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tion, by whatever name the legislature might choose to call it, would not be a tax, but would, undoubtedly, be the taking of private property for public use, and which could not be done constitutionally without the consent of the owner or owners,
and without retribution of the value in money:" Lexington v. Mc Quillan's Heirs, 9 Dana 513. “A legislative act,” says Chief Justice BEASLEY, of New Jersey, “authorizing the building of a public bridge, and directing the expenses to be assessed on A., B., and C., such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the person designated to a public use:" The Tidewater Co. v. Carter, 3 C. E. Green 518. “ The whole of a public burden," says Chief Justice BLACK, “cannot be thrown on a single individual under pretence of taxing him, nor can one county be taxed to pay the debt of another, nor one portion of the state to pay the debts of the whole state. These things are not excepted from the powers of the legislature, because they did not pass to the Assembly by the general grant of legislative power. A prohibition was not necessary. An Act of Assembly commanding or authorizing them to be done, would not be a law, but an attempt to pronounce a judicial sentence, order, or decree:” Sharpless v. The Mayor of Philadelphia, 9 Harris 168. It is said that the line of distinction between the right of taxation and the right of eminent domain is clear and well defined. Taxation exacts money or services from individuals, as and for their respective shares of contribution to any public burden. Private property, taken for public use by right of eminent domain, is taken not as the owner's share or contribution to a public burthen, but as so much beyond his share: The People ex rel. Griffin v. Brooklyn, 4 Comst. 419. It has been said by Judge FIELD, of California, now on the bench of the Supreme Court of the United States, that “money is not that species of property which the sovereign authority can authorize to be taken in the exercise of its right of eminent domain. That right can be exercised only with reference to other property than money, for the property taken is to be the subject of compensation in money itself; and the general doctrine of the authorities of the present day is, that the compensation must be made, or a fund provided for it, in advance:" Burnett v. Sacramento, 12 California 76. I am not able, and do not feel disposed, to enter the lists upon such a ques
tion, but it does seem to me that there may be occasions in which money may be taken by the state in the exercise of its transcendental right of eminent domain. Such would be the case of a pressing and immediate necessity; as in the event of invasion by a public enemy, or some great calamity, as famine or pestilence, contributions could be levied on banks, corporations, or individuals. The obligation of compensation is not immediate. It is required only that provision should be made for compensation in the future. Judge RUGGLES confines the right to exact money by virtue of the eminent domain, to the case where it is for the use of the state at large in time of war: The People ex rel. Griffin v. Brooklyn, 4 Comst. 419. I cannot see that there is any such necessary limitation. The public necessity which gives rise to it, prevents its being restrained by any limitations as to either subject or occasion. In truth it matters not whether an assessment upon an individual or a class of individuals for a general, and not a mere local purpose, be regarded as an act of confiscation—a judicial sentence or rescript, or a taking of private property for public use without compensation—in any aspect, it transcends the power of the legislature, and is void. I regard it as a forced contribution. If the sovereign breaks open the strongbox of an individual or corporation and takes out money, or, if not being paid on demand, he seizes and sells the lands or goods of the subject, it looks to me very much like a direct taking of private property for public use. It certainly cannot alter the case to call it taxation. Whenever a local assessment upon an individual is not grounded upon, and measured by, the extent of his particular benefit, it is, pro tanto, a taking of his private property for public use without any provision for compensation. That clause in the Declaration of Rights is, indeed, the sheetanchor of private property, the security of which against the government, as well as all others, is intended in the 1'st section of the 9th article: “All men have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property and reputation, and of pursuing their own happiness." The dollar which a poor man has earned by the sweat of his brow—the fortune which a rich man has inherited from his ancestors—stand on the same rock, and are surrounded and protected by the same barrier. Invested for comfort and assurance against want in sickness VOL. XVII.-27
or old age, or cherished as a provision for widow or orphan after he has
gone, it is a right which it is despotism to take from him, except for the necessary purposes of government by equal and just taxation. It is none the less so if it be the act of the hydraheaded monster, a numerical majority, or that of a single autocrat. It is the solemn duty of the judiciary, under our Constitution, to guard and protect this right of property, as well from indirect attacks under any specious pretext, as from open and palpable invasion. “There being," says Chief Justice MARSHALL, of Kentucky, “no express constitutional declaration or prohibition directly applicable to the powers or subject of taxation, and none which, in terms, secures equality or uniformity in the distribution of public burthens, either general or local, there is no clause to which the citizen can, with certainty, appeal for protection against an oppressive and ruinous discrimination, under color of the taxing power, unless it be that which prohibits the taking of private property for public use without compensation.
This is the great conservative principle of the Constitution, by which the rights of private property are to be preserved from violation under public authority; and we should feel bound to give it, as has heretofore been done, a liberal construction for the attainment of so important and valuable an object:" Cheany v. Houser, 9 B. Monroe 341. It
may be said that Sharpless v. The Mayor of Philadelphia, 9 Harris 147, and Kirby v. Shaw, 7 Id. 258, are irreconcilable with the reasoning employed in this opinion. As to the first of these cases it is now practically unimportant, because it has been in effect reversed by the 7th section of the 1st amendment of the Constitution of 1857. It has been seen that it recognises that there are limits to the taxing power such as are here contended for; and the only doubt can be whether the rule was rightly applied. As to Kirby v. Shaw, although a case on the very verge of the principle which is established—local taxation for local purposes—and there are some generalizations in the judgment as pronounced by Chief Justice Gibson by far too broad, yet ultimately it is put on the ground of peculiar benefit. “The advantages of a county town,” says he, “are too well appreciated not to make every village use all its exertions to have a court-house provided for its benefit and convenience. Without a court-house to replace the burnt one, Towanda could not have remained the
seat of justice; and as its inhabitants profited by, not only the disbursements of the tax among them, but a permanent increase of their business and an appreciation of their property, they were morally bound to contribution. It was for the legislature to fix the proportion, and we have neither a right nor a disposition to question their justice.” Here, too, the only real question would seem to be as to the application of the principle. Kirby v. Shaw has been since followed by this court in the case of the South Street Bridge, The City of Philadelphia v. Field et al. (July 2d 1868), a judgment in which the Chief Justice and myself were unable to concur.
Assessments on property peculiarly benefited by local improvements, and in consideration of such benefit, are constitutionalthus far have the judicial decisions in this and other states gone, and no further. A few only of the leading cases need be cited. In the Matter of Canal Street, 11 Wend. 155; Hill v. Higdon, 5 Ohio (N. S.) 243; Stryker v. Kelly, 7 Hill 9, 23; s. C., 2 Denio 323; Goddard, Petitioner, 16 Pick. 504; Lowell v. Headley, 8 Metcalf 180; Garrett v. City of St. Louis, 55 Missouri 505; Anderson v. Kern, Draining, 14 Indiana 199; Sanborn v. Rice County, 9 Minn. 273; Weeks v. City of Milwaukee, 10 Wisc. 242; Creighton v. Mancon, 27 Cal. 613; Tide Water Co. v. Coster, 3 C. E. Green 54, 518. Undoubtedly, the power of taxation is not to be rigidly scanned. Every presumption is to be made in its favor. If the case is within the principle, the proportion of contribution and other details are within the discretion of the taxing power. We may say with Judge Peck of Ohio: “It is quite true that the right to impose such special taxes is based upon a presumed equivalent, but it by no means follows that there must be in fact such full equivalent in every instance, or that its absence will render the assessment invalid. The rule of apportionment, whether by the front foot or a percentage upon the assessed valuation, must be uniform, affecting all the owners and all the property abutting on the street alike:" Northern Indiana Railroad Co. v. Connelly, 10 Ohio (N. S.) 159. Or, as in our own case of Commonwealth v. Woods, 8 Wright 113, where it was held, in an instance unquestionably within the general principle, that the assessment when made in pursuance of law is final and conclasive, and cannot again be reviewed by any other tribunal. On the examination of the cases I have found two in which it was.
attempted, though fortunately without success, to make the owners personally liable for assessments beyond the value of their lots, cases which show how dangerous and liable to abuse is this power of special taxation with all the guards which can be thrown around it. In the Matter of Canal Street, 11 Wend. 155, the
" In this case it is assumed and not contradicted that many individuals will be ruined if compelled to pay the assessments for which they are liable.” In Creighton v. Manson, 27 California 613, the lot in question, before the grading of the street, for which the assessment was claimed, was appraised for revenue purposes at $1400. It was rendered worthless by the grading; yet the attempt was made to make the owners personally liable for its assessment, which was $1989.54.
It remains to apply these principles to the case presented to us upon this record. The original paving of a street brings the property bounding upon it into the market as building lots. Before that, it is a road, not a street. It is, therefore, a local improvement, with benefits almost exclusively peculiar to the adjoining properties. Such a case is clearly within the principle of assessing the cost on the lots lying upon it. Perhaps no fairer rule can be adopted than the proportion of feet front, although there must be some inequalities if the lots differ in situation and depth. Appraising their market values, and fixing the proportion according to these, is a plan open to favoritism or corruption, and other objections. No system of taxation which the wit of man ever devised has been found perfectly equal. But when a street is once opened and paved, thus assimilated with the rest of the city and made a part of it, all the particular benefits to the locality derived from the improvements have been received and enjoyed. Repairing streets is as much a part of the ordinary duties of the municipality—for the general good—as cleaning, watching, and lighting. It would lead to monstrous injustice and inequality should such general expenses be provided for by local assessments.
This case indeed is still clearer than that which I have put of simple repairing. Broad street, in front of the lot of the plaintiff in error, was paved only a few years ago in the ordinary way in which all the other streets of the city have been paved—with cobble-stones--and whatever advantage there was in his owning property on so wide and handsome a street was paid for by him in