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PRESIDENT AND COMMISSIONERS OF REVENUE &c. v. STATE, ex rel. BOARD FOR IMPROVEMENT OF HARBOR OF MOBILE, &c.
B. E. BAFFOLD, J.
The appeal is taken from an order of the judge of the circuit court, by mandamus requiring the appellants to issue to the appellees two hundred thousand dollars of bonds on the credit of Mobile county, for the purposes expressed in an act of the legislature “ to provide for the improvement of the river, bay and harbor of Mobile,” approved February 16,1867.
The act creates a board, composed of the president of the court of county commissioners of Mobile county, the mayor of the city, the president of the bank of Mobile, the president of the Mobile chamber of commerce, and one citizen of the county of Mobile, to be appointed by the governor of the State, and their successors in office, which is charged with the duty of cleaning out, deepening,-and widening, the river, harbor and bay of Mobile, or any part thereof, or the making of an artificial harbor, in such manner as the board may direct. To accomplish this, the board is authorized to make any rules and regulations, and assess the dues or tolls to be collected on vessels or water crafts, and do any act it may deem proper to effect the object.
To pay the cost of this work, the president and commissioners of revenue for Mobile county are required to issue bonds for the amount of one million of dollars, to be issued and made payable as they may deem proper, to be delivered to the said board on demand. The bonds are to be paid by the levy and collection of such taxes as the said court of county commissioners may deem proper.
It is claimed by the appellants that this act is in contravention of the 25th section of article 1, and the 2d section of article 9, of the State constitution.
The first section referred to forbids the taking of private property for public use, without just compensation, or for private use, or for the use of corporations other than municipal, without the consent of the owner ; except that laws may be made to secure the right of way to persons or corporations, and for works of internal improvement, the right to establish depots, stations, and turnouts, upon just compensation. The second restrains the legislature from delegating power to levy taxes to individuals or private corpoporations.
[406] The powers conferred by the act are very extensive, and are not so guarded as to prevent the possibility of oppression upon the citizens of Mobile. The authority given to the board to assess dues or tolls on vessels may, by its latitude of expression, trench on the constitution of the United States; but as a narrow field for the exercise of such power may exist, it should not be pronounced void on that account. Even if it be a delegation of the taxing power to individuals or private corporations, that portion of the act only need be vitiated.
Taxation is an exercise of political power, and is restricted by our State constitution only when in such excess as would constitute the taking of property for which compensation must be made, or so unequal as to descend to proscription or favoritism. The boundaries of such limitations must of necessity be shadowy. As the legislature has equal authority to construe the constitution, good order and propriety require that the courts should not declare its enactments unconstitutional, especially in matters of this kind, unless they are manifestly so.
The act may be regarded as a legislative determination that the undertaking was practicable and expedient. Its performance was entrusted to a board which, it would seem, well represented both the people and the property of the county. The work is public in its character and effects ; its cost is to be defrayed by taxation not so excessive in amount as to deprive it of that appellation, or so restricted as to induce the imputation of compelling a single district to assume and discharge a State obligation, in view of the immediate benefits which promise to accrue,to Mobile county. The power to tax is delegated to a municipal corporation charged with the general interests of a like character of all of its citizens.
The construction of highways and bridges, and the removal of obstructions from navigable streams, and even more extended improvements, have always been regarded, as legitimate objects of public expense.
The numerous authorities which may be cited fail to discover any satisfactory test of the limits of legislative action respecting this matter. We therefore decide simply, that
[407] the act in question does not violate the provisions of the constitution referred to. Note by the Reporter.' — -The following response was made to an application for re-hearing by appellant. The application did not come into Reporter’s hands, and he can not, therefore, state the grounds on which it was based. The judgment is affirmed.
B. E. SAFFOLD, J.
The act to provide for the improvement of the river, harbor and bay of Mobile, passed February 16, 18G7, is an independent law, and not an amendment or revision of the law on the same subject, passed February 21, 1860. It refers to that law, and appropriates portions of its 13th and 15th sections. It is complete in its provisions, and does not need the support 'of the other, except as stated. It contains no requisition of an oath to be taken by the members of the board.
It was enacted before the adoption of the present constitution, and therefore is not amenable to Art. 4, sec. 2, which directs how laws shall be amended or revised.
The amendment and revision of the constitution of 1819, which was made in 1865, was not made as directed by the constitution. The alterations were never ratified by a vote of the people, and the State government under which they were made was declared by Congress to be provisional only. We therefore hold that, as constitutional provisions, they were without effect.
We can only repeat, that no precise test of limitation, whether constitutional or otherwise, of the powers of the legislature to tax, is supplied; and the taxation authorized by this act is not so excessive or unequal as to be manifestly unconstitutional, or contrary to the principles of right and justice.
A re-hearing is denied.