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to abate. 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 exer

cise 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

i 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 0. 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. Sereral 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.” 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 bere quoted : “Every species of taxation, in every mode, is in theory and principle based upon an idea of compensation, ben

The owners

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, be 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.

erty, according to kind and quantity, and without reference to value. The inequality of the mode of taxation was the object to be avoided. We cannot believe that they intended that all the public burdens should be borne by those having property in pos

session, wholly exempting the rest of the community, who, [*513] by the * same constitution were made secure in the exer

cise of the rights of suffrage, and all the immunities of the citizen.”] And in another case, where an assessment of highway labor is compared with one upon adjacent property for widening a street, - which had been held not to be taxation, as that term was understood in the Constitution, it is said: “An assessment of labor for the repair of roads and streets is less like a tax than is such an assessment. The former is not based upon, nor has it any reference to, property or values owned by the person of whom it is required, whilst the latter is based alone upon the property designated by the law imposing it. Nor is an assessment a capitation tax, as that is a sum of money levied upon each poll. This rate, on the contrary, is a requisition for so many days' labor, which may be commuted in money. No doubt, the number of days levied, and the sum which may be received by commutation, must be uniform within the limits of the district or body imposing the same. This requisition for labor to repair roads is not a tax, and hence this exemption is not repugnant to the constitution.” 2

It will be apparent from what has already been said, that it is not essential to the validity of taxation that it be levied according to rules of abstract justice. It is only essential that the legislature keep within its proper sphere of action, and not impose burdens under the name of taxation which are not taxes in fact; and its decision as to what is proper, just, and politic, must then be final and conclusive. Absolute equality and strict justice are unattainable in tax proceedings. The legislature must be left to

i Sawyer v. City of Alton, 3 Scam. 130. 2 Town of Pleasant v. Kost, 29 Ill. 494.

3 Frellsen v. Mahan, 21 La. An. 79; People v. Whyler, 41 Cal. 351; Warren v. Henley, 31 Iowa, 43. In this last case, Beck, J., criticises the position taken ante, pp. 507, 508, that the cost of a local improvement cannot be imposed on the adjoining premises irrespective of any apportionment, and appears to suppose our views rest upon the injustice of such a proceeding. This is not strictly correct; may or may not be just in any particular case; but taxation necessarily implies apportionment, and even a just burden cannot be imposed as a tax without it.


decide for itself how nearly it is possible to approximate so desirable a result. It must happen under any tax law that some property will be taxed twice, while other property will escape taxation altogether. Instances will also occur where persons will be taxed as owners of property which has ceased to exist. The system in vogue for taking valuations of property fixes upon a certain time for that purpose, and a party becomes liable to be taxed upon what he possesses at the time the valuing officer calls upon him. Yet changes of property from person to person are occurring while the valuation is going on, and the same parcel of property is found by the assessor in the hands of two different persons, and is twice assessed, while another parcel for similar reasons is not assessed at all. Then the man who owns property when the assessment is * taken may have been deprived of it by acci- [* 514] dent or other misfortune before the tax becomes payable ; but the tax is nevertheless a charge against him. And when the valuation is only made once in a series of years, the occasiona] hardships and inequalities in consequence of relative changes in the value of property from various causes become sometimes very glaring. Nevertheless, no question of constitutional law is involved in these cases, and the legislative control is complete.1

The legislature must also, except when an unbending rule has been prescribed for it by the constitution, have power to select in its discretion the subjects of taxation. The rule of uniformity requires an apportionment among all the subjects of taxation within the districts; but it does not require that every thing which the


1 In Shaw v. Dennis, 5 Gilm. 418, objection was taken to an assessment made for a local improvement under a special statute, that the commissioners, in determining who should be liable to pay the tax, and the amount each should pay, were to be governed by the last assessment of taxable property in the county. It was insisted that this was an unjust criterion, for a man might have disposed of all the taxable property assessed to him in the last assessment before this tax was actually declared by the commissioners. The court, however, regarded the objection as more refined than practical, and one that, if allowed, would at once annihilate the power of taxation. “ In the imposition of taxes, exact and critical justice and equality are absolutely unattainable. If we attempt it, we might have to divide a single year's tax upon a given article of property among a dozen different individuals who owned it at different times during the year, and then be almost as far from the desired end as when we started. The proposition is Utopian. The legislature must adopt some practicable system; and there is no more danger of oppression or injustice in taking a former valuation than in relying upon one to be made subsequently."

legislature might make taxable shall be made so in fact. Many exemptions are usually made from taxation from reasons the cogency of which is at once apparent. The agencies of the national government, we have seen, are not taxable by the States; and the agencies and property of States, counties, cities, boroughs, towns, and villages are also exempted by law, because, if any portion of the public expenses was imposed upon them, it must in some form be collected from the citizens before it can be paid. No beneficial object could therefore be accomplished by any such assessment. The property of educational and religious institutions is also generally exempted from taxation by law upon very similar considerations, and from a prevailing belief that it is the policy and the

interest of the State to encourage them. If the State [*515] * may cause taxes to be levied from motives of charity or

gratitude, so for the like reasons it may exempt the objects of charity and gratitude from taxation. Property is sometimes released from taxation by contract with the State and corporations, and specified occupations are sometimes charged with specific taxes in lieu of all taxation of their property. A broad field is here opened to legislative discretion. As matter of State policy it might also be deemed proper to make general exemption of sufficient of the tools of trade or other means of support to enable the poor man, not yet a pauper, to escape becoming a public burden. There is still ample room for apportionment after all such exemptions have been made. The constitutional requirement of equality and uniformity only extends to such objects of taxation as the legislature shall determine to be properly subject to the burden.? The power to determine the persons and the objects to be taxed is trusted exclusively to the legislative department;:

? As in the case of other special privileges, exemptions from taxation are to be strictly construed. Trustees of M. E. Church v. Ellis, 38 Ind. 3; State v. Mills, 34 N. J. 177. It has been generally held that an exemption from taxation would not exempt the property from being assessed for a local improvement. Matter of Mayor, &c., 11 Johns. 77; Baltimore v. Cemetery Co., 7 Md. 517; La Fayette v. Orphan Asylum, 2 La. An. 1; Pray v. Northern Liberties, 31 Penn. St. 69; Le Fever v. Detroit, 2 Mich. 586; Lockwood v. St. Louis, 24 Mo. 20; Broadway Baptist Church v. McAtee, 8 Bush, 508; s. C. 8 Am. Rep. 480.

· State v. North, 27 Mo. 464; People v. Colman, 3 Cal. 46; Durach's Appeal, 62 Penn. St. 494.

3 Wilson v. Mayor, &c., of New York, 4 E. D. Smith, 675; Hill v. Higdon, 5 Ohio, n. s. 245 ; State v. Parker, 33 N. J. 313. Notwithstanding a require

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