for the capital of an empire than the municipal buildings of a debtburdened city.' Acts vesting the ordinary municipal functions in commissions appointed by the legislature would seem in this State not to have been unfrequent. Public discontent was exhibited, and at length found its expression in the amended Constitution of 1874, which prevents for the future the creation of such commissions, by ordaining "That the General Assembly shall not delegate to any special commission, private corporation or association, any power to make, supervise, or interfere with any municipal improvement, money, property, or effects, whether held in trust or otherwise; or to levy taxes, or to perform any municipal function whatever." This Constitution also provided that "no debt shall be contracted or liability incurred by any municipal commission, except in pursuance of appropriations previously made by the municipal government." These provisions failed, however, to give relief in respect to the buildings in question, for the construction of which the commission had, prior to 1874, entered into contracts. The provision first quoted was held to be prospective only, and not to apply to special commissions existing before the adoption of the amended Constitution. And as to the second provision above quoted, it was held that while it would prevent the commission thereafter from entering into any contract until an appropriation had been made by the municipal government, it did not repeal the obligation imposed by the abovementioned Act of 1870 upon the common councils to raise the amount required by the commissioners and to levy the necessary taxes. Accordingly, the Supreme Court, on the relation of the commission, decided that it was entitled to a peremptory mandamus to compel the common councils (they having refused to do so) to levy a special tax to meet a requisition of the commission for $1,500,000, this being the amount found by the commission to be necessary for the succeeding years for the city hall building before mentioned. 4 1 Per Paxson, J., in Perkins v. Slack, It is confessedly difficult in many cases 86 Pa. St. 283. Speaking of this build- to define the line of demarcation being, Judge Hare says (1 Am. Const. tween public or State powers and duties Law, 630): "For nearly twenty years which municipalities may be compelled all the money that could be spared from to perform as State agencies, and those immediate and pressing needs has been compulsorily expended upon an enormous pile which surpasses the town halls and cathedrals of the Middle Ages in extent, if not in grandeur." Art. iii. § 20, Constitution of 1874. of a private or quasi private or corporate nature which pertain to municipalities as the organized representatives of compact communities for their own special local benefit and convenience. General usage and practice must largely guide the inquiry. A county may doubtless be compelled to build a court house § 123 (75). Mandatory Statutes to pay Claims not legally binding on the Municipality. The fact that a claim against a municipal or public corporation is not such an one as the law recognizes as of legal obligation has often been decided, by courts of the highest respectability and learning, to form no constitutional objection to the validity of a law imposing a tax and directing its payment;1 if no special constitutional restriction stands in the way. But the building of a city hall of the character of the one in Philadelphia would seem rather to be long to the category of local or municipal, as distinguished from State or public, objects, which therefore cannot, or, if it can, ought not to be forced by central legislative dictation upon a reluctant community, which alone must bear the burden. In Michigan, the State cannot compel, but it may authorize, an incorporated city to erect a court house for the county in which the city is situated. Callam v. Saginaw, 50 Mich. 7. 1 Guilford v. Supervisors, &c., 13 N. Y. 143. This case holds the following propositions: 1. That the legislature has power to levy a tax upon the taxable property of a town, and appropriate the same to the payment of a claim made by an individual against the town. 2. That it is not a valid objection to the exercise of such power that the claim, to satisfy which the tax is levied, is not recoverable by action against the town. 3. That it does not alter the case that the claim has been rejected by the voters of the town, when submitted to them at a town meeting, under an act of the legislature authorizing such submission, and declaring that their decision should be final and conclusive. This case has been approved, arguendo, by the Supreme Court of the United States. United States v. Baltimore & Ohio Railroad Co., 17 Wall. (U. S.) 322; New Orleans v. Clark, 95 U. S. 654; United States v. Realty Co., 163 U. S. 427, 443. See also Erskine v. Steele County, 87 Fed. 630, citing text; infra, § 125. On the other hand, the same case has been disapproved by the Supreme Court of Wisconsin, in State v. Tappan, 29 Wis. 664, and an act of the legislature of Wisconsin, similar in its nature and principles to that involved in Guilford v. Supervisors, supra, was held unconstitutional. The opinion of Lyon, J., evinces great care in its preparation; but it has failed to satisfy us that, in the absence of special constitutional restraints, the extent of the legislative power of taxation depends upon the consent of the municipality or the people therein, or that the special act before the court exceeded the rightful power of the legislature. The principle has been reaffirmed, in Massachusetts, that the discretionary power of the legislature in the distribution of public burdens embraces the power to authorize an assessment on one district for part of the expense of repairing a portion of a bridge in another. Carter v. Bridge Proprietors, 104 Mass. 236; post, § 1352. See Mr. Sedgwick's opinion of this legislation, Const. and St. Law, 313, 314. The principle of Guilford v. Supervisors was applied in Brewster v. Syracuse, 19 N. Y. 116, where it was decided by all of the judges of the Court of Appeals that the legislature has the power to authorize the levy of a tax for the purpose of paying to one who has constructed a municipal improvement (a street sewer) an addition to the contract price, which the corporation was forbidden to pay by its charter. The court did not consider that there was any contract in the case, and sustained the legislation on the ground that it was warranted by the taxing power, which in that State was not restrained, thus leaving it in the discretion of the legislature to recognize and direct the payment of claims founded in equity and justice, or in gratitude or charity. People v. Mayor, &c. of Brooklyn, 4 N. Y. 419. And see Thomas v. Leland, 24 Wend. (N. Y.) 65; People v. Dayton, 55 N. Y. 367; infra, § 125a; Shelby Co. v. Railroad Co., 5 Bush (Ky.), 225; Philadelphia v. Field, 58 Pa. St. 320. This seems to be carrying the doctrine of the control of the legislature over public corporations to its extreme limit. See Mr. Justice Cooley's views, Const. Lim. 380, 491, notes; Taxation (2d ed.), 685, 698. The Supreme Court of California has followed and approved Guilford v. Supervisors. Blanding v. Burr, 13 Cal. 343; North Mo. R. R. Co. v. Maguire, 49 Mo. 482, 490, 500. but the validity of legislation of this character, if it interferes with what have been called the private contracts of such corporations, must be sustained on the ground that such contracts, so far as the corporations are concerned, are under the absolute control of the legislature, and not within the protection of the contract clause or the Fourteenth Amendment of the national Constitution. The cases on this subject, when carefully examined, seem to the author to go no further, probably, than to assert the doctrine that it is competent for the legislature to compel municipal corporations to recognize and pay debts or claims not binding in strict law, and which, for technical reasons, could not be enforced in equity, but which, nevertheless, are just and equitable in their character and involve a moral obligation. To this extent and with this limitation the doctrine And more recently in New York the Court of Appeals, while not questioning the judgment in Guilford v. Supervisors, &c., criticised and limited some of the dicta in that case as to the extent of the legislative power. Weismer v. Village of Douglas, 64 N. Y. 91. See infra, § 125. Under special provisions of Michigan Constitution, see People v. Onondaga, 16 Mich. 254. The fact that a township treasurer has been robbed of the public money and has made good the loss, does not justify the legislature in Michigan in directing that the amount be raised by taxation and refunded to him. Bristol v. Johnson, 34 Mich. 123. In Fitch v. Manitou County, 133 Mich. 178, it was held that whatever power might be exercised by the legislatures of other States to determine what debts a municipality should pay, and to compel their payment, the Constitution of Michigan, by expressly denying the legislature the power to audit an account, prohibits the legislature from exercising such an authority. The provision of the Kentucky Constitution that the legislature "shall not impose taxes for the purpose of any county, city, or other municipal corporation, but may, by general laws, confer on the proper authorities thereof respectively the power to assess and collect such taxes," has taken away from the legislature all mandatory power over the levy and application of taxes. McDonald v. Louisville, 113 Ky. 425. Where one county is under a moral obligation to reimburse another county for certain expenses, the legislature may give this a legal effect by a subsequent act. Lycoming v. Union, 15 Pa. St. 166; O'Hara v. State, 112 N. Y. 146; Cole v. State, 102 N. Y. 54. Rights of trial by jury may be denied by the legislature to municipal corporations, these being mere creatures of its policy, with such rights only as it sees proper to confer. Borough of Dunmore's Appeal, 52 Pa. St. 374; Kelsh v. Dyersville, 68 Iowa, 137; but see ante, § 109, note. 1 Blanding v. Burr, 13 Cal. 343; Lycoming v. Union, 15 Pa. St. 166; Guilford v. Supervisors, 13 N. Y. 144; Brewster v. Syracuse, 19 N. Y. 116; Thomas v. Leland, 24 Wend. (N. Y.) 65; Hasbrouck v. Milwaukee, 21. Wis. 217; Smith v. Morse, 2 Cal. 524; Grogan v. San Francisco, 18 Cal. 590; Sinton v. Ashbury, 41 Cal. 525; New Orleans v. Clark, 95 U. S. 644; People v. Lynch, 51 Cal. 15; Creighton v. San Francisco, 42 Cal. 446; People v. Supervisors, 70 N. Y. 228. Text approved; Nevada v. Hampton, 13 Nev. 441; infra, §§ 125, 127, note. The legislature, in favor of a county collecting officer who has settled and paid a claim against him, may pass an act authorizing the settlement to be opened and equitably adjusted, and such an act is an implied direction that the rule of law as to voluntary payments shall not apply. Burns V. Clarion Co., 62 Pa. St. 422. In Califormia the legislature cannot compel a city to pay a claim which it is under no obligation whatever to pay, nor require a court to render judgment on proof of the amount thereof. Hoagland v. Sacramento, 52 Cal. 142. See infra, § 124. When, under a contract for compensation entered into with some public agency, a private party has rendered services or expended money in an en is unobjectionable in principle, and must be regarded as settled, although it asserts a measure of control over municipalities, in respect of their duties and liabilities, which probably does not exist as to private corporations and individuals. § 124 (76). Payment of Invalid Bonds. Accordingly, in a case where a municipality, after the passage of an act of the legislature which provided that towns and cities should not thereafter "have power to contract any debt without fully providing in the ordinance creating the debt the means of paying the principal and interest," issued bonds without such a provision as the above statute required, and used them in payment of an authorized indebtedness, the Supreme Court of the United States held that inasmuch as the bonds represented an equitable claim against the city, it was competent for the legislature to interfere and require the city to pay them. "The power of the legislature," says Field, J., delivering the judgment of the court, "to require the payment of a claim for which an equivalent has been received, and from the payment of which the city can only escape on technical grounds, would seem to be clear. . . . A very different question," the learned judge cautiously adds, "would be presented if an attempt were made to apply the means raised [by taxation] to the payment of claims for which no consideration had been received by the city." 1 terprise which is beneficial to a particular municipality, and for which the legislature might in the first instance have made that municipality chargeable, it is competent for the legislature to discharge the original agency and fix the obligation to pay on the municipality itself. O'Neill v. Hoboken, 72 N. J. L. 67. But the debt of one municipal corporation cannot be summarily transferred to another where there is no moral obligation resting on the corporation sought to be charged. Simon v. Northrop, 27 Oreg. 487, citing ated without any law governing them, although officers were selected by the residents, and a form of government was carried on by a kind of mutual understanding. These officers incurred indebtedness in administering the affairs of the localities, but had no authority to raise the necessary revenues to pay the same. Public improvements were made, schools were maintained, certificates for town lots were issued. In 1890 a code of laws for the permanent government of the territory was enacted, and these provisional governments were incorporated into the reguNew Orleans v. Clark, 95 U. S. larly organized village of Guthrie. In 644, 652, 654. In Guthrie National 1893 the city of Guthrie became the Bank v. Guthrie, 173 U. S. 528, it ap- successor of the village of that name. peared that the territory of Oklahoma In 1890 the legislature passed an act was opened for settlement in 1889. to provide a method by which to raise Town sites were located and settled the necessary funds to pay the indebtupon, and many persons located within edness incurred by the provisional the present boundaries of the city of governments of the four villages. The Guthrie. Four distinct provisional statute created a special tribunal for municipal corporations or villages, hearing and deciding upon claims known as Guthrie, East Guthrie, Cap- against the municipal corporation, itol Hill, and West Guthrie, were cre- which had no legal obligation, but text. § 125 (76 a). Repayment of Moneys advanced. - A bank advanced money to commissioners for the construction of the New York City court house. In making these advances the bank was represented by its president, and it made the advances in good faith without notice of any conspiracy or misappropriation; but in fact the commissioners had entered into a fraudulent conspiracy to raise bills for work above the true amount and to divide the excess among themselves. Part of the money advanced went into the court house, but the larger portion of it was fraudulently diverted by the commissioners. Three of the conspirators were directors of the bank, but were not present when any action was taken in respect of the advances by the bank. After this, the legislature passed an act directing the city to pay back to the various banks all moneys which had which the legislature thought had suffi- has received the benefit as above decient equity and were based upon a suffi- scribed. This territorial act shows ciently strong moral obligation to make that only claims of a municipal charit proper for it to provide for their in- acter and of a bona fide nature could be vestigation. For the payment of such allowed. We regard the power of the as were decided to be proper, pro- territorial legislature to pass this act vision was made by taxation upon the as indisputable. It comes within the property in the city. The court held grant to that legislature contained in that the services performed and mate- the act of Congress and in the Revised rials furnished to these provisional Statutes above cited." To the same governments were proper and bene- effect, State v. Winter, 15 Wash. 407. ficial, probably absolutely necessary, for the well-being of the people living there, and the question was whether the territorial legislature was unequal to the task of providing for their payment by the city as the successor of the villages which had received the benefit. It held the power of the legislature to pass the act as indisputable. Approving New Orleans v. Clark, 95 U. S. 644. The court said, among other things (173 U. S. 535): "The services performed for and the materials furnished these provisional governments under the circumstances stated would certainly be regarded as proper and as beneficial, probably as absolutely necessary, for the well-being of the people living there. The villages which were subsequently incorporated under the law of the territory succeeded to and enjoyed these benefits, and passed them on to their successor, the city of Guthrie, the present defendant in error and appellee. These facts give great In Iowa it appears to be regarded as force and strength to the moral con- not within the power of the legislature sideration supporting claims of the to provide a means for the collection nature here existing. Though they of an unconstitutional obligation could not be enforced at law, the ques- against a public corporation, as where tion is, whether the territorial legisla- a debt had been incurred in excess of ture was unequal to the task of provid- the limit fixed by the Constitution. ing for their payment by the city which Mosher v. School District, 44 Iowa, 122. The power of the legislature to appropriate the moneys of municipal corporations in payment of claims ascertained by it to be equitably due to individuals, though such claims be not enforceable in the courts, depends largely, in the view of the Supreme Court of California, upon the legislative conscience, and will not be interfered with by the judicial department unless in exceptional cases; and the circumstance that the contract under which the plaintiff did certain work in San Francisco, expressly provided that the city should in no event be liable for any portion of the expenses thereof, was held not to affect or in any manner invalidate an act subsequently passed by the legislature requiring the city to pay him a debt which in good conscience it ought to pay. Creighton v. San Francisco, 42 Cal. 446; Sinton v. Ashbury, 41 Cal. 525; New Orleans v. Clark, 95 U. S. 654; supra, §§ 123, 124. |