Cornell and Clark were formerly commis sioners of highways of the town of Guilford, and as such, by direction of the voters of the town, had sued the Butternuts and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then refused to reimburse them these costs. Cornell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legislature, and procured an act authorizing the question of payment or not by the town, to be submitted to the voters at the succeeding town meeting. (Laws of 1851, p. 17.) The voters decided that they would not tax themselves for any such purpose. Another application was made to the legislature which resulted in the passage of the act now in question. (Laws of 1852, p. 12.) The action is commenced nominally, and, as I shall assume, really, by the town of Guilford to procure a perpetual *Page 145 injunction to restrain Cornell and Clark, and the board of supervisors of Chenango county, from proceeding to levy the tax authorized by this act, on the ground that the law is unconstitutional. This, as I view the case, is the only question which is necessary to be decided.
The law authorized the county judge of Chenange county to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It authorized the commissioners to make an award, under their hands, or that of a majority of them, which was to be filed with the county clerk of Chenango. It made it the duty of the board of supervisors of said county, at their next annual meeting after the filing of said award, to apportion the same upon the taxable property of the town of Guilford, and provide for its collection in the same manner as other taxes are collected.
Has the legislature any power to enact such a law; that is, a law taxing the taxable property of a town to pay a claim of a private individual?
The general or federal government is one of derivative and limited powers; and as a consequence, congress, the legislative branch of that government, can only exercise those prerogatives which are by the constitution conferred upon it. The taxing power is, by § 8 of that instrument, limited. Uniformity of federal duties, imposts and excises throughout the United States, is also provided for by the same section. And the ratio in which direct taxes shall be apportioned among the several states is fixed by § 2. These limitations and restrictions result necessarily from the limited and derivative character of the federal government.
But our state government is an independent existence, representing the sovereignty of the people. The power of the legislature is the power of that sovereignty, and is supreme in all respects, and unlimited in all matters pertaining *Page 146 to legitimate legislation, except in those instances where the people have, in their fundamental law, limited or restricted it. Taxation is indisputably a legislative power. The constitution of this state will be searched in vain for any clause which contains any restriction or limitation on the taxing power of the legislature. Provisions there are, regulating the manner in which bills, appropriating the public moneys for local or private purposes, or bills imposing taxes shall be passed. Section 13 of art. 7, requires the title of every bill imposing a tax, to specify the object of the law. Section 14 of the same article requires that on the final passage of every act which imposes a tax, the question shall be taken by ayes and noes, and that three-fifths shall be necessary to constitute a quorum. Section 9 of art. 1, requires the assent of two-thirds to the passage of every bill appropriating the public moneys or property for local or private purposes. These it will be seen, are not limitations of the absolute power of the legislature over the public moneys, or of the like power in the imposition of taxes, but rules prescribing the manner of its exercise. Whenever these formalities are observed, the legislature has the right to appropriate the public moneys for local or private purposes, and to impose a tax upon the property of the whole state, or any portion of the state, or any particular and specified kind of property. If it is feared that this power may be abused, or if it is in fact abused, neither the apprehension nor the reality prove the non-existence of the power. Indeed, I had supposed that the decision of this court, in the case of the People v. Mayor,c., of Brooklyn (4 Comstock, 419), had settled the question as matter of authority; and that the reasoning, in the very elaborate opinion of Ruggles, J., in that case, had shown that the decision was right in principle. The judgment in this case should be affirmed.