County of Pulaski vs. Irvin, 4 Ark. 473

By Dickinson, J. This is a question w'hich, both in its principle and in its consequences, involves the construction of our constitution, in regard to the powers that belong to the State, in her sovereign capacity ; and,' also, the constitutional jurisdiction of the county courts. The matter in controversy is not easily determined, because the questions involved in its discussion possess inherent difficulty, in them- , selves; and this is greatly increased by the vagueness and uncertainty of the terms used in the constitution.

In the construction of grants of constitutional power, there is no rule which should be more closely adhered to, than the one laid down by Justice Story, who declares, “thatwe should regard the constitution as a frame of laws, and not as ordinary statutes, and that the great end and object of all just

interpretation are, to ascertain and determine the sovereign will of the people who formed the constitution; that the whole instrument must be taken together; and that its true intent and meaning can only be ascertained and defined from the great objects and purposes for which the government was instituted; that anj other construction will abridge grqat fundamental principles, which are supreme, and enlarge those which are restricted, beyond their true and just meaning.” I deem it proper to make this preliminary remark, before entering into a minute examination of the powers that belong to the State, as a sovereign, and those that appertain to the county courts.

The great axiom in the American form of government, is the separation and division of all political power among the three equal and co-ordinate departments of government; and that true and beneficial problem in the'science of government was revealed by our revolution, and worked out and put in harmonious operation by the adoption of our federal and State constitutions. To deny this self-evident proposition, is to impeach the right of self-government, and to destroy the great presdrvative and constitutional principle that runs through our entire system of free states.

This axiom is declared inviolate by our constitution, by which it is also declared, that the powers of the government of the State shall be, divided into three distinct departments, each to be confided to a separate body of magistracy.

Those which are legislative to one, those which are executive to another, and those which are judicial to a third; and, “that no person, or collection of persons, being of one of these departments, shall exercise any powers belonging to either of the others.” It is clear, from this provision, that this was the great and important object that the convention had in view, in the formation of the constitution, and therefore the instrument must be construed in reference to it.

They well knew that they could not be separated, or made independent of each other; for the action of the government depends upon the joint agency of them all. But, within the constitutional jurisdiction, each was supreme, exceptin cases expressly permitted or directed.

Now, it is perfectly clear, that the clause in the constitution which confers jurisdiction upon the county courts “in all matters relating to county taxes, disbursement of money for county purposes, and in all other cases that might be necessary for their internal improvements or local concerns,” must be considered by, and in reference to, the leading and governing principle of the constitution; and that the authority given to the justices of the peace, as a county court, must yield to, and be restricted by, this principle, unless its exercise is in accordance with the true object and design of the convention.

Again, it cannot be denied, that, if these clauses in the constitution were in direct contradiction to each other, the latter must give way to the former, because an inferior principle is intended to be engrafted upon the constitution, in opposition to a higher and more commanding provision, and one which constitutes the ingredients of civil liberty, and furnishes the only means and security by which the liberty of the country can be preserved or continued. This is the plain dictate of common sense, founded on experience and the nature of things, and strictly in accordance with all just rules of constitutional

interpretation. There is a wide difference between the constitution of the United States and those of the State governments. The one is a delegation and enumeration of powers for national purposes and objects, and hence, its provisions are not to be extended beyond the true construction of the terms used, and their necessary implication with reference to the objects granted and intended to be secured. The constitution of a State government is wholly different. It is true, whatever it forbids, either to the State or to the people, cannot be done; and, thus far, it is like the constitution of the United States.

Here the similitude stops; for, whatever is not forbidden by the constitution of the United States, or by the laws of Congress in pursuance of its authority, is retained as a residuary power to the State, as a matter of sovereign right, which she has the unquestionable authority to exercise in any manner she pleases, subject to the restrictions and limitations before stated. This results from the nature and character of civil government.

It would be impossible to make an enumeration of all the political rights that belong to sovereign States, or the natural privileges that belong to the people, or to give a definition that would include the whole extent of their power. Besides, it would be impeaching the will of the sovereign to do whatever she might think proper, within her constitutional orbit; and it would strip her of all her attributes of usefulness .and improvement.

The constitution of a State is, therefore, a mere declaration or biff of rights, imposed alike upon the different departments of government, and upon the citizens, and organizing its powers and franchises in such form as the sovereign will of the people, in convention, deemed proper to impose. These premises? being established, will, I think, lend to just and proper conclusions. The most distinguishing characteristic in the federal and State governments, is the power that belongs to the legislative department to impose taxation upon the people.

There is a sensibility and a jealousy upon this subject, that may be regarded as furnishing the most effectual barrier against oppression and injustice. Representation and taxation, in their proper meaning, belong exclusively to the principles of a free, constitutional, and limited government; and this power, checked and controlled by the elective franchise, is not exerted partially or in local districts, but through the agency and sovereignty of the Slates, by uniform and impartial laws, and was the power that the people regarded, above all others, as constituting the shield of their protection.

Liberty, they well knew, was in far more danger from attacks upon private property, than from any other cause; and hence, they guarded it upon that side with more solicitude and concern than any other. These principles being established, it would seem to me to follow, that the State has certainly not entrusted her resources or her powers, on the subject of taxation, to any ether department than the General' Assembly, unless the grant in the constitution is so express and imperative as to forbid the idea that she ever intended to reserve this privilege solely to herself.

And if it is doubtful how the power of taxalion is distributed, then, as a governing principle of constitutional freedom, it necessarily belongs to tbe State, and she is authorized to exert it through the agency and instrumentality of her political or corporate communities. By keeping in view these principles, we shall be able to define the- true constitutional jurisdiction of the several departments, and confine each to its appropriate sphere. The power of taxation, as has been justly said, is the greatest power that can be entrusted to a sovereign.

In ils exercise, all the great interests of society are involved, and the government is put into operation and supported by its resourced or influence. As a general principle, the right of taxation is given, and belongs exclusively, to the legislative department. And there is great propriety and necessity in thus lodging it; for, as it is to be exercised for the benefit and security ©f the State, so' the whole people of the State, through the means of the elective franchise, should have the power of regulating and controlling-its action. Is our constitution an exception to this universal rule?

How is the power of taxation given, iti the instrument? The county courts “ shall have jurisdiction in all matters relating to county taxes, and disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concern of their respective counties.” Sec. 9, Art. 6, Cons. These words must be all construed together, keeping in view the great object and purposes of the government.

Admit that the term, jurisdiction over all matters relating to taxes for county purposes, if taken disconnected from the other portions of the constitution and the clauses of the sentence that ■follow it, might convey to the mind the idea (hat the power of taxation was given to that court; but, even then, I should deem that doubtful; for they are certainly neither appropriate nor sufficiently explicit terms to confer such a power.

Their meaning is restrained by the latter part of the paragraph, which shows the object for which the jurisdiction was conferred; for that proves that the county court was intrusted with the mere collection and disbursement of the revenues of the county, and in all other cases in which she was concerned, by the appointment and prescription of the Legislature. Such is the extent of their powers. That they are to have and exercise jurisdiction in all cases coming within the provisions from which they derive their authority, is not controverted; and it is the duty of this Court to sustain and protect them in it.

But the objects upon which that jurisdiction is to be exercised, must first be defined, and the line of distinction drawn by the General Assembly, between what shall be considered local or general concerns, and the internal improvements of the counties pointed out, as contradistinguished from those of the State; for what purposes county taxes may he assessed; the amount, mode, and manner of taxation; and the purposes for which such moneys may be disbursed. When this shall have been done, and a case is properly presented, in the form prescribed by law, then the jurisdiction attaches.

To assert the broad and naked proposition, that the county courts can act upon the subject either of taxation or disbursement, without any legislative control upon the subject, is, virtually and in effect, to give to the most inferior tribunals in the State, powers expressly belonging to the General Assembly; and that, too, in a class of cases in which they might cause the most serious embarrassment to the State, by cutting off her revenue. As judges, they possess no such right, because it is the exercise of legislative authority. Where, I ask, is the grant giving them legislative power ?

Does the constitution regard them as a court, or as d legislature ? or do they partake of a double character compounded of both, possessing the attributes of both judging and legislating. Is it to be presumed that so novel and extraordinary a power would have been conferred on an inferior tribunal of justice, without an express declaration of the constitution to that effect?

To say that they, as judges alone, may declare what constitute county purposes, is to make the corporate and political bodies of the State uncontrollable upon the subject of county taxation, as well as disbursements, and all their incidents; for it cannot be contended that this, or any other court, could control them upon a mere question of fact, and that, too, upon a subject of which they have an exclusive, absolute jurisdiction.

Suppose the General Assembly had passed no-act whatever upon the subject, could the county court, upon its own mere will, have gone on and imposed burthens upon the property of her citizens? If it can arbitrarily declare the class of cases which shall be deemed local, or upon which the county funds shall be disbursed, regardless of the expression of the legislative will, it may, with equal propriety, levy and collect whatever tax it pleases, and upon such species of property as it may think proper to designate.

If it can do all this, by what rule of uniformity are the county courts-governed? for that bench, consisting of numerous judges, continually changing, at the will of the p.eople by whom they are elected, must, then, having no rule for its government, be controlled in its judgment by the many circumstances acting upon the immediate interests of those who preside upon it. With a power undefined, unlimited, and unregulated, that which in one county would be deemed local, in another would be adjudged very differently.

If the county court can, independent of the legislative will, levy taxes, and select all objects of expenditure, why can it not, as an incident of these powers, create an assessor, a treasurer, and collector? Such a power, I presume would hardly be claimed for them. Grant, then, these uncontrolled powers of levying taxes, and they can, if they wish it, indirectly exclude the State from coming into the counties for her revenue, or at least so cripple her resources as to render them valueless. What right has a county to purchase property of any kind without the authority of law?

If she can do this, she may erect court-houses and jails, and call them county property, and exclude the State from the use or occupation of them, and thereby paralyze the arm of justice. It is no answer to this proposition, to say there can be no motive to do such a thing. A failure to do so may be mere policy, while it can exercise the power at any time, to the great detriment of the general interests of the State and the citizens.

I admit that, if the courts were given this power, absolutely and unquestionably, by the constitution, however dangerous such an arbitrary jurisdiction might be, no valid objection could be made to its exercise; but, as there is no such express grant in the instrument, according to my view of it, we are not warranted in clothing them with such unlicensed discretion.

Had the convention intended to confer it upon them, would they not have declared, in express terms, that the county court should have authority to levy taxes upon the citizens of their counties, for county purposes, and disburse the same, without being subject to the control of the General Assembly? As they have not done so, is it not fair and reasonable to presume that no such power was ever intended to be conferred? Assume the position that an uncontrolled power is explicitly given to the county courts over eounty disbursements, and it must, of course, extend to the power of taxation.

I cannot consider the grant as standing separate and alone, but as in reference only to other and higher objects of government. The question that I am considering, is one of power, and not of policy. Therefore, I am unable to bring my mind to the conviction that the convention ever intended to confer upon the most inferior part of the judiciary system the power of taxation and of disbursement, without reference to any legislative action.

Admit the power, and all that the county courts have to do is, to declare any object local, and a fit subject for county taxation, and then they can, of course, (if the position the county court,has assumed be correct), raise the levy to meet the expense; or, they may refuse to make any improvCrfients whatever, to the injury of other parts of the State. If this be trife, how could taxation be uniform throughout the State, or a standard of equal valuation fixed upon the same species of property? And yet, this is one of the main and leading provisions of the constitution, upon the subject of taxation.

The members of the convention who framed the constitution, are supposed to have known the wants of the State, and to have provided adequate and sufficient means for the security and maintenance of the government. They, according to my opinion, proceeded upon the principle that the people were willing to intrust the General Assembly with the power of taxation; and, through the representatives of the whole State, have agreed that their property might be taxed for State purposes and county objects.

They have provided the means for these two things, by intrusting the power to the Legislature, in the first instance, and requiring it to lay down a rule upon the subject, that should govern county courts. The constitution regards the county courts as political and corporate bodies, that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of, and superior to, it.

As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and, in the exercise of their jurisdiction, to proceed in the mode and manner prescribed by law. That the State has the right to require them to defray the expenses of criminal prosecutions, originating in their respective districts, I have no doubt. As the sovereign, she may defray them out of any portion of her revenue that she may think proper. Whether the law she has passed in regard to the subject be ill advised or not, it does not belong to this Court to determine.

Much rmiy depend upon the vigilance of the police of a county, in preserving peace, good order, and quietness, and in suppressing vice and crime. And while, on the other hand, she is induced to exercise all her energies in preventing the commission of crime, she is warned that unnecessary and unwarrantable prosecutions may cause the expenditure of her public moneys, and increase the burthen of her citizens. The General Assembly having, under any state of case, authority to pass the laws, they must, in my opinion, remain in force until changed or modified by subsequent legislation.

Under the view I have taken of this case, it is not necessary for me to say, that I consider the acts of the General Assembly, regulating the disbursement of county funds, as imperative upon the county courts, and that they have no discretion but to obey them. In the present case, it cannot be contended but that the sheriff of Phillips county has acted in conibrmity with law, and that his account for official services, rendered in the case of the State vs. Douglass,-is properly certified.

It is equally clear, in my opinion, that the county of Pulaski, in which the prosecution was instituted, is bound to pay the costs. The judgment of the circuit court, however, must be reversed, as that court, upon certiorari, could take no other action upon the proceedings of the county court, than to quash or affirm them. The case must therefore be remanded, with instructions that the judgment of the county court be quashed. By