The State Of Ga. v. The Ga. R.R.

• Decision Date: 31 January 1875
• Citation: 54 Ga. 424
• Parties: The State of Georgia, plaintiff in error. v. The Georgia Railroad and Banking Company, defendant in error.
• Court: Georgia Supreme Court

54 Ga. 424

The State of Georgia, plaintiff in error. v. The Georgia Railroad and Banking Company, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Constitutional law. Contracts. Charters. Tax. Before Judge Hopkins. Fulton Superior Court. October Term, 1874. A report of this case unnecessary.

N. J. Hammond, attorney general; R. Toombs, for the plaintiff in error.

*W. H. Hull; Hillyer & Brother, for the defendant.

McCay, Judge.

1. Were this a new question I should not hesitate to hold that it was not competent for the general assembly of this state to enter into any contract with the corporators of the Georgia Railroad and Banking Company, to exempt the corporation, permanently, from taxation, nor to fix a limit beyond which the corporation should not be taxed. It is a principle deducible from the nature of legislative bodies that one legislature cannot fix a limit to the legislative power of another and subsequent legislature. This only the people, in their sovereign capacity, can do. This is the object and the function of the constitution alone. If a mere legislative body can do this in one particular, why may it not do so in another? If, by a contract, a legislature may impose limits upon the power of a subsequent legislature to tax, why may it not by contract, limit also, its power to establish courts, regulate the mode of making private contracts, the making of wills, the descent of property, or any other of the legislative duties, cast by the constitution upon this branch of the government, established to conduct the affairs of the state? The taxing power is especially a duty, which, from the nature and necessity of it, it is of the utmost importance shall remain to each legislature intact, except as the people have, in their sovereign capacity, seen fit to restrict it. This power is the very life of the state—a necessity for its very existence, since we can never know what the future may have in store. And if, by contract, a legislature may stipulate that one man, or one corporation, shall enjoy either an entire or partial exemption from this necessary burden, where is the hindrance to the power of one legislature to grant, by contract, this exemption to a set of men, to the land owners, the railroad proprietors, or indeed, to any extent, either of persons or property?

In the early history of this country, before the subject was fully understood, and especially before the Dartmouth College *case, our legislatures, modeled as they were upon the pattern of the Parliament of Great Britain, were not so careful to scan the legislation they adopted, knowing that if evil consequences to the state should ensue, it was competent for a subsequent legislature to undo the knot by which the state was bound. But under the disability the decision in the Dartmouth College case puts upon the legislative power it now often happens that in a thoughtless hour the state, with but a nominal consideration, is shorn of its most important prerogatives. It becomes, therefore, of the greatest importance to inquire if there be no limit to this capacity of one legislature to bind another. Is the whole power of the people, the vital existence of the state, its whole legislative capacity, capable of being thus hampered, bartered away, sold to a corporation? Where is the limit? or is there none? Can it be that under that clause of the constitution of the United States which forbids a state from passing any law impairing the obligation of contracts, a state legislature has a power which enables it to put a final and conclusive limit to the legislative power of its successors? It seems to me that this question needs a reconsideration—that the decisions of the supreme court of the United States upon it, which it is admitted are definite and decided, are not sustainable upon principle, and not in harmony with other well-settled adjudications involving a view different from that taken by that high tribunal. The supreme court of this state, in Hambrick v. Rouse, 17 Georgia, 56, held, in solemn argument, that it was not competent for one legislature to bind another not to authorize the removal of a county seat, and in Daly v. Harris, 33 Georgia, (Supplement) no less a jurist and moralist than Judge Jenkins, says, governments are mere agencies established for the security of rights and the promotion of interests appertaining to the founders who, by common consent, have become the governed. To this end they have been invested with certain necessary powers, the exercise of which devolves upon...