ent with the history of such aid at the time the It cannot be that a decision based upon such Constitution of Michigan was adopted, when an implication is to be regarded as the settled municipal aid to private corporations had been law of Michigan. authorized by the Legislatures of seventeen If the case at bar comes within the rule where States, including Michigan.

the United States Courts feel bound to follow In Connecticut, Laws of 1837, p. 18; Ibid., the state decisions, it also comes within the ex1838, p. 45; Ibid., 1842, p. 54; in Georgia, Laws ception. of 1838, p. 66; in Kentucky, Laws of 1833, pp.

At the time the bonds in suit were issued, the 526, 543, 643; Ibid., 1834, p. 398; Ibid., 1836-7, law of the State was justly opposed and settled p. 341; Ibid., 1837–8, p. 98; Ibid., 1838–9, p. 337, in favor of their validity. This confidence was Ibid., 1848–9, p. 212; Ibid., 1849–50, pp. 285, based upon many facts. 403; in Maine, Laws of 1848, p. 198; Ibid., 1849, (a) The decisions by this court and the highp. 351; Ibid., 1850, pp. 461, 530; in Missouri, est courts of so many States upon the exact Laws of 1847, p. 348; Ibid., 1849, p. 159; in Mis- question, conclusively settled the matter in the sissippi, Laws of 1848, p. 333; in Illinois, Laws judgment of most lawyers. of 1849, p. 33; in Indiana, Laws of 1842, p. 3; (Ý) The decisions of the courts of Michigan Ibid., 1850, p. 149; in Maryland, Laws of 1839, contributed to the expectation that the bonds ch. 282; in New Hampshire, Laws of 1836, p. would be held valid. As we have heretofore 316; in New York, Laws of 1837, pp. 457, 341; shown, it had long been regarded as the settled Ibid., 1839, p. 313; Ibid., 1841, p. 329; in South law of Michigan, that no Act of the Legislature Carolina, Laws of 1848, p. 542; in Ohio, Laws could be declared void, unless in plain conflict of 1838–9, pp. 128, 343, 349, 367; Ibid., 1841–2, with some provision of the written Constitution. p. 100; Ibid., 1844–5, pp. 232, 109, 46, 403; Ibid., Swan v. Williams, 2 Mich., 427; Atty-Gen. v. 1843-4, p. 103; Ibid., 1845–6, private, pp. 109, Detroit & Erin Pl. Road Co., 2 Mich., 138; 8. C., 218, 250; general, pp. 167, 192, 250; Ibid., 12 Mich., 333; Detroit & H. Pl. Road Co. v. 1846–7, pp. 56, 65, 87, 95; in Pennsylvania, Fisher, 4 Mich., 37; People v. State Auditors, Laws of 1848, p. 273; Ibid., 1849, p. 360; in 9 Mich., 327; East Saginaw Co. v. The City, Tennessee, Laws of 1847–8, p. 58; in Virginia, 19 Mich., 259. Laws of 1847-8, p. 184.

(c) The long continued action of the LegisNumerous like Acts are found in the laws of lature and state officers of Michigan, in direct each year until 1852, when the New Constitu- opposition to the principles announced in The tion went into effect, forbidding both state and People v. Salem, contributed to the surprise municipal aid.

which that decision justly awakened. In 1838 The laws of 1848, 1849, 1850 and 1851, are (Laws of 1838, pp. 101, 108, 252, 259) laws crowded with Acts authorizing subscriptions to were passed giving bounties for making of sugar the stock of turnpike and railroad companies from beets; for the manufacture of silk; and by municipalities in the State.

authorizing loans of public money for the beneIn Michigan, Laws of 1850, p. 336.

fit of certain railroad companies. In most of these States it was customary to In 1848 (Laws of 1848, p. 348), state lands grant state aid, as well as municipal aid, to cor- were given for the erection of churches, to such porations engaged in internal improvement. denominations as chose to apply for them. In

In Alabama state aid was granted: (Laws of 1850 (Laws of 1850, p. 336), township was 1843 and 1844, p. 136) and so far as we have authorized to take stock in a plank-road comascertained, no municipal aid until 1851. Laws pany. In 1853 (Laws of 1853, p. 125) the County of 1851 and 1852, p. 218. In Louisiana, state of Saginaw was authorized to loan its bonds to aid was granted. Laws of 1837, p. 110; Ibid., a plank road company. In 1855 (Laws of 1855, 1838, p. 84; Ibid., 1839, p. 214. In Massachu- p. 276), certain lots in Lansing were given to setts, state aid was granted. Laws of 1834 and churches. In 1859 (Laws of 1859, p. 551), an 1836, p. 810. In North Carolina, state aid was Act was passed giving a bounty for the manugranted. Laws of 1844 and 1845, p. 103; Ibid., facture of salt. In 1861 (Laws of 1861, p. 283), 1848 and 9, p. 138. In Delaware, state aid 25,000 acres of state swamp land were given was granted, Laws of 1844, p. 521; Ibid., 1847, to the German American Seminary of Detroit.

In 1863, began a series of_Acts authorizing The constitutionality of laws authorizing mu- municipal aid to railroads. Between this time nicipal aid to private corporations had often and the session of the Legislature in 1869, the been affirmed by the highest courts of five States, last session prior to the decision in 1870, of the and there were no opposing decisions.

case of The People v. Salem, thirty such Acts Bridgeport v. Housatonic R. Co., 15 Conn., were passed. In 1867 the Attorney-General of 475 (1843); Talbot v. Dent, 9 B. Mon., 526 the State, to whom the question of the consti(1849); Commonwealth v. McWilliams, 11 Pa. tutionality of these laws was referred by the St., 62 (1849); Nichol v. Nashville, 9 Humph., Legislature, gave his opinion in favor of their 252 (1848); Goddin v. Crump, 8 Leigh, 120 validity. (1837).

House Journal of 1867, Vol. 2, p. 1583. The leading members of the constitutional Convention, which in 1850 formed the present Mr. Justice Swayne delivered the opinion of Constitution of Michigan, and all intelligent the court: men who have been led to consider the subject This is a writ of error to the Circuit Court of municipal aid, must have been familiar with of the United States for the Western District of at least a portion of these facts. To say that a Michigan. constitution, formed under such a state of cir- The facts of the case are few and undisputed, cumstances, prohibits municipal aid by impli- and the legal question presented has been setcations, not contained in any language of the tled by this court. Constitution, seems to us to violate the most On the 22d of March, 1869, the Legislature settled principles of interpretation.

of Michigan passed an Act entitled "An Act

p. 137.

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to Enable any Township, City or Village to imputation of crime. The clause is confined to Pledge its Aid, by Loan or Donation, to any judicial proceedings. Article 14, clauses 6, 8 Railroad Company Now Chartered or Organ- and 9, provide that the credit of the State shall ized under and by Virtue of the Laws of the not be granted to or in aid of any person, as. State of Michigan, in the Construction of its sociation or corporation; that the State shall Road.”

not be interested in the stock of any corporaThe plaintiff in error was the defendant in tion, and that the State shall not subscribe to the court below. It is a body corporate in the or be interested in any work of internal imCounty of Van Buren, in Michigan. The case provement, or engage in carrying on any such made by the declaration is as follows:

work, except in the expenditure of grants to the The Kalamazoo and South Haven Railroad State of land or other property. In this case it Company is a corporation organized under the is the Township and not the State that is conlaws of Michigan, having for its object the concerned. The State has done nothing, and is in struction of a railroad from the Village of Kal- nowise liable. amazoo to the Village of South Haven, in that The present Constitution was adopted in the State. The line of its proposed route passed year 1850. Before that time numerous Acts, inthrough the Township of Pine Grove. Pursu- volving the same principle with the one here in ant to the Act of the Legislature before men- question, had been passed by seventeen States. tioned, a meeting of the electors of the town. Congress, by the Act of June 3, 1856, 11 Stat. ship was called to vote upon the proposition at L., 21, granted a large quantity of land to 673*) whether the Township *shoulà, in aid of Michigan, to be used in aid of the construction the construction of the road, give to the com- of railroads. This land was appropriated by the pany its coupon bonds to the amount of $12,000, State to several different companies, pursuant bearing interest at the rate of ten per cent. per to the provisions of the Act. Other companies annum, one-sixth of the principal to be payable were subsequently aided in the same way. In at the end of each succeeding year, from March 1863 began a series of special legislative Acts 1, 1870, until the whole amount was paid; the authorizing the municipal subdivisions of the interest to be payable annually from that time. State named therein to give their aid respective A majority voted for the proposition, and the ly to the extent and in the manner prescribed. bonds were issued. They bore date June 1, Between that time and the year 1869 thirty such 1869. The plaintiff, Talcott, was the holder and statutes were enacted. In the latter year the owner of a part of the bonds and coupons. general law was passed, under which the bonds They are described in the declaration, and were in question were issued. This summary shows overdue. The Township filed a demurrer. It the understanding in the Legislature, and out of was overruled by the court; and the Township it in the State, that there was no constitutional electing to stand by it, judgment was given for prohibition against such legislation. It does the plaintiff. The Township thereupon sued out not appear that its validity was ever in any inthis writ of error, and has thus brought the case stance judicially denied until the year 1870. before this court for review.

The case as to the Constitution is a proper It is not alleged that the bonds were not issued one for the *application of the maxim, 1*675 in conformity to the Act, nor that there has | Expressio unius est exclusio alterius. The inbeen any want of good faith on the part of the strument is drawn with ability, care and fullrailroad company, nor that the plaintiff, Tal- ness of details. If those who framed it had incott, was not a bona fide holder. But it has been tended to forbid the granting of such aid by the argued that the Act of the Legislature was void. municipal corporations of the State, as well as This presents the only question in the case, and by the State itself, it cannot be that they would it is fundamental. If the foundation fails the not have explicitly said so. It is not to be supentire superstructure reared upon it must fall. posed that such a gap was left in their work It is said the Act is in conflict with the Consti- from oversight or inadvertence. tution of the State.

The 11th clause of the same article declares It is an axiom in American jurisprudence that the Legislature-shall provide a uniform that a statute is not to be pronounced void upon rule of taxation, except as to property paving this ground, unless the repugnancy to the Con- specific taxes, and that taxes shall be levied upstitution be clear and the conclusion that it ex- on such property as shall be prescribed by law. ists, inevitable. Every doubt is to be resolved The object of this provision was to prevent un. in support of the enactment. The particular just discriminations. It prevents property from clause of the Constitution must be specified and being classified and taxed as classed, by differ. the Act admit of no reasonable construction in ent rules. All kinds of property must be tared harmony with its meaning. The judicial func- uniformly, or be entirely exempt. The uniforme tion involving such a result is one of delicacy, ity must be co-extensive with the territory to and to be exercised always with caution. which the tax applies. If a state tax, it must Twitchell v. Blodgett, 13 Mich., 127; Tyler v. be uniform all over the State. If a county or People, 8 Mich., 320; People v. Mahany, 13 city tax, it must be uniform throughout such Mich., 482. It must be admitted that the Consti- county or city. Gilman v. Sheboygan, 2 Black, tution here in question contains nothing directly 514, i7 L. ed. 307. But the rule does not re adverse upon the subject. But we have been require that taxes for the same purposes shall be 674"] ferred in *this connection to the follow- imposed in different territorial subdivisions at ing provisions: The 32d section of article 6 the same time. If so, a county could not levy declares that "No person, in any criminal case, a tax to build a court-house, jail, or infirmary shall be compelled to be a witness against him without rendering it necessary for every other self, or be deprived of life, liberty or property county in the State to do the same thing with without due process of law." Here there is no out reference to the different circumstances of


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each one. So here one township through which It does not belong to courts to interpolate the railroad was to pass, expecting to be largely constitutional restrictions. Our duty is to apbenefited by its construction, might give its ply the law, not to make it. All power may be bonds and impose the tax requisite to meet the abused where no safeguards are provided. The principal and interest, while another township remedy in such cases lies with the people, and similarly situated might refuse to do so. The not with the judiciary. rule would have no application to the latter. We pass by, without remark, the point wheth

The 2d and 14th clauses of article 18 pre- er in cases like this the public or private charscribe that when private property is taken for acter of the work is not a legislative rather than public use just compensation shall be made to a judicial question. the owner. These provisions relate to the exer- It is insisted that the invalidity of the statute eise of the right of eminent domain.

has been determined by two judgments of the The 13th clause of article 15 declares that Supreme Court of Michigan, and that we are 676*] "the * Legislature shall provide for the bound to follow those adjudications. People v. incorporation and organization of cities and vil-Salem, 20 Mich., 452; Bay City v. Treasurer, 23 lages, and shall restrict their powers of taxa- Mich., 499. We have examined those cases with tion, borrowing money, contracting debts and care. With all respect for the eminent tribunal loaning their credit.” The power here in ques- by which the judgments were pronounced, we tion was exercised by a township. The language must be permitted to say that they are not satisof this clause clearly implies that the powers to factory to our minds. We think the dissenting be restricted may be exercised; and what is im- opinion in the one first decided is unanswered. plied is as effectual as what is expressed. U. 8. Similar laws have been passed in twenty-one v. Babbit, 1 Black, 61, 17 L. ed. `96. Congress States. In all of them but two, it is believed can pass no laws but such as the Federal Con-their validity has been sustained by the highest stitution expressly, or by necessary intendment, local courts. It is not easy to resist the force of permits.

such a current of reason and authority. The The legislative power of a State extends to question before us belongs to the domain of geneverything within the sphere of such power, ex- eral jurisprudence. In this class of cases this cept as it is restricted by the Federal Constitu- court is not bound by the judgment of the courts tion or that of the State. In the present case of the States where the cases arise. It must hear we have found nothing that in our judgment and determine for itself. Here, commercial sewarrants the conclusion that the Act in question curities are involved. When the bonds were isis wanting in validity by reason of its unconsti- sued, there had been no authoritative intimatutionality.

tion from any quarter that such statutes were But it has been argued that aside from any invalid. The Legislature affirmed their validconstitutional prohibition the Legislature had ity in *every Act, by an implication [*678 no power to authorize the imposition of a tax equivalent in effect to an express declaration. for any other than a public purpose, and that and during the period covered by their enactthis Act is not within that rule. Conceding, for ment, neither of the other departments of the the purposes of this opinion, the soundness of government of the State lifted its voice against the first proposition, the second can by no means them. The acquiescence was universal. Gelpcke be admitted.

v. Dubuque, 1 Wall., 175, 17 L. ed. 520. Though the corporation was private, its work The general understanding of the legal prowas public, as much so as if it were to be con- fession throughout the country is believed to structed by the State. Private property can be have been that they were valid. The National taken for a public purpose only, and not for Constitution forbids the States to pass laws imprivate gain or benefit. Upon no other ground pairing the obligation of contracts.

In cases than that the purpose is public can the exercise properly brought before us that end can be acof the power of eminent domain in behalf of complished unwarrantably no more by judicial such corporations be supported. This view of decisions than by legislation. Were we to yield the subject has been taken by the Supreme in cases like this to the authority of the deciCourt of Michigan. Swan v. Williams, 2 Mich., sions of the courts of the respective States, we 427. But upon other grounds, we think the should abdicate the performance of one of the public character of such works cannot be most important duties with which this tribunal doubted. Where they go they animate the is charged and disappoint the wise and salusources of prosperity, and minister to the growth tary policy of the framers of the Constitution of the cities and towns within th sphere of in providing for the creation of an independtheir influence. Unless prohibited from doing ent Federal judiciary. The exercise of our so, a municipal corporation has the same power appellate jurisdiction would be but a solemn to aid in their construction as to procure water mockery. Butz v. Muscatine, 8 Wall., 579, 19 677") for its water-works, coal * for its gas- L. ed. 492. works, or gravel for its streets from beyond its The question here under consideration was territorial limits. Meyer v. Muscatine, 1 Wall., fully considered by this court in R. R. Co. v. 389, 17 L. ed. 566. Under the limited powerś Otoe Co., 16 Wall., 667, 21 L. ed. 375, and in conferred by the Federal Constitution, Congress Olcott v. Supervisors, 16 Wall., 678, 21 L. ed. has frequently given aid in such cases. The 382. We have no disposition to qualify any. Pacific railroads and the Louisville Canal fur- thing said in those cases. They are conclusive nish instances of such action by that body. The in the case before us. gift to the sufferers from the overflow of the In Sedgwick on Statutory and Constitutional Mississippi, and prior Acts of the kind, must | Law, p. 90, it is said: “It must be further borne also be borne in mind. Cannot a State Legisla- in mind that the invalidity of contracts made in ture do the same things?

violation of statutes is subject to the equitable


exception, that although a corporation in mak- 1 (Super. Ct.) 162; Steam Nav. Co. v. Weed, 17
ing a contract acts in disagreement with its Barb. 378; Chester Glass Co. v. Dewey, 16
charter, where it is a simple question of capacity Mass. 94; Steamboat Co. v. McCutcheon, 13 Pa.
or authority to contract, arising either on a St. 13; Potter v. Bk., 5 Hill, 490; Suydam
question of regularity of organization or of v. Morris C. & B. Co., 5 Hill, 491; Sackett's
power conferred by the charter, a party who has Harbor Bk. v. Louis Co. Bk., 11 Barb., 213;
had the benefit of the agreement cannot be per- | Mott v. U. 8. Trust Co., 19 Barb., 568. But
mitted in an action founded on it to question it is not necessary to place our judgment upon
its validity. It would be in the highest degree this ground. We rest it upon the other views
inequitable and unjust to permit the defendant which have been expressed, and the authority
679*] to repudiate *a contract the fruits of of our own preceding adjudications.
which he retains. And the principle of this ex- The judgment of the Circuit Court is affirmed
ception has been extended to other cases. So a
person who has borrowed money of a savings
institution upon his promissory note, secured

Dissenting, Mr. Justice Miller and Mr. Jus

tice Davis. by a pledge of bank stock, is not entitled to an injunction to prevent the prosecution of the note upon the ground that the savings bank was Mr. Chief Justice Waite and Mr. Justice prohibited by its charter from making loans of Bradley did not sit in this case and took no that description.” The authorities referred to part in its decision. sustain the text. Palmer v. Lawrence, 3 Sandf. 234

85 U. $.




19 Wall. 1-12, 22 L. 90, BARINGS v. DEBNEY.

Banks and banking.-Insolvent bank, of which State is sole stockholder, cannot object to any disposition of its assets prescribed by legislature; creditors alone can question validity of act, p. 8.

Banks and banking.- Legislative act appropriating assets of insolvent State bank to satisfy certain debts of bank, makes bank a trustee, and invests assenting beneficiaries with contractual right that trust shall be performed, p. 9.

Applied in McKee v. Lamon, 159 U. 8. 322, 40 L. 167, 16 S. Ct. 13, to broad proposition that money received for delivery to another is charged with enforceable trust in his favor.

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Constitutional law. Act of legislature appropriating assets of insolvent State bank to pay State's debts is invalid as impairing obligation of contracts with bank's own creditors, pp. 11, 12.

Cited in Lamb v. Pannell, 28 W. Va. 667, assets of insolvent bank trust fund for its creditors; Pyles v. Furniture Co., 30 W. Va. 136, 2 S. E. 917, approves, but holds insolvent corporation may prefer creditors. See note, 57 Am. St. Rep. 79, on withdrawing corporation's assets.

19 Wall. 12-13, 22 L. 46, HODGES v. VAUGHAN.

Appeal and error.- Where sole defect in transcript is lack of clerk's certificate that it contains complete record, certiorari is not proper remedy, but leave will be granted to withdraw transcript and apply to clerk below for necessary certificate, p. 13.

Approved in Meyer v. Mansur, etc., Co., 85 Fed. 876, 52 U. S. App. 478, motion to dismiss granted when certificate shows papers are true copies, but not that record complete; Nashua, etc., R. R. v. Boston, etc., R. R., 61 Fed. 241, 21 U. S. App. 50, motion to dismiss denied, certificate shows certain parts of record omitted on request, but not shown to be material.

19 Wall. 13-17, 22 L. 144, STOWE v. UNITED STATES.

Estoppel. One who suffers action to be brought, co-operates in Its prosecution, and allows settlement to be made on basis of truth of statements in petition, cannot later deny their truth, because his interest in subject-matter is left unprotected by settlement, p. 16. ̧


U. S. Notes 19 Wallace, 22 L. ed. 234-66 p.

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