# Cotten v. County Commissioners

> Supreme Court of Florida · January 15, 1856 · 6 Fla. 610

URL: https://www.frixlaw.com/law-library/cases/4912989

## Case

- **Full name:** Frederick R. Cotten and William G. Ponder v. The County Commissioners of Leon County, et , al.
- **Court:** Supreme Court of Florida
- **Decided:** January 15, 1856
- **Citations:** 6 Fla. 610
- **Precedential status:** Published
- **Opinion:** Dissent by Baltzell
- **Judges:** Baltzell, Dupont, Slidell
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4912989

## Opinion text

BALTZELL, C. .L,
delivered the following dissenting opinion:
Differing with the majority of the court in their views expressed in this case, I proceed to give the reasons that operate with me for holding the adverse opinion. The county of Leon has imposed a tax to pay a subscription of stock to this company, which is complained of as unconstitutional. By express provision of the Constitution, the principles established in regard to State taxation are made to apply to the counties when imposing [taxes. Art. 8, sec, 4, Cons.
Those principles are declared to be “ equality and uniformity in the mode of taxation.”—Sec. 1. 2ndly, “ That no other or greater amount of tax or revenue shall at any time be levied than may be required for the necessary expenses of government.”•—Sec. 2. 3dly, “ETo money shall be drawn from the treasury but in consequence of an ap. propriation by law, and a regular statement of the receipts and expenditures of all public monies shall be published and promulgated annually with the laws of the General Assembly.*—Sect. 3, 4thly, “The General Assembly shall not pledge the faith and credit of the State to raise funds in aid of any corporation whatever.”—Act 13, sec. 13. 5thly, “Private property shall not be taken or applied to public use unless just compensation be made therefor.”—Art. 1, sec. 14. 6th. “ The General Assembly shall have power to authorize the counties and incorporated towns of this State to impose taxes for county and corporation purposes respectively, and all property shall be taxed upon the principles established in regard to State taxation.”—Art. 8, sec. 4.
These obviously provide a system and mode of action for the government, and regulation as well of the Legisla *641 ture as of cities and counties. They impose upon them a duty of imperious and important character. They are> in the first place, before imposing a tax, to ascertain the “pecessary expenses ” to which the State, city or county may be subjeet, so as not to levy u any other or greater amount than may be required.” When collected, the money is not to be withdrawn from the treasury except by appropriation; and, as a still farther security, they are all to publish a statement of their receipts and expenditures.
It is not required of me, I trust, to define the terms necessary expenses. They are clearly restrictive to an authority confided. They are terms of art, phrases well known in law in their application to trustees (the relation and capacity which the Legislature and these city and county officers hold to the people) as well as to executors, guardians and other officers. And their familiar use is in strict accordance with their legal acceptation. No one confined to necessary expenses regards himself at liberty to expend as largely as.he would if relieved from such restraint.
Passing by the general question of the right of a county to construct a railroad, to be discussed hereaftlS^he question arises whether the construction of this railroad is a necessary expense of the county of Leon ? If it be so, then the law is in strange conflict with itself. It leaves to the option of a majority of the citizens to say whether the expenses shall be encountered—not that they are necessary. Now, this very option and choice is irreconcilable with the idea of necessary expense. If it was a fair expense, a necessary expense of the county, there was no option about the matter, and the Legislature should have directed peremptorily the discharge of the duty, and, indeed, without a special law, the county authorities should have provided foy it under the general authority confided *642 to them. If a necessary expense, there was no permission required, no sanction needed. Can a trustee refuse to meet a necessary expense of the trust confided to him; an executor of his estate; a guardian or parent a necessary expense of his ward or child ? Is it at the option of any of these to refuse to meet a necessary expense, to provide for or reject it at jfieasure? It may be requisite, in case of unnecessary expenses, to ask such permission. In case of necessary-expenses there is none, and courts invariably compel their allowance and payment.
A still more definite enquiry is presented on this point.
By referring to the original charter of this Company passed in 1853, we find that they have authority to construct a road “ from the city of Pensacola or any other point or points on the waters of the Pensacola Bay in Florida, and running thence in an easterly direction to the western or southern boundary line of the State of Georgia.” By an amended charter in 1855, they have “ power to build an extension of their road to a junction with the Florida, Atlantic & Gulf Central Railroad, at or in the vicinity of Alligator, Columbia County,, and in case of their failure to construct their road to Alligator by the time the Pensacola and Georgia Railroad constructs its to that point, then to a junction East of Alligator, or to the Florida Railroad on the most practicable route to Jacksonville on the St. John’s river with an extension from a suitable point in Columbia ■County in a southern or southeasterly direction, to a suitable point of junction with a road which may be built ■from Amelia Island, on the Atlantic to the waters of Tampa Bay in South Florida. Also an extension to Crooked Riv tions confining the Legislature in this very respect, then indeed, the authority is inapplicable. It is lamentable to observe the slight influence of words to abridge power or to restrain and prevent its doubtful exercise. Let there be line upon line and precept upon precept, yet some means of evasion will be devised, and this tendency prevails in direct ratio and proportion to the interests -involved. Not so, however, with a grant of power, which, though ever so vague and indefinite, yet from its inherent propensity of aggrandizement, never tails to discover the most plausible and authoritative pretexts and excuses for any desired extension.
The power of the judiciary to disregard an unconstitutional law is declared in the opinion of the majority to be aggressive, as having been used for mischievous purposes. It is even . characterized asa deadly weapon. The authority for so grave an assertion, so serious a charge, is not given. I am confident none exists. I am not aware that any one even in the heat of party excitement has ever before carried his views to such an extreme. What court has committed this grave offence? Certainly not the Supreme Court of this State, that has exerted this power hut on one occasion, as far as I recollect. Is it the Supremo Court of the United States that has had greater occasion to bring-itself within the reach of the charge than any other ?
But is there the slightest pretext or color for any such notion ? If the idea of aggression was ever entertained in-the wildest dream of any judge, a simple survey of his.position would effectually extinguish such sentiment. •
*664 A Court makes no law, controls no means, no monied resources, has no patronage, (in this state does not appoint its own clerks.) The disposition of all these is by the oth. or departments of government. It cannot initiate action in the slightest case ; like an arbitrator it acts only as questions are brought before it, and grants or refuses only on such application. Sometimes the legislature or executive obtains its aid to enforce a law, or punish for disobedience to one.
At other times the citizen claims its interposition, insisting that legislative or Executive action is to bis injury and that the supreme law of the land, the Constitution, is his shield, and constitutes a protection to him. In such case, the Court performs the simple office of deciding which is superior, and when an act of the legislature or the executive is in conflict with the Constitution, it announces the fact and gives efficacy to the supreme law. It is then perfectly clear that the action of the Court cannot be aggressive except where it fails' to interpose for the protection of the citizen against an unconstitutional invasion of bis rights. In such event the court makes itself au accessary by the aid rendered, and to this extent will its action be aggressive. The present case will be an apt illus-t:ation if we are right in1 our views as to the unconstitutionality of the law.
How this action can be justly characterized as a deadly weapon is beyond my powers of conception. If there be serious and fatal consequences attendant upon the exercise of such power by the judiciary, they will arise from the imbecility or want of independence and integrity of its members in the discharge of the important functions confided to them. They can never attach to a faithful and conscientious and independent discharge of judicial duty, for if liberty is to be crushed and-freedom to find its grave, an *665 honest and undaunted judiciary will bo found unflinchingly maintaining its post in defence of the Constitution, and perishing only amid its ruins. The deadly weapon will then be found in the hands of its foes, and the fatal wound inflicted by its enemies—tbe enemies of constitutional liberty and free government.
The importance of a proper exercise and discharge of this duty is illustrated in the impressive language of the sages and patriots of the Revolution, the fathers of the Constitution of the United States, and by eminent jurists and statesmen.
The late Daniel Webster in a debate in the Convention of Massachusetts, thus happily and forcibly expressed himself: “ Ho conviction is deeper on my mind than that the maintenance of the judicial power is essential and indispensable to tbe very being of this government. The Constitution without it would be no Constitution, the Government no Government. I am deeply sensible, too, and I thinlc every man must be, whoso eyes have been opened to what has passed around him for the last twenty years, that the ndicial power is the protecting power of the whole Government. Its position is on the outer wall.”
The great Patrick Henry, than whom no one was more jealous of power, and who opposed with all his might the Constitution of the United States on account of the large power grants in it, thus expressed himself in the Virginia Convention : “The honorable gentleman did our judiciary honor in saying they had firmness enough to counteract the Legislature in some cases. Ves sir, our judges opposed the acts of the Legislature. Wo have this landmark to guide us. They had the fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary so well constituted and so inde *666 pendent of the other branches as our State judiciary^ Where are your landmarks in this government? I will be bold enough to say that you cannot find antr. I take it as the highest encomium on this country that the acts of the Legislature, if unconstitutional, are liable to be opposed by the judiciary.”
Chancellor Kent says, “there can be no security for the minority in a free government, except through the judicial department. In free governments, the independence of the judiciary becomes far more important to the security of the rights of the citizens than in a monarchy, since it is the only barrier against the oppression of a dominant faction, armed for the moment with power, and abusing the influence acquired under accidental excitement to overthrow the institutions and liberties of the people.” 1 Kent. Com.
Mr. Madison, justly styled the father of the Constitution of the United States, speaking as to the position of the judiciary and the necessity for strengthening it, says : “Experience in all the States had. shown a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitution, and suggested the necessity of giving every defensive authority to other departments consistent with republican principles.” Debates in Convention, p. 1163.
Governeur Morris said, “he concurred in thinking the -public liberty in greater danger from legislative usurpations than from any other source.” P. 1165.
“As the Constitution is the supreme law of the land, in a conflict between the law3 either of Congress or the States, it becomes the duty of the judiciary to follow that only which is of paramount obligation. This resulta from the very theory of a republican constitution of government; for otherwise the acts of the legislature and execu *667 tive would in effect become supreme and uncontrolable, naturally, notwithstanding any prohibitions or limitations in the Constitution, and usurpations of the most unequivocal and dangerous character might be assumed without any remedy within the reach of the citizen. The people would thus be at the mercy of their rulers in the State and national governments, and an omnipotence would practically exist like that claimed for the British Parliament.” 3 Story, 428 -9.
Such are the views I have entertained on this subject, derived from these eminent sources. They have governed me to the extent of my limited capacity in their application to the present subject. The maintenance of the Constitution, of the great fundamental principles of free government is, in my view, pre-eminently superior to any mero question of expediency or regard for improvements, however important they may be to the welfare of the State. I might lament a restriction which would bo detrimental to this enterprise, but for such I am not responsible; tlio remedy is in other hands. My duty is to declare the law as it is; and, having a clear conviction in my own mind, free from any doubt, there remains the questionable and imperious duty to announce it. I find no necessary expenso of the county of Leon—no county purpose, which justifies the levy of this tax. The law is, in my opinion, therefore, dalpably unconstitutional.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4912989. Public record. Not legal advice.