people to themselves, in that it permits the qualified electors of the larger city to overpower and outnumber those of the lesser city, and to annex the lesser city without the vote or consent of a majority of the qualified electors of the lesser city.' "Second. The supreme court of the state of Pennsylvania erred in dismissing the fifth assignment of error of the plaintiffs in error, which is as follows: ""The act of assembly under which this petition is filed for annexing of the city of Allegheny to the city of Pittsburgh is in conflict with article 1, § 9, ¶ 10, of the Constitution of the United States, in that it impairs the obligations of the contract existing between the city of Allegheny and your respondents, by which they are to be taxed only for the government of the city of Allegheny and for improvements, repairs, and expenditures incidental to the government of said city of Allegheny, and the attempt to subject them to the increased taxes and burdens of an additional or enlarged city government, by legislation, is in violation of article 1, § 9, ¶ 10, of the Constitution of the United States, and therefore is unconstitutional.' "Third. The supreme court of the state of Pennsylvania erred in dismissing the sixth assignment of error of the plaintiffs in error, which is as follows: cause a large depreciation in value of the property of your respondents.' "Fifth. The supreme court of the state of Pennsylvania erred in not holding that the act of the general assembly of Pennsylva nia, approved February 7, A. D. 1906, entitled 'An Act to Enable Cities That Are Now, or May Hereafter Be, Contiguous or in Close Proximity, to be United, with Any Intervening Land Other Than Boroughs, in One Municipality; Providing for the Consequences of Such Consolidation, the Temporary Government of the Consolidated City, Payment of the Indebtedness of Each of the United Territories, and the Enforcement of Debts and Claims Due to or from Each,' was special or local legislation, and in conflict with article 3, § 7, subd. 2, of the Constitution of the state of Pennsylvania, which constitutional provision provides that 'the general assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts,' and the said act of assembly, being in conflict with said provision of the Constitution of the state of Pennsylvania, is not due process of law, and therefore is in conflict with the 14th Amendment to the Constitution of the United States. "Sixth. The supreme court of the state of Pennsylvania erred in not holding that the ""The act of general assembly under which said act of assembly, entitled as aforesaid, this petition is filed is in conflict with arti- was passed at an extraordinary or special sescle 5 of the Amendments of the Constitution sion of the legislature, convened by the govof the United States, because, if the city of ernor of Pennsylvania under article 4, § 12, Allegheny shall be annexed in pursuance of of the Constitution of Pennsylvania, which the petition filed in this case, it will be de- provides that the governor may, on extraorpriving your respondents of their property dinary occasions, convene the general aswithout due process of law, and is therefore sembly; and that the subject of the said unconstitutional. Said annexation of the legislation or act of assembly, aforesaid, was city of Allegheny to the city of Pittsburgh not designated in the proclamation of the will add additional taxes to the property of governor calling such a session, or in the your respondents, and create additional bur- paper or proclamation issued by him dated dens without compensation, and will depre- January 9, 1906, and is therefore in conciate the sale of the property, in violation flict with article 3, § 25, of the Constituof said article 5 of the Amendments to the tion of Pennsylvania, which provides that Constitution of the United States, and they, 'when the general assembly shall be convened therefore, will be deprived of their prop-in special session, there shall be no legislaerty.' tion upon subjects other than those desig"Fourth. The supreme court of the state nated in the proclamation of the governor of Pennsylvania erred in dismissing the sev-calling such session,' and that the said act enth assignment of error of the plaintiffs in of assembly is, by reason thereof, not due error, which is as follows: process of law, and is in conflict with the 14th Amendment of the Constitution of the United States. ""The act of assembly under which this petition is filed is in conflict with article 14 of the Amendments to the Constitution of the United States, because the said annexation of the city of Allegheny to the city of Pittsburgh deprives your respondents of their property without due process of law. The additional taxes and burdens which the property of your respondents will have to bear in case the annexation takes place will "Seventh. The supreme court of Pennsylvania erred in dismissing the exceptions filed by the plaintiff's in error, thereby confirming the judgment of the court below. "Eighth. The supreme court of Pennsylvania erred in not entering judgment in favor of the plaintiffs in error, and not reversing the judgment of the court below." quarter sessions, and the action of that court was successively affirmed by the superior and supreme courts of the state. The case is here upon writ of error, and the assignment of errors alleges that eight errors were committed by the supreme court of the state. This assignment of errors is founded upon the dispositions by the state courts of the questions duly raised by the filing of the exceptions under the provisions of the act of the assembly. in error claimed that the act of assembly was in violation of the Constitution of the United States, and specially set up and claimed in the court below rights under several sections of that Constitution, and all their claims were denied by that court. These rights were claimed in the clearest possible words, and the sections of the Constitution relied upon were specifically named. The questions raised by the denial of these claims are not so unsubstantial and devoid of all color of merit that we are warranted in dismissing the case without consideration of their merits. The plaintiffs in error seek a reversal of the judgment of the supreme court of Pennsylvania, which affirmed a decree of a lower The defendant in error moved to dismiss court, directing the consolidation of the the case because no Federal question was cities of Pittsburgh and Allegheny. This raised in the court below or by the assigndecree was entered by authority of an actment of errors, or, if any Federal question of the general assembly of that state, after was raised, because it was frivolous. This proceedings taken in conformity with its re-motion must be overruled. The plaintiffs quirements. The act authorized the consolidation of two cities, situated with reference to each other as Pittsburgh and Allegheny are, if, upon an election, the majority of the votes cast in the territory comprised within the limits of both cities favor the consolidation, even though, as happened in this instance, a majority of the votes cast in one of the cities oppose it. The procedure prescribed by the act is that after a petition filed by one of the cities in the court of quarter sessions, and a hearing upon that petition, that court, if the petition and proceedings are found to be regular and in conformity with the act, shall order an election. If the election shows a majority of the votes cast to be in favor of the consolidation, the court "shall enter a decree annexing and consolidating the lesser city. with the greater city." The act provides, in considerable detail, for the effect of the consolidation upon the debts, obligations, claims, and property of the constituent cities; grants rights of citizenship to the citizens of those cities in the consolidated city; enacts that "except as herein otherwise provided, all the property and rights and privileges Some part of the assignments of error and of the arguments in support of them may be quickly disposed of by the application of well-settled principles. We have nothing to do with the policy, wisdom, justice, or fair ness of the act under consideration; those questions are for the consideration of those to whom the state has intrusted its legislative power, and their determination of them is not subject to review or criticism by this court. We have nothing to do with the interpretation of the Constitution of the state and the conformity of the enactment vested in of the assembly to that Constitution; those questions are for the consideration of the courts of the state, and their decision of them is final. The 5th Amendment to the Constitution of the United States is not restrictive of state, but only of national, action. or belonging to either of said cities Prior to the hearing upon the petition the plaintiffs in error, who were citizens, voters, owners of property, and taxpayers in Allegheny, filed twenty-two exceptions to the petition. These exceptions were disposed of adversely to the exceptants by the court of After thus eliminating all questions with which we have no lawful concern, there remain two questions which are within our jurisdiction. There were two claims of rights under the Constitution of the United States which were clearly made in the court below and as clearly denied. They appear in the second and fourth assignments of error. Briefly stated, the assertion in the second assignment of error is that the act of assembly impairs the obligation of a contract existing between the city of Allegheny and the plaintiffs in error, that the latter are to be taxed only for the governmental | County v. Lucas, 93 U. S. 108, 114, 23 L. purposes of that city, and that the legis- ed. 822, 824; New Orleans v. Clark (Jefferlative attempt to subject them to the taxes of the enlarged city violates article 1, § 9, ¶ 10, of the Constitution of the United States. This assignment does not rest upon the theory that the charter of the city is a contract with the state, a proposition frequently denied by this and other courts. It rests upon the novel proposition that there is a contract between the citizens and taxpayers of a municipal corporation and the corporation itself, that the citizens and taxpayers shall be taxed only for the uses of that corporation, and shall not be taxed for the uses of any like corporation with which it may be consolidated. It is not said that the city of Allegheny expressly made any such extraordinary contract, but only that the contract arises out of the relation of the parties to each other. It is difficult to deal with a proposition of this kind except by saying that it is not true. No authority or reason in support of it has been offered to us, and it is utterly inconsistent with the nature of municipal corporations, the purposes for which they are created, and the relation they bear to those who dwell and own property within their limits. This as signment of error is overruled. son City Gaslight Co. v. Clark) 95 U. S. 644, 654, 24 L. ed. 521, 522; Mt. Pleasant v. Beckwith, 100 U. S. 514, 524, 525, 531, 532, 25 L. ed. 699, 701, 703, 704; Meriwether v. Garrett, 102 U. S. 472, 511, 26 L. ed. 197, 204; Kelly v. Pittsburgh, 104 U. S. 78, 80, 26 L. ed. 658, 659; Forsyth v. Hammond, 166 U. S. 506, 518, 41 L. ed. 1095, 1100, 17 Sup. Ct. Rep. 665; Williams v. Eggleston, 170 U. S. 304, 310, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617; Covington v. Kentucky, 173 U. S. 231, 241, 43 L. ed. 679, 683, 19 Sup. Ct. Rep. 383; Worcester v. Worcester Consol. Street R. Co. 196 U. S. 539, 549, 49 L. ed. 591, 595, 25 Sup. Ct. Rep. 327; Atty. Gen. ex rel. Kies v. Lowrey, 199 U. S. 233, 50 L. ed. 167, 26 Sup. Ct. Rep. 27. It would be unnecessary and unprofitable to analyze these decisions or quote from the opinions rendered. We think the following principles have been established by them and have become settled doctrines of this court, to be acted upon wherever they are applicable. Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. For the purpose of Briefly stated, the assertion in the fourth executing these powers properly and effiassignment of error is that the act of as- ciently they usually are given the power to sembly deprives the plaintiffs in error of acquire, hold, and manage personal and real their property without due process of law, property. The number, nature, and duraby subjecting it to the burden of the addi- tion of the powers conferred upon these cortional taxation which would result from the porations and the territory over which they consolidation. The manner in which the shall be exercised rests in the absolute disright of due process of law has been violated, cretion of the state. Neither their charas set forth in the first assignment of error ters, nor any law conferring governmental and insisted upon in argument, is that the powers, or vesting in them property to be method of voting on the consolidation pre- used for governmental purposes, or auscribed in the act has permitted the voters thorizing them to hold or manage such of the larger city to overpower the voters property, or exempting them from tax. of the smaller city, and compel the union ation upon it, constitutes a contract without their consent and against their pro- with the state within the meaning of the test. The precise question thus presented Federal Constitution. The state, therehas not been determined by this court. It is fore, at its pleasure, may modify or withimportant, and, as we have said, not so de- draw all such powers, may take without void of merit as to be denied consideration, compensation such property, hold it itself, or although its solution by principles long set- vest it in other agencies, expand or contract, tled and constantly acted upon is not diffi- the territorial area, unite the whole or a cult. This court has many times had occa- part* of it with another municipality, re sion to consider and decide the nature of peal the charter and destroy the corporation. municipal corporations, their rights and du- All this may be done, conditionally or unties, and the rights of their citizens and conditionally, with or without the consent creditors. Maryland use of Washington of the citizens, or even against their proCounty v. Baltimore & O. R. Co. 3 How. test. In all these respects the state is su534, 550, 11 L. ed. 714, 721; East Hartford preme, and its legislative body, conforming v. Hartford Bridge Co. 10 How. 511, 533, its action to the state Constitution, may do 534, 536, 13 L. ed. 518, 527-529; United as it will, unrestrained by any provision of States v. Baltimore & O. R. Co. 17 Wall. the Constitution of the United States. Al322, 329, 21 L. ed. 597, 600; Laramie Coun- though the inhabitants and property ownty v. Albany County, 92 U. S. 307, 308, ers may, by such changes, suffer inconven310-312, 23 L. ed. 552-555; Tippecanoe 'ience, and their property may be lessened in Applying these principles to the case at bar, it follows irresistibly that this assignment of error, so far as it relates to the citizens who are plaintiffs in error, must be overruled. value by the burden of increased taxation, | without due process of law, in violation of or for any other reason, they have no right, the 14th Amendment. But no such question by contract or otherwise, in the unaltered is presented by the record, and there is but or continued existence of the corporation or a vague suggestion of facts upon which it its powers, and there is nothing in the Fed- might have been founded. In the sixth exeral Constitution which protects them from ception there is a recital of facts with a these injurious consequences. The power is purpose of showing how the taxes of the in the state, and those who legislate for the citizens of Allegheny would be increased by state are alone responsible for any unjust annexation to Pittsburgh. In that connecor oppressive exercise of it. tion it is alleged that while Pittsburgh intends to spend large sums of money in the purchase of the water plant of a private company and for the construction of an electric light plant, Allegheny "has improved its streets, established its own system of electric lighting, and established a satisfactory water supply." This is the only reference in the record to the property rights of Allegheny, and it falls far short of a statement that that city holds any property in its private and proprietary capacity. Nor was there any allegation that Allegheny had been deprived of its property without due process of law. The only allegation of this kind is that the taxpayers, plaintiffs in error, were deprived of their property without due process of law because of the increased taxation which would result from the annexation,-an entirely different proposition. Nor is the situation varied by the fact that, in the superior court, Allegheny was "permitted to intervene and become one of the appellants." The city made no new allegations and raised no new questions, but was content to rest upon the record as it was made up. Moreover, no question of the effect of the act upon private property rights of the city of Allegheny was considered in the opinions in the state courts or suggested by assignment of errors in this court. The question is entirely outside of the record and has no connection with any question which is raised in the record. For these reasons we are without jurisdiction to consider it (Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379; Harding v. Illinois, 196 U. S. 78, 49 L. ed. 394, 25 Sup. Ct. Rep. 176), and neither express nor intimate any opinion upon it. The judgment is affirmed. It will be observed that, in describing the absolute power of the state over the property of municipal corporations, we have not extended it beyond the property held and used for governmental purposes. Such corporations are sometimes authorized to hold and do hold property for the same purposes that property is held by private corporations or individuals. The distinction between property owned by municipal corporations in their public and governmental capacity and that owned by them in their private capacity, though difficult to define, has been approved by many of the state courts (Dill. Mun. Corp. 4th ed. §§ 66 to 66a inclusive, cases cited in note to State ex rel. Bulkeley v. Williams, 48 L.R.A. 465), and it has been held that, as to the latter class of property, the legislature is not omnipotent. If the distinction is recognized it suggests the question whether property of a municipal corporation owned in its private and proprietary capacity may be taken from it against its will and without compensation. Mr. Dillon says truly that the question has never arisen directly for adjudication in this court. But it and the distinction upon which it is based have several times been noticed. Tippecanoe County v. Lucas, 93 U. S. 108, 115, 23 L. ed. 822, 824; Meriwether v. Garrett, 102 U. S. 472, 518, 530, 26 L. ed. 197, 206, 210; Essex Public Road Board v. Skinkle, 140 U. S. 334, 342, 35 L. ed. 446, 449, 11 Sup. Ct. Rep. 790; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 91, 35 L. ed. 943, 947, 12 Sup. Ct. Rep. 142; Covington v. Kentucky, 173 U. S. 231, 240, 43 L. ed. 679, 682, 19 Sup. Ct. Rep. 383; Worcester v. Worcester Consol. Street R. Co. 196 U. S. 539, 551, 49 L. ed. 591, 596, 25 Sup. Ct. Rep. 327; Graham v. Folsom, 200 U. S. 248, 50 L. ed. 464, 26 Sup. Ct. Rep. 245. Counsel for plaintiffs in error assert that the city of Allegheny was the owner of property held in its private and proprietary capacity, and insist that the effect of the proceedings under this act was to take its property without compensation and vest it in another corporation, and that thereby the city was deprived of its property * of Constitutional law-due process is not taxable.* [Nos. 85, 89.] No. 85 argued October 22, 23, 1907. T De De WO WRITS of error to the Supreme Court of the State of Georgia to review decrees affirming decrees of the Superior Court of Fulton County in that state, denying injunctive relief against the col lection of certain taxes. Reversed and remanded for further proceedings. See same case below in No. 89, 125 Ga. 589, 54 S. E. 52; on prior writ of error, 124 Ga. 596, 53 S. E. 251. No. 85, 125 Ga. 617, 54 S. E. 64; on prior writ of error, 124 Ga. 630, 53 S. E. 207. The facts are stated in the opinion. Messrs. T. M. Cunningham, Jr., Henry C. Cunningham, A. R. Lawton, and Alexander C. King, for plaintiff in error in No. 85. Mr. John C. Hart for defendants in error in No. 85. Messrs. Joseph R. Lamar, Joseph B. Cumming, and Alex. C. King for plaintiff in error in No. 89. Messrs. Boykin Wright and John C. Hart for defendants in error in No. 89. *Mr. Justice Day delivered the opinion of the court: These cases are writs of error to the supreme court of the state of Georgia, in suits brought to enjoin the collection of certain taxes. In the view we take of them they may be considered together. Actions were begun by the plaintiffs in error, in the superior court of Fulton county, to enjoin the enforcement of executions in the hands of the sheriff, issued for taxes assessed by the comptroller general on shares of the corporate stock of the Western Railway of Alabama, an Alabama corporation, which stock was alleged to be held and owned by the plaintiffs in error. The superior court refused to award an injunction. Upon writs of error the supreme court affirmed the judgments of the court below. 124 Ga. 596, 630, 53 S. E. 251, 207. The cases were remitted to the superior court of Fulton county and that court rendered final decrees in favor of the defendants below, holding the tax executions to be lawful. The cases were again taken to the supreme court of Georgia and there affirmed. 125 Ga. 589, 617, 54 S. E. 52, 64. The question of the taxability of these shares was a matter of litigation in the Federal courts of the Georgia district, and it was held such shares were not taxable. 116 Fed. 669,*Affirmed in the court of ap-* peals, 54 C. C. A. 672, 117 Fed. 1007. The latter case was reversed and the stock held taxable in the case of Wright v. Louisville & N. R. Co. decided by this court at the October term, 1904. 195 U. S. 219, 49 L. ed. 167, 25 Sup. Ct. Rep. 16. Thereupon says the supreme court of Georgia: "On January 27, 1905, the comptroller general wrote to the president of the Georgia Railroad & Banking Company the following letter: 'The Supreme Court of the United States having recently held, as you doubtless are aware, that the shares of stock of the Western Railway of Alabama owned by the Georgia Railroad & Banking Company are taxable in Georgia, it becomes my duty to assess these shares of stock for taxation for each of the years in which they are in default for their taxes. This assessment is required to be made by the comptroller general from "the best information obtainable." I desire to proceed to the discharge of this duty intelligently, and therefore respectfully request you to furnish me any data in your possession which will enable me to make perfectly fair, just, and legal assessments of this property. From your long connection with the property as president of the Georgia Railroad & Banking Company, and your familiarity with its value, you doubtless are in possession of information which will very greatly aid me in making an equitable assessment of the property. I trust, therefore, you will submit at your earliest possible convenience any facts or suggestions bearing upon this line which you may deem proper. I would be glad to have any data which you may submit with reference to its value for each year, beginning with the year 1883, the year I am informed your corporation became the owner of these shares of stock. I expect to proceed with this matter some time the early part of next week, if possi⚫ ble.' Other correspondence took place between the comptroller general and various officers of the Georgia railroad, including the general counsel, who eventually submit Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, §§ 891-894. |