil
. county. embracing thirty-six sections of land,
or the citizens of y section OF GO acres, or n
quarter section of LOO acres, be empowered TO
subscribe stock 10 . railway, issue bon,is and
levy q tax on such township, section or quarter
section.
While we admit that the state, in the exercise
Of the right of eminent domain, may impose
taxing power TO its local municipal authorities,
for local improvements, and to le controlled py
such authOI tiles, We are unwilling to give ii a
wider scope than we think the adjudged CASES
allow, and extend its operation to mere terrific
rial divisions of "a county, the logical results of
which VI Guild he nS nhnvp lp,lisutpi If ia claim