City of Atchison v. Bartholow

4 Kan. 124

• Court: Supreme Court of Kansas
• Decided: August 15, 1866
• Status: Published

Opinion

By the Court,

Crozier, C. J.

The action in the court below was instituted for the purpose of perpetually enjoining the collection of a tax of four and one-half per centum upon all the taxable .property, real and personal, in the city of Atchison, levied for the purpose of paying for certain improvements which had been made, and were then in progress therein. Application was made to the judge of the district court in vacation for a temporary injunction, upon the hearing of which the only testimony adduced was the petition. The defendants objected to the reading of that paper as evidence, on the ground of the insufficiency of the verification.

It was in these words :■

“The State oe Kansas, ) Atpiiison County, j ss‘

“Theodore Bartholow,W. L. Challiss, M. Frank, M. Glreenabaum, who being first duly sworn according to law, deposethand say, that the said several matters and things set forth in the foregoing petition, are, according to the best of their knowledge, information and belief, true, in substance and in fact, except as to such matters as stated on information and belief, and as to such statements affiants believe them to be trhe.

Theo. Bartholow,

W. L. Challiss,

M. Prank,

M. GrREENABATJM.

“ Sworn to and subscribed before me, this 5th day of May, A. D., 1866.

B. L. Pease,

[l. s.] Notary Public.”

The objection was overruled, and the paper was read. A temporary injunction was ordered, to reverse which order the case was brought here.

Section 248 of the code, provides that “atemporary injunction may be ordered upon it appearing satisfactorily to the court or judge, by the affidavit of the plaintiff or Ms agent, that the plaintiff is entitled thereto.”

The affidavit of the plaintiff to the necessary facts, will, uhder this provision, be sufficient, 'and the petition, if properly verified, may be used as an affidavit; i. e., it may be read as testimony. To determine whether the petition here was admissible as testimony, it will be necessary to ascertain the legal requirements of an affidavit.

Section 343 of the code defines an affidavit to be a declaration under oath, made without notice to the adverse party. By the next section, a deposition is said to be a declaration under oath, made upon notice to the adverse party. Each is a declaration under oath, the only difference being, one is made without notice, the other upon notice. Now, it would not be pretended that it would be admissible testimony, if, in a deposition, a witness should say that a certain statement was, “according to the best of his knowledge, information and belief, true, in substance and in fact.” And for very obvious reasons, too. He might have no knowledge of, or information upon the subject, except mere hearsay, and yet could conscientiously make such a declaration. He might be thoroughly convinced, by irresponsible publications, of the existence of a certain state of facts; yet no modern rule of evidence would permit him to state such belief as testimony. So, in the case at bar, the affiants might conscientiously make the declaration they did make without being personally cognizant of a single fact stated in the petition.

But it is claimed that the jurat is according to the chancery forms. Such may be the fact, and yet nothing to the purpose, for various reasons. The chancery forms, as such, were abolished by the code. They were prescribed by the chancellor, and by him strict compliance therewith might be required, or relaxation thereof indulged, as ■ circumstances should dictate. Here, the situation is very different. The court is bound by a rule prescribed by the legislature, and cannot properly relax or disregard it. It is a rule of evidence upon which there is no room for construction. It is so plain, there can be no mistaking its meaning. The application must be supported by a “declaration under oath.” The judge is not authorized to listen to or consider any other kind of testimony.

The petition, as verified, was not “a declaration under'oath,” and it was error to permit it to be read, against the objection of the defendant, for which reason the order of injunction must be vacated.

The court might stop here, inasmuch as the view it. has taken of the preliminary question, would dispose of the case, so far as this court is concerned for the present; but as it will inevitably return here for an adjudication of the main question, the court is disposed to comply with the request of counsel upon both sides, and consider it now.

The question referred to, presented in its nudity is, whether the legislature of this state can confer powers upon towns, cities and villages by special enactments. This is a very delicate and important question, involv-' ing as it does the validity of a solemn act of the highest law-making power in the state, and affecting, as its decision must, vast pecuniary rights. It is very embarrassing for one of the branches of the government to sit in judgment upon a co-ordinate branch, equally independent; but such is the construction of the government that it must sometimes be done. The supreme power of interpreting the fundamental law could not well be retained by the people, but must, for convenience, be deposited somewhere. This tribunal having been selected for that purpose, ignoring all considerations of delicacy, it must, when called upon, assert its power. But in exerting the power specially invoked in this case, the rule has been wisely established that the áction of the legislature shall be upheld, unless palpably in contravention of the organic law. The legislative, executive and judiciary departments of the government — -the legislators when they enact the law, the governor when he approves it, and the judges when they interpret it — are in their consciences bound to a like allegiance to the constitution; and it is not on any slight difference of opinion between the two former and the latter, that the judiciary will be authorized to set aside the action of the law-making power. Reason and the rule concur in demanding a clear case, to justify such action; and in the present case this court hopes to be guided thereby. •

The creating of corporations and making provisions for the organization of cities, towns and villages, have so long been regarded as the legitimate exercise of legislative power, that it would not only be useless, but inexpedient, to question the propriety thereof now. All agree that they are rightful subjects of legislation, and are within the general grant of legislative power contained in § 1, art. 2, of the constitution; and it is very manifest that if there were no restraints upon its action in this behalf, the legislature might select its own mode of exercising the power. It might, by special enactment, create corporations and organize cities, towns and villages ; or it might, by general law, provide for their creation and organization. Either mode would be a legitimate exercise of the power. This court has already held that the organization of cities by special enactment was a proper exercise of legislative"power under the territorial government, the fundamental law of which conferred upon the legislative branch thereof a general power similar to that conferred by the clause of the constitution referred to, upon the legislature of the state, to which opinion the court still adheres. State v. Young, 3 Kans. R., 445.

If the framers of the constitution had intended that the powers referred to should still continue as they existed at the time they were in session, they had need to say no more upon the subject than is contained in the first section of the second article. The language therein employed had a well understood legal significance, as many of the members of that august convention, being eminent lawyers, must have known. But the fact that further action upon the subject was taken. demonstrates that the intention was not to suffer the power to remain in the unbridled condition it then was. The subject was considered of sufficient importance to justify the framing of a distinct article of the constitution thereon. It is as follows:

“ARTICLE XII. — CORPORATIONS.

“ Section 1. The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws, but all such laws may be amended or repealed.

“ Sec. 2. Dues from corporations shall be secured by individual liability of the stockholders to an additional amount, equal to the stock owned by each stockholder; and such other means as shall be provided by law; but such individual liabilities shall not apply to railroad corporations, nor corporations for religious or charitable purposes.

“Sec. 3. The title to all property of religious corporations shall vest in trustees, whose election shall be by the members of such corporations.

“ Sec. 4. No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by deposit, of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.

“Sec. 5. Provision shall be made by general law, for the organization of cities, towns and villages, and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.

“ Sec. 6. The term corporation, as used in this article, shall include all associations and joint stock companies, having powers and privileges not possessed by individuals, and partnerships ; and. all corporations may sue and be sued in their corporate name.”

The whole of this article is merely restrictive of the general power conferred by section 1 of article 2. It adds nothing to the power of the legislature, nor could it have been so intended. All legislative power upon the subject had already been conferred. It may be true that the legislature, in exercising the power, might have done precisely what this clause requires of it, had it been omitted: but it seems to have been thought expedient to compulsorily restrain its action, and such alone was manifestly the intention of this article. This brings us directly to an examination of its provisions.

Before the adoption of the constitution, the practice was to create corporations and organize cities and towns by special laws. When a party of individuals desired to form an association for any purpose, they drew up a bill conferring upon themselves whatever powers they desired to exercise, and procured it to be submitted to the legislature, a large majority of the members of which had no apj>arent interest therein. Its office would be located at a particular place, remote from the residences of most of them, aud they could not discover that they or their constituents could be much affected by its operations. This was repeated from year to year, and would have been continued had the same condition of things remained, until, in every part of the commonwealth, bodies corporate would, have existed, with powers which the members of the legislature, in the aggregate, had no idea had been conferred. The organization of cities and towns, by special enactment, is demonstrably equally impolitic. The members from a certain city or town, for purposes of individual aggrandizement or immunity, might desire a .change in their organic law. A "bill is framed and submitted, and when action is to be taken thereon, the body is informed, that it expresses the views of the representation of the locality. immediately affected; whereupon no objection is made, and the work is done; whereas, if the same thing were sought to be made applicable to the localities represented by a majority of the members, the measure would be spurned from the halls of legislation. This same city of Atchison furnishes an example of what could be accomplished under this system. An influential member, being a large real estate owner therein, sought to exempt it from municipal taxation, and at the.same time keep subject thereto the property of others similarly and not so eligibly situated. And the thing was accomplished in' the manner above indicated, much to the chagrin of his unfortunate constituents. To prevent just such abuses, and others equally meretricious, the twelfth article was inserted in the constitution.

The first' clause, although but one of those composing the section, is entirely independent of the others, and is clear and explicit. Although municipal organizations may not have been regarded, technically considered, as corporations, yet, for many purposes, they have always been treated as such. They may be authorized to loan their credit, and to borrow money; to build public edifices, make improvements, and levy contributions to pay the same; and to do many other things so similar to those which other corporations may be empowered to do, that it would be absurdly hypercritical to insist that in one it was the exercise of corporate powers, and not so in the other. A turnpike company might be authorized to levy an assessment upon its stockholders, in proportion to their, interest, for the purpose of improving its road, the franchise belonging to the members in common, and might enforce payment against their private property, and no intelligent individual would deny that such action would be the exercise of corporate powers ; and yet it is claimed that for the improvement of a street in a municipality, which is the common property of the citizens thereof, a levy to pay for the same, and the enforcement of payment thereof against the individual property of the residents, is not the exercise of corporate power. The court cannot see the distinction.

If these views are correct, power to do any of the acts abov'e named cannot be legally conferred by special enactment.

But it is claimed that the act of January 25th, 1866, under which the tax complained of purports to be levied, is not in violation of the clause of the constitution as above construed, for the reason that it does not confer any corporate powers, but merely regulates powers already conferred. The laws chartering the city of Atchison, and amendatory' thereof, in force at the adoption of the constitution, it is claimed, authorized the city authorities to make improvements, and to levy taxes to pay for the same, and that the act of 1866 was intended only to regulate the exercise of that power. Now, if the law in force during the territorial existence authorized the taxation of only particular pieces or classes of property, for certain local improvements, and the act of 1866 would subject other pieces and classes to taxation for the same improvements, the latter, very manifestly, would confer other powers than those heretofore existing. The intelligence of a court might be very properly suspected, which should hold that a law which authorized the taxing of property, exempt under prior laws, or which substituted a general tax upon all the real and personal property in a city for special assessments upon adjacent real estate,. to pay for local improvements, did not confer additional or other powers. This proposition, it seems to the court, need not be further discussed.

But there is another view of the subject, well worthy of consideration. '

It has already been said that the power to organize cities is conferred upon the legislature by sec. 1, art. 2, of the constitution; the discretion of the legislature in this behalf would be very wide, and as before” indicated, would authorize great abuses. But the legislature was not left unlimited in the exercise of this power. Sec. 5 of art. 12, above quoted, imposes very salutary restrictions. It was not necessary to give the power to organize cities, but was intended to regulate the exercise of that power. The legislature shall make provision, by general law, for their organization. Without this provision, admitting, for the argument’s sake, that the first clause of sec. 1 does not apply, the legislature might resort to special acts for this purpose. What other reason, then, can be assigned for the provision, than that it was intended to compel the legislature, when it took action upon the subject, to do so by general law ? If it might, nevertheless, organize cities by special act, the provision would be an idle one, having no efficacy whatever, and might, without changing the effect of that instrument, be expunged from the constitution. It is but charitable to suppose that its framers intended it for some purpose. Having given the legislature the power, in the general grant of power, to take, action in the premises, and deeming it wise to impose upon it the obligation to restrict the “powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse thereof, ’ ’ it was thought best to require it to give the citizens the benefits of these organizations, but that it would operate as an additional safeguard, to require it to be done by general law, thus making it to the interest of the whole people of the state to see that - a proper láw should be enacted.

Such, in the opinion of the court, was the object of the clause; and as to its propriety, there can scarcely be two opinions.

But it is claimed that this view of the subject can have no application to the case at bar, inasmuch as Atchison was an organized city prior to the adoption of the constitution.

The court agrees with the counsel as to the fact, but not as to the conclusion drawn therefrom. It does not necessarily follow, that, because a city was originally organized under a special act of the legislature, special acts may now be passed. If it could be changed in one particular, it might be in every one, thus nullifying the provisions of the constitution, the very objects of which were to prevent special legislation. It is a wholly immaterial question, what would have been the situation had the legislature enacted a general law under which the city of Atchison could have properly been reorganized \ The legislature may have been very distinct in failing to pass a law which should give scope for the exercise of the progressive spirit and enterprise of the citizens of that flourishing-young metropolis; but such omission can not affect the question of constitutional power. Should a general law be passed, the provisions of which would be applicable thereto, whether that city would necessarily he brought within its provisions and requirements, is not now a question here; but the court is decidedly of the opinion, that, in the absence'of such a law, it must remain in the legislative situation it occupied at the adoption of the constitution.

The court is aware of many of the disastrous consequences which must necessarily follow this decision; and if in conscience it could have done so, would gladly have ■ avoided them. It had but a single duty to perform. It has endeavored thoroughly to understand the subject, and has acted in accordance with its convictions. If the conclusion at which it has arrived be erroneous, the regrets of the sufferers will not be keener than those of the members of this tribunal. But if the decision is correct, it is better that it be now declared, than that the blow should fall with greater effect hereafter.

Decision of the court below reversed.

All the justices concurring.