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Laws, 84, 119; Jones v. Lore, 3 N. J. Law, 598; Doremus v. Smith, 4 N. J. Law, 160; Westcott v. Garrison, 6 N. J. Law, 132; State v. Frank & Guisbert Creek Co. 14 N. J. Law, 301; State v. Newark, 27 N. J. Law, 185, 194; Berdan v. Riser Drainage Co. cited 18 N. J. Eq. 69; Coster v. Tide-water Co. Id. 54, 68, 518, 531; State v. Blake, 35 N. J. Law, 208, and 36 N. J. Law, 442; Hoagland v. Wurts, 41 N. J. Law, 175, 179.
In State v. Newark, 27 N. J. Law, 185, 194, the supreme court said: "Laws for the drainage and embanking of low grounds, and to provide for the expense, for the mere benefit of the proprietors, without reference to the public good, are to be classed, not under the taxing but the police power of the government."
In Coster v. Tide-water Co. 18 N. J. Eq. 54, 518, the same view was strongly asserted in the court of chancery and in the court of errors. The point there decided was that a statute providing for the drainage of a large tract of land overflowed by tide-water, by a corporation chartered for the purpose, none of the members of which owned any lands within the tract, if it could be maintained as an exercise of the right of eminent domain for public use, yet could not authorize an assessment on the owners of such lands for anything beyond the benefits conferred upon them. But the case was clearly and sharply distinguished from the case of the drainage of lands for the exclusive benefit of the owners upon proceedings instituted by some of them.
Chancellor ZABRISKIE said: "But there is another branch of the legislative power that may be appealed to, as authorizing the taking of the lands required for the works to drain these meadows. It is the power of the government to prescribe public regulations for the better and more economical management of property of persons whose property adjoins, or which, from some other reason, can be better managed and improved by some joint operation, such as the power of regulating the building of party walls; making and maintaining partition fences and ditches; constructing ditches and sewers for the draining of uplands or marshes, which can more advantageously be drained by a common sewer or ditch. This a well-known legislative power, recognized and treated of by all jurisconsults and writers upon law through the civilized world; a branch of legislative power exercised by this state before and since the revolution, and before and since the adoption of the present constitution, and repeatedly recognized by our courts. The legislature has power to regulate these subjects, either by general law, or by particular laws for certain localities or particular and defined tracts of land. When the con-* stitution vested the legislative power in the senate and general assembly, it conferred the power to make these public regulations as a well-understood part of that legislative power." "The principle of them all is, to make an improvement common to all concerned, at the common expense of all. And to effect this object, the acts provide that the works to effect the drainage may be located on any part of the lands drained, paying the owner of the land thus occupied compensation for the damage by such use. So far, private property is taken by them; further it is not. In none of them is the owner divested of his fee, and in most there is no corporation in which it could be vested, and for all other purposes the title of the land remained in the owner. To effect such common drainage, power was in some cases given to continue these drains through adjacent lands not drained, upon compensation. All this was an ancient and well-known exercise of legislative power, and may well be considered as included in the grant of legislative power in the constitution.' 18 N. J. Eq. 68–71.
Chief Justice BEASLEY, in delivering the judgment of the court of errors, enforced the same distinction, saying: "This case, with regard to the grounds on which it rests, is to be distinguished from that class of proceedings by which meadows and other lands are drained on the application of the landowners themselves. In the present instance, the state is the sole actor, al's V.58-69
public necessity or convenience is the only justification of her intervention. But the regulations established by the legislative power, whereby the owners of meadow lands are compelled to submit to an equal burden of the expense incurred in their improvement, are rules of police of the same character as provisions concerning party walls and partition fences. To these cases, therefore, the principle upon which the decision of the present case rests is not to be extended." 18 N. J. Eq. 531.
These full and explicit statements have been since treated by the courts of New Jersey as finally establishing the constitutionality of such statutes.
In State v. Blake, 35 N. J. Law, 208, and 36 N. J. Law, 442, a statute authorizing a tract of swamps and marsh lands to be drained by commissioners elected by the owners of the lands, and the entire expense assessed upon all the owners, was held to be constitutional, although no appeal was given from the assessment. In the supreme court it was said: "This branch of legislative power which regulates the construction of ditches and secures the drainage of meadows and marshy lands has been exercised so long, and is so fully recognized, that it is now too late to call it in question. It is clearly affirmed in the Tide-water Co. v. Coster, and cannot be opened to discussion." 35 N. J. Law, 211. And the court of errors, in a unanimous judgment, approved this statement of the supreme court, as well as that of Chief Justice BEASLEY, in Coster v. Tide-water Co., above quoted. 36 N. J. Law, 447, 448.
The constitutionality of the statute of 1871, under which the proceedings in the case at bar were had, was upheld by the supreme court and the court. of errors upon the ground of the previous decisions. In re Lower Chatham Drainage, 35 N. J. Law, 497, 501; In re Pequest River Drainage, 39 N. J. Law, 433, 434; 41 N. J. Law, 175, 179; 42 N. J. Law, 553, 554; and 43 N. J. Law, 456. The further suggestion made by the supreme court in 35 N. J. Law, 501, 506, and 39 N. J. Law, 434, that this statute could be maintained as a taking of private property for a public use, was disapproved by the court of errors in 41 N. J. Law, 178.
In Kean v. Driggs Drainage Co. 45 N. J. Law, 91, cited for the plaintiffs in error, the statute that was held unconstitutional created a private corporation with power to drain lands without the consent or application of any of the owners; and the supreme court observed that in the opinions of the court of errors in the present case and in Coster v. Tide-water Co. the distinction was clearly drawn between meadow drainage for the exclusive benefit of the owners, to be done at their sole expense, and drainage undertaken by the public primarily as a matter of public concern, in which case the assessment upon land-owners must be limited to benefits imparted. 45 N. J. Law, 94.
This review of the cases clearly shows that general laws for the drainage of large tracts of swamps and low lands, upon proceedings instituted by some of the proprietors of the lands to compel all to contribute to the expense of their drainage, have been maintained by the courts of New Jersey (without reference to the power of taking private property for the public use under the right of eminent domain, or to the power of suppressing a nuisance dangerous to the public health) as a just and constitutional exercise of the power of the legislature to establish regulations by which adjoining lands, held by various owners in severalty, and in the improvement of which all have a common interest, but which, by reason of the peculiar natural condition of the whole tract, cannot be improved or enjoyed by any of them without the concurrence of all, may be reclaimed and made useful to all at their joint expense. The case comes within the principle upon which this court upheld the validity of general mill acts in Head v. Amoskeag Manuf'g Co. 113 U. S. 9; S. C., ante, 441.
It is also well settled by the decisions of the courts of New Jersey that such proceedings are not within the provision of the constitution of that state securing the right of trial by jury. Const. N. J. 1776, art. 22; Const. 1844, art.
1, §7; Scudder v. Trenton Delaware Falls Co. 1 N. J. Eq. 694, 721-725; In re Lower Chatham Drainage, 35 N. J. Law, 487; Howe v. Plainfield, 37 N. J. Law, 145.
The statute of 1871 is applicable to any tract of land within the state which is subject to overflow from freshets, or which is usually in low, marshy, boggy, or wet condition. It is only upon the application of at least five owners of separate lots of land included in the tract that a plan of drainage can be adopted. All persons interested have opportunity by public notice to object to the appointment of commissioners to execute that plan, and no commissioners can be appointed against the remonstrance of the owners of the greater part of the lands. All persons interested have also opportunity by public notice to be heard before the court on the commissioner's report of the expense of the work, and of the lands which, in their judgment, ought to contribute, as well as before the commissioners; and on any error in law or in the principles of assessment, before the court, upon the amount of the assessment. As the statute is applicable to all lands of the same kind, and as no person can be assessed under it for the expense of drainage without notice and opportunity to be heard, the plaintiffs in error have neither been denied the equal protec tion of the laws, nor been deprived of their property without due process of law, within the meaning of the fourteenth amendment of the constitution of the United States. Barbier v. Connolly, 113 U. S. 27, 31; S. C. ante, 357; Walker v. Sauvinet, 92 U. S. 90; Davidson v. New Orleans, 96 U. S. 97; Hagar v. Reclamation District, 111 U. S. 701; S. C. 4 SUP. CT. REP. 663. Judgment affirmed.
(114 U. S. 622)
BROWN and another v. HOUSTON, State Tax Collector, and another.
(May 4, 1885.)
1. CONSTITUTIONAL LAW-ART. 1, 2 10, CL. 2-IMPORTS AND EXPORTS-EFFECT OF THE WORDS.
The terms "imports" and "exports" in that clause of the constitution which says that "no state shall, without the consent of congress, lay any imposts or duties upon imports or exports," has reference to goods brought from or carried to foreign countries alone, and not to goods transported from one state to another. 2. SAME-GENERAL TAX-EFFECT AS TO GOODS AFTERWARDS EXPORTED.
Where a general tax is laid upon all property alike, it cannot be construed as a duty on exports when falling upon goods not then intended for exportation, though they should happen to be exported afterwards.
8. SAME REGULATION OF INTERSTATE COMMERCE BY STATE-TAX UPON GOODS ARRIVED IN STATE AS THEIR DESTINATION.
It is the settled doctrine of the United States supreme court at this day that a state can no more regulate or impede commerce among the several states than it can regulate or impede commerce with foreign nations. But the imposition of a general tax upon goods from another state, arrived in the taxing state as their place of destination, is not a regulation of commerce with the objectionable effect.
In Error to the Supreme Court of the State of Louisiana.
J. P. Hornor and C. W. Hornor, for plaintiffs in error. No appearance for defendants in error.
BRADLEY, J. This suit was brought by the plaintiffs in error in the civil district court for the parish of Orleans, state of Louisiana, on the thirtieth of December, 1880, to enjoin the defendant Houston from seizing and selling a certain lot of coal belonging to the plaintiffs, situated in New Orleans. They alleged in their petition that they were residents and did business in Pittsburgh, state of Pennsylvania; that Houston, state tax collector of the upper district of the parish of Orleans, had officially notified Brown & Jones, the agents of the plaintiffs in New Orleans, that they (Brown & Jones) were indebted to the state of Louisiana in the sum of $352.80, state tax for the year 1880 upon a certain lot of Pittsburgh coal, assessed as their property, and valued at $58,800; that they (Brown & Jones) were delinquents for said tax:
and that he, said tax collector, was about to seize, advertise, and sell said coal to pay said tax, as would appear by a copy of the notice annexed to the petition. The plaintiffs alleged that they were not indebted to the state of Louisiana for said tax; that they were the sole owners of the coal, and were not liable for any tax thereon, having paid all taxes legally due for the year 1880 on said coal in Pennsylvania; and that the said coal was simply under the care of Brown & Jones as the agents of the plaintiffs in New Orleans, for sale. They further alleged that said coal was mined in Pennsylvania, and was exported from said state and imported into the state of Louisiana as their property, and was then, (at the time of the petition,) and had always remained, in its original condition, and never had been or become mixed or incorporated with other property in the state of Louisiana; that when said assessment was made, the said coal was afloat in the Mississippi river, in the parish of Orleans, in the original condition in which it was exported from Pennsylvania, and the agents, Brown & Jones, notified the board of assessors of the parish that the coal did not belong to them, but to the plaintiffs, and was held as before stated, and was not subject to taxation, and protested against the assessment for that purpose. The plaintiffs averred that the assessment of the tax and any attempt to collect the same were illegal and oppressive, and contrary to the constitution of the United States, article 1, § 8, pars. 1 and 3, and section 10, par. 2. They therefore prayed an injunction to prevent the seizure and sale of the coal, which, upon giving the requisite bond, was granted. The notice of assessment referred to in the petition, and annexed thereto, was as follows:
"OFFICE STATE TAX COLLECTOR, UPPER DISTRICT,
"To Brown & Jones, Gravier and Charles street-SIR: You are hereby officially notified, in conformity with the provisions of act No. 77 of 1880, that the state taxes assessed to you on movable property in this parish, which amount to the sum of $352.80 (the aggregate assessed value of such property being $58,800.00) fell due and should have been paid in full on or before the first day of the current month; that you became a delinquent for said taxes on such first day of December; that after the expiration of twenty days from the date of this notice, I, as tax collector of the upper district of the parish of Orleans, will advertise for sale the movable property on which the said taxes are due in the manner provided by law for judicial sales; that at the principal front door of the court-house, where the civil district court of said parish is held, I will sell, within the legal hours for judicial sales, for cash, and without appraisement, such portion of the said movable property as you shall point out and deliver to me; and in case you shall not point out sufficient property, that I will at once, and without further delay, sell for cash, without appraisement, the least quantity of said movable property which any bidder will buy for the amount of taxes assessed upon movable property, with interest and costs. Respectfully, yours, J. D. HOUSTON, "State Tax Collector, Upper District, Parish of Orleans.'
The defendant answered with a general denial, but admitting the assessment of the tax and the intention to sell the property for payment thereof.
The plaintiffs, to sustain the allegations of their petition, produced two witnesses. George F. Rootes testified that he was the general agent and manager of the business of Brown & Jones in New Orleans; that when the assessment complained of was made, the firm had paid the state taxes due upon their capital stock, and had paid state and city licenses to do business for that year; that, at the time of the assessment of the tax in question, the coal upon which it was levied was in the hands of Brown & Jones, as agents for the
plaintiffs, for sale, having just arrived from Pittsburgh, Pennsylvania, by flatboats, and was on said boats in which it arrived, and afloat in the Mississippi river; that it was held by Brown & Jones to be sold for account of the plaintiffs by the boat-load, and that since then more than half of it had been ex-, ported from this country on foreign steam-ships, and the balance sold into the *interior of the state for plantation use by the flat-boat load. Samuel S. Brown, one of the plaintiffs, testified that the plaintiffs were the owners of the coal in question; that it was mined in plaintiffs' mine, in Allegheny county, Pennsylvania; that a tax of two or more mills was paid on it in Pennsylvania as state tax thereon, in the year 1880, being the tax of 1880; that a tax was also paid on it to the county of Allegheny for the year 1880; that it was shipped from Pittsburgh, Pennsylvania, in 1880, and was received in New Orleans in its original condition, and in its original packages, and still owned by the plaintiffs. No other proof was offered in the case.
The Louisiana statute of April 9, 1880, act No. 77, under which the assessment was made, provided as follows:
"Section 1. That for the calendar year 1880, and for each and every succeeding calendar year, there are hereby levied annual taxes, amounting in the aggregate to six mills on the dollar of the assessed valuation hereafter to be made of all property situated within the state of Louisiana, except such as is expressly exempted from taxation by the (state) constitution."
The exemptions from taxation under the constitution of Louisiana do not affect the question. Upon the case as thus made the district court of the parish dissolved the injunction and dismissed the suit. On appeal to the supreme court of Louisiana this judgment was affirmed, and the case is now here by writ of error to the judgment of the supreme court. The following errors have been assigned: "The lower court erred in holding (1) that the tax in question did not violate article 4, § 2, cl. 1, of the federal constitution; (2) that it did not violate article 1, § 8, cl. 3, of the same instrument; (3) that it did not violate article 1, § 10, cl. 2, of the same instrument." The clauses here referred to are these: "(1) The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. (2) *The congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. (3) No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."
The constitutional questions here presented were argued in the supreme court of Louisiana, and in what manner the subject was viewed by that court may be seen by the following extracts from its opinion, filed as part of the judgment. The court said: "First. This act [No. 77 of 1880] does not in its terms discriminate against the products of other states or the property of the citizens of other states, but subjects all property liable to taxation found within the state, whether of its own citizens or citizens of other states, whether imported from other states or produced here, to the same rate of taxation. Second. The coal in question was taxed in common with all other property found within the state. We held in the case of City of New Orleans v. Eclipse Tow-boat Company, recently decided by us, but not reported,1 that the clause in the federal constitution giving to congress the power to regulate commerce with foreign nations, and among the states, had no immediate relation to or necessary connection with the taxing power of a state. Every tax upon property, it is true, may affect more or less the operations of commerce, by diminishing the profits to be derived from the subjects of commerce, but it does not for that reason amount to a regulation of commerce within
The judgment in this case was reversed by this court in Moran v. New Orleans, 112 U. S. 69, 75; S. C., ante, 38, 41.