Perry v. Keene , 56 N.H. 514 ( 1876 )

After the very full discussion by my brother LADD of the general principles upon which the decision of this case must rest, and in which I fully concur, I shall attempt to do but very little more than cite a few of the leading authorities which bear upon the questions we are considering, quoting freely therefrom so far as may be necessary to give a clear understanding of the view which the courts have taken of these questions.

We are asked to restrain the city of Keene from issuing its bonds to the amount of $130,000, in aid of the construction of the Manchester Keene Railroad, pursuant to a vote of its city councils passed in the month of November, 1874, upon the ground that chapter 34, section 16, of the General statutes, authorizing a town or city to raise, by tax or loan, money to aid in such construction, is an unconstitutional exercise of legislative power.

It is not claimed that the constitution of this state contains any express denial of power to the legislature to authorize a municipal corporation to aid in the construction of a railroad, and there is nothing from which such denial of power may be inferred. The plaintiffs, in argument, refer to article 2 of the bill of rights, by which the right of acquiring, possessing, and protecting property is guaranteed to every citizen, and is thus put above the altering or repealing power of the legislature. We are also referred to the fundamental rule laid down in E. Kingston v. Towle, 48 N.H. 57, that "the power delegated by the constitution `to make and ordain all manner of reasonable and wholesome orders, laws,' c., confers no authority to make an order or law in plain violation of the fundamental principles of natural justice, though the act may not be prohibited by any express limitation in the constitution." It may be conceded in the outlet, that what the plaintiffs claim in this respect is not disputed. If the statute in question is open to the objection that it is repugnant to the fundamental principles of natural Justice, or infringes the natural, essential, and inherent right of a citizen to acquire, possess, and protect property, then it will be the duty of the court to declare the same unconstitutional. The only question, then, is, whether this statute in question is unconstitutional.

There is no presumption in favor of the unconstitutionality of a statute. On the contrary, the presumption is always the other way; and it devolves upon any one who would question it, to establish its unconstitutionality beyond reasonable doubt. Cooley's Const. Lim. 182, and numerous authorities cited in note 1.

The plaintiffs contend "that railroad corporations are private corporations in all respects, except so far as they may be empowered to exercise the right of eminent domain in taking land for its construction; that in all other respects they are private, and that their undertaking can no more be aided by taxation than can the undertakings of any other private corporation or individual."

General Statutes, ch. 146, sec. 1, declares that "Railroads, being designed for the public accommodation like other highways, are public, and at all times subject to the control of the legislature." "Section 2. All railroad corporations are public, and trustees and others in whom any railroad is vested are public agents, so far as the security and protection of the public rights and interests are concerned." "Section 3. Railroads, being public highways, can be laid out, built, maintained, and put in operation only by virtue of express grants of the legislature, or of authority derived therefrom."

These provisions of the statutes are so clearly nothing more than a reaffirmance of the law, as it has been uniformly held in the courts of this and nearly every other state in this Union, that it is idle to do more than cite a few of the vast number of authorities upon this point. The first decision in our state is that of Concord Railroad v. Greeley17 N.H. 47, where, after a full discussion by GILCHRIST, J., it was held that a railroad is, in general, such a public use as affords just ground for the taking of private property and appropriating it to that use; and that a railroad of a private corporation, if for the use of the public, paying a toll to the owners, subject to be regulated by law, is such an object as to justify such appropriation of private property.

In Great Falls Man'f'g Co. v. Fernald, 47 N.H. 444, is an exhaustive opinion by PERLEY, C.J., where it was held that when property is taken for the public use it may be done by a general law, as in the case of highways, or by special acts, such as have been so often passed in reference to turnpike roads, railways, canals, aqueducts, c. It is not necessary that the right should pass directly to the public. It may be given to a corporation technically classed as private, provided the use is of such general benefit as to give it a public character. When a given case falls within a class which is such in general nature and character that the legislature have power to take the right as for the public use, the court cannot inquire whether the power was discreetly exercised in such particular instance. Pet. Mt. Washington Road Co., 35 N.H. 134; — see, also, the list of numerous acts incorporating canal and turnpike companies, and acts for the improvement of rivers, cited in the plaintiffs' brief in Company v. Fernald, p. 450.

In Ash v. Cummings, in an opinion by SARGENT, J., in which the doctrine of the above cases is cited with approval, the learned judge then adds, — "If it is constitutional to grant to a private company the right of thus taking property for public uses without the consent of the owner, it follows that it is none the less so to grant the same right to an individual, if it is done under similar restrictions and limitations, and subject to the same conditions. The use is just as public, and no more so, if the highway is built by a public corporation, or a private company, or a single individual, provided the same road is built in each case, and subject to the same regulations and restrictions."

If anything more were needed to confirm this position, we need only refer to the case of Olcott v. The Supervisors, 16 Wall. 678, from which I quote, "that railroads, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early a question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use; yet it is a doctrine universally accepted, that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean, if not that building a railroad, though it be built by a private corporation, is an act done for a public use? And the reason why the use has always been held a public one is, that such a road is a highway, whether made by the government itself, or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant. It would be useless to cite the numerous decisions to this effect which have been made in the state courts. We may, however, refer to two or three, which exhibit fully not only the doctrine itself, but the reasons upon which it rests." Beekman v. Saratoga Schenectady R. R. Co., 3 Paige 45; Bloodgood v. Mohawk Hudson R. R. Co., 18 Wend. 1; Worcester v. Railroad Co., 4 Met. 564.

"Whether the use of a railroad is a public or a private one depends in no measure upon the question who constructed it, or who owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is, the agent, the function performed is that of the state. Though the ownership is private, the use is public. So turnpikes, bridges, ferries, I and canals, although made by individuals under public grants, or by companies, are regarded as publici juris. The right to exact tolls or charge freights is granted for a service to the public. The owners may be private companies, but they are compellable to permit the public to use their works in the manner in which such works can be used. That all persons may not put their cars upon the road, and use their own motive power, has no bearing upon the question whether the road is a public highway. It bears only upon the mode of use, of which the legislature is the exclusive judge."

Regarding this question then as firmly settled, we are led to another, which arises for the first time in this state, although it has been before courts of most of the other states of this Union, and settled almost uniformly one way, and that is, whether, if there be no constitutional prohibition of any sort, the legislature of New Hampshire can authorize a municipal corporation to aid in the construction of a railroad by issuing bonds, or raising money by tax or loan, to be given as a gratuity, or loaned to such railroad corporation.

The provision of the statute is as follows: "Any town may by a two-thirds vote raise by tax or loan such sum of money as they shall deem expedient, not exceeding five per cent. of the valuation thereof as made by the assessors for the year in which said meeting is holden, 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, sec. 16. By another provision of the statute, this section is made applicable to cities when voted by a two-thirds vote of each branch of the city councils.

It is not claimed that there is any express prohibition of this power in the constitution of this state. Nor do I know of any grounds upon which such prohibition may be implied. It has been argued on behalf of the plaintiffs that "the legislature has only the power to raise revenue by taxation for a public purpose; but when revenue is attempted to he raised for a purpose not connected with the public interest, it is no longer taxation, but robbery." I should not be disposed to quarrel with any one who asserts this proposition, but I fail to see how it is applicable to this case. No one will assert that taxes may be imposed for a private use. But has it not been settled over and over again, in this and nearly every other state of the Union that the construction of a railroad by a company incorporated by a state for the purpose of building it, and endowed with the state's right of eminent domain, is a thing in which the state has, as such an interest? The legislature has reserved the right of altering, amending, or repealing the charter granted to the Manchester Keene Railroad. The legislature has the power to control and regulate it. It can define its use, and regulate its tolls and rates of transportation. If a work made by authority of the state, subject to its regulation, and having for its object an increase of public convenience, is to be regarded as ordinary private property, then the long array of decisions above referred to must be laid aside as not only inapplicable, but useless.

In the constitutional convention held in this state in 1850, an amendment was adopted by the convention, and submitted to the people for ratification, which read as follows: "12. No town or incorporated place shall have the right, either directly or indirectly, to suffer their credit to be used for the especial benefit of any corporation, or to raise money for the purpose of loaning the same to any corporation, or for taking stock therein;" — see Journal of Convention. This amendment was rejected by the people. Not only did it fail to secure the requisite two-thirds vote, but the majority against it was very large. Although this is not conclusive evidence that the people understood that by defeating the proposed amendment they already possessed the power to do what the amendment proposed to prohibit, yet it affords very strong evidence that the people were unwilling to deprive themselves of the power, if the occasion should ever present itself when they might desire to exercise it.

This statute was first enacted in 1864. P. L., ch. 2,890, sec. 2. According to the defendants' brief, at least twelve cities and towns have aided in the construction of railroads under the provisions of this act, without their power so to do having been challenged until the present case. This fact in itself is not perhaps entitled to much weight, except as showing that from the large number of people interested in the result of this suit, this question deserves very careful consideration.

Upon a question of constitutional law, the decision of the supreme court of the United States is the decision of a court of last resort, and is therefore entitled to our most respectful consideration. Turning then to the reports of that court, the case of Railroad Company v. County of Otoe, 16 Wall. 667, is found to be precisely in point. The constitution of Nebraska contained no prohibition against the power of the legislature to authorize a county to issue bonds in aid of the construction of a railroad.

The county of Otoe, having been authorized by the legislature, issued bonds to the amount of $150,000 in aid of the construction of a railroad. Certain of the coupons coming due, suit was brought to enforce their payment, which was resisted upon the ground that the legislature had not the constitutional power to grant such authority, and the case was carried by appeal to the supreme court of the United States. The opinion of the court was delivered by Mr. Justice STRONG, from which I quote: "Unless we close our eyes to what has again and again been decided by this court, and by the highest courts of most of the states, it would be difficult to discover any sufficient reason for holding that this act was transgressive of the power vested by the constitution of the state in the legislature. That the legislative power of the state has been conferred generally upon the legislature is not denied, and that all such power may be exercised by that body, except so far as it is expressly withheld, is a proposition which admits of no doubt. It is true that, in construing the Federal constitution congress must be held to have only those powers which are granted expressly, or by necessary implication; but the opposite rule is the one to be applied to the construction of a state constitution. The legislature of a state may exercise all powers which are properly legislative, unless they are forbidden by the state or national constitution. This a principle that has ever been called in question. If, then, the act we are considering was legislative in its character, it is incumbent upon those who deny its validity to show some prohibition in the constitution of the state against such legislation. And that it was an act of legislative power is not difficult to maintain. No one questions that the establishment and maintenance of highways, and the opening of facilities for access to markets, are within the province of every state legislature upon which has been conferred general legislative power. These things are necessarily done by law. The state may establish highways or avenues to market by its own direct action, or it may empower or direct one of its municipal divisions to establish them, or to assist in their construction. Indeed, it has been by such action that most of the highways of the country have come into existence. They owe their being either to some general enactment of a state legislature, or to some law that authorized a municipal division of the state to construct and maintain them at its own expense. They are the creatures of law, whether they are common, county, or township roads, or turnpikes, or canals, or railways. And that authority given to a municipal corporation to aid in the construction of a turnpike, canal, or railroad, is a legitimate exercise of legislative power, unless the power is expressly denied, is not only plain in reason, but it is established by a number and weight of authorities beyond what can be adduced in support of almost any other legal proposition. The highest courts of the states have affirmed it in nearly a hundred decisions, and this court has asserted the same doctrine nearly a score of times. It is no longer open to debate."

In the same decision it is held that the prohibition, "that the property of no person shall be taken for public use without just compensation," has no reference to taxation. "If it has, then all taxation is forbidden, for `just compensation' means pecuniary recompense to the person whose property is taken equivalent in value to the property. If a county is authorized to build a court-house, or a jail, and to impose taxes to defray the cost, private property is as truly taken for public use without compensation, as it is where the county is authorized to build a railroad or a turnpike, or to aid in the construction and to levy taxes for the expenditure. But it is taken in neither case in the constitutional sense: the restriction is upon the right of eminent domain, not upon the right of taxation."

"There is no solid ground of distinction between a subscription to stock, and an appropriation of money or credit. Both are for the purpose of aiding in the construction of the road; both are aimed at the same object, — securing a public advantage, obtaining a highway or an avenue to the markets of the country; both may be equally burdensome to the tax-payers of the country. * * That the legislature of the state might have granted aid directly to any railroad company, by actual donation of money from its treasury, will not be controverted.

* * The security against abuse of power by a legislature in this direction is found in the wisdom and sense of propriety of its members, and in their responsibility to their constituents. But if a state can directly levy taxes to make donations to improvement companies, or to other objects, which in the judgment of its legislature it may be well to aid, it will be found difficult to maintain that it may not confer upon its municipal divisions power to do the same thing. Counties, cities, and towns exist only for the convenient administration of the government. Such organizations are instruments of the state created to carry out its will. When they are authorized or directed to levy a tax, or appropriate its proceeds, the state through them is doing indirectly what it might do directly. It is true, the burden of the duty may thus rest upon only a single political division; but the legislature has undoubted power to apportion a public burden among all the tax-payers of the state, or among those of a particular section. In its judgment, those of a single section may reap the principal benefit from a proposed expenditure, as from the construction of a road, a bridge, all almshouse, or a hospital. It is not unjust, therefore, that they should alone bear the burden. This subject has been so often discussed, and the principles we have asserted have been so thoroughly vindicated, that it seems to be needless to say more, or even to refer at large to the decisions. A few only are cited. Blanding v. Burr, 13 Cal. 348; Guilford v. Supervisors, c., 3 Ker. 143; Stewart v. Supervisors, 30 Iowa 9; Bank v. Augusta, 49 Me. 507; Railroad Co. v. Smith, 62 Ill. 268."

This very clear and satisfactory opinion was followed by another at the same term, in Olcott v. Supervisors, 16 Wall. 678, in which the same doctrine was reiterated; and again, in Queensboro' v. Culver, 19 Wall. 83; and yet again, in Pine Grove v. Talcott, 19 Wall. 666, where it is said, — "Similar laws have been passed in twenty-one states. In all of them but two it is believed their validity has been sustained by the highest local courts. It is not easy to resist such a current of reason and authority. The question belongs to the domain of general jurisprudence."

When a question is presented for our consideration, which, in the language of the supreme court of the United States, has been affirmed by the highest courts of the states "in nearly a hundred decisions," and in that court "nearly a score of times," I think we may well agree with that court that the question is "no longer open to debate," and I may well be excused from entering upon a discussion of its merits. I have therefore attempted but little beyond making use of some of the arguments adduced by that court, and clothed in the forcible language of the very eminent judge who delivered the opinion in Railroad Company v. The County of Otoe.