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benefit in proportion to the previous value. One lot upon the street may be greatly increased in value, another at a little distance may be but slightly benefited; and if no constitutional provision interferes, there is consequently abundant reason why the tax levied within the taxing district should have reference, not to value, but to benefit.

It has been objected, however, to taxation upon this basis, that inasmuch as the district upon which the burden is imposed is compelled to make the improvement for the benefit of the general public, it is, to the extent of the tax levied, an appropriation of private property for the public use; and as the persons taxed, as a part of the public, would be entitled of right to the enjoyment of the improvement when made, such right of enjoyment could not be treated as compensation for the exaction made, and such exaction would therefore be opposed to those constitutional principles which declare the inviolability of private property. But those principles have no reference to the taking of property under the right of taxation. When the constitution provides that private

property shall not be taken for public use without just [498] compensation made therefor, it has reference to an appropriation thereof under the right of eminent domain. Taxation and eminent domain indeed rest substantially on the same foundation, as each implies the taking of private property for the public use on compensation made; but the compensation is different in the two cases. When taxation takes money for the public use, the tax-payer receives, or is supposed to receive, his just compensation in the protection which government affords to his life, liberty, and property, and in the increase in the value of his possessions by the use to which the government applies the money raised by the tax,' and either of these benefits will support the burden.

But if these special local levies are taxation, do they come under the general provisions on the subject of taxation to be found in our State constitutions? The Constitution of Michigan provides that "the legislature shall provide an uniform rule of taxation, except on property paying specific taxes; and taxes

1 People v. Mayor, &c. of Brooklyn, 4 N. Y. 422; Williams v. Mayor, &c. of Detroit, 2 Mich. 565; Scovills v. Cleveland, 1 Ohio, N. 8. 126;

Northern Indiana R. R. Co. v. Connelly, 10 Ohio, N. s. 165; Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255.

shall be levied upon such property as shall be prescribed by law;"1 and again: "All assessments hereafter authorized shall be on property at its cash value."2 The first of these provisions has been regarded as confiding to the discretion of the legislature the establishment of the rule of uniformity by which taxation was to be imposed; and the second as having reference to the annual valuation of property for the purposes of taxation, which it is customary to make in that State, and not to the actual levy of a tax. And a local tax, therefore, levied in the city of Detroit, to meet the expense of paving a public street, and which was levied, not in proportion to the value of property, but according to an arbitrary scale of supposed benefit, was held not invalid under the constitutional provision."

So the Constitution of Illinois provides that "the General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property; such value to be ascertained by some person or persons to be elected or appointed in such manner as the General Assembly shall direct, and not otherwise," &c. The charter of the city of Peoria provided that, when a public street was opened or improved, commissioners should [* 499] be appointed by the county court to assess upon the property benefited the expense of the improvement in proportion to the benefit. These provisions were held to be constitutional, on the ground that assessments of this character were not such taxation as was contemplated by the general terms which the constitution employed.5 And a similar view of these local assessments has been taken in other cases.6

1 Art. 14, § 11.

2 Art. 14, § 12.

3 Williams v. Mayor, &c. of Detroit, 2 Mich. 560. And see Woodbridge v. Detroit, 8 Mich. 274.

4 Art. 9, § 2.

5 City of Peoria v. Kidder, 26 Ill. 357. See also Canal Trustees v. Chicago, 12 Ill. 406. In the subsequent case of Chicago v. Larned, 34 Ill. 203, it was decided, after very full argument and consideration, that, while taxation for these local assessments might constitutionally be made in proportion and to the extent of the

benefits received, it could not be made on the basis of frontage. This case was followed in Wright v. Chicago, 46 Ill. 44.

People v. Mayor, &c. of Brooklyn, 4 N. Y. 419; Matter of Mayor, &c. of New York, 11 Johns. 77; Sharp v. Spier, 4 Hill, 76; Livingston v. Mayor, &c. of New York, 8 Wend. 85; Matter of Furman St., 17 Wend. 649; Nichols v. Bridgeport, 23 Conn. 189; Schenley v. City of Alleghany, 25 Penn. St. 128; Wray v. Pittsburg, 46 Penn. St. 365; Hammett v. Philadelphia, 65 Penn. St. 146; s. c. 3 Am.

But whatever may be the basis of the taxation, the requirement that it shall be uniform is universal. It applies as much to these local assessments as to any other species of taxes. The difference is only in the character of the uniformity, and in the basis on which it is established. But to render taxation uniform in any case, two things are essential. The first of these is that each taxing district should confine itself to the objects of taxation within its limits. Otherwise there is, or may be, duplicate taxation, and of course inequality. Assessments upon real estate not lying within the taxing districts would be void,1 and

Rep. 615; Washington Avenue, 69 Penn. St. 353; s. c. 8 Am. Rep. 255; McBride v. Chicago, 22 Ill. 574; Chicago v. Larned, 34 Ill. 203; City of Lexington v. McQuillan's Heirs, 9 Dana, 513; Barnes v. Atchison, 2 Kan. 454; Hines v. Leavenworth, 3 Kan. 186; St. Joseph v. O'Donoghue, 31 Mo. 315; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. Anthony, 30 Mo. 537; Burnet v. Sacramento, 12 Cal. 76; Yeatman v. Crandell, 11 La. Ann. 220; Wallace v. Shelton, 14 La. Anu. 498; Richardson v. Morgan, 16 La. Ann. 429; Hill v. Higdon, 5 Ohio, N. s. 243; Marion v. Epler, 5 Ohio, N. s. 250; Reeves v. Treasurer of Wood Co., 8 Ohio, N. s. 333; Northern Ind. R. R. Co. v. Connelly, 10 Ohio, N. s. 159; Baker v. Cincinnati, 11 Ohio, N. s. 534; Maloy v. Marietta, 11 Ohio, N. s. 636; State v. Dean, 3 Zab. 335; State v. Mayor, &c. of Jersey City, 4 Zab. 662; Bond v. Kenosha, 17 Wis. 289; City of Fairfield v. Ratcliff, 20 Iowa, 396; Municipality No. 2 v. White, 9 La. Ann. 447; Cumming v. Police Jury, 9 La. Ann. 503; Northern Liberties v. St. John's Church, 13 Penn. St. 107; McGee v. Mathis, 21 Ark. 40; Goodrich v. Winchester, &c. Turnpike Co., 26 Ind. 119; Emery v. Gas Co., 28 Cal. 345; Palmer v. Stumph, 29 Ind. 329; Dergan v. Boston, 12 Allen, 223. In Alabama a recent decision has been made the other way. The constitution pro

vides that "all taxes levied on property in this State shall be assessed in exact proportion to the value of such property; provided, however, that the General Assembly may levy a poll tax not to exceed one dollar and fifty cents on each poll, which shall be applied exclusively in aid of the public school fund." This, it was decided, would preclude the levy of a local assessment for the improvement of a street by the foot front. Mayor of Mobile v. Dargan, 45 Ala. 310. The cases of Weeks v. Milwaukee, 10 Wis. 242, and Lumsden v. Cross, 10 Wis. 282, recognize the fact that these local burdens are generally imposed under the name of assessments instead of taxes, and that therefore they are not covered by the general provisions in the constitution of the State on the subject of taxation. And see Bond v. Kenosha, 17 Wis. 284; Hale v. Kenosha, 29 Wis. 599. An exemption of church property from taxation will not preclude its being assessed for improving streets in front of it. See post, p. 514, note.

1 But sometimes, when a parcel of real estate lies partly in two districts, authority is given by law to assess the whole in one of these districts, and the whole parcel may then be considered as having been embraced within the district where taxed, by an enlargement of the district bounds to include it. Saunders v. Springstein, 4 Wend. 429.


assessments for personal property made against persons [* 500] not residing in the district would also be void, unless

made with reference to the actual presence of the property in such district.1

In Wells v. City of Weston,2 the Supreme Court of Missouri deny the right of the legislature to subject property located in one taxing district to assessment in another, upon the express ground that it is in substance the arbitrary taxation of the property of one class of citizens for the benefit of another class. The case was one where the legislature sought to subject real estate lying outside the limits of a city to taxation for city purposes, on the theory that it received some benefit from the city government, and ought to contribute to its support. In Kentucky 3 and Iowa * decisions have been made which, while affirming the same principle as the case above cited, go still further, and declare that it is not competent for the legislature to increase the limits of a city, in order to include therein farming lands, occupied by the owner for agricultural purposes, and not required for either streets or houses, or other purposes of a town, where the purpose is merely to increase the city revenue by taxation. The courts admit that the extension of the limits of a city or town, so as to include its actual enlargement, as manifested by houses and population, is to be deemed a legitimate exercise of the taxing power, but they declare that an indefinite or unreasonable extension, so as to embrace lands or farms at a distance from the local government, does not rest upon the same authority. And although it may be a delicate as well as a difficult duty for the judiciary to interpose, the court had no doubt but strictly there are limits beyond which the legislative discretion cannot go. "It is not every case of injustice or oppression which may be reached; and it is not every case which will authorize a judicial tribunal to inquire into the

1 People v. Supervisors of Chenango, 11 N. Y. 563; Mygatt v. Washburn, 15 N. Y. 316; Brown v. Smith, 24 Barb. 419; Hartland v. Church, 47 Me. 169; Lessee of Hughey v. Horrell, 2 Ohio, 231.

2 22 Mo. 385. To the same effect is In re Flatbush, 60 N. Y. 398. Compare case of State Tax on Foreign Held Bonds, 15 Wall. 300; St.

Charles v. Noble, 51 Mo. 122; s. c. 11 Am. Rep. 440. The case of Langhorne v. Robinson, 20 Grat. 661, is contra.

3 City of Covington v. Southgate, 15 B. Monr. 491; Arbegust v. Louisville, 3 Bush, 271; Swift ». Newport, 7 Bush, 37.

Morford v. Unger, 8 Iowa, 82.


minute operation of laws imposing taxes, or defining the boundaries of local jurisdictions. The extension of the limits of the local authority may in some cases be greater than is necessary to include the adjacent population, or territory laid out into [* 501] city lots, without a case being presented in which the courts would be called upon to apply a nice and exact scrutiny as to its practical operation. It must be a case of flagrant injustice and palpable wrong, amounting to the taking of private property without such compensation in return as the taxpayer is at liberty to consider a fair equivalent for the tax." This decision has been subsequently recognized and followed as authority, in the last-named State.1

The second essential is that there should be uniformity in the manner of the assessment, and approximate equality in the amount of exactions wit in the district; and to this end that all the objects of taxation within the district should be embraced. The correctness of this principle will be conceded, but whether in practice it has been applied or not, it may not always be easy to determine.

"With the single exception of specific taxes," says Christiancy, J., in Woodbridge v. Detroit,2" the terms 'tax' and assessment' both, I think, when applied to property, and especially to lands, always include the idea of some ratio or rule of apportionment, so that of the whole sum to be raised, the part paid by one piece of property shall bear some known relation to, or be affected by, that paid by another. Thus, if one hundred dollars are to be raised from tracts A, B, and C, the amount paid by A will reduce by so

1 Langworthy v. Dubuque, 13 Iowa, 86; Fulton v. Davenport, 17 Iowa, 404; Buell v. Ball, 20 Iowa, 282. These cases were cited and followed in Bradshaw v. Omaha, 1 Neb. 16. These cases, however, do not hold the legislative act which enlarges the city limits to be absolutely void, but only hold that they will limit the exercise of the taxing power as nearly as practicable to the line where the extension of the boundaries ceases to be beneficial to the proprietor in a municipal point of view. For this purpose they enter into an inquiry of fact, whether the lands in question,

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