Norton v. Taxing District of Brownsville/Opinion of the Court

The question to be determined in this case is whether the act of February 8, 1870, set forth in the foregoing statement, could be availed of under the provisions of the constitution of Tennessee which was adopted by vote of the people March 26, 1870, and went into effect on the 5th day of May of that year. By that act the corporate authorities of the city of Brownsville, in Haywood county, Tenn., were authorized to issue corporate bonds to the amount of $200,000 for railroad purposes, to be subscribed as stock in the Brownsville & Ohio Railroad Company, certificates of stock in the latter to be issued to the municipality to the amount of the bonds received, and an election was provided for, to be held upon twenty days' notice, 'at which election all the legal voters shall have the privilege of voting for or against the issuance of said railroad bonds; and, unless a majority of the votes cast at such election be in favor of the proposed issuance of railroad bonds, no authority shall be given by this act to issue the same; but, in case a majority of the votes cast be in favor of the issuance of said bonds, the mayor of the city shall subscribe to the stock of said railroad company the amount so voted,-said stock to be paid in bonds, as provided for by this act.' The twenty-ninth section of article 2 of the state constitution of 1834-35 was as follows: 'The general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes, respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation.' This language was retained in section 29, art. 2, of the constitution of 1870, which then proceeded thus: 'But the credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes cast at said election; nor shall any county, city, or town, become a stockholder, with others, in any company, association, or corporation, except upon a like election, and the assent of a like majority.' Then came an exception of certain enumerated counties from the operation of the restriction until 1880. Sections 1, 2, art. 11, provided: 'Section 1. All laws and ordinances now in force and in use in this state, not inconsistent with this constitution, shall continue in force and use until they shall expire, or be altered or repealed by the legislature; but ordinances contained in any former constitution, or schedule thereto, are hereby abrogated. Sec. 2. Nothing contained in this constitution shall impair the validity of any debts or contracts, or affect any rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice.'

It is clear that the inhibition imposed by section 29 of the constitution of 1870 operates directly upon the municipalities themselves, and is absolute and self-executing; and although power is reserved to the legislature to enable them to give or loan their credit, and to become stockholders, upon the assent of three-fourths of the votes cast at an election to be held by the qualified voters, the county, city, or town is destitute of the power to do so until legislation authorizing such election and action thereupon is had. The prohibition of the gift or loan of credit or the subscription to stock without a three-fourths vote is not an affirmative grant of authority to give or loan credit, or to become a stockholder upon a three-fourths vote. Prior to the constitution of 1870, the legislature could have conferred on a municipal corporation the power to give or loan its credit, or to subscribe for stock, on such terms and conditions as the legislature chose to impose; but, after that constitution went into effect, the municipality was deprived of any power previously conferred, and could thereafter do none of these things save by an act of the legislature imparting the power as limited by the constitution. In Aspinwall v. Commissioners, 22 How. 364, the provision in the state constitution of Indiana, forbidding counties from loaning their credit to any incorporated company, or loaning money for the purpose of taking stock in any such company, and from subscribing for stock, unless paid for when subscribed, was held to have withdrawn all authority to make subscriptions to the stock of incorporated companies, except in the manner and under the conditions prescribed by that instrument, and that consequently a subscription made and bonds issued after the constitution took effect, under an act of the legislature previously passed, were without authority, and void. See Wadsworth v. Supervisors, 102 U.S. 534, 537. The same view was held in Concord v. Bank, 92 U.S. 625, as to a similar provision in the constitution of Illinois, which went into effect July 2, 1870, and in Falconer v. Railroad Co., 69 N. Y. 491, arising under the amendments of 1874-75 to the constitution of New York. Railroad Co. v. Falconer, 103 U.S. 821. These cases sufficiently illustrate the distinction between the operation of a constitutional limitation upon the power of the legislature, and of a constitutional inhibition upon the municipality itself. In the former case, past legislative action is not necessarily affected, while in the latter it is annulled. Of course, if an entirely new organic law is adopted, provision in the schedule or some other part of the instrument must be made for keeping in force all laws not inconsistent therewith, and this was furnished in this instance by the first section of article 11; but such a provision does not perpetuate any previous law enabling a municipality to do that which it is subsequently forbidden to do by the constitution.

The inhibition being self-executing, and operating directly upon the municipality, and not in itself enabling the latter to proceed in accordance with the prescribed limitation, further legislation is necessary before the municipality can act. Thus in Jarrolt v. Moberly, 103 U.S. 580, an act of the general assembly of Missouri, approved March 18, 1870, which provided that it should be lawful for the council of any city, or the trustees of any incorporated town, to purchase lands, and to donate, lease, or sell the same to any railroad company, and, for the purposes of assisting and inducing such railroad company to locate and build machine-shops on such lands, and, for such purposes, to levy taxes, borrow money, and issue bonds, upon the assent of a majority of the qualified voters, was held void, as in conflict with a provision of the state constitution of 1865, declaring that the general assembly should not authorize any county, city, or town to become a stockholder in, or loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election, should assent thereto. On the 16th of February, 1872, another act was passed providing that 'no county court of any county, city council of any city, nor any board of trustees of any incorporated town, shall hereafter have the right to donate, take, or subscribe stock for such county, city, or incorporated town in, or loan the credit thereof to, any railroad company, or other company, corporation, or association, unless authorized to do so by a vote of two-thirds of the qualified voters of such county, city, or incorporated town.' The election authorizing the issue of bonds was held on the 26th day of March, 1872. On the 29th of March, 1872, the legislature passed another act, so amending the sixth section of the act of March 18, 1870, as to provide for the assent of two-thirds of the qualified voters of such town or city, at a regular of special election to be held therein. And thus court further held that the act of the legislature of February 16, 1872, was merely prohibitory in its character, forbidding the officers of counties, cities, and towns to loan the credit thereof, or donate to or subscribe stock in any railroad or other company, without the previous assent of two-thirds of their qualified voters, and in itself conferred no authority on those officers when such assent was given; and Mr. Justice FIELD, delivering the opinion, says: 'Further legislation was needed. Such was the evident opinion of the legislature of the state, for by an additional act, passed on the 29th of March, 1872, the authority was given in terms.'

The rule thus laid down is decisive of the case at bar. The constitutional provision prohibited all municipal gifts, loans, or subscriptions, except when authorized upon certain conditions, but it did not, in itself, operate to confer authority. Further legislation was needed, and such was the evident opinion of the legislature of the state; for on the 16th of January, 1871, it passed an act entitled 'An act to enforce article 2, section 29, of the constitution, to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes;' thus giving a practical construction immediately after the adoption of the constitution. 'This act,' says the court in Kelley v. Milan, 127 U.S. 139, 154, 8 Sup. Ct. Rep. 1101, 'was manifestly passed for the object stated in its title, to carry into effect the provisions of section 29 of article 2 of the constitution of 1870, and to prescribe the manner and the conditions, in conformity with the provisions of that section, in and upon which the several counties and incorporated towns in the state should have the right to impose taxes for county and corporation purposes;' and as to the second clause of the first section of the act, which repeats the language of the constitution, it is remarked: 'The enactments in that clause are entirely inhibitory and negative in their character. They do not confer any authority for the giving or loaning of credit upon any municipality, nor confer the right upon any municipality to become a stockholder with others in any corporation; but they only prescribe the condition, that no credit shall be given or loaned, and no ownership of stock be created, unless the prescribed election be first held, and the assent of three-fourths of the votes cast at it be first given. But the authority to give or loan credit, and to become a stockholder, under the conditions prescribed in the act of 1871, must be found in an independent grant of authority, in some other statutory provision, either general or special.' Pulaski v. Gilmore, 21 Fed. Rep. 870; Milan v. Railroad, 11 Lea, 330.

It will be perceived that we do not assent to the view that, when the state government commenced under the new constitution, the act of February 8, 1870, was amended by section 29 of article 2, so as to substitute a vote of three-fourths for that of a majority, and re-enacted, so to speak, by the first section of article 11, above quoted. The power of ordinary legislation is vested, under all our constitutions, in the legislatures, and the constitutional convention of Tennessee did not assume to exercise such power. The amendment of a law is usually accomplished according to a prescribed course, and there is nothing here to justify the conclusion that section 29 of article 2 was designed to operate by way of amendment to prior laws, nor can it so operate, nor the act of 1870 be held to have been kept in force, for the reasons already indicated. The proceedings resulting in the issue of the bonds whose validity is under consideration were initiated May 11, 1870, five days after the constitution went into effect, and the election was held on the 11th day of June following. In our opinion, there was no authority to hold the election and to issue the bonds, and their holders consequently cannot recover. The judgment of the circuit court will therefore be affirmed.