County Court of Cape Girardeau Company Missouri v. United States/Opinion of the Court

by by John Marshall Harlan

United States Supreme Court

118 U.S. 68

County Court of Cape Girardeau Company Missouri  v.  United States

 Argued: April 19, 1886. ---

The plaintiffs in error concede, as they must have done, that the coupons upon which the relator obtained judgment are, in view of the decisions of this court, obligations which may be enforced by suit against the county. If any question could have been made as to their validity, it is concluded by the judgment which is the foundation of the present proceeding. The only question now before us is whether the relator is entitled to have a tax levied upon any property other than real estate lying within the township. In behalf of the plaintiffs in error it is contended that, as the act of 1868 only required a tax to be levied on real estate, it was beyond the power of the legislature by subsequent enactment, after the bonds were issued, to subject any property other than real estate to taxation for the purpose of meeting this liability of the township. Such legislation, it is claimed, is in violation of the prohibition, found in both the national and state constitutions, of laws impairing the obligations of contracts. This position cannot be maintained. There was not, within the meaning of such prohibition, any contract between the state and the township in respect either of the subscription which the latter voted, or of the bonds issued in its behalf. The township being a part of the civil government of the state, established for public purposes, the powers conferred upon it were at all times subject to legislative control or modification,-at least to such as was not inconsistent with the contract rights of third parties. But for the provision in the state constitution making the assent of the voters of the township, given at an election held for that purpose, a condition precedent to the right of making a subscription in its behalf in aid of the construction of railroads, the legislature could have imposed the tax without submitting the question to popular vote. The provision in the act of 1868 subjecting real estate to the tax therein authorized was nothing more than an expression of the legislative will, and did not prevent the enlargement, in the discretion of the legislature, of the subjects of taxation. The township having legally incurred an obligation to pay the bonds in question, it was competent for the legislature, at any time, to make provision for its being met by taxation upon any kind of property within the township that was subject to taxation for public purposes.

The only remaining point to be considered is whether the act of 1871 was in force when this proceeding was commenced. We are of opinion that it was. It certainly had not then been expressly repealed. But it is argued that the legislature refused to incorporate it in the Revision of 1879, and by such refusal indicated a purpose to repeal it. One answer to this argument is that it does not appear that the legislature so refused. Its express direction, at the regular session of 1879, was that the Revised Statutes, which it then ordered to be prepared, should contain all laws of a general nature in force at the commencement of that session, and 'not expressly repealed, nor repugnant to the provisions' of any act passed at that session, 'and continued in force by their own provisions.' Rev. St. Mo. 1879, § 3154. It was further declared that 'all acts, or parts of acts, of a general nature, in force at the commencement of the present session of the general assembly, and not repealed, shall be, and the same are hereby, continued in full force and effect, unless the same be repugnant to the acts passed or revised at the present session.' Section 3161. It is not claimed that the act of 1871 was repugnant to any act passed at the session of 1879, when the revision was set on foot; and, as it had not then been 'expressly repealed,' it results that it was continued in full force. And this seems to have been the view of the legislature at a subsequent session; for, by an act passed March 24, 1885, after the judgment below, the act of March 10, 1871, was expressly repealed. We perceive no ground for holding that the act of 1871 was repealed prior to the passage of the act of 1885. The judgment is affirmed.

Notes