Sharpless v. Mayor of Philadelphia

The acts of Assembly whose constitutionality is drawn in question, were approved on the 6th day of May, 1852, and the 9th of April, 1853, respectively. By the first, the constituted authorities of the city of Philadelphia, the incorporated districts in the county of Philadelphia, the borough of Easton in the county of Northampton, and the counties of Monroe and Pike, or either of them, are authorized to subscribe for shares in the capital stock of the "Philadelphia, Easton, and Water Gap Railroad Company," provided that no subscription by any municipal corporation, authorized by this section to subscribe to the capital stock of said company, shall exceed ten per cent. on the assessed valuation of the real and personal estate in the city, district, borough, or county making such subscription. By the other of these acts, the city of Philadelphia is authorized to subscribe for 10,000 shares in the capital stock of the Hempfield Railroad Company, and "the said city may be represented at elections and other meetings of the said company by agents duly authorized to act, by resolutions of the councils thereof." To enable the city to pay for these stocks, both acts empower the city "to borrow money to pay therefor, and to make provision for the principal and interest so borrowed, as in other cases of loans to said city."

By an ordinance of the city councils, passed in the forms of the charter, on the 10th of March, 1853, the Mayor was authorized, on certain conditions, to subscribe for 10,000 shares in the capital stock of the Philadelphia and Water Gap Railroad Company; and by a similar ordinance of the 4th of April, 1853, he was authorized, unconditionally, to subscribe for 10,000 shares in the capital stock of the Hempfield Railroad Company, which he did on the 10th of May, 1853.

To restrain the city authorities from making these subscriptions, and from issuing bonds, if already made, the relators, who are citizens and owners of real and personal estate in the said city, apply to this Court for a writ of injunction. The city pleads the authority of the acts of Assembly for the subscriptions. The relators allege that these acts are unconstitutional and void. This is the issue on the record. *Page 177

It is material to observe, that neither of the Railroads are within the city of Philadelphia. The first named begins at a point north of Vine street, which is the northern boundary of the city, and runs by the most expedient and practicable route, to or near the borough of Easton, and thence, by various authorized connections and extensions, to a point called Waverly, on the New York and Erie Railroad, where it touches the northern boundary of the state, in the county of Bradford.

The Hempfield Railroad was incorporated to be laid with one or more tracks from Greensburg, in Westmoreland county, where it intersects the Central Railroad, to some point near to West Newton, in said county, and thence by authorized connections and extensions through Washington county, Pennsylvania, and Ohio county, Virginia, to the city of Wheeling. This road is said to be, at its nearest point, three hundred miles from the city of Philadelphia. It must be assumed, that the design of one of these roads was to facilitate trade and commerce between the city of Philadelphia and the northern portions of Pennsylvania and New York; of the other, to bring increased trade and travel on the Central Railroad, in which the city of Philadelphia owns $4,000,000 of stock, as well as to establish a direct communication between the said city and the valley of the Ohio at the city of Wheeling.

Though it is possible to imagine that the city of Philadelphia might be able to make provision for the payment of the loans, authorized by these acts of Assembly, out of rents of property, dividends on stocks, exchange or sale of stocks, legacies, and such like resources; yet taxation was the power evidently intended to be conferred. The question, therefore, which we have to decide, may be stated thus: Had the legislature constitutional power to authorize the city of Philadelphia to subscribe for stock in these railroad companies; to borrow money to pay the subscriptions, and to levy taxes to pay the loans?

We make considerable progress in the discussion of any question by stating it properly. From the statement of the present question, it is apparent that some matters which entered largely into the discussion at bar, have no necessary connection with it The policy of such legislation is in no degree a question for the judiciary. That belongs exclusively to the people and their representatives. Nor have the doctrines of eminent domain

anything to do with the question before us. It is said there are but two modes under our constitution, in which the public may take private property — the one, by virtue of what is called eminent domain , when compensation is secured by the constitution — the other by taxation, when compensation is unprovided for, except what results incidentally from a republican form of government.

I do not agree with one of the learned counsel in the West *Page 178

Chester case, who argued that there is no distinction between eminent domain and taxation. I think there is. Both are exercises of sovereignty, it is true, but the former has respect to the property of individuals, and is regulated only by the public exigencies, whilst the latter respects the whole community or whole classes of individuals, and is regulated by some standard prescribed by law. Again, when private property is taken for public use, compensation must be made, and that must be in money, and cannot be in kind, Vanhorn's Lessee v. Dorrance, 2 Dallas ; Sutton's Heirs v. the City of Louisville, 5 Dana 29 . Money, said Lord MANSFIELD, is the measure of value. In some sense money is property, but when our constitution requires compensation in money to be made for property taken for public use, it marks a distinction between money and property — between value and its measure. But taxation is a public demand, not for property in the sense of the constitution, but for money, or personal services, and that without compensation. True, under most tax laws, property may be seized and sold for default of payment in money, but this only as means to an end, just as the body may be imprisoned if property cannot be found. Nor are these distinctions disproved by the instance put in argument, of money seized to pay troops on the point of mutiny in the face of an invading foe, when it was said, if compensation be made it must be in kind. The answer is, that such a seizure would be neither the exercise of eminent domain , nor of the power of taxation, but of martial law. In adequate emergencies, martial law suspends the habeas corpus, inflicts summary punishments, and appropriates private property, without regard to the guaranties of the constitution. Inter arma silent leges.

But in the operations of civil government, the legislature exercises its constitutional sovereignty, sometimes in taking specific property from individuals for a price and devoting it to public use, and sometimes by imposing a tax on property without change of its title or its use.

What we have to deal with here, then, is the constitutionality of laws for taxation , and all those clauses of the constitution, and all the arguments of counsel which apply to legislation founded on the eminent domain , are beside the point, and may be laid out of the discussion.

Do I take undue liberty with the question, in thus shearing it of much matter which distinguished counsel supposed pertained to it? Are they not tax laws? The words of the enactments, as we have seen, import taxation. The complainants so understand them, for they tell us they are "bound by law, and do pay all taxes justly assessed and levied on their property in the city of Philalelphia," and they charge that by said subscriptions and the issuing of said bonds, "the debt of said city, now exceeding seven *Page 179

millions and a half of dollars, would be greatly increased, the credit thereof seriously impaired, and the taxes chargeable and to be levied in the said city upon the property of your orators and their fellow citizens, will be greatly augmented ."

Beside, if these acts affect city property at all, it must be through taxation, for the specified roads are not to touch the city, nor to " take " an inch of its property, within the meaning of the tenth section of the bill of rights. Taking private property, and applying it specifically to public objects, is one thing — assessing property with public taxes according to a pre-determined standard, is quite another thing. These acts mean the latter, and not the former, if their words be regarded; if the interpretation of the complainants be received, or if the distinctions of the constitution between eminent domain and taxation be not obliterated.

Considering, therefore, these Acts of Assembly as providing for objects which are to be attained through taxation, I next proceed to notice briefly the principles on which the constitutionality of such legislation is to be tested.

The striking peculiarity in the civil and political condition of the people of this country, is that they live under the jurisdiction of two separate and distinct governments — both formed by themselves, and the powers of each limited by written constitutions. The people of Pennsylvania, made absolutely free, sovereign, and independent, on the 4th day of July, 1776, settled for themselves a frame of government which, as modified in the present constitution, organizes the various departments of a republican government, legislative, executive, and judicial; and vests in them, not specific and enumerated powers, but legislative power, executive power, and judicial power. Whatever is in the nature of these three governmental powers, (and for their nature we must refer ourselves to the principles of political science,) belongs to these departments respectively, but not without limitations. The bill of rights is a series of reservations out of the powers granted to these departments, and concludes with a solemn declaration in these words: "To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall for ever remain inviolate." The primary questions, therefore, that arise upon the constitutionality of an Act of Assembly, are first: Is it in the nature of legislative power; and secondly, does it trench upon any of the reservations in the bill of rights? If the first of these questions can be answered affirmatively, and the other negatively, the resulting conclusion is that the Act is constitutional. So far in regard to the state constitution.

The federal constitution sprung from the experienced necessities of the states of the confederacy, and was formed out of powers *Page 180

specifically granted and enumerated by the people. To the extent of the powers granted, this instrument restrains the sovereignty of the states, but the "powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people." Because the people are more largely represented in the state government than in the national; and because the powers granted to the federal government are in derogation of state rights, the rule of strict construction, as applied to these grants, is obviously conservative and just, though not universally admitted.

The people are the source of all political powers. They enumerate those they grant to the federal government, and those they reserve from the state government. The legislative power of the states extends to all subjects, properly legislative, not found in one or the other of these enumerations, and the only question additional to those already stated, that can arise on the constitutionality of a state law, is, does it contravene the grants in the federal constitution?

But this question need not be considered here, for in all that has been said against these Acts of Assembly, they have not been charged with contravening any of the grants in the constitution of the United States.

Recurring, therefore, to the questions stated, I proceed to inquire, first, whether these Acts of Assembly are according to the nature of legislative power.

That taxation is a legislative power has never been questioned in this country. In despotic governments it is usurped by the supreme executive, and in the limited monarchy of Great Britain it has sometimes been exercised by the king, but always with popular discontents; and in the instance of Charles the First, it led to the loss of his head. The people have long since regained this right, and it is now vested in parliament.

Here it was claimed for our colonial legislatures against the legislative body of the mother country, where we were unrepresented; and as soon as the people became free, they brought it as near home to themselves as possible, by providing in all their constitutions that revenue bills should originate in the House of Representatives, where they are most largely and directly represented. Yet, there is nothing about this power in our constitution, except what is implied from the provision just referred to. Government presupposes the power of taxation, and cannot exist without it; and because it is not denied in the bill of rights, it is granted in the general grant of legislative power. In the federal constitution it is expressly given to the legislative body. This indicates at once the distinction in the theory of the two constitutions, and the sense of the country that taxation is a legislative power. *Page 181

But it is said that this power cannot be delegated. Strictly speaking, none of the powers of government can be delegated. They are vested in co-ordinate departments to be exercised, and without the right of transfer. But the legislature may provide agencies through whom to exercise the power of taxation, and that is not properly called a delegation or transfer of the power, which is merely an exercise of it through a suitable agent. Accordingly, from the beginning of our government, the legislature have divided the state into counties, townships, school districts, boroughs, and cities, and have provided for the appointment or election of certain tax officers, in their respective localities, and have authorized them to assess, collect, and apply taxes. This has been not so much a delegation of the power of taxation to those municipal divisions as the exercise of it through and by means of chosen agencies. In exact accordance with this kind of legislation, which, having been coeval with the constitution, affords the best interpretation of it, these Acts of Assembly authorize one of the municipal districts of the state "to make provision for the payment of the money borrowed, as in other cases of loans to said city." Was this a delegation of a legislative function? How could the legislature make provision for the repayment of the borrowed money, as in other cases of loans to said city? Their faculties are all legislative. They have no executive power, and the constitution and habits of the body unfit them for applying rules which it is their province to prescribe. They are obliged to act through chosen agencies when providing for the revenues of the state. State taxes, the internal improvement system, common schools, and all state objects, have to be intrusted to agents, though the power that controls them resides in the legislature. In the same manner, when the legislature would tax the citizens of the city of Philadelphia, to build the railroads in question, they must use the hand of some agent, and whose could be more wisely selected than that of the "constituted authorities" of the city? And even that hand is not forced to the work, but employed only with the consent of the body to which it belongs — a circumstance which indicates the moderation of this legislation.

But the objection most insisted on has reference not to the legislative power of taxation, nor to the agencies called in aid of its exercise, but to the objects and purposes to which it is applied. These are to construct railroads outside of the geographical limits of the city. Whilst the constitutional power of the legislature to create, renew, and extend the charters of municipal corporations is admitted, it is maintained that municipal administration is the only purpose for which they exist; and it is denied that legislative power can tax them for any other.

By subscribing to the stock of these railroad companies, the city *Page 182

of Philadelphia will become a member of the companies. They are private corporations. Intending to become common carriers, they will assume large responsibilities, a share of which must fall on each corporator. The enterprise is costly and hazardous, and may result in great pecuniary profits, or in disastrous losses. Is it a municipal purpose? Does it come within the circle of objects which municipal corporations were designed to accomplish? Without going into the history and common law of such corporations, I unhesitatingly answer these questions in the negative. There is no congruity between such an enterprise and the legitimate purposes of municipal corporations. They were designed to regulate the internal affairs of the places in which they were located. Police, health, streets, lanes, alleys, and the like, are the appropriate subjects of municipal administration; and though a city may go beyond its boundaries to purchase necessaries for its existence, safety, and comfort, yet its jurisdiction is properly exercised only within its territorial limits, and on subjects that pertain to its domestic economy and well-being. Railroads, to connect distant points of country, to develope physical resources, and to promote commerce, are great public benefactions, and emphatic expressions of the energies of an age distinguished for activity and bold adventure. But they come not within or near that class of objects which we have been taught to consider as municipal purposes. Yet when the legislature enables a city to lend a hand to such enterprises, where is the constitutional provision which the judiciary can say is violated? The power of taxation is unrestrained in the constitution, both as to extent and purpose. Municipal corporations are not defined in the constitution; nor in any general statute. If we go to the common law, that teaches us they may be formed by prescription, by statute, or by royal charter, and that their ordinary purposes are such as I have indicated; but it imposes no restraints on legislative power in respect to them. On the contrary, a learned writer informs us that "in England the legislature has not often exercised the power of creating municipal corporations, because it has been esteemed a flower of the prerogative. Where the ordinary regulations alone are necessary, the king incorporates by charter; but when it is thought proper to invest the intended body with any extraordinary power or privilege, the aid of parliament is necessary." Again: "The statute may invest the body with powers contrary to the general rules of law, but they must be granted in clear and unambiguous words." Again, he says: "It is quite unnecessary to say what privileges may be granted, or regulations prescribed to a corporation by an Act of Parliament, for the power of the legislature in this respect cannot be defined." (Willcock on Municipal Corporations , sect. 10, 19, and 226.) *Page 183

Without saying that with us this power cannot be defined, it must be admitted it has not been. The people alone are competent to set bounds to a clearly granted and unquestionable power. The judiciary cannot assign limits to that which the people have decreed shall be unlimited. If they could, the judiciary would be the only real sovereign in the state, and might hinder the most salutary legislation. Are we to set aside these enactments, because they do not harmonize with our ideas of municipal purposes? This is the most solid ground to which we have been pointed, but it is not strong enough to sustain such a decree.

I have no doubt of the right and duty of the judiciary to declarea law unconstitutional, when it clearly contravenes any of the provisions of the state or federal constitutions; but it is a power to be exercised with great caution. For nearly fifty years of our political existence, under the constitution of 1790, no Act of Assembly was set aside for unconstitutionality. Judges claimed the power, and said they would exercise it in clear cases, but in all that period no case arose which, in their judgment, was clear enough to justify the exercise of the power; and it is well known that that great light of this bench, so recently extinguished, stood opposed, for many years, to the existence of any such judicial power. Since the constitution of 1838 was adopted, several Acts of Assembly have been declared unconstitutional, but they were all clear cases. When the legislature disregards the distribution made of the powers of government, among the three co-ordinate departments — or the restrictive clauses in the body of the instrument — or the reservations of the bill of rights — or the grants to the government of the United States — the judiciary, whose office it is to expound the law, may, and I hold are bound to declare the act unconstitutional and void. But on lower ground than this, and especially on ground so low, as the equivocal and undefined purposes of municipal corporations, Acts of Assembly have never been declared unconstitutional. It was said in the argument, and authorities were exhibited to prove that the constitutionality of legislation, similar to this we are considering, has been asserted in seven states of the confederacy. These concurring opinions of the Courts around us, sitting under state constitutions similar in their structure to ours, are entitled to great respect, and serve to show that the corrective of this species of legislation, novel as it unquestionably is, and pernicious, as many believe, is with the people and not with the courts.

The power of legislation by representatives of their own choosing, is one of the invaluable privileges of the people. It is this which makes them a free state. This is self-government — the best of all kinds of government, and therefore least in need of clogs and restraints. When, through inadvertence, this power is applied to *Page 184

objects forbidden by the letter of the constitution, the interposition of the judicial arm is properly invoked. But so long as it keeps within its appointed orbit, judges cannot interfere with its progress, without themselves departing from their proper sphere.

It remains to consider briefly the second question proposed: Does this legislation trench on the Bill of Rights? The first section of that instrument is relied on, which enumerates among the inherent and indefeasible rights of man, that of "acquiring, possessing, and protecting property."

It must never be forgotten that the "Declaration of Rights," as the 9th article of our constitution is called, is part of a frame of civil government, and is to be construed with reference to the whole instrument, of which it is a part. When, therefore, "the right of acquiring, possessing, and protecting property," is asserted, it does not mean to exempt property from taxation, since without taxation civil government cannot exist. Nor does it mean to exempt it from the prerogative of eminent domain , for the right to take private property for public use, is elsewhere expressly asserted, and without this also government cannot exist prosperously, if indeed at all. The acquisition, protection, and defence guaranteed, must be consistent with and subordinate to these first principles, else one part of the constitution destroys the other, and so the government is dissolved. I am clearly of opinion, that this section cannot be set up against a tax law. Nor is there any clause in the Declaration of Rights, which restrains the legislative power of taxation. I know this may seem to some a startling proposition, but, rightly considered, there is nothing alarming in it.

The great conservative principle which lies at the base of our institutions, is popular representation, and it was, doubtless, a profound reliance on this principle, which induced the framers of our constitution to plant in the legislature the taxing power without stint or restraint. And as the tree is best known by its fruits, so are the results of experience the best tests of political theories. In those governments where suffrage and representation have been withheld from the masses, men and property have been taxed to support royalty and aristocracy in costly magnificence — to carry on wars bred by the bad passions of rulers, or to construct expensive and useless works as memorials of individual grandeur. How different with us! Taxation by the general government, indirectly applied, is limited to the necessities of economical administration. Taxation in Pennsylvania, beyond the ordinary purposes of government, has been devoted to the education of the ignorant, the relief of the insane, the dumb, the blind: — to the construction of highways, and bridges, and canals, and railroads. These are the purposes to which a REPUBLICAN GOVERNMENT applies the power of taxation, and when so applied, it is a beneficent power. Even *Page 185

though incongruously blended with municipal purposes, as in the instances before us, it is by no means clear that it will not be productive of more good than evil. And that it will never belong perverted to injurious use, is as certain as the law of self-preservation, for so long as the people rule themselves, it is impossible to anticipate that they will employ any of the powers of government for their own oppression. The fact is, the internal improvements of Pennsylvania, ill-contrived and badly managed as in some instances they have been, have added incalculably to the material wealth of the state, and the taxation they have occasioned, if it seem high as compared with former standards, sinks into insigificance when compared with taxation in other countries, or with the resources of national wealth and greatness which it has multiplied in our own. It is easy to imagine possible abuses of any unrestricted power, but the voice of our own experience (and I know no safer oracle) teaches us that we may safely trust the interests of the future to that form of government which has been productive of so much happiness and prosperity in the past.

But, not to pursue the subject further, my opinion is, that upon the received principles of constitutional construction, these Acts of Assembly are constitutional and not void, and consequently that the motion for an injunction should be denied.