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attitude of saying to the legislature, You shall not discriminate between single individuals or corporations; but you may divide the citizens up into different classes, as the followers of different

trades, professions, or kinds of business, or as the owners [* 504] of * different species or descriptions of property, and legis

late for one class, and against another, as much as you please, provided you serve all of the favored or unfavored classes alike;' thus affording a direct and solemn sanction to a system of taxation so manifestly and grossly unjust that it will not find an apologist anywhere, at least outside of those who are the recipients of its favor. We do not believe the framers of that instrument intended such a construction, and therefore cannot adopt it.” 1

The principle to be deduced from the Iowa and Wisconsin cases, assuming that they do not in any degree conflict, seems to be this: The legislature cannot arbitrarily include within the limits of a village, borough, or city, property and persons not properly chargeable with its burdens, and for the sole purpose of increasing the corporate revenues by the exaction of the taxes. But whenever the corporate boundaries are established, it is to be understood that whatever property is included within those limits has been thus included by the legislature, because it justly belongs there, as being within the circuit which is benefited by the local government, and which ought consequently to contribute to its burdens. The legislature camot, therefore, after having already, by including the property within the corporation, declared its opinion that such property should contribute to the local government, immediately turn about and establish a basis of taxation which assumes that the

i Per Dixon, Ch. J., 9 Wis. 421. Besides the other cases referred to, see, on this same general subject, Lin Sing v. Washburn, 20 Cal. 534; State v. Merchants Ins. Co., 12 La An. 802; Adams v. Somerville, 2 Head, 363; McComb v. Bell, 2 Minu. 295; Attorney-General v. Winnebago Lake and Fox River P. R. Co., 11 Wis. 35; Weeks v. Milwaukee, 10 Wis. 242; O'Kane v. Treat, 25 III. 557; Philadelphia Association, &c. v. Wood, 39 Penn. 73; Sacramento r. Crocker, 16 Cal. 119. There was a provision in the charter of Covington that a street might be paved with the Nicholson pavement at the expense of the adjoining owners, when the owners of the larger part of the frontage should petition therefor. An amendatory act authorized it as to a portion of a certain street without such a petition; thus permitting a special improvement on that street, at the expense of the owners of adjoining lots, on a different principle from that adopted for the city generally. In Howell v. Bristol, 8 Bush, 493, this amendment was held inconsistent with the fundamental principles of taxation, and consequently void.

property is not in fact urban property at all, but is agricultural lands, and should be assessed accordingly. The rule of apportionment must be uniform throughout the taxing district, applicable to all alike; but the legislature have no power to arrange the taxing districts arbitrarily, and without reference to the great fundamental principle of taxation, that the burden must be borne by those upon whom it justly rests. The Kentucky and Iowa decisions hold that, in a case where they have manifestly and unmistakably done so, the courts may interfere and restrain the imposition of municipal burdens on property which does not properly belong within the municipal taxing district at all.

* This rule of uniformity has perhaps been found most [* 505] difficult of application in regard to those cases of taxation which are commonly known under the head of assessments, and which are made either for local improvement and repair, or to prevent local causes resulting in the destruction of health or property. In those cases where it has been held that such assessments were not covered by the constitutional provision that taxation should be laid upon property in proportion to value, it has, nevertheless, been decided that the authority to make them must be referred to the taxing power, and not to the police power of the State, under which sidewalks have sometimes been ordered to be constructed. Apportionment of the burden was therefore essential, though it need not be made upon property in proportion to its value. But the question then arises : What shall be the rule of apportionment? Can a street be ordered graded and paved, and the expense assessed exclusively upon the property which, in the opinion of the assessors, shall be peculiarly benefited thereby, in proportion to such benefit ? Or may a taxing district be created for the purpose, and the expense assessed in proportion to the area of the lots ? Or may the street be made a taxing district, and the cost levied in proportion to the frontage? Or may each lot owner be required to grade and pave in front of his lot? These are grave questions, and they have not been found of easy solution.

The case of The People v. The Mayor, &c., of Brooklyn, is a leading case, holding that a statute authorizing a municipal corporation to grade and improve streets, and to assess the expense among the owners and occupants of lands benefited by the improvement, in

1 4 N. Y. 410; reversing same case, 6 Barb. 209.

proportion to the amount of such benefit, is a constitutional and valid law. The court in that case concede that taxation cannot be laid without apportionment, but hold that the basis of apportionment in these cases is left by the constitution with the legislature. The application of any one rule or principle of apportionment to all cases would be manifestly oppressive and unjust. Taxation is sometimes regulated by one principle, and sometimes by another; and very often it has been apportioned without reference to locality, or to the tax-payer's ability to contribute, or to any proportion between the burden and the benefit. “The excise laws, and taxes

on carriages and watches, are among the many examples [* 506] of * this description of taxation. Some taxes affect classes

of inhabitants only. All duties on imported goods are taxes on the class of consumers. The tax on one imported article falls on a large class of consumers, while the tax on another affects comparatively a few individuals. The duty on one article consumed by one class of inhabitants is twenty per cent of its value, while on another, consumed by a different class, it is forty per cent. The duty on one foreign commodity is laid for the purpose of revenue mainly, without reference to the ability of its consumers to pay, as in the case of the duty on salt. The duty on another is laid for the purpose of encouraging domestic manufacture of the same article, thus compelling the consumer to pay a higher price to one man than he could otherwise have bought the article for from another. These discriminations may be impolitic, and in some cases unjust; but if the power of taxation upon importations had not been transferred by the people of this State to the Federal government, there could have been no pretence for declaring them to be unconstitutional in State legislation.

“ A property tax for the general purposes of the government, either of the State at large or of a county, city, or other district, is regarded as a just and equitable tax. The reason is obvious. It apportions the burden according to the benefit more nearly than any other inflexible rule of general taxation. A rich man derives more benefit from taxation, in the protection and improvement of his property, than a poor man, and ought therefore to pay more. But the amount of each man's benefit in general taxation cannot be ascertained and estimated with any degree of certainty ; and for that reason a property tax is adopted, instead of an estimate of benefits. In local taxation, however, for special purposes, the

local benefits may in many cases be seen, traced, and estimated to a reasonable certainty. At least this has been supposed and assumed to be true by the legislature, whose duty it is to prescribe the rules on which taxation is to be apportioned, and whose determination of this matter, being within the scope of its lawful power, is conclusive.”

The reasoning of this case has been generally accepted as satisfactory, and followed in subsequent cases.

Scoville v. Cleveland, 1 Ohio, N. s. 126; Hill v. Higdon, 5 Ohio, n. s. 243; Marion v. Epler, ib. 250; Maloy v. Marietta, 11 Obio, n. s. 636; City of Peoria v. Kidder, 26 Ill. 351; Reeves v. Treasurer of Wood Co., 8 Ohio, N. S. 333; Garrett v. St. Louis, 25 Mo. 505; Uhrig v. St. Louis, 44 Mo. 463 ; Bradley v. McAtee, 7 Bush, 667 ; s. c. 3 Am. Rep. 309; Jones v. Boston, 104 Mass. 461; Sessions v. Crunkilton, 20 Ohio, n. s. 349 ; State v. Fuller, 34 N. J. 227. The legislation in Ohio on the subject has authorized the cities and villages, in opening and improving streets, to assess the expense either upon the lots abutting on the street in proportion to the street front, or upon the lands in proportion to their assessed value. In a case where the former mode was resorted to, and an assessment made upon property owned by the Northern Indiana Railroad Company for its corporate purposes, Peck, J., thus states and answers an objection to the validity of the tax: “ But it is said that assessments, as distinguished from general taxation, rest solely upon the idea of equivalents ; a compensation proportioned to the special benefits derived from the improvement, and that, in the case at bar, the railroad company is not, and in the nature of things cannot be, in any degree benefited by the improvement. 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. One rule cannot be applied to one owner, and a different rule to another owner. One could not be assessed ten per cent, another five, another three, and another left altogether unassessed because he was not in fact benefited. It is manifest that the actual benefits resulting from the improvement may be as various almost as the number of the owners and the uses to which the property may be applied. No general rule, therefore, could be laid down which would do equal and exact justice to all. The legislature have not attempted so vain a thing, but have prescribed two different modes in which the assessment may be made, and left the city authorities free to adopt either. The mode adopted by the council becomes the statutory equivalent for the benefits conferred, although in fact the burden imposed may greatly preponderate. In such case, if no fraud intervene, and the assessment does not substantially exhaust the owner's interest in the land, bis remedy would seem to be to procure, by a timely appeal to the city authorities, a reduction of the special assessment, and its imposition, in whole

[* 507] * On the other hand, and on the like reasoning, it has

been held equally competent to make the street a taxing district, and assess the expense of the improvement upon the lots in proportion to the frontage. Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equality. But if, in the opinion of the legislature, it is the proper rule to apply to any particular case, the courts must en

force it. [* 508] * But a very different case is presented when the legis

lature undertakes to provide that each lot upon a street shall pay the whole expense of grading and paving the street along its front. For while in such a case there would be something having the outward appearance of apportionment, it requires but slight examination to discover that it is a deceptive semblance only, and that the measure of equality which the constitution requires is entirely wanting. If every lot owner is compelled to construct the street in front of his lot, his tax is neither increased


or in part, upon the public at large.” Northern Indiana R.R. Co. v. Connelly, 10 Ohio, N. s. 165. And see Howell v. Bristol, 8 Bush; 493.

1 Williams v. Detroit, 2 Mich. 560; Northern Ind. R.R. Co. v. Connelly, 10 Ohio, N. s. 159; Lumsden v. Cross, 10 Wis. 282. And see St. Joseph v. O'Donoghue, 31 Mo. 145; Burnet v. Sacramento, 12 Cal. 76 ; Scoville v. Cleveland, 1 Ohio, N. s. 133; Hill v. Higdon, 5 Ohio, n. 8. 246 ; Ernst v. Kunkle, ib. 520; Hines

v. Leavenworth, 3 Kansas, 186; Magee v. Commonwealth, 46 Penn. St. 388; Wray v. Pittsburg, ib. 365; Palmer v. Stumph, 29 Ind. 329. In Hammett v. Philadelphia, 65 Penn. St. 146, s. c. 3 Am. Rep. 615, while the cases here cited are approved, it is denied that a street already laid out and in good condition can be taken and improved for a public drive or carriage way at the expense of the adjacent owners; this not being an improvement for local but for general purposes. Compare Washington Avenue, 69 Penn. St. 353 ; s.c. 8 Am. Rep. 255; Allen v. Drew, 44 Vt. 174 (case of water-rents); Willard v. Presbury, 14 Wall. 676 ; Hoyt v. East Saginaw, 19 Mich. 39; s. c. 2 Am. Rep. 76; La Fayette v. Fowler, 34 Ind. 140; Chambers v. Satterlee, 40 Cal. 497; Bradley v. McAtee, 7 Bush, 667 ; s. c. 3 Am. Rep. 309. In Washington Avenue, 69 Penn. St. 353, 8. C. 8 Am. Rep. 255, it is denied that this principle can be applied to the country and to farming lands. Agnew, J., says: "To apply it to the country, or to farm lands, would lead to such inequality and injustice as to deprive it of all soundness as a rule, or as a substitute for a fair and impartial valuation of benefits in pursuance of law; so that at the very first blush every one would pronounce it palpably unreasonable and unjust." We commend the able opinion in this case as a very satisfactory and very thorough examination of the principles on which local assessments are supported.


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