People ex rel. Detroit and Howell Railroad Co. v. Township Board of Salem

Decision Date26 May 1870
CourtMichigan Supreme Court
PartiesThe People ex rel. the Detroit and Howell Railroad Co. v. The Township Board of Salem

Heard April 7, 1870; April 8, 1870; April 12, 1870; April 13, 1870 April 14, 1870; April 15, 1870; May 24, 1870; May 25, 1870. [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Application for mandamus:

By the Detroit and Howell Railroad Company to compel the Township Board of Salem, to execute and issue bonds to aid in the construction of the railroad proposed by the relator to be constructed through the township of Salem, as provided by act No. 49, of 1864, entitled "an act to authorize the several townships in the counties of Livingston, Oakland, Washtenaw and Wayne, to pledge their credit, and the County of Livingston to raise by tax a loan of money to aid in the construction of a railroad from some point near the city of Detroit to Howell, in the County of Livingston."

An issue of fact, raised by the answer of the defendant, was directed by the Court to be tried in the Circuit Court for the County of Washtenaw, namely:--Whether the relator had completed its work through the township of Salem, to the extent required by the resolution of the township meeting set forth in the relator's petition. This resolution provided that "no bonds, or other certificates of indebtedness shall be issued by said township to aid in the construction of the Detroit and Howell Railroad, unless the ties shall be furnished and delivered on the line of the road; and the road bed thereof, including all bridges, culverts, cattle-guards and road-crossings, shall be fully completed and ready for the iron, within the limits of the township of Salem, on or before the first day of July, A. D. 1868."

The issue was tried as directed, and the verdict of the jury was certified to this Court in favor of the relator.

Mandamus denied.

H. J. Beakes and G. V. N. Lothrop, for defendants.

Townships have no power at common law, or under the general statutes of this State, to pledge their credit or make donations to private corporations or to individuals. They can exercise no powers except such as they enjoy by prescription, or are specially conferred upon them by statute.--Lafayette v. Cox 5 Ind. 38; People v. Supervisors of Blackman, 14 Mich. 336, 338; Cooper v. Alden, Harr. Ch., 86; Stetson v. Kempton, 13 Mass. 271, 278; Beatty v. Lessee of Knowles, 4 Peters 152, 163; Sedgwick on Const. Law, 340, 341, 342, 346, 351 to 356; Pa. R. R. Co. v. Canal Commissioners, 21 Penn. 9; People v. Albany, 11 Wend. 544; 11 Pick. 396; 12 ib. 227; 19 ib. 485, 487; 1 Metcalf 284, 287.--A township cannot appropriate money to celebrate the 4th day of July.--2 Denio 110; Hood v. Lynn, 1 Allen 103; New London v. Brainard, 22 Conn. 552.--Nor to celebrate the surrender of Cornwallis.--Tash v. Adams, 10 Cush. 252.--Nor to vote money for the purchase of uniforms for an artillery company.--Claflin v. Hopkinton, 4 Gray 502.--Nor can a town be held liable on its corporate vote to pay the expenses of a field driver in defending a suit for taking up and impounding cattle running at large contrary to law.--Vincent v. Nantucket, 12 Cushing 105, 106.--All the authorities which assert that towns may exercise the power in question seem to base the right entirely on special enabling statutes.--Bridgeport v. H. R. R. Co., 15 Conn. 501; 49 Pa. State, 193; 19 Ill. 309; 36 Ala. 438; 2 Jones Eq., 144; 1 Sneed 698.

The Detroit and Howell Railroad Company is a private corporation.--A. & A. on Corp., §§ 31, 32; 1 Red. on Railways, 53, 54, 3d ed; Dartmouth College v. Woodward, 4 Wheat. 468, 494; Whiting v. C. R. R. Co., Wisconsin S.Ct. Reported 1 Chicago Legal News, 378; State v. County of Wapello, 13 Iowa 400--12; Hansen v. Vernon, Iowa Sup. Ct., April term, 1869, in Western Jurist, June 1869, 150; 21 Penn. St. 169, per Black, C. J.; 21 Penn. St., 182 per Woodward, J.

The Constitution prohibits the legislation in question.

1. A construction of Sections 3, 6, 8, and 9, of Article XIV, which shall leave it in the power of the Legislature to authorize or compel each city and township in the State to grant or loan its credit to, or subscribe to the stock of railroad companies or other corporations to the amount of a fixed and uniform percentage of the assessed valuation of property taxable therein, would render these sections nugatory.

State taxes are apportioned, in theory at least, among the cities and townships according to the amount of taxable property therein, and are collected by the city and township officers. The argument for the power in question seems to require the maintenance of this proposition: that what the State as a whole cannot do, it may compel its constituent parts to do in the same proportion as would have fallen to their respective shares, if the State eo nomine had done it. In other words, if the power in question exists, the State by its Legislature may, under the guise of a township tax or loan, make precisely the same loans or donations to private corporations, and create precisely the same public burdens, and subject each tax payer in the State to precisely the same taxation as if there were no such limitations to legislative power.

The meaning of "works of internal improvement," as used in this Constitution was railroads and canals and enterprises of that character.--Act 104 of 1839; Act 116 of 1839; Act 63 of 1840, &c.; See State v. Wapello Co., 13 Iowa 388, and People ex rel. McCagg v. Mayor, &c., of Chicago, in Illinois Sup. Ct., Sept. 1869, reported 2 Chicago Legal News 2, 3, for construction of similar constitutional provisions in those States.--If the State compels townships to issue their bonds for the construction of railroads, is it not engaged in carrying on works of internal improvement?" The township of itself has no power to engage in any such work. What the township does in the matter it does under the authority and as an instrumentality of the State.--18 Wend. 69, 70; C. &c., R. R. Co., v. Clinton Co., 1 Ohio State, 94-95-6-7, 101; Cass v. Dillon, 2 Ohio St., 635-6, 641; 21 Pa.St. 181; Cooley Const. Lim. 211.

2. It is to be borne in mind in the construction of those provisions of the Constitution that prior to 1850 the legislation, and it is believed the history, of the State afforded no precedent of township donation or pledges of credit or subscriptions for the construction of railroads or canals. It seems to have been assumed that the State alone of governmental organizations had power to aid those enterprises by pecuniary contributions. The State had been engaged in works of internal improvement under which its credit had greatly suffered. Public sentiment had demanded and secured the sale or abandonment by the State of its railroads; and in 1850 it is believed the almost unanimous sentiment of the people was in favor of leaving the building and management of railroads wholly to private enterprise and speculation. The general financial prostration from which the people were just recovering, and the weight of public burdens made them dread a public debt; and it is but fair to suppose that the prohibitions in question repeated so industriously, were intended to cut up the supposed evil by the root, and make it impossible to create a public debt for internal improvements, as they were called. Municipal donations under State authority were within the mischief intended to be guarded against.--See 16 Mich. 258.

3. Section I, Art IV prohibits the creation of corporations by special act except for municipal purposes. The acts of February 5th, 1864, and of March 24th, 1869, are special acts. Can the Legislature by special act confer on townships already created, the power to raise money for other than municipal purposes, while it is prohibited from creating them with those powers originally?

4. The act of 1864 is not an exercise of "legislative power," and is, therefore, void, whether it comes within any of the express prohibitions of the conditions or not. It is not a law, but an attempted license to an act of spoliation. To compel A. to donate or loan his money to B. or to authorize a majority to compel the other citizens to donate or loan their property to private corporations or individuals, is not legislation. It is an imperial edict or ukase, inconsistent with the idea of a limited government,--and a fortiori inconsistent with the idea of legislative power in a government whose sovereignty is divided into independent departments, executive, legislative, and judicial.-- § 2 Art. 3.

Private property cannot be taken for private use even with compensation without the owner's consent.--Taylor v. Porter, 4 Hill 140; Powers v. Bergen, 2 Selden 367, 39; Ill., 110, 114, 116; 53 Barb. 70; 1 Ohio St., 84-5; Wilkinson v. Leland, 2 Peters 657; Hanson v. Vernon, 26 Iowa 145; Bankhead v. Brown, 25 Iowa; Sedgwick Const. Law, 155 and note; Cooley Const. Lim., 530.

The Legislature is the mere creature of an organic law,--deriving all its powers from the Constitution. The "legislative power" being granted to it, its authority within the limits of that power, may be admitted to be plenary except so far as otherwise specially limited; but outside those limits it is as powerless as if specially prohibited.--1 Ohio St. 84-5; 21 Pa. St., 168-9; Cooley Const. Lim., 46, note 1.

5. Of course the legislation in question cannot be sustained as an exercise of the right of eminent domain-Art. 18, § 14; Art. 15 § 15.--Compensation where property is taken by...

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