lative power over taxation in these cases, it is believed that no one of them has gone so far as to sanction taxation or the appropriation of the public revenue in order to refund to individuals moneys which they may have paid to relieve themselves from an impending draft, or may have voluntarily contributed to any public purpose, from motives purely personal to themselves, without any reason to rely upon the credit of the State, or of any municipal corporation, for reimbursement, and where the circumstances are not such as fairly to challenge the public gratitude. Taxation in such a case, where no obligation, honorary or otherwise, rests upon the public, would be nothing else than a naked case of appropriating the property of the tax-payer for private purposes, and that, too, without reference to anticipated public benefits.1

1 Tyson v. School Directors, &c., 51 Penn. St. 9. A meeting of persons liable to draft under the law of the United States was called, and an association formed, called the Halifax Bounty Association, which levied an assessment of thirty dollars on each person liable to military duty in the township, and solicited contributions from others. Afterwards, an act was passed by the legislature, with a preamble reciting that certain citizens of Halifax township, associated as the Halifax Bounty Association, for freeing the said township from the late drafts, advanced moneys, which were expended in paying bounties to volunteers to fill the quota of the town ship. The act then authorized and required the school directors to borrow such sums of money as would fully reimburse the said Halifax Bounty Association for moneys advanced to free said township from the draft, and then further authorized the school directors to levy and collect a tax to repay the sums borrowed. The court say: "We are bound to regard the statute as an authority to reimburse what was intended by the Association as advances made to the township with the intent or understanding to be reimbursed or returned

to those contributing. This was the light in which the learned judge below regarded the terms used; and unless this appears in support of the present levy by the school directors, they are acting without authority. But the learned judge, if I properly comprehend his meaning, did not give sufficient importance to these terms, and hence, I apprehend, he fell into error. He does not seem to have considered it essential whether the Association paid its money voluntarily in aid of its own members, or expressly to aid the township in saving its people from a draft, with the understanding that it was advanced in the character of a loan if the legislature chose to direct its repayment, and the school directors chose to act on the authority conferred. This we cannot agree to. Such an enactment would not be legislation at all. It would be in the nature of judicial action, it is true; but wanting the justice of notice to the parties to be affected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings, it would much more resemble an imperial rescript than constitutional legislation: first, in declaring an obligation where none was created or previously existed; and next, in

But it has been held by the Supreme Court of Mas- [* 228] sachusetts that towns might be authorized by the legislature to raise moneys by taxation for the purpose of refunding sums contributed by individuals to a common fund, in order to fill the quota of such towns under a call of the President, notwithstanding such moneys might have been contributed without promise or expectation of reimbursement. The court

were of opinion that such contributions might well be [* 229] considered as advancements to a public object, and, being such, the legislature might properly recognize the obligation and permit the towns to provide for its discharge.1

* On a preceding page we have spoken in strong terms [* 230] of the complete control which is possessed by the legislative authority of the State over the municipal corporations. There are nevertheless some limits to its power in this regard, as there are in various other directions limits to the legislative power of the State. Some of these are expressly defined; others spring from the usages, customs, and maxims of our people; they are a part of its history, a part of the system of local self-government in view of the continuance and perpetuity of which all our constitutions are framed, and of the right to which the people can never be deprived except through express renunciation on their part. One undoubted right of the people is to choose, directly

decreeing payment by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions; and as it is not apparent in the act that they attempted to do so, we are not to presume that they did. They evidently intended the advancements to be reimbursed to be only such as were made on the faith that they were to be returned." See also Crowell v. Hopkinton, 45 N. H. 9; Miller v. Grandy, 13 Mich. 540; Pease v. Chicago, 21 Ill. 508; Ferguson v. Landraw, 5 Bush, 230; Esty v. Westminster, 97 Mass. 324; Cole v. Bedford, 97 Mass. 326; Usher v. Colchester, 33 Conn. 567; Perkins v. Milford, 59 Me. 315; Thompson v. Pittston, 59 Me. 545; Kelly v. Marshall, 69 Penn. St. 319.

In Freeland v. Hastings, 10 Allen, 570, it was held that the legislature could not empower towns to raise money by taxation for the purpose of refunding what had been paid by individuals for substitutes in military service. In Cass v. Dillon, 16 Ohio, N. s. 38, it was held that taxes to refund bounties previously and voluntarily paid might be authorized. See also State v. Harris, 17 Ohio, N. s. 608. The Supreme Court of Wisconsin, in the well-reasoned case of State v. Tappan, 29 Wis. 664, deny the power of the State to compel a municipal corporation to pay bounties where it has not voted to do so.

1 Freeland v. Hastings, 10 Allen, 585. And see Hilbish v. Catherman, 64 Penn. St. 154, and compare Tyson v. School Directors, 51 Penn. St. 9.

or indirectly, under the forms and restrictions prescribed by the legislature for reasons of general State policy, the officers of local administration, and the board that is to make the local laws. This is a right which of late has sometimes been encroached upon under various plausible pretences, but almost always with the result which reasonable men should have anticipated from the experiment of a body at a distance attempting to govern a local community of whose affairs or needs they could know but little, except as they should derive information from sources likely to have interested reasons for misleading. Another is the right of the local community to determine what pecuniary burdens it shall take upon its shoulders. But here from the very nature of the case there must be some limitations. The municipalities do not exist wholly for the benefit of their corporators, but as a part of the machinery of State government, and they cannot be permitted to decline a performance of their duties or a discharge of their obligations as such. They cannot abolish local government; they cannot refuse to provide the conveniences for its administration; they cannot decline to raise the necessary taxes for the purpose; they cannot repudiate pecuniary obligations that justly rest upon them as a local government. Over these matters the legislature of the State must have control, or confusion would inevitably be introduced into the whole system. But beyond this it is not often legitimate for the State to go except in moulding and shaping the local powers, and perhaps permitting the

1 On this subject reference is made to what is said by Campbell, Ch. J., in People v. Hurlbut, 24 Mich. 87 et seq. See also p. 97. Much has been said concerning the necessity of legislative interference in some cases where bad men were coming into power through universal suffrage in cities, but the recent experience of the country shows that this has oftener been said to pave the way for bad men to obtain office or grants of unusual powers from the legislature than with any purpose to effect local reforms. And the great municipal scandals and frauds that have prevailed, like those which were so notorious in New York City, have been made possible and then nursed

and fostered by illegitimate interference at the seat of State government. Some officers, usually of local appointment, are undoubtedly to be regarded as State officers whose choice may be confided to a State authority without any invasion of local right; such as militia officers, officers of police, and those who have charge of the execution of the criminal laws; but those who are to administer the corporate funds and have the control of the corporate property, those who make the local laws and those who execute them, cannot rightfully be chosen by the central authority. Dillon, Mun. Corp. § 33. See People v. Com. Council of Detroit, 28 Mich. 228.

local authorities to do certain things for the benefit of their citizens which under the general grants of power would be inadmissible.1

On this general subject we shall venture to lay down the following propositions as the result of the authorities :

1. That the legislature has undoubted power to compel the municipal bodies to perform their functions as local governments under their charters, and to recognize, meet, and discharge the duties and obligations properly resting upon them as such, whether they be legal, or merely equitable or moral; and for this purpose it may require them to exercise the power of taxation whenever and wherever it may be deemed necessary or expedient.2

2. That in some cases, in view of the twofold character of such bodies, as being on the one hand agencies of State government, and on the other, corporations endowed with capacities and permitted to hold property and enjoy peculiar privileges for the benefit of their corporators exclusively, the legislature may permit the incurring of expense, the contracting of obligations, and the levy of taxes which are unusual, and which would not be admissible under the powers usually conferred. Instances of the kind may be mentioned in the offer of military bounties, and the payment of a disproportionate share of a State burden in consideration of peculiar local benefits which are to spring from it.1 [* 231] * 3. But it is believed the legislature has no power, against the will of a municipal corporation, to compel it

decide what taxes shall be levied for proper purposes of local government. Youngblood v. Sexton, 32 Mich. 406.

1 The subject of military bounties has been sufficiently referred to already. As to the right to permit a municipal corporation to burden itself with a local tax for a State object, we refer to Merrick v. Amherst, 12 Allen, 500; Marks v. Trustees of Pardue University, 37 Ind. 155; Hasbrouck v. Milwaukee, 13 Wis. 37. The first was a case in which, in consideration of the local benefits expected from the location of the State agricultural college in a certain town, the town was permitted to levy a large local tax in addition to its proportion of the State burden for the erection of the necessary buildings. The second case was of a similar nature. The third was the case of permission to levy a city tax to improve the city harbor; a work usually done by the general government. There are cases which go further than these, and hold that the legislature may compel a municipal corporation to do what it may thus permit. Thus, in Kirby v. Shaw, 19 Penn. St. 258, it appeared that by an act of April 3, 1848, the commissioners of Bradford County were required to add $500 annually, until 1857, to the usual county rates

and levies of the borough of Towanda in said county, for the purpose of defraying the expenses of the court house and jail, then in process of erection in that borough. The act was held constitutional on the principle of assessment of benefits. In Gordon v. Cornes, 47 N. Y. 608, a law was sustained which "authorized and required" the village of Brockport to levy a tax for the erection of a State normal school building at that place. It is to be said of this case, however, that there was to be in the building a grammar school free to all the children of proper acquirements in the village; so that the village was to receive a peculiar and direct benefit from it, besides those which would be merely incidental to the location of the normal school in the place. But for this circumstance it would be distinctly in conflict with State v. Haben, 22 Wis. 660, where it was held incompetent for the legislature to appropriate the school moneys of a city to the purchase of a site for a State normal school; and also with other cases cited in the next note. It must be conceded, however, that there are other cases which support it. And see, as supporting the last case, Livingston County v. Weider, 64 Ill. 427; Burr v. Carbondall, 76 Ill. 455.