den by the constitution to engage in works of public [* 492] improvement, except in the expenditure of grants or Persons at Utica had given bond to pay the extraordinary expense that would be caused to the State by changing the junction of the Chenango Canal from Whitesborough to Utica, and the legislature afterwards passed an act requiring the amount to be levied by a tax on the real property of the city of Utica. The theory of this act may be stated thus: The canal was a public way. The expense of constructing all public ways may be properly charged on the community specially or peculiarly benefited by it. The city of Utica was specially and peculiarly benefited by having the canal terminate there; and as the expense of construction was thereby increased, it was proper and equitable that the property to be benefited should pay this difference, instead of the State at large. The act was sustained by the courts, and it was well remarked that the fact that a bond had been before given securing the same money could not detract from its validity. Whether this case can stand with some others, and especially with that of Hampshire v. Franklin, 16 Mass. 83, we have elsewhere expressed a doubt, and it must be conceded that, for the legislature in any case to compel a municipality to assume a burden, on the ground of local benefit or local obligation, against the will of the citizens, is the exercise of an arbitrary power little in harmony with the general features of our republican system, and only to be justified, if at all, in extreme cases. The general idea of our tax system is, that those shall vote the burdens who are to pay them; and it would be intolerable that a central authority should have power, not only to tax localities, for local purposes of a public character which they did not approve, but also, if it The so pleased, to compel them to assume and discharge private claims not equitably chargeable upon them. See the New York cases above referred to criticised in State v. Tappan, 29 Wis. 674, 680. See also Shaw v. Dennis, 5 Gilm. 416. The cases of Cheaney v. Hooser, 9 B. Monr. 330; Sharp's Ex. v. Dunavan, 17 B. Monr. 223; Maltus v. Shields, 2 Met. (Ky.) 553, will throw some light on this general subject. The case of Cypress Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350, is also instructive. Cypress Pond Draining Company was incorporated to drain and keep drained the lands within a specified boundary, at the cost of the owners, and was authorized by the act to collect a tax on each acre, not exceeding twentyfive cents per acre, for that purpose, for ten years, to be collected by the sheriff. With the money thus collected, the board of managers, six in number, named in the act, was required to drain certain creeks and ponds within said boundary. The members of the board owned in the aggregate 3,840 acres, the larger portion of which was low land, subject to inundation, and of little or no value in its then condition, but which would be rendered very valuable by the contemplated draining. The corporate boundary contained 14,621 acres, owned by sixty-eight persons. Thirty-four of these, owning 5,975 acres, had no agency in the passage of the act, and no notice of the application therefor, gave no assent to its provisions, and a very small portion of their land, if any, would be benefited or improved in value by the proposed draining; and they resisted the collection of the tax. As to these owners the act of incorporation was held unconstitutional and inoperative. See also The City of Covington v. other property made to it for this purpose. The State, with this prohibition in force, entered into a contract with a private party for the construction by such party of an improvement in [*493] the Muskegon River, for which the State was to pay the contractor fifty thousand dollars, from the Internal Improvement Fund. The improvement was made, but the State officers declined to draw warrants for the amount, on the ground that the fund from which payment was to have been made was exhausted. The State then passed an act for the levying of tolls upon the property passing through the improvement sufficient to pay the contract price within five years. The court held this act void. As the State had no power to construct or pay for such a work from its general fund, and could not constitutionally have agreed to pay the contractors from tolls, there was no theory on which the act could be supported, except it was that the State had misappropriated the Internal Improvement Fund, and therefore ought to provide payment from some other source. But if the State had misappropriated the fund, the burden of reimburse ment would fall upon the State at large; it could not lawfully be imposed upon a single town or district, or upon the commerce of a single town or district. The burden must be borne by those upon whom it justly rests, and to recognize in the State a power to compel some single district to assume and discharge a State debt would be to recognize its power to make an obnoxious district or an obnoxious class bear the whole burden of the State government. An act to that effect would not be taxation, nor would it be the exercise of any legitimate legislative authority.1 Southgate, 15 B. Monr. 491; Lovingston v. Wider, 53 Ill. 302; Curtis v. Whipple, 24 Wis. 350; People v. Flagg, 46 N. Y. 401; People v. Bacheller, 53 N. Y. 128; People v. Common Council of Detroit, 28 Mich. 228. The author has considered the subject of this note at some length in his treatise on Taxation, c. 21. 1 Ryerson v. Utley, 16 Mich. 269. See also People v. Springwells, 25 Mich. 153. 44 Uniformity in taxation implies equality in the burden of taxation." Bank v. Hines, 3 Ohio, N. 8. signed to be secured by the rule." Weeks v. City of Milwaukee, 10 Wis. 258. See also Sanborn ". Rice, 9 Minn. 273; State v. Haben, 22 Wis. 660. The reasoning of these cases seems not to have been satisfactory to the New York Court of Appeals. See Gordon v. Cornes, 47 N. Y. 614, in which an act was sustained which authorized “and required" the village of Brockport to levy a tax for the erection of a State Normal School building at that place. No recent case, we think, has gone so far as this. Compare State v. Tappan, 29 Wis. 674; Mayor of Mobile v. Dar And it may be said of such an act, that, so far as it would operate to make those who would pay the tolls pay more than their proportion of the State obligation, it was in [* 494] effect taking their property for the private benefit of other citizens of the State, and was obnoxious to all the objections against the appropriation of private property for private purposes which could exist in any other case. And the Supreme Court of Iowa has said: "If there be such a flagrant and palpable departure from equity in the burden imposed; if it be imposed for the benefit of others, or for purposes in which those objecting have no interest, and are therefore not bound to contribute, it is no matter in what form the power is exercised, whether in the unequal levy of a tax, or in the regulation of the boundaries of the local government, which results in subjecting the party unjustly to local taxes, it must be regarded as coming within the prohibition of the constitution designed to protect private rights against oppression however made, and whether under color of recognized power or not." 1 When, therefore, the legislature assumes to impose a pecuniary burden upon the citizen in the form of a tax, two questions gan, 45 Ala. 310; Livingston County v. Weider, 64 Ill. 427; Burr v. Carbondale, 76 Ill. 455. "There can be no doubt that, as a general rule, where an expenditure is to be made for a public object, the execution of which will be substantially beneficial to every portion of the Commonwealth alike, and in the benefits and advantages of which all the people will equally participate, if the money is to be raised by taxation, the assessment would be deemed to come within that class which was laid to defray one of the general charges of government, and ought therefore to be imposed as nearly as possible with equality upon all persons resident and estates lying within the Commonwealth. . . . An assessment for such a purpose, if laid in any other manner, could not in any just or proper sense be regarded as 'proportional ’ within the meaning of the Constitu tion." Merrick v. Inhabitants of Amherst, 12 Allen, 504, per Bigelow, Ch. J. This case holds that local taxation for a State purpose may be permitted in consideration of local benefits, and only differs in principle from Gordon v. Cornes, in that the one permitted what the other required. The case of Marks v. Trustees of Pardue University, 37 Ind. 155, follows Merrick v. Amherst. Taxation not levied according to the principles upon which the right to tax is based, is an unlawful appropriation of private property to public uses. City of Covington v. Southgate, 15 B. Monr. 498; People v. Township Board of Salem, 20 Mich. 452; Tide Water Co. v. Costar, 3 C. E. Green, 519; Hammett v. Philadelphia, 65 Penn. St. 146; s. c. 3 Am. Rep. 615. 1 Morford v. Unger, 8 Iowa, 92. See Durant v. Kauffman, 34 Iowa. 194. may always be raised: First, whether the purpose of such burden. may properly be considered public on any of the grounds above indicated; and second, if public, then whether the burden is one which should properly be borne by the district upon which it is imposed. If either of these questions is answered in the negative, the legislature must be held to have assumed an authority not conferred in the general grant of legislative power, and which is therefore unconstitutional and void. "The power of taxation," says an eminent writer, "is a great governmental attribute, with which the courts have very wisely shown extreme unwillingness to interfere; but if abused, the abuse should share the fate of all other usurpations." 2 In the case of burdens thus assumed by the legislature on behalf of the State, it is not always that a speedy and safe remedy can be properly afforded in the courts. It would certainly be a very dangerous exercise of power for a court to attempt to stay the collection of State taxes because an illegal demand was included in the levy; and indeed, as State taxes are not usually levied for the purpose of satisfying specific demands, but a gross sum is raised which it is calculated will be sufficient for the wants of the year, the question is not one usually of the unconstitutionality of taxation, but of the misappropriation of moneys which have been raised by taxation. But if the State should order a city, township, or village to raise money by taxation to establish one of its citizens in business, or for any other object equally removed from the proper sphere of government, or should undertake to impose the whole burden of the govern ment upon a fraction of the State, the usurpation of [* 495] authority would not only be * plain and palpable, but the proper remedy would also be plain, and no court of competent jurisdiction could feel at liberty to decline to enforce the paramount law.3 In the second place, it is of the very essence of taxation that it 1 Though the legislature first decides that the use is public, the decision is not conclusive. They cannot make that a public purpose which is not so in fact. Gove v. Epping, 41 N. H. 539; Crowell v. Hopkinton, 45 N. H. 9; Freeland v. Hastings, 10 Allen, 570; Hooper v. Emery, 14 Me. 379; Allen v. Jay, 60 Me. 124; s. c. 11 Am. Rep. 185; Tyler v. Beacher, 44 Vt. 651; Ferguson v. Landraw, 5 Bush, 230; Kelly v. Marshall, 69 Penn. St. 319; People v. Flagg. 46 N. Y. 401; Curtis v. Whipple, 24 Wis. 350. 2 Sedgwick on Const. and Stat. Law, 414. 8 Loan Association v. Topeka, 20 Wall. 655. be levied with equality and uniformity, and to this end, that there should be some system of apportionment. Where the burden is common, there should be common contribution to discharge it.1 Taxation is the equivalent for the protection which the government affords to the persons and property of its citizens; and as all are alike protected, so all alike should bear the burden, in proportion to the interests secured. Taxes by the poll are justly regarded as odious, and are seldom resorted to for the collection of revenue; and when taxes are levied upon property there must be an apportionment with reference to a uniform standard, or they degenerate into mere arbitrary exactions. In this particular the State constitutions have been very specific, though in providing for equality and uniformity they have done little more than to state in concise language a principle of constitutional law which, whether declared or not, would inhere in the power to tax. Taxes may assume the form of duties, imposts, and excises; and those collected by the national government are very largely of this character. They may also assume the form of license fees, for permission to carry on particular occupations, or to enjoy special franchises.2 They may be specific; such as are often levied upon corporations, in reference to the amount of capital stock, or to the business done, or profits earned by them. Or they may be direct, upon property, in proportion to its value, or upon some other basis of apportionment, which the legislature shall regard as just, and which shall keep in view the general idea of uniformity. The taxes collected by the States are mostly of the latter class, and it is to them that the constitutional principles we shall have occasion to discuss will more particularly apply. As to all taxation apportioned upon property, there must be 1 2 Kent, 231; Sanborn v. Rice, 9 Minn. 273; Ryerson v. Utley, 16 Mich. 269; Oliver v. Washington Mills, 11 Allen, 268; Tidewater Co. v. Costar, 3 C. E. Green, 519. 2 As to taxes on business and franchises, see Cooley on Taxation, c. 18. That all occupations may be taxed when no restraints are imposed by the constitution, see State v. Hayne, 4 Rich. 403; Common wealth v. Moore, 25 Grat. 951; Cousins v. State, 50 Ala. 113; s. c. 20 Am. Rep. 290; Morrill v. State, 38 Wis. 428; s. c. 20 Am. Rep. 12. But revenue cannot be raised in the form of license fees under an authority to require licenses to be taken out for mere police purposes. Burlington v. Bumgardner, 42 Iowa, 673, and cases cited. |