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conclusion from the facts, his judgment is right and must be affirmed.

The foregoing opinion discusses a v. Woodfall, supra; Wellock v. Constzaquestion of great practical iraportance, tine, supra. But this doctrine has been in regard to which we fear the law of repudiated : White r. Spettigue, supra; this country is by no means up to the Wells v. Abrahams, supra. But the standard of the English common law, latter case distinctly recognises the rule either in principle or administration. of law that the civil remedy is susThe rule in the English courts is very pended during the prosecution for felony extensively discussed in Wells v. Abra- and cannot be pressed until that has been hams, Law Rep. 7 Q. B. 554, in regard terminated either by conviction or aoto the right of any civil remedy, and quittal without plaintiff's connivance : what remedy, the party aggrieved by a Crosby v. Long, supra. felonious act, which also involves an But we are not aware that this rule infraction of private right, may demand has ever been enforced to any great exin a court of justice.

tent, if at all, in this country : MetIt seems to have been intimated in calf's note 2 to Higgins v. Butcher, some of the early English cases, that Yelv, 89. But the rule of the common the civil remedy, or right of action, is law, that all contracts for compounding merged in the felony: Higgins v. or stifling prosecutions for felony are Butcher, Yelv. 89 ; Dawkes v. Coveneigh, illegal and void, is maintained here to Styles 346; BULLER, J., in Masters v, the fullest extent. The compounding Miler, 4 Term Rep. 320-332 ; Crosby v. of felony or stifling prosecutions thereLong, 12 East 409. In the latter case for, is also indictable as a misdemeanor it was held only to be suspended till the in most of the American states, either defendant was convicted or acquitted of by special statute or by force of common the criminal charge without connivance. law. It has often been intimated in But later cases treat the civil right English cases that this rule did not exof action as merely suspended until tend to mere misdemeanors, and that the offender shall be convicted : Wellock Parties interested in such prosecutions v. Constantine, 2 Hurlst. & Colt. 146 ; might lawfully compound them : ElGimson v. Wondfull, 2 C. & P. 41; worthy v. Bird, 9 Moore 230 ; 2 Bing. White v. Spettigue, 13 M. & W. 603. 258 ; Drage v. Ibbetsons, 2 Esp. 643 ; And the rule does not apply to one who ELLENBOROUGH, Ch. J., in Taylor v. waived the right innocently.

Lendey, 9 East 49. But this rule is In the case of Wells v. Abrahams, confined, we believe, to prosecutions for supra, it is agreed by all the judges, offences where the party aggrieved is that, although the felon cannot plead his principally concerned, and where the own crime either in bar or suspension compromise is effected under the advice of the civil remedy, as held in Luttrell of the court, by virtue of the English v. Reynell, 1 Mod, 282, yet that if the statute 18 Eliz., c. 5, s. 3. For in felony appear either upon the declara- Collins v. Blantern, 2 Wilson 341, 1 tion or evidence, it is competent in some Smith's L. C. 489, the question how proper mode to stay proceedings in the far the contract for stifling or comcivil action, until the felon shall be pounding a prosecution for perjury, convicted. Some of the cases go the which is only a misdemeanor in Eng length of holding that in such case it land, and securities given in furtheris the duty of the court to interfere sua ance of such compromise, may be ensponte and stay the civil action : Gimson forced in the courts, was greatly discussed, and it was clearly held, that no action can be maintained upon any such contract where any part of the consideration arises from such compromise, thus making no distinction between felony and other offences of similar cnormity,

We have examined the facts upon which the court deny the validity of the contract in the principal case, and it seems to us the decision is based upon most satisfactory grounds ; for the contract seems to have had no other con

sideration but the compromise or abandonment of the prosecution against the defendant, and was expressly agreed to be surrendered if the defendant wero brought to trial. There would seem, then, to be no ground to argue that the contract did not rest exclusively upon the abandonment of the criminal prosccution, which, though not for a felony, was an offence of the same public character and of great moral turpitudc.

I. F. R.

Superior Court of New Hampshire.

PERRY ET AL. v. CITY OF KEENE.

The laying of taxes is a legislative function, and the policy and expediency of it, as well as its amount, are questions exclusively for that department of the

state.

There is no abstract legal principle by which to determine whether a use is public; a court must decide it as a conclusion of fact and public policy, in the same manner as the legislature. Hence, while it is clcarly the duty of a court to determine finally what is a public purpose, it will only decide adversely to the judgment of the legislature in a clear case.

If a purpose is public, it makes no difference that the agent by whom it is to be carried out is a private individual or corporation.

The building of a railroad is a public purpose; and a statute authorizing a town to vote money to aid in such purpose, even though the money is to be given as a gratuity and not as a subscription to stock, is not unconstitutional as a taking of private property for a private use.

This was a bill in equity, by certain tax-payers in Keene, praying for an injunction to restrain the defendants from issuing bonds, &c., in aid of the construction of the Manchester and Keene Railroad, in pursuance of a vote of the city councils to that end. The facts are stated in the opinion.

Sargent & Chase and Hardy, for the plaintiffs.
Lane, Faulkner and Burns, for the defendants.

LADD, J.-"Any town may, by a two-thirds vote, raise, by tax or loan, such sums of money as they shall deem expedient, not exceeding five per cent. of the valuation thereof, * * * and appropriate the same to aid in the construction of any railroad in this state, in such manner as they shall deem proper:" Gen. Stats., ch. 34, § 16. In accordance with the provisions of this statute, the inhabitants of the city of Keene have voted a subsidy equal to three per cent. of their last property valuation, to aid in the construction of that part of the Manchester and Keene Railroad located between Greenfield and Keene. This sum, amounting to upwards of $130,000, is called a "gratuity" in the vote. It is, in fact, an appropriation of that amount, to be raised by a public tax, to the purpose of building a railroad, with no equivalent, except the expected benefits to be derived from the opening of such railroad. The plaintiffs, who are citizens and large tax-payers in Keene, contend that the legislature, in passing the act quoted above, transcended the limits of their constitutional power; that the action of the city in voting the gratuity is therefore without warrant of law, and they ask for an injunction to prevent the issuing of bonds or the leyy of taxes in accordance with said vote.

The question we are thus called upon to consider is an important one, not only in its legal aspects, but in its practical bearing upon the rights and interests of these parties, as well as others in a similar situation, both tax-payers and holders of municipal bonds heretofore issued for a like purpose under the authority of the act in question.

In one view, the duty of the court is extremely plain and simple; in another, it is delicate and not free from difficulty. We bave not to inquire into the policy of the law or (if the purpose be admitted to be public) whether the supposed public good to be attained was sufficient to justify the legislature in conferring upon two-thirds of the legal voters of a town the power to devote, not only their own property, but that of the unwilling other third, to such a purpose. All mere questions of expediency, and all questions respecting the just operation of the law, within the limits prescribed by the constitution, were settled by the legislature when it was enacted. The court have only to place the statute and the constitution side by side, and say whether there is such a conflict between the two that they cannot stand together. If, upon such examination, there appears to be a conflict, and if the conflict is so clear and palpable as to leave no reasonable doubt that the legislature have undertaken to do what they were prohibited from doing by the constitution, the court cannot avoid the high, though unwelcome, duty of declaring the statute inoperative, because the constitution and not the statute is the paramount law, and the court must interpret and administer all the laws alike.

The learned counsel for the plaintiffs have not pointed out the particular part or clause of the constitution which they say is violated by this statute. Their position, however, is that the act authorizes the taking of private property under the name and guise of taxation, and appropriating it to a use that is really and essentially private; and that such a proceeding, being manifestly at war with those fundamental principles upon which the right of the citizen to be secure in the possession and enjoyment of his property depends, is in violation of all those provisions in the constitution established to guard and perpetuate that right.

The proposition assumes this form : The legislature are forbidden by the constitution to exact money from the people of the state under the name of taxes and apply it to a private purpose ; this statute authorizes the act thus forbidden, and is therefore void. The first part of this proposition is admitted by the defendants, and so we need not now inquire in what particular provision of the constitution the inhibition is to be found. Whether it rests upon the commonly received meaning and definition of the terms : taxes, rates, assessments, &c., used in the constitution, and the general guaranties of private property contained in the Bill of Rights, or whether, by a fair construction of art. 5, the levying of all taxes, municipal as well as state, is limited to the purposes therein named, viz., for the public service, in the necessary defence and support of the government of this state, and the protection and preservation of the subjects thereof, is at present immaterial, inasmuch as we are to start with the assumption that taxes cannot be imposed or authorized by the legislature for any other than a public purpose.

Is the building of a railroad a public purpose? The legislature have undoubtedly passed their judginent on that question, and determined that it is. It is not to be denied that the levying of taxes is specially and entirely a legislative function, and the court are not to encroach upon the province of a co-ordinate branch of the government in the exercise of that power. Where is the line that divides the province of the court from that of the legislature in a matter of this sort ? The court is to expound and administer the laws, and there the judicial function and duty ends. How much of the question, whether a given object is public, lies within the province of the law, and how much in the domain of political science and statesmansbip? When the judge has declared all the

vate use.

law that enters into the problem, how much is still left for the idle. termination of the legislature ? Admitting, as has, indeed, been more than intimated in this state (Concord Railroad v. Greeley, 17 N. H. 57), that it is for the court finally to determine whether the use is public, what is the criterion—what are the rules which the law furnishes to the court, wherewith to eliminate a true answer to the inquiry? In what respect does the question as presented to the court, differ from the sanie question as presented to the legislature ? If the court stop, when they reach the borders of legislative ground, how far can they proceed? If the legislature should take the property of A., or the property of all the tax-payers in the town of A., and hand it over without consideration, without pretence of any public obligation or duty to B., to be used by him in buying a farm, or building a house, or setting himself up in business, the case would be so clear, that the common sense of every one would at once say the limits of legislation have been overstepped, by a taking of private property and devoting it to a pri

That is the broad ground upon which such cases as Allen v. Jay, 12 Am. Law Reg. N. S. 481, s. C. 60 Me. 124; Lowell v. Boston, 111 Mass. 454; and The Citizen's Loan A880ciation v. Topeka, Sup. Ct. U. S., were decided. And yet what rule of law do the courts find to aid them in thus revising the judgment of the legislature? Is it not clear that the question they pass upon is the same question as that decided by the legislature, and that they must determine it in the same way the legislature have done, simply by the exercise of reason and judgment?

What is it that settles the character of a given purpose in respect of its being public or otherwise? It has been said that for the legislature to declare a use public, does not make it so (17 N. H. 57), and the same may certainly be said, with equal truth of a like declaration by the court. A judicial christening can no more affect the nature of the thing itself than a legislative christening. Judging a priori, and without some knowledge of the wants of mankind when organized in communities and states, I do not quite understand how it could be predicated of any use that it is per se public: Dixon, C. J., in Whiting v. Sheboygan Railway Co., 9 Ain. Law Reg. N. S. 161.

Of light, air, water, &c., the common bounties of providence, it might, indeed, be said beforehand that they are in a very broad sense public; but it is not of such uses that we are speaking.

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