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 govern'ment 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 said act of assembly, entitled as aforesaid, was passed at an extraordinary or special ses ""The act of general assembly under which this petition is filed is in conflict with article 5 of the Amendments of the Constitution|sion of the legislature, convened by the govof the United States, because, if the city of Allegheny shall be annexed in pursuance of the petition filed in this case, it will be depriving your respondents of their property without due process of law, and is therefore unconstitutional. Said annexation of the city of Allegheny to the city of Pittsburgh will add additional taxes to the property of your respondents, and create additional burdens without compensation, and will depreciate the sale of the property, in violation of said article 5 of the Amendments to the Constitution of the United States, and they, therefore, will be deprived of their prop-in special session, there shall be no legisla erty.' "Fourth. The supreme court of the state of Pennsylvania erred in dismissing the seventh assignment of error of the plaintiffs in error, which is as follows: ernor of Pennsylvania under article 4, § 12, of the Constitution of Pennsylvania, which provides that the governor may, on extraordinary occasions, convene the general assembly; and that the subject of the said legislation or act of assembly, aforesaid, was not designated in the proclamation of the governor calling such a session, or in the paper or proclamation issued by him dated January 9, 1906, and is therefore in conflict with article 3, § 25, of the Constitution of Pennsylvania, which provides that 'when the general assembly shall be convened tion upon subjects other than those desig nated in the proclamation of the governor calling such session,' and that the said act of assembly is, by reason thereof, not due 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 "Seventh. The supreme court of Pennsyl-i the United States, because the said annexa-vania erred in dismissing the exceptions filedtion of the city of Allegheny to the city of by the plaintiffs in error, thereby confirmPittsburgh deprives your respondents of ing the judgment of the court below. 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 "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. The defendant in error moved to dismisst the case because no Federal question was raised in the court below or by the assignment of errors, or, if any Federal question was raised, because it was frivolous. This 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 court, directing the consolidation of the cities of Pittsburgh and Allegheny. This decree was entered by authority of an act of the general assembly of that state, after 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 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 Prior to the hearing upon the petition the plaintiffs in error, who were citizens, voters, owners of property, and taxpayers in Alle-second assignment of error is that the act gheny, filed twenty-two exceptions to the petition. These exceptions were disposed of adversely to the exceptants by the court of of assembly impairs the obligation of a contract existing between the city of Allegheny and the plaintiffs in error, that the latter *178 177 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 son City Gaslight Co. v. Clark) 95 U. S. of the enlarged city violates article 1, § 9,644, 654, 24 L. ed. 521, 522; Mt. Pleasant v. 10, of the Constitution of the United States. Beckwith, 100 U. S. 514, 524, 525, 531, 532, This assignment does not rest upon the the- 25 L. ed. 699, 701, 703, 704; Meriwether v. ory that the charter of the city is a con- Garrett, 102 U. S. 472, 511, 26 L. ed. 197, tract with the state, a proposition frequent- 204; Kelly v. Pittsburgh, 104 U. S. 78, 80, ly denied by this and other courts. It rests 26 L. ed. 658, 659; Forsyth v. Hammond, upon the novel proposition that there is a 166 U. S. 506, 518, 41 L. ed. 1095, 1100, 17 contract between the citizens and taxpayers Sup. Ct. Rep. 665; Williams v. Eggleston, of a municipal corporation and the corpo- 170 U. S. 304, 310, 42 L. ed. 1047, 1049, 18 ration itself, that the citizens and taxpay- Sup. Ct. Rep. 617; Covington v. Kentucky, ers shall be taxed only for the uses of that 173 U. S. 231, 241, 43 L. ed. 679, 683, 19 corporation, and shall not be taxed for the Sup. Ct. Rep. 383; Worcester v. Worcesuses of any like corporation with which it ter Consol. Street R. Co. 196 U. S. 539, 549, may be consolidated. It is not said that the 49 L. ed. 591, 595, 25 Sup. Ct. Rep. 327; city of Allegheny expressly made any such Atty. Gen. ex rel. Kies v. Lowrey, 199 U. S. extraordinary contract, but only that the 233, 50 L. ed. 167, 26 Sup. Ct. Rep. 27. contract arises out of the relation of the It would be unnecessary and unprofitable parties to each other. It is difficult to deal to analyze these decisions or quote from the with a proposition of this kind except by opinions rendered. We think the following saying that it is not true. No authority or principles have been established by them reason in support of it has been offered to and have become settled doctrines of this us, and it is utterly inconsistent with the court, to be acted upon wherever they are nature of municipal corporations, the pur- applicable. Municipal corporations are poposes for which they are created, and the litical subdivisions of the state, created as relation they bear to those who dwell and convenient agencies for exercising such of own property within their limits. This as the governmental powers of the state as may signment of error is overruled. be intrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from tax. ation upon it, constitutes a contract with the state within the meaning of the Federal Constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in Briefly stated, the assertion in the fourth assignment of error is that the act of assembly deprives the plaintiffs in error of their property without due process of law, by subjecting it to the burden of the additional taxation which would result from the consolidation. The manner in which the right of due process of law has been violated, as set forth in the first assignment of error and insisted upon in argument, is that the method of voting on the consolidation prescribed in the act has permitted the voters of the larger city to overpower the voters of the smaller city, and compel the union without their consent and against their protest. The precise question thus presented has not been determined by this court. It is important, and, as we have said, not so devoid of merit as to be denied consideration, although its solution by principles long settled and constantly acted upon is not difficult. This court has many times had occasion to consider and decide the nature of municipal corporations, their rights and duties, and the rights of their citizens and creditors. Maryland use of Washington County v. Baltimore & O. R. Co. 3 How. 534, 550, 11 L. ed. 714, 721; East Hartford v. Hartford Bridge Co. 10 How. 511, 533, 534, 536, 13 L. ed. 518, 527-529; United States v. Baltimore & O. R. Co. 17 Wall. 322, 329, 21 L. ed. 597, 600; Laramie County v. Albany County, 92 U. S. 307, 308, 310-312, 23 L. ed. 552-555; Tippecanoe 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 Applying these principles to the case at bar, it follows irresistibly that this as-purchase of the water plant of a private signment of error, so far as it relates to the citizens who are plaintiffs in error, must be overruled. * company and for the construction of an electric light plant, Allegheny "has improved its streets, established its own sysIt will be observed that, in describing the tem of electric lighting, and established a absolute power of the state over the prop- satisfactory water supply." This is the only erty of municipal corporations, we have reference in the record to the property rights not extended it beyond the property held of Allegheny, and it falls far short of a and used for governmental purposes. Such statement that that city holds any property corporations are sometimes authorized to in its private and proprietary capacity. Nor hold and do hold property for the same pur- was there any allegation that Allegheny had poses that property is held by private cor- been deprived of its property without due porations or individuals. The distinction process of law. The only allegation of this between property owned by municipal cor-kind is that the taxpayers, plaintiffs in erporations in their public and governmental ror, were deprived of their property withcapacity and that owned by them in their out due process of law because of the inprivate capacity, though difficult to define, creased taxation which would result from has been approved by many of the state the annexation,-an entirely different propcourts (Dill. Mun. Corp. 4th ed. §§ 66 to osition. Nor is the situation varied by the 66a inclusive, cases cited in note to State ex fact that, in the superior court, Allegheny rel. Bulkeley v. Williams, 48 L.R.A. 465), was "permitted to intervene and become one and it has been held that, as to the latter of the appellants." The city made no new class of property, the legislature is not om- allegations and raised no new questions, but nipotent. If the distinction is recognized it was content to rest upon the record as it suggests the question whether property of was made up. Moreover, no question of the a municipal corporation owned in its private effect of the act upon private property rights and proprietary capacity may be taken from of the city of Allegheny was considered in it against its will and without compensation. the opinions in the state courts or suggested Mr. Dillon says truly that the question has by assignment of errors in this court. The never arisen directly for adjudication in question is entirely outside of the record this court. But it and the distinction upon and has no connection with any question which it is based have several times been which is raised in the record. For these noticed. Tippecanoe County v. Lucas, 93 U. reasons we are without jurisdiction to conS. 108, 115, 23 L. ed. 822, 824; Meriwether sider it (Dewey v. Des Moines, 173 U. S. v. Garrett, 102 U. S. 472, 518, 530, 26 L. ed. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379; 197, 206, 210; Essex Public Road Board v. Harding v. Illinois, 196 U. S. 78, 49 L. ed. Skinkle, 140 U. S. 334, 342, 35 L. ed. 446, 394, 25 Sup. Ct. Rep. 176), and neither ex449, 11 Sup. Ct. Rep. 790; New Orleans v. press nor intimate any opinion upon it. New Orleans Waterworks Co. 142 U. S. 79, The judgment is affirmed. 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 (207 U. S. 127) OF GEORGIA RAILWAY COMPANY, Plff. in Err., CENTRAL V. WILLIAM A. WRIGHT, Comptroller Gen- V. WILLIAM A. WRIGHT, Comptroller General of Georgia, and John W. Nelms, Sheriff of Fulton County. (No. 89.) 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. |