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nor diminished by the assessment upon his neighbors; nothing is divided or apportioned between him and them; and each particular lot is in fact arbitrarily made a taxing district, and charged with the whole expenditure therein, and thus apportionment avoided. If the tax were for grading the street simply, those lots which were already at the established grade would escape altogether, while those on either side, which chanced to be above and below, must bear the whole burden, though no more benefited by the improvement than the others. It is evident, therefore, that a law for making assessments on this basis could not have in view such distribution of burdens in proportion to benefits as ought to be a cardinal idea in every tax law. It would be nakedly an arbitrary command of the law to each lot owner to construct the street in front of his lot at his own expense, according to a prescribed standard; and a power to issue such command could never be exercised by a constitutional government, unless we are at liberty to treat it as a police regulation, and place the duty to make the streets upon the same footing as that to keep the sidewalks free from obstruction and fit for passage. But any such idea is clearly inadmissible.3

1 In fact, lots above and below an established grade are usually less benefited by the grading than the others; because the improvement subjects them to new burdens, in order to bring the general surface to the grade of the street, which the others escape.

2 The case of Warren v. Henley, 31 Iowa, 38, is opposed to the reasoning of the text; but the learned Judge who delivers the opinion concedes that he is unable to support his conclusions on the authorities within his reach.

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3 See City of Lexington v. McQuillan's Heirs, 9 Dana, 513, and opinions of Campbell and Christiancy, JJ., in Woodbridge v. Detroit, 8 Mich. 274. The case of Weeks v. Milwaukee, 10 Wis. 258, seems to be contra. We quote from the opinion of the court by Paine, J. After stating the rule that uniformity in taxation implies equality in the burden, he proceeds: The principle upon which these assessments rest is clearly destructive of this equality. It requires every lot owner to build whatever improvements the public may require on the street in front of his lot, without reference to inequalities in the value of the lots, in the expense of constructing the improvements, or to the question whether the lot is injured or benefited by their construction. Corner lots are required to construct and keep in repair three times as much as other lots; and yet it is well known that the difference in value bears no proportion to this difference in burden. In front of one lot the expense of building the street may exceed the value of the lot; and its construction may impose on the owner additional expense, to render his lot accessible. In front of another lot, of even much greater value, the expense is comparatively slight. These inequalities are obvious; and I have always thought

[* 509] * In many other cases, besides the construction, improvement, and repair of streets, may special taxing

the principle of such assessments was radically wrong. They have been very extensively discussed, and sustained upon the ground that the lot should pay because it receives the benefit. But if this be true, that the improvements in front of a lot are made for the benefit of the lot only, then the right of the public to tax the owner at all for that purpose fails; because the public has no right to tax the citizen to make him build improvements for his own benefit merely. It must be for a public purpose; and it being once established that the construction of streets is a public purpose that will justify taxation, I think it follows, if the matter is to be settled on principle, that the taxation should be equal and uniform, and that to make it so the whole taxable property of the political division in which the improvement is made should be taxed by a uniform rule for the purpose of its construction.

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'But in sustaining these assessments when private property was wanted for a street, it has been said that the State could take it, because the use of a street was a public use; in order to justify a resort to the power of taxation, it is said the building of a street is a public purpose. But then, having got the land to build it on, and the power to tax by holding it a public purpose, they immediately abandon that idea, and say that it is a private benefit, and make the owner of the lot build the whole of it. I think this is the same in principle as it would be to say that the town, in which the county seat is located, should build the county buildings, or that the county where the capital is should construct the public edifices of the State, upon the ground that, by being located nearer, they derived a greater benefit than others. If the question, therefore, was, whether the system of assessment could be sustained upon principle, I should have no hesitation in deciding it in the negative. I fully agree with the reasoning of the Supreme Court of Louisiana in the case of Municipality No. 2 v. White, 9 La. An. 447, upon this point.

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But the question is not whether this system is established upon sound principles, but whether the legislature has power, under the constitution, to establish such a system. As already stated, if the provision requiring the rule of taxation to be uniform was the only one bearing upon the question, I should answer this also in the negative. But there is another provision which seems to me so important, that it has changed the result to which I should otherwise have arrived. That provision is § 3 of art. 11, and is as follows: It shall be the duty of the legislature, and they are hereby empowered, to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.'

"It cannot well be denied that if the word assessment,' as used in this section, had reference to this established system of special taxation for municipal improvements, that then it is a clear recognition of the existence and legality of the power." And the court, having reached the conclusion that the word did have reference to such an established system, sustain the assessment, adding:

districts be created, with a view to local improvements. [* 510] The cases of drains to relieve swamps, marshes, and other low lands of their stagnant water, and of levees to prevent lands being overflowed by rivers, will at once suggest themselves. In providing for such cases, however, the legislature exercises another power besides the power of taxation. On the theory that the drainage is for the sole purpose of benefiting the lands of individuals, it might be difficult to defend such legislation. But if the stagnant water causes or threatens disease, it may be a nuisance, which, under its power of police, the State would have authority

"The same effect was given to the same clause in the Constitution of Ohio, by the Supreme Court of that State, in a recent decision in the case of Hill v. Higdon, 5 Ohio, N. s. 243. And the reasoning of Chief Justice Ranney on the question I think it impossible to answer."

If the State of Wisconsin had any settled and known practice, designated as assessments, under which each lot owner was compelled to construct the streets in front of his lot, then the constitution as quoted may well be held to recognize such practice. In this view, however, it is still difficult to discover any "restriction" in a law which perpetuates the arbitrary and unjust custom, and which still permits the whole expense of making the street in front of each lot to be imposed upon it. The only restriction which the law imposes is, that its terms exclude uniformity, equality, and justice, which surely could not be the restriction the constitution designed. Certainly the learned judge shows very clearly that such a law is unwarranted as a legitimate exercise of the taxing power; and as it cannot be warranted under any other power known to constitutional government, the authority to adopt it should not be found in doubtful words. The case of Hill v. Higdon, referred to, is different. There the expense of improving the street was assessed upon the property abutting on the street, in proportion to the foot front. The decision there was, that the constitutional provision that "laws shall be passed taxing by a uniform rule all moneys, &c., and also all real and personal property, according to its true value in money," had no reference to these local assessments, which might still be made, as they were before the constitution was adopted, with reference to the benefits conferred. The case, therefore, showed a rule of apportionment which was made applicable throughout the taxing district, to wit, along the street so far as the improvement extended. The case of State v. City of Portage, 12 Wis. 562, holds that a law authorizing the expense of an improvement to be assessed upon the abutting lots, in proportion to their front or size, would not justify and sustain city action which required the owner of each lot to bear the expense of the improvement in front of it.

It has been often contended that taxation by frontage was in effect a taking of property for the public use, but the courts have held otherwise. People v. Mayor, &c., of Brooklyn, 4 N. Y. 419; Allen v. Drew, 44 Vt. 174; Warren v. Henley, 31 Iowa, 39; Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255.

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The laws for this purpose, so far as they have fallen under our observation, have proceeded upon this theory. [* 511] Nevertheless, when the State incurs expense in the exercise of its police power for this purpose, it is proper to assess that expense upon the portion of the community specially and peculiarly benefited. The assessment is usually made with reference to the benefit to property; and it is difficult to frame or to conceive of any other rule of apportionment that would operate so justly and so equally in these cases. There may be difficulty in the detail; difficulty in securing just and impartial assessments; but the principle of such a law would not depend for its soundness upon such considerations.1

1 See Reeves v. Treasurer of Wood Co., 8 Ohio, N. s. 333; French v. Kirkland, 1 Paige, 117; Philips v. Wickham, ib. 590. In Woodruff v. Fisher, 17 Barb. 224, Hand, J., speaking of one of these drainage laws, says: "If the object to be accomplished by this statute may be considered a public improvement, the power of taxation seems to have been sustained upon analogous principles. [Citing People v. Mayor, &c., of Brooklyn, 4 N. Y. 419; Thomas v. Leland, 24 Wend. 65; and Livingston v. Mayor, &c., of New York, 8 Wend. 101.] But if the object was merely to improve the property of individuals, I think the statute would be void, although it provided for compensation. The water privileges on Indian River cannot be taken or affected in any way solely for the private advantage of others, however numerous the beneficiaries. Several statutes have been passed for draining swamps, but it seems to me that the principle above advanced rests upon natural and constitutional law. The professed object of this statute is to promote public health. And one question that arises is, whether the owners of large tracts of land in a state of nature can be taxed to pay the expense of draining them, by destroying the dams, &c., of other persons away from the drowned lands, and for the purposes of public health. This law proposes to destroy the water power of certain persons against their will, to drain the lands of others, also, for all that appears, against their will; and all at the expense of the latter, for this public good. If this taxation is illegal, no mode of compensation is provided, and all is illegal." The owners of these lands could not be convicted of maintaining a public nuisance because they did not drain them; even though they were the owners of the lands upon which the obstructions are situated. It does not appear by the act or the complaint that the sickness to be prevented prevails among inhabitants on the wet lands, nor whether these lands will be benefited or injured by draining; and certainly, unless they will be benefited, it would seem to be partial legislation to tax a certain tract of land, for the expense of doing to it what did not improve it, merely because, in a state of nature, it may be productive of sickness. Street assessments are put upon the ground that the land assessed is improved, and its value greatly enhanced." The remarks of Green, J., in Williams v. Mayor, &c., of Detroit, 2 Mich. 567, may be here quoted: "Every species of taxation, in every mode, is in theory and principle based upon an idea of compensation, ben

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In certain classes of cases, it has been customary to [* 512] call upon the citizen to appear in person and perform service for the State, in the nature of police duties. The burden of improving and repairing the common highways of the country, except in the urban districts, is generally laid upon the people in the form of an assessment of labor. The assessment may be upon each citizen, in proportion to his property; or, in addition to the property assessment, there may be one also by the poll. But. though the public burden assumes the form of labor, it is still taxation, and must therefore be levied on some principle of uniformity. But it is a peculiar species of taxation; and the general terms "tax," or "taxation," as employed in the State constitutions, would not generally be understood to include it. It has been decided that the clause in the Constitution of Illinois, that "the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession," did not prevent the levy of poll-taxes in highway labor. "The framers of the constitution intended to direct a uniform mode of taxation on property, and not to prohibit any other species of taxation, but to leave the legislature the power to impose such other taxes as would be consonant to public justice, and as the circumstances of the country might require. They probably intended to prevent the imposition of an arbitrary tax on prop

efit, or advantage to the person or property taxed, either directly or indirectly. If the tax is levied for the support of the government and general police of the State, for the education and moral instruction of the citizens, or the construction of works of internal improvement, he is supposed to receive a just compensation in the security which the government affords to his person and property, the means of enjoying his possessions, and their enhanced capacity to contribute to his comfort and gratification, which constitute their value."

It has been held incompetent, however, for a city which has itself created a nuisance on the property of a citizen, to tax him for the expense of removing or abating it. Weeks v. Milwaukee, 10 Wis. 258.

In Egyptian Levee Co. v. Hardin, 27 Mo. 495, it was held that a special assessment for the purpose of reclaiming a district from inundation might properly be laid upon land in proportion to its area, and that the constitutional provision that taxation should be levied on property in proportion to its valuation did not preclude this mode of assessment. The same ruling was made in Louisiana cases. Crowley v. Copley, 2 La. An. 329; Yeatman v. Crandall, 11 La. An. 220; Wallace v. Shelton, 14 La. An. 498; Bishop v. Marks, 15 La. An. 147; Richardson v. Morgan, 16 La. An. 429; McGehee v. Mathis, 21 Ark. 40; Jones v. Boston, 104 Mass. 461.

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