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c. 5 of [the city charter), nor shall the said farming or gardening lands be subject to any tax, other than before mentioned, for any city purpose whatever.” Under the charter the property of the city was liable to an annual tax of one per centum to defray the current expenses of the city; and also an additional tax of such sum as the common council might deem necessary for the repair and building of roads and bridges, and for the support of the poor. Thus it will be perceived that the legislature, within the same taxing district, — if the whole city is to be considered one district only, — undertook to provide that a portion of the property should be taxed at one rate in proportion to value, and another portion at a much lower rate ; while from taxation for certain proper local purposes the latter class was exempted al

together. [* 503] *“ It was contended in argument,” say the court,

“that as those provisions fixed one uniform rate without the recorded plats, and another within them, thus taxing all the property without alike, and all within alike, they do not infringe the constitution. In other words, that for the purpose of taxation, the legislature have the right arbitrarily to divide up and classify the property of the citizens, and, having done so, they do not violate the constitutional rule of uniformity, provided all the property within a given class is rated alike.

“ The answer to this argument is, that it creates different rules of taxation, to the number of which there is no limit, except that fixed by legislative discretion, while the constitution establishes but one fixed, unbending, uniform rule on the subject. It is believed that if the legislature can, by classification, thus arbitrarily, and without regard to value, discriminate in the same municipal corporation between personal and real property within, and personal and real property without, a recorded plat, they can also by the same means discriminate between lands used for one purpose and those used for another, such as lands used for growing wheat and those used for growing corn, or any other crop; meadowlands and pasture-lands, cultivated and uncultivated lands; or they can classify by the description, such as odd-numbered lots and blocks and even-numbered ones, or odd and even numbered sections. Personal property can be classified by its character, use, or description, or, as in the present case, by its location, and thus the rules of taxation may be multiplied to an extent equal in


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number to the different kinds, uses, descriptions, and locations of real and personal property. We do not see why the system may not be carried further, and the classification be made by the character, trade, profession, or business of the owners. For certainly this rule of uniformity can as well be applied to such a classification as any other, and thus the constitutional provision be saved intact. Such a construction would make the constitution operative only to the extent of prohibiting the legislature from discriminating in favor of particular individuals, and would reduce the people, while considering so grave and important a proposition, to the ridiculous 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 of * different species or descriptions (* 504] of property, and legislate 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


1 Per Dixon, Ch. J., 9 Wis. 421. paved with the Nicholson pavement Besides the other cases referred to, at the expense of the adjoining ownsee, on this same general subject, ers, when the owners of the larger Lin Sing v. Washburn, 20 Cal. 534; part of the frontage should petition State r. Merchants' Ins. Co., 12 La. therefor. An amendatory act auAnn. 802; Adams v. Somerville, 2 thorized it as to a portion of a certain Head, 363; McComb v. Bell, 2 Minn. street without such a petition; thus 295; Attorney-General v. Winnebago permitting a special improvement on Lake and Fox River P. R. Co., 11 that street, at the expense of the ownWis. 35; Weeks v. Milwaukee, 10 ers of adjoining lots, on a different Wis. 242; O'Kane v. Treat, 25 Ill. principle from that adopted for the 557; Philadelphia Association, &c. city generally. In Howell v. Bristol, v. Wood, 39 Penn. 73; Sacramento 8 Bush, 493, this amendment was 0. Crocker, 16 Cal. 119. There held inconsistent with the fundamenwas a provision in the charter of tal principles of taxation, and conseCovington that a street might be quently void.

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 cannot, therefore, after having already, by including the property within the corporation, de clared its opinion that such property should contribute to the local government, immediately turn about and establish a basis of taxation which assumes that the 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. It must be manifest, however, that the effect of the decisions in the States last referred to is to establish judicially two or more districts within a municipality where the legislature has established one only; and as this is plainly a legislative function, it would seem that the legislature must be at least as competent to establish them directly as any court can be to do the same thing indirectly. And in Missouri, Kentucky, and Pennsylvania, no difficulty has been found in sustaining legislation which discriminated in taxation between

“rural” lands and others within the same city. [* 505] * This rule of uniformity has perhaps been found most

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

i Benoist v. St. Louis, 19 Mo. 179; 355. And see Gillette e. Hartford, Henderson v. Lambert, 8 Bush, 607; 31 Conn. 351. Serrill v. Philadelphia, 38 Penn. St.

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 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 of * this description of (* 506] 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,

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

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.

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.

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1 Scoville v. Cleveland, 1 Ohio, n. s. St. Louis, 25 Mo. 505; Uhrig v. St. 126 ; Hill v. Higdon, 5 Ohio, N. S. 243; Louis, 44 Mo. 458; Bradley v. McAtee, Marion v. Epler, 5 Ohio, n. s. 250; 7 Bush, 667; s. c. 3 Am. Rep. 309; Maloy v. Marietta, 11 Ohio, n. s. Jones 1. Boston, 104 Mass. 461; 636 : City of Peoria v. Kidder, 26 Sessions v. Crunkilton, 20 Ohio, Ill. 351; Reeves v. Treasurer of Wood N. S. 349; State v. Fuller, 34 N. J. Co., 8 Ohio, n. s. 333; Garrett v. 227; Holton v. Milwaukee, 31 Wis.

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