CHAPTER XV.

KENTUCKY.

THE Constitution of Kentucky contains no direct allusion to Municipal Bonds, the subject being left wholly within the discretion of the Legislature. The rule of law of the State is, however, very conclusively settled, no substantial variation having taken place at any time.

The first case that arose was that of Talbot v. Dent, which was decided in 1849. The leading question was whether an Act authorizing the city of Louisville to subscribe to the stock of a railroad, one of the termini of which was within the corporate limits of the city, was constitutional. In a remarkably clear and intelligent opinion, the court arrived at the conclusion that the Act was fairly within the power of the Legislature, and that the object was a corporate as well as a public purpose.

After disposing of several incidental points, the court says:

We pass, then, to the fundamental question, whether the Legislature could constitutionally authorize the public authorities of Louisville, with the consent of a majority of the voters of the city, to subscribe for stock in the Louisville and Frankford Railroad Company, and to pay for it by increased taxation upon the citizens. And as the right of the Legislature to delegate the power of taxation for local purposes to the regularly constituted local authorities is too well established, both by legislative precedents and by judicial decisions, to be now denied, and is in fact conceded on all sides in the present case, the question stated resolves itself into the

inquiry, first: Whether, in the present instance, the power is delegated and exercised for a purpose properly local, or within the legitimate objects of the local corporation? and second: Whether, if it be so, any invasion of the constitutional rights of individuals is involved, either in the circumstances under which the power was delegated, or in those which have attended its exercise?

Upon the first question, we do not deem it necessary to make any labored argument or discussion. Substantially the same question has been discussed and decided by the Supreme Court in the States of Virginia, Connecticut and Tennessee; and each of these courts has affirmed the power of the Legislature, in their respective States, to authorize a subscription for stock involving the power of taxation for its payment, by the corporate authorities of a city, under special legislative sanction, for the construction of a work of internal improvement, by which the facility of access and of transportation to and from the city is to be increased. Goddin v. Crump, &c., (8 Leigh's Report, 120;) The City of Bridgeport v. The Housatonic Railroad Company, (15 Connecticut Reports, 475;) and Nichol, &c. v. The Corporation of Nashville, in the Supreme Court of Tennessee, 1849, (Pamphlet Report.)

These cases decide what must, we think, be conceded, that in order to characterize a particular work or expenditure as being within the legitimate local purposes of a local municipal corporation, it is not necessary that the work of expenditure should be confined to the local limits of the corporation; but that in the case of a road or canal leading to or near the city, and obviously tending to facilitate its commerce and secure or increase its commercial business or prosperity, as well as in the case of an aqueduct or a sewer tending to promote the health and comfort of the city, it is sufficient that the object to be accomplished be so connected with the city and its interests as to conduce obviously and in a special manner to their prosperity and advancement.

That a railroad having one of its termini on the Ohio River, within the limits of the city of Louisville, and extending indefinitely into the interior of the State, is a work of this character, we may well assume.

After disposing of the main question, the learned judge proceeds to discuss, in a masterly manner, some of the incidents that pertain to taxation, and especially a tax that is authorized by a popular vote. The view that is taken of the effect of the vote is the only true one, and if it be extended to its legitimate scope, would seem to go far to remove any doubts that might arise as to the nature of the object of special legislation of every kind when the people act.

The theory is, that whether or not an object is public is purely a question of fact; and that the solemn expression of the people that they desire the imposition of a tax to consummate an object, is conclusive as to its nature. It cannot be supposed that the people are other than virtuous, or that they would willingly subject themselves to imposition or fraud. On the contrary, it must be held that their act is intelligent, just and expedient-that it has all the qualities that attach to the act of the people as the real sovereign of the republic, who can do no wrong. It must be taken to be the best evidence of the fact passed upon, if such fact be a proper one to be determined.

To assert that the people are incapable of discriminating between a private and public object is to deny the accepted truisms of popular government, and to overthrow its most important doctrines. It is to make the vox populi something so dangerously uncertain that it is likely to command the destruction of every community at any time. It is, in brief, to make republicanism a species of government that is based upon incapacity, with unlimited power to effect the grandest evils. Unless the people are presumed to be both intelligent and virtuous, the theory of popular government is a monstrous inconsistency.

In voting in the matter of any improvement, the question presented to every voter is clearly this: Will the

proposed action be beneficial to us? If a proper majority answer aye, the most conclusive evidence of the nature of the object of the action is afforded. It is the positive averment of the public that the action will be for the public good. It is a tacit and solemn assertion by the public that the proposed action will be for the public benefit. It is an individual and collective verdict that the action will be to the advantage of every individual, and to the whole number as a corporate body. To escape its binding force, it is obviously necessary to deny the capacity of the voters to judge; for if they are capable of judging, their finding, especially as to what is purely fact, is absolutely final.

In the case last above mentioned, the court says: "

The tax, as levied, being equal upon all, in proportion to the property of each within the city, we do not understand how the rights of any citizen can have been infringed by the delegation of the exercise of the power, unless it be assumed either, that each citizen has a right to decide authoritatively whether the tax is levied for a legitimate purpose, and, therefore, whether it is valid or not, or that the rate of taxation as existing when he became a citizen, cannot be afterwards increased so as to affect his property, without his consent. The argument for the plaintiff does not, it is true, specifically urge either of these positions, but appeals to the judiciary as being invested with the power, and bound by sacred duty, to protect the citizen from unjust and oppressive legislation, though not coming within any of the prohibitory clauses of the Constitution. But though, while acknowledging no power or duty in the judiciary, above or beyond the Constitution and the laws which accord with it, we feel bound so to construe both the Constitution and the laws, as, if possible, to prevent any injustice or oppression to individuals, we perceive no basis for the charge of injustice or oppression in the present case, or for the claim of protection against the operation of the laws of the State and city, now brought in question, unless upon the ground that some right, which, under the Constitution,

should be deemed sacred, has been violated. There is no in equality producing injustice or hardship to the plaintiff, nor do we understand that there is any real complaint, except that his tax has been increased, without his consent, to an amount greater than was previously authorized by law, and for a purpose which he either disapproves or considers not to be within the legitimate object of local taxation.

But if the obvious relation of the railroad, for which the tax was levied, to the city of Louisville, is not sufficient to bring it within the discretion of the Legislature and of the city government to determine whether it be a proper object for expenditure and taxation by the local authorities, no criterion has been furnished of such a character as would authorize a judicial tribunal to reject the concurrent opinions which have been referred to, and pronounce the local tax illegitimate, and therefore unjust and oppressive. The question is one essentially of fact and of expediency. There is, in the nature of the thing, no injustice, and but little danger of oppression, in authorizing the local authorities, elected by the local community, to incur expense, and levy an equal local tax for the accomplishment of an object of local interest, and which they may deem of sufficient importance to justify the additional burden which they will impose upon themselves and their constituents. If it be an object of local interest tending to promote the local prosperity, it comes within the object of the local corporation; and the propriety of promoting it by local taxation must be determined by the corporation, so far as the Legislature authorizes its action on the subject, and it is not dependent upon the opinion or consent of each individual. From the nature of the association, the will of the individual is merged in that of the majority upon all subjects on which the body, as a corporation, has a right to act. And it can only be in a flagrant case of excess of power, if in any, that the judiciary could determine, on its own judgment, in opposition to that of the Legislature and of the city authorities, and of the majority of the individual corporators, that the purpose for which a tax is levied under such authority is not within the legitimate objects of the corporation, or not a purpose for which a local tax may be im