it is entirely possible for the legislature so clearly to exceed the bounds of due authority that we cannot doubt the right of the courts to interfere to check what can only be looked upon as ruthless extortion, provided the nature of the case is such that judicial process can afford relief. An unlimited power to make any and everything lawful which the legislature might see fit to call taxation, would be, when plainly stated, an unlimited power to plunder the citizen.1

It must always be conceded that the proper authority to determine what should and what should not properly constitute a public burden is the legislative department of the State. This is not only true for the State at large, but it is true also in respect to each municipality or political division of the State; these inferior corporate existences having only such authority in this regard as the legislature shall confer upon them. And in determining this question, the legislature cannot be held to any narrow or technical rule. Certain expenditures are not only absolutely necessary to the continued existence of the government, but as a matter of policy it may sometimes be proper and wise to assume other burdens which rest entirely on considerations of honor, gratitude, or charity. The officers of government must be paid, the laws printed, roads constructed, and public buildings erected; but with a view to the general well-being of society, it may also be important that the children of the State should be educated, the poor kept from starvation, losses in the public service indemnified, and incentives held out to faithful and fearless discharge of duty in the future, by the payment of pensions to those who have been faithful public servants in the past. There will therefore be necessary expenditures, and expenditures which rest upon considerations of policy alone; and in regard to the one as much as to the other, the decision of that department to which alone questions of State policy are addressed must be accepted as conclusive.

Very strong language has been used by the courts, in some of the cases on this subject. In a case where was questioned the 1 Tyson v. School Directors, 51 Penn. St. 9; Morford v. Unger, 8 Iowa, 92. "It is the clear right of every citizen to insist that no unlawful or unauthorized exaction shall be made upon him under the guise of taxation. If any such illegal encroachment is attempted, he can always invoke the aid of the judicial tribunals for his protection, and prevent his money or other property from being taken and appropriated for a purpose and in a manner not authorized by the Constitution and laws." Per Bigelow, Ch. J., in Freeland v. Hastings, 10 Allen, 575.

validity of the State law confirming township action which granted gratuities to persons enlisting in the military service of the United States, the Supreme Court of Connecticut assigned the following reasons in its favor:

"In the first place, if it be conceded that it is not competent for the legislative power to make a gift of the common property, or of a sum of money to be raised by taxation, where no possible public benefit, direct or indirect, can be derived therefrom, such exercise of the legislative power must be of an extraordinary character to justify the interference of the judiciary; and this is not that

case.

"Second. If there be the least possibility that making the gift will be promotive in any degree of the public welfare, it becomes a question of policy, and not of natural justice, and the determination of the legislature is conclusive. And such is this case. Such gifts to unfortunate classes of society, as the indigent blind, the deaf and dumb, or insane, or grants to particular colleges or schools, or grants of pensions, swords, or other mementoes for past services, involving the general good indirectly and in slight degree, are frequently made and never questioned.

"Third. The government of the United States was constituted by the people of the State, although acting in concert with the people of the other States, and the general good of the people of this State is involved in the maintenance of that general government. In many conceivable ways the action of the town might not only mitigate the burdens imposed upon a class, but render the service of that class more efficient to the general government, and therefore it must be presumed that the legislature found that the public good would be thereby promoted.

"And fourth. It is obviously possible, and therefore to be intended, that the General Assembly found a clear equity to justify their action." 1

And the Supreme Court of Wisconsin has said: "To justify the court in arresting the proceedings and in declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable; so clear and palpable as to be perceptible by every mind at the first blush. . . It is not denied that claims founded in equity and justice, in the 1 Booth v. Woodbury, 32 Conn. 128. See to the same effect Speer v. School Directors of Blairville, 50 Penn. St. 150.

largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities." 1

But we think it clear in the words of the Supreme Court of Wisconsin, that "the legislature cannot. . . . in the form of a tax take the money of the citizen and give to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute."2 Or, as stated by the Supreme Court of Pennsylvania, "the legislature has no constitutional right to. . . . levy a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for all the reasons which forbid the legislature to usurp any other power not granted to them." And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription; "such an enactment would not be legislation at all. It would be in the nature of judicial action, it is true, but wanting the justice of notice to parties to be affected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings; it would much more resemble an imperial rescript than constitutional legislation: first, in declaring an obligation where none was created or previously existed; and next, in decreeing payment, by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions." 4

3

1 Brodhead v. City of Milwaukee, 19 Wis. 652.

Per Dixon, Ch. J., in Brodhead v. Milwaukee, 19 Wis. 652. See also Lumsden v. Cross, 10 Wis. 282.

Per Black, Ch. J., in Sharpless v. Mayor, &c., 21 Penn. St. 168.

4 Tyson v. School Directors of Halifax, 51 Penn. St. 9. The decisions in Miller v. Grandy, 13 Mich. 540, Crowell v. Hopkinton, 45 N. H. 9, and Shack

The Supreme Court of Michigan has proceeded upon the same principle in a recent case. The State is forbidden by the constiford v. Newington, 46 N. H. 415, so far as they hold that a bounty law is not to be held to cover moneys before advanced by an individual without any pledge of the public credit, must be held referable, we think, to the same principle. We are aware that there are some cases the doctrine of which seems opposed to those we have cited, but perhaps a careful examination will enable us to harmonize them all. One of these is Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143. The facts in that case were as follows: Cornell and Clark were formerly commissioners of highways of the town of Guilford, and as such, by direction of the voters of the town, had sued the Butternut & Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then refused to reimburse them these costs. Cornell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legislature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the succeeding town meeting. The voters decided that they would not tax themselves for any such purpose. Another application was then made to the legislature, which resulted in a law authorizing the county judge of Chenango County to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It authorized the commissioners to make an award, which was to be filed with the county clerk, and the board of supervisors were then required, at their next annual meeting, to apportion the amount of the award upon the taxable property of the town of Guilford, and provide for its collection in the same manner as other taxes are collected. The validity of this act was affirmed. It was regarded as one of those of which Denio, J., says "the statute book is full, perhaps too full, of laws awarding damages and compensation of various kinds to be paid by the public to individuals, who had failed to obtain what they considered equitably due to them by the decision of administrative officers acting under the provisions of former laws. The courts have no power to supervise or review the doings of the legislature in such cases." It is apparent that there was a strong equitable claim upon the township in this case for the reimbursement of moneys expended by public officers under the direction of their constituents, and perhaps no principle of constitutional law was violated by the legislature thus changing it into a legal demand, and compelling its satisfaction. Mr. Sedgwick criticises this act, and says of it that it "may be called taxation, but in truth it is the reversal of a judicial decision." Sedg. on Stat. & Const. Law, 414. There are very many claims, however, resting in equity, which the courts would be compelled to reject, but which it would be very proper for the legislature to recognize, and provide for by taxation. Brewster v. City of Syracuse, 19 N. Y. 116. Another case, perhaps still stronger than that of Guilford v. The Supervisors, is Thomas v. Leland, 24 Wend. 65. Persons at Utica had given bond to pay the extraordinary expense that would be caused to the State by changing the junction of the Chenango Canal from Whitesborough to Utica, and the legislature afterwards passed an act requiring the amount to be levied by a tax on the real property of

tution to engage in works of public improvement, except in the expenditure of grants or other property made to it for this purpose. The State, with this prohibition in force, entered into a contract with a private party for the construction by such party of an improvement in the Muskegon River, for which the State was to pay

the city of Utica. The theory of this act may be stated thus: The canal was a public way. The expense of constructing all public ways may be properly charged on the community specially or peculiarly benefited by it. The city of Utica was specially and peculiarly benefited by having the canal terminate there; and as the expense of construction was thereby increased, it was proper and equitable that the property to be benefited should pay this difference, instead of the State at large. The act was sustained by the courts, and it was well remarked that the fact that a bond had been before given securing the same money could not detract from its validity. See on this point, Shaw v. Dennis, 5 Gilm. 416. Whether this case is reconcilable with some others, and especially with that of Hampshire v. Franklin, 16 Mass. 83, we have elsewhere expressed a doubt; but as an exercise of the power of taxation, it does not conflict with the principles stated in the text. Nevertheless, for the legislature in any case to compel a municipality to assume a burden, on the ground of local benefit or local obligation, against the will of the citizens, is the exercise of an arbitrary power little in harmony with the general features of our republican system, and only to be justified in extreme cases. The general idea of our tax system is, that those shall vote the burdens who are to pay them; and it would be intolerable that a central authority should have power, not only to tax localities for local purposes of a public character which they did not approve, but also, if it so pleased, to compel them to assume and discharge private claims not equitably chargeable upon them. The cases of Cheaney v. Hooser, 9 B. Monr. 330; Sharp's Ex. v. Dunavan, 17 B. Mont. 223; Mathus v. Shields, 2 Met. (Ky.) 553, will throw some light on this general subject. The case of Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350, is also instructive. The Cypress Pond Draining Company was incorporated to drain and keep drained the lands within a specified boundary, at the cost of the owners, and was authorized by the act to collect a tax on each acre, not exceeding twenty-five cents per acre, for that purpose, for ten years, to be collected by the sheriff. With the money thus collected the board of managers, six in number, named in the act, was required to drain certain creeks and ponds within said boundary. The members of the board owned in the aggregate 3,840 acres, the larger portion of which was low land, subject to inundation, and of little or no value in its then condition, but which would be rendered very valuable by the contemplated draining. The corporate boundary contained 14,621 acres, owned by sixty-eight persons. Thirty-four of these, owning 5,975 acres, had no agency in the passage of the act, and no notice of the application therefor, gave no assent to its provisions, and a very small portion of their land, if any, would be benefited or improved in value by the proposed draining; and they resisted the collection of the tax. As to these owners the act of incorporation was held unconstitutional and inoperative. See also The City of Covington v. Southgate, 15 B. Monr. 491.