Hamilton v. St. Louis County Court

Gamble, J., delivered the opinion of the court. In these cases the relators, judges of the circuit and common pleas courts, of the county of St. Louis, having presented their accounts to the county court of said county, for the additional compensation provided for in the act of the 3d of March last, and the county having refused to allow the accounts, have obtained writs.of conditional mandamus to that court. The county court return to those writs, as the reason for their refusal to allow the accounts of the said judges and order the same to be paid out of the county treasury. 1. That the act leaves the amount of additional compensation, to be paid to the judges, to the discretion of the county court, and the county court have not determined, in the exercise of that discretion, what amount, if any, shall be paid to them. 2. “That the act, so far as it requires money to be paid to the said judges, out of the county treasury, is unjust, oppressive and void; is repugnant to our system of government and unconstitutional, and, therefore, the payment of any money out of the county treasury to the said pudges, under the said act, would be a misapplication of the county treasure, entrusted, by law, to the administration of the court.” An application is now made for a writ of peremptory mandamus, on the ground that the cause shown by the county court is not sufficient to warrant the refusal to allow the accounts. As the first reason assigned by the county court depends on the proper construction of the act of the 3d March 1851, it is proper to set it out. It is in these words: “An act to increase the salaries of Judges in St. Louis county. Be it enacted by the General Assembly of the State of Missouri: “§ 1. That the county court of St. Louis county, is hereby authorized and required, to pay out of the county treasury of St. Louis county, to the judge of the St. Louis circuit court, the judge of the St. Louis court of common pleas and the judge of the St. Louis criminal court, each, such sum in addition to the amount now allowed to such j udge by law, as will make the total amount of compensation received bysaid judge, not to exceed the sum of three thousand dollars. — 21 — “§ 2. The additional compensation herein provided for, shall be paid at the same stated periods, as the salary of said judges respectively are now paid by law. “§ 3. This act to take effect from and after the first day of August next. Approved March 3, 1851.” In order to the correct understanding of the phraseology of the act, it is necessary to state the provisions of previous laws, allowing the judges compensation. They have always received the same salary, from the State treasury, that has been allowed by law to the judges o* the circuit courts throughout the State, to-wit: one thousand dollars. In addition to this salary there were fees allowed each of the judges, of fifty cents for each judgment in a case, coming, by appeal, from a justice of the peace, and one dollar for a final judgment in all other cases; but the fees received were never to exceed one thousand dollars per annum, and any excess of fees over that sum, was to he paid into the county treasury. The actsf the 3d of March is passed with the knowledge of the different sources from which the compensation of those judges had been previously derived, and its design is to increase that compensation. The additional compensation is to be paid, as the second section declares, at the same stated periods at which their salaries are, by law, to be paid. As the part of their compensation by fees, is still retained, and as the amount so to be received, is an unascertained and varying amount, it is impossible to fix the amount of the additional compensation designed to be given by this act. There are three different portions of the compensation to be received; the salary from the State, the fees from suitors, and the money to be paid by the county, and the whole compensation is not to exceed $3000. The former maximum was $2000, of which $1000 was the salary, and the balance fees, not to exceed $1000. Now the maximum is raised to $3000. The county court regard the use of the words “not to exceed,” as designed to restrain them from making too large an allowance to the judges, and leaving it to their discretion to make the additional compensation as small as they think proper. We do not think this a fair or reasonable interpretation of the act. In its whole scope it shows a plain intention to give a substantial and certain increase to the compensation of these officers. It so speaks in the title; its enactment is in the language of command, while the construction put upon the language reduces it to a bare permission to the county court, to pay such sum as they think proper. We suppose the — 22 — words “not to exceed the sum of three thousand dollars,” were employed to meet such a case as this. The county court having an account before it for $500, for one quarter, and evidence that no fees have been received, is required, by the law, to cause it to be paid, and so for another quarter, with the same evidence; but, if at the third quar.-. ter the fees received amount to the whole $500, they are not required to pay any additional sum; or, if the fees exceed the $500, they are authorized to carry the excess into the next quarter, and pay only the balance of such quarter, so as that the whole compensation received shall" not exceed three thousand dollars. The act is awkwardly phrased, but we think the intention of the legislature is sufficiently plain, and’that that intention does not vest the county court with the" discretion they claim. The second cause assigned by the county courtis, that the act is unconstitutional. We say this is the sum of the language in the return for in the consideration of the case, we have found no power vested in this or any other court to remedy injustice and oppression in a legislative act, except where, in the attempted injustice or oppression, some constitutional provision is violated. The argument in support of this part of the return, places the unconstitutionality of the act upon its alleged repugnance to the 19th section of the 13th article of the constitution, which declares, that “ail property subject to taxation in this State, shall be taxed in proportion to its value,” and to the 7th section of the same article, which declares “that no private property ought to be taken for public use without just compensation.” In considering the question thus presented, the suggestions made at the bar, that this act was passed upon the petition and urgent solicitude of many of the citizens of the county, and received the unanimous support of the representatives of the county, can have no weight, for the reason, that the General Assembly can derive no power from a petition and the constitutionality of the act is in no degree effected by the fact that any given portion of the Assembly supported or opposed it. We have been asked, in examining the question now before us to consider the constitution as an instrument adopted by a community, previously organized, already familiar with the principles of free government, and not a mere aggregation of individuals who were before in a state of nature, without political or civil institutions. We are asked to regard the constitution in this light, in order to find a rule of interpretation that shall limit the grant of legislative power to the General Assembly, beyond the extent of the limitations contained in that part of — 23 — •the constitution, familiarly termed the “Bill of Rights.” It is expressly disclaimed in argument, that there is any law higher than the constitution, and this resort to the history of the community, is simply to find a rule for the interpretation of the instrument. If there be in the constitution any language of doubtful import, we must, of course, look to the circumstances and condition of the people, and to the history ef the instrument itself, to find the meaning of the clause in question; but where the language is plain and intelligible, and consistent with ail other parts of the instrument, we cannot allow ourselves to find, in any reference to facts, out of the instrument, any authority for interpolating either a grant of power or a restriction upon power granted. Nor is there any necessity for such reference, in -order to reduce the general grants of power within limits in which they may be exercised with safety to the community and individuals. The declaration of rights which furnishes limitations upon the powers to be exercised by all departments of the government, is a comprehensive declaration of the great principles upon which rest our political, civil and religious freedom, and our social and individual security. The invasion of these principles, by any functionary of any department of tlie government, is as much a violation of the constitution as if they were written out in the form of the most imperati\ e prohibition. Yet, where all this is stated, it still remains true, that no court is authorized to declare an act of the legislature void without being able to point out some specific clause of the constitution to which it is repugnant. Within the limits thus allowed for the action of the different departments of the government, much injustice may be practiced and much wrong done, for which there is no remedy. The highest and purest court that ever sat on the earth, may render a judgment erroneous in its principles and ruinous in its consequences, and yet there is no remedy. The chief executive magistrate may appoint to an office of high trust, a man entirely unworthy to fill it, and there is no remedy. The legislature may from mistaken views of policy, pass a law greatly injurious to the best interests of the State, or a law, oppressive in its operation on one class of citizens, and jet there may be no remedy provided by the constitution, while the law continues on the statute book. The power, to be sufficient for good, must, of necessity, be capable of producing much evil, even when exercised within the acknowledged scope of the grant. It may therefore be stated, as a principle, in construing the constitution, that the mere fact, that a law is unjust in its operation, or even in the principles upon which it was adopted, does — 24 — not authorize any expansion of the prohibitions in the eonstituti-e-n, beyond their natural and original meaning, in order to remedy the evil in the particular case. When we turn now to the consideration of the act in question, its injustice is apparent, upon its own face. The citizens of a county who have been required to pay their proportion of ail the expenses of administering the law throughout the whole State, arc required, in addition, to pay the largest part of the expense of administering the same law in their own county. The wrong done to the county is palpable, but with this admitted, the constitutionality still remains untouched. When the 19th section of the declaration of rights is invoked-, to protect the county against this act, it is necessary to enquire into the meaning of the declaration “that all. property, subject to taxation in this State, shall be taxed in proportion to its value.5'’ The clause is evidently mandatory upon the General Assembly, when exercising the taxing power, and furnishes a rule which is not to be departed from. What property shall be subjected to taxation is left t© their discretion, but when, they have selected the subjects, the rule for assessing the tax, is, in. proportion to the value of the property- It is not necessary in this case-to decide, whether a different rate of taxation can.be imposed upon different descriptions of property, all being, taxed by an ad valorem tax-The idea of equality in taxation, is certainly not the prominent idea conveyed by this clause; nor can we suppose that it was designed to be conveyed, when we consider that so many constitutions of other States previously adopted, contain clauses expressly enjoining equality in taxation, and when the insertion of a word or two in the clause would have expressed the idea clearly. It may be further observed, that if equality.in taxation is required by this section, then the provision in the first section of the tenth article, that the lands of no-n-residents shall never be taxed higher than the land's of our citizens, is entirely superfluous- We might dismiss this point without farther consideration, for the return of the county court does not state, that in order to pay the judges the additional compensation demanded, there will be any necessity for increased taxation upon the citizens of the county. The county treasury receives money from fines, forfeited recognizances and othersources besides taxes, and we cannot judicially know, that the other funds in the treasury are not sufficient to meet this expenditure without taxation. Rut it is not the wish of the court to avoid deciding the case upon principles that will settle the controversy; and it will therefore be assumed, that in order to meet this additional demand upon the county treasury — 25 — it will be necessary to increase the county tax. Does this fact establish a repugnancy between the act and the constitution? Does it disturb the rule that requires property to be taxed in proportion to its value? Each county court is authorized by law, after the assessment of the property in the county is made, and the tax books are corrected and adjusted according to law, to ascertain the sum necessary to be raised for defraying the expenses of the county and to levy such sum by a tax upon all property and licenses made taxable by law for State purposes, so that the county tax shall not exceed the State tax on the same subject, more than one hundred per cent. This provision of the statute obviously contemplates a different rate of taxation in different counties, for detraying county expenses; and if the constitution requires that every citizen of the State shall, upon all his property, be taxed for county and State purposes, at precisely the same rate then this power, as it has • always been exercised, has been repugnant to the constitution. In different counties, the rate of taxation for county purposes, has always differed very materially, as the expenses of county buildings, roads, bridges, expenses in criminal prosecutions and other co.unty expenses have varied. We learn, that in the populous and wealthy county of Howard, where all the county buildings,'and other improvements are completed and paid for, there is sometimes no county tax levied. In some of the other counties, the maximum allowed to be levied by the law is imposed, upon the supposition that the constitution-imperatively requires equality, either the citizens of Howard must be taxed at the highest rate allowed by law, although they would have no use for the money in the county treasury, or there should be no county tax imposed in other counties whenever one county, such as Howard has no county tax levied. If the constitution requires equality in State and county taxation, then, instead of leaving the subject to the discretion or judgment of county courts, the General Assembly must fix one uniform rate of county taxation without regard to the-different wants of the different counties. It is not believed that the constitution admits of an interpretation that would produce sueli results. It is not doubted, that the rule of taxation, adopted for State and county taxation is the rule required by the constitution. The property is assessed at its value, and upon that value the same rate of taxation is laid throughout the State, for State purposes, and the several county courts, taking the same valuation, levy such per cent, for tax as the expenses of the county require. But, it is said, the General Assembly cannot pass an act by which a burden, that ought to be borne by the State treasury, shall be cast upon — 26 — the county treasury, and thus the county taxation be increased. The question we are now considering is, whether an act that increases the county tax in any one county, is repugnant to the constitutional provision that requires all property to be taxed in proportion to its value. The question, whether the General Assembly has the constitutional power to pass an, act that will have this effect, does not in any degree depend upon the considerations or motives that produce the passage of the act. The objection to the law is, the effect on county taxation. Now the same effect would be produced by a law which required the county of St. Louis to expend an equal amount of money upon roads, public buildings, the pay of jurors or other matters of county interest, which the General Assembly might judge to be properly a burden upon the county treasury, and such law would, upon the point now in discussion, be as liable to the objection of violating the constitution as the act now under consideration. All county expenses, for which a tax is to be levied, or of which the county court is authorized to make payment, are either expressly created or are authorized by law* The peculiar position and circumstances of any county may require, in the judgment of the General Assembly, the expenditure of money for the accomplishment of an object of the highest interest to its inhabitants, and exclusively local in its character and benefits, blit there may be no law authorizing the expenditure. It is not doubted that the General Assembly have the constitutional power to direct the authorities of the county to cause the -work to be done, and payment to be made out of the county treasury. The practice prevails, to some extent, of directing votes of the people to be taken in different localities, upon questions relating to expensive undertaking, that will be burdens upon the people in that locality, and authorizing debts to be contracted or taxes to be imposed, as the popular vote may determine. It is not believed that a tax thus imposed upon the property of a citizen is in any degree more constitutional than if imposed directly by the General Assembly. The General Assembly must be regarded as charged with the duty of promoting, by proper enactments, the interests of the-whole and of each portion of the community, and authorized to impose the burdens, arising from local works or services, upon the inhabitants of the locality benefitted. When, in the exercise of their judgment, they determine that the benefit is so exclusively local as to require that the expense shall be borne by the treasury of a county, rather than by the State treasury, the clause of the constitution, requiring property to be taxed in proportion to its value, is not violated. We cannot revise their judgment, in such case, under this clause of the — 27 — constitution and declare their acts inoperative. In relation, then, to the act now in question, it is the opinion of the court, that it is not repugnant to the 19th section of the Declaration of Rrights. We proceed then to the second objection, which is, that the act is repugnant to the clause in the 7th section of the Declaration of Rights, which says, that “private property ought not to be taken for public nse, without just compensation.” This is a limitation upon the right of eminent domain, which is inherent in every sovereignty, and under which the rights and interests of each individual citizen must yield to the necessities of the State. Here is the limitation of-the right, not that the rights and interests of the citizens shall be preserved against the demands of the community, but that he shall have compensation for his property that may be taken. It is exceedingly difficult to comprehend the argument that is designed to show a repugnance between the act in question and this clause of the constitution. It appears to assume that the county treasury is the depository of the voluntary donations of the citizens, made for specific and declared uses, and that this act is an attempt to confiscate the •money thus collected, and apply it to the uses of the State. This is altogether an incorrect view pi the' character of the fund held in the county treasury and of the operation of this act. The assessors of the county are required by law to return their books ■of assessments to the county court on or before the 1st. day of June in each year.. Revised Code 934 sec. 34. Thirty days after the return of the tax books, a court of appeals is required to be held, to hear appeals from the assessment, and then the tax books are to be corrected and adjusted. After this is all done, the county court ascertains the sum necessary to be raised for county expenses, and levies the county tax: Rev. Code 948 sec. 2. The act now under consideration, was passed on the 3d of March, 1837, and took effect on the 1st day of August thereafter. Now if the county court has taken the expenses required by this act, into their estimation of the sum necessary to be raised for county purposes, then the money demanded by the Judges is actually in the county treasury, for the very purpose of paying their claim. And so in the future operation of the law, if the county court, in ascertaining the amount to be raised, take this additional compensation of the Judges into their estimate, the money to meet the demand will, by the operation of other laws, always be in the treasury to answer the demand. So this act does not propose to seize the funds of the county, paid by the citizens for their own benefit into the county treasury, and appropriate them to a different public use, but authorizes — 28 — and requires the payment of money out of the very fund in the treasury to satisfy this demand. It is the opinion of the court, that the act in question is not repugnant to that clause of the 7th sec. of the declaration of rights which asserts that “private property ought not to be taken for public use without just compensation.” We have examined the two clauses to which this act is supposed to be repugnant. We find no repugnance to either. If, in listening to the voice of the people, speaking through the constitution, we had found one utterance'prohibiting the passage of this act, we would cheerfully have rendered that prohibition effectual, but we are not at liberty to give our judgment of expediency, or even of justice, a controlling power over acts of the General Assembly. Our duty, then, alone remains for us to perform, and that is to enforce the law. Let the peremptory mandamus issue.