Mayor of Brunswick v. Finney

McOay, Judge. 1. There is no express requirement of the law that a bill seeking an injunction shall be sworn to by the plaintiff. The chancellor ought not to grant so harsh a writ unless the foots upon which its justice depends are sworn to; but that verification may be by the oath of some other than the plaintiff. Indeed, if the facts be only known by some other person, it is eminently proper the verification should be by him. This is plainly recognized by our act of 1870, Code, section 32LI, which treats the sworn allegations of the bill, or the affidavit of some competent person, as sufficient cause on which to base an injunction, even without a hearing. In this case, the whole gravamen of the bill turns on legal questions, matters of fact having but little to do with the controversy. 2. Upon the question of parties, whatever defect there was in the original proceeding is waived by the coming in of the proper parties and their answering the bill, though it is very plain that the mayor and city council could not be enjoined by a proceeding against its old members. 3. We think the notice required by the charter before issuing the executions, was substantially given. By the express words of the charter, a notice in the newspaper is not the only mode — other legal notice will do — and a publication — 323 — by posting at the court-house and city hall is a very proper and very public and very usual mode of giving notice of anything that is to be notified to the public. 4. It is sticking very closely in the bark to make a difference between laying one-half per cent, for current expenses, and one and a fourth for paying the public debt, and laying one and three-fourths — one-half being for current expenses and one and a fourth for paying the public debt. Substantially it is the same thing done in both cases. The day has past when an adherence to mere form so slavish as this can find favor in the courts. 5. Much might be said in favor of the idea that the words “quarterly installments” means installments each being one-fourth of the whole tax and nothing more, since the time of the payment of such installments is left 'with the officers. But we are inclined to think the word quarterly here means not only quarterly as to amount, but quarterly as to time of payment, and that the time left to the mayor, etc., is the time or day in each quarter. But we cannot suppose this means that if the first quarter’s tax is not collected in the first quarter, that it is uncollectable. Evidently the intent was to indulge the tax payer, so that he should not be compelled to pay the whole of the tax in the first, second or third quarter. But we can see nothing contrary to this in permitting him to escape paying during the first quarter altogether — indulging him even for that, postponing it for his benefit to the second or third quarter. And just that has been done here. The payments are in quarterly amounts. The tax payer is indulged for the first and second quarter to the third. Then the first, second and third installments are made payable at different times during the third quarter, and the fourth installment is payable in October of the fourth quarter. There is nothing in. this onerous on the tax payer. It gives him better terms than the act provides, and he has no right to complain. As to the charge of unequal assessments, it is positively sworn off by the answer. But even without this, it may be said that the charter provides a tri — 324 — bunal to assess, and a court of equity would not interfere on a mere charge of excess. The law makes the assessors the judges. To authorize an interference, something more ought to be charged, such as fraud, corruption, willful partiality, etc. For it is a well settled rule in all such cases, that, for a difference of opinion, a court of equity will not interfere. Something must appear showing conduct abusing the official discretion conferred so as to be ultra vires. 6. "Whether it is competent for a legislature to pass any law to take effect only upon the assent of the people, is a question upon which the authorities seem to be conflicting. Against the validity of such a law are some New York cases: Thorne vs. Craemer, 15 Barb., 112; Bradley vs. Baxter, Ibid., 122; Barty vs. Howard, 4 Selden, 483; a Pennsylvania case, Parker vs. Commonwealth, 6 Barr, 507. There are also some early Iowa cases on the same line, and Mr. Sedgwick, in his work on Stat. & Cons. Law, 163, seems to adopt-the principle of these cases as sound law. On the other hand, Judge Cooley, in his able work on Constitutional Limitations, pages 117 to 124, seems to deny the doctrine altogether, and cites in defense of his position Bull vs. Reed, 13 Grattan, 78; Johnson vs. Rich, 9 Barb., 680; State vs. Parker, 26 Vt., 357; State vs. Reynolds, 5 Gilm., 1; Robison vs. Bidwell, 22 Cal., 349; State vs. Noyes, 10 Foster, (N. H.); Bank of Chenango vs. Brown, 26 N. Y., 487. We have gone carefully over the authorities referred to on both sides of this important question. The case in Grattan, denies the doctrine altogether. It insists that the right to legislate'conditionally is a very important and useful right, and that a condition providing that a law shall not take effect until it has been assented to by a vote of the people, is no more than providing any other condition upon which a law shall take effect. To say that a legislative body must legislate positively and definitely, and that it may not declare what' is its will, provided certain events may occur, would be largely to hamper and restrict the legislative power. Such bodies meet only for á short time during the year, and it would largely lessen their useful dis — 325 — cretion to deny to them the right to enact conditional laws, to go into operation only on certain contingencies. A long list of most important laws, both state and national, is contained iii the cases referred to by Mr. Cooley. If such conditional legislation is important for the public good, it seems difficult to sustain a position that legislation, conditioned to take effect provided the people interested in the law shall, by a formal vote, declare such a law to be desirable, is a delegation of legislative power. Take, for instance, our act of November, 1861, suspending the statute of limitations, to take effect if the banks suspended. Was that a delegation of legislative power to the banks ? And is it any more a delegation of legislative power to enact a law to express the legislative will as to a rule of action, but to add that this will shall not take effect as law until a certain vote of assent is had by the people ? But the cases in which the right of the legislature to pass a law which is conditioned to take effect only on the assent of the people is denied, are, for the most part, cases of general laws. The cases in New York are qualified thus by later cases: In 18th, 23d and 26th N. Y., it is expressly ruled that the legislature may make- a local law, to take effect only by a vote of the people interested. And so the case in 6 Barr is by the same judge, in 8 Barr, 391, declared not to cover any laws except general laws affecting the political or social rights of the people; and in- 10 Barr, 214, the same distinction is taken. Without committing ourselves upon the general principle, we think this distinction a sound one. Local or private laws are, as Blackstone says, not strictly laws, but exceptions to laws: 1 Black., 86. Judges did not at common law notice them judicially — they were required to •be pleaded as matter of private right. -In the history of legislation, such acts are, in fact, always passed on the assent of the people; ordinarily, it is true, this assent is given by an application, and if the law' be passed the application .is presumed. But where upon the face of the act the legislature indicates that it'is not satisfied that the people desire this excep — 326 — tion to the general law, it seems eminently proper that the act be declared not .final until it is assented to. In acts strictly private, our constitution, article I., section 26, requires the written assent of the parties at interest, and-there are various other provisions of the constitution, as that referring to the abolition of counties, article in., section 5, paragraph 2, and that in relation to internal improvements by cities, article in., section 6, paragraph 4, which indicate that the framers of the constitution recognized the propriety, in cases of local legislation, of getting the formal assent of the people interested to the proposed exception to the general law of the state. The case of the acceptance or non-acceptance of a charter, stands •on a still stronger footing. I -do not think any of the cases have gone so far as to doubt the legality of a condition of assent to a charter. At common law, a charter — even a municipal one — was invalid until accepted : King vs. Amery, 1 T. R., 575. And though, perhaps, the legislature might force a charter upon a people, yet it is the common understanding, even among lawyers, that a mere grant of corporate powers is nothing until it be accepted by acting under it. So, too, it is understood, that the people may, if they choose, fail to keep up the organization, and thus abandon the charter. It would, therefore, it seems to-us, appear absurd to say that the general assembly may not provide for an express assent by a vote, when, in fact, the validity of the charter turns, as a general rule, on an implied consent. It may be also remarked, that notwithstanding the universal recognition of the rule that the legislative power canfiot be delegated, the immemorial usage of all the states has been, by the creation of municipal corporations, and the organization of counties, townships and districts, to delegate to.local organizations' many local matters which the legislature might in its discretion itself provide for. Even so grave a matter as taxation has always, in this state, even without special constitutional provisions, been delegated to cities and towns and county organizations, and if it be competent to delegate such powers directly to city or town councils, or to county courts, much more — 327 — may the legislature pass laws in reference to local matters, subject to the consent of the localities interested. Judgment reversed.