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*When, however, it is said to be essential to valid taxation that there be legislative authority for every tax that is laid, it is not meant that the legislative department of the

State must have passed upon the necessity and propriety [* 520] of every particular tax; but those who assume to seize the property of the citizen for the satisfaction of the tax must be able to show that that particular tax is authorized, either by general or special law. The power inherent in the government to tax lies dormant until a constitutional law has been passed calling it into action, and is then vitalized only to the extent provided by the law. Those, therefore, who act under such law should be careful to keep within its limits, lest they remove from their acts the shield of its protection. While we do not propose to enter upon any attempt to point out the various cases in which a failure to obey strictly the requirements of the law will render the proceedings void, and in regard to which a diversity of decision would be met with, we think we shall be safe in saying that, in cases of this description, which propose to dispossess the citizen of his property against his will, not only will any excess of taxation beyond what the law allows render the proceedings void, but any failure to comply with such requirements of the laws as are made for the protection of the owner's interest will also render them void.

There are several cases in which taxes have been levied but slightly in excess of legislative power, in which it has been urged in defence of the proceedings, that the law ought not to take

"Whether this provision of the constitution can be regarded as mandatory in a sense that would make all charters of municipal corporations and acts relating thereto which are wanting in this limitation invalid, we do not feel called upon to decide in this case, since it is clear that a limitation upon taxation is fixed by the act before us. The constitution has not prescribed the character of the restriction which shall be imposed, and from the nature of the case it was impossible to do more than to make it the duty of the legislature to set some bounds to a power so liable to abuse. A provision which, like the

one complained of, limits the power of taxation to the actual expenses as estimated by the governing board, after first limiting the power of the board to incur expense within narrow limits, is as much a restriction as if it confined the power to a certain percentage upon taxable property, or to a sum proportioned to the number of inhabitants in the city. Whether the restriction fixed upon would as effectually guard the citizen against abuse as any other which might have been established was a question for the legislative department of the government, and does not concern us on this inquiry."

notice of such unimportant matters; but an excess of jurisdiction is never unimportant. In one case in Maine, the excess was eighty-seven cents only in a tax of $225.75, but it was held sufficient to render the proceedings void. We quote from Mellen, Ch. J., delivering the opinion of the court: "It is contended that the sum of eighty-seven cents is such a trifle as to fall within. the range of the maxim de minimis, &c.; but if not, that still this small excess does not vitiate the assessment. The maxim is so vague in itself as to form a very unsafe ground of proceeding or judging; and it may be almost as difficult to apply it as a rule in pecuniary concerns as to the interest which a witness has in the event of a cause; and in such case it cannot apply. Any interest excludes him. The assessment was therefore unauthor

ized and void. If the line which the legislature has established be once passed, we know of no boundary to the discretion of the assessors." "" 1 The same view has been taken by the Supreme Court of Michigan, by which the opinion is [* 521] expressed that the maxim de minimis lex non curat should be applied with great caution to proceedings of this character, and that the excess could not be held unimportant and overlooked where, as in that case, each dollar of legal tax was perceptibly increased thereby.2 Perhaps, however, a slight excess, not the result of intention, but of erroneous calculations, may be overlooked, in view of the great difficulty in making all such calculations mathematically correct, and the consequent impolicy of requiring entire freedom from all errors.3

Wherever a tax is invalid because of excess of authority, or

1 Huse v. Merriam, 2 Me. 375. See Joyner v. School District, 3 Cush. 567; Kemper v. McClelland, 19 Ohio, 324; School District v. Merrills, 12 Conn. 437; Elwell v. Shaw, 1 Me. 335; Wells v. Burbank, 17 N. H. 393; Kinsworthy v. Mitchell, 21 Ark. 145.

2 Case v. Dean, 16 Mich. 12. And see Commonwealth v. Savings Bank, 5 Allen, 428; Bucknall v. Story, 36 Cal. 67; Drew v. Davis, 10 Vt. 506; Wells v. Burbank, 17 N. H. 393.

This was the view taken by the Supreme Court of Wisconsin in Kelley v. Corson, 8 Wis. 182, where an

excess of $8.61 in a tax of $6,654.57 was held not to be fatal; it appearing not to be the result of intention, and the court thinking that an accidental error no greater than this ought to be disregarded. See also O'Grady v. Barnhisel, 23 Cal. 287; State v. Newark, 25 N. J. 399. In Iowa the statute requires a sale to be upheld if any portion of the tax was legal. See Parker v. Sexton, 29 Iowa, 421. If a part of a tax only is illegal, the balance will be sustained if capable of being distinguished. O'Kane v. Treat, 25 Ill. 557; People v. Nichols, 49 Ill. 517.

because the requisites in tax proceedings which the law has provided for the protection of the tax-payer are not complied with, any sale of property based upon it will be void also. The owner is not deprived of his property by "the law of the land," if it is taken to satisfy an illegal tax. And if property is sold for the satisfaction of several taxes, any one of which is unauthorized, or for any reason illegal, the sale is altogether void.1 And the the owner's interest will prove fatal to a tax sale, will be found abundantly sustained by the authorities, while many of the cases go still further in making irregularities fatal. It appears to us that where the requirement of the law which has failed of observance was one which had regard simply to the due and orderly conduct of the proceedings, or to the protection of the public interest, as against the officer, so that to the taxpayer it is immaterial whether it was complied with or not, a failure to comply ought not to be recognized as a foundation for complaint by him. But those safeguards which the legislature has thrown around the estates of citizens, to protect them against unequal, unjust, and extortionate taxation, the courts are not at liberty to do away with by declaring them non-essential. To hold the requirement of the law. in regard to them directory only, and not mandatory, is in effect to exercise a dispensing power over the laws. Mr. Blackwell, in his treatise on Tax Titles, has collected the cases on this subject industriously, and perhaps we shall be pardoned for saying also with a perceptible leaning against that species of conveyance. As illustrations how far the courts will go, in some cases, to sustain irregular taxation, where officers have acted in good faith, reference is made to Kelley v. Corson, 11 Wis. 1; Hersey v. Supervisors of Milwaukee, 16 Wis. 185. See also Mills v. Gleason, 11 Wis. 497, where the court endeavors to lay down a general rule as to the illegalities

1 This has been repeatedly held. Elwell v. Shaw, 1 Greenl. 335; Lacy v. Davis, 4 Mich. 140; Bangs v. Snow, 1 Mass. 188; Thurston v. Little, 3 Mass. 429; Dillingham v. Snow, 5 Mass. 547; Stetson v. Kempton, 13 Mass. 283; Libby v. Burnham, 15 Mass. 144; Hayden v. Foster, 13 Pick. 492; Torrey v. Millbury, 21 Pick. 70; Alvord v. Collin, 20 Pick. 418; Drew v. Davis, 10 Vt. 506; Doe v. McQuilkin, 8 Blackf. 335; Kemper v. McClelland, 19 Ohio, 324. This is upon the ground that the sale being based upon both the legal and the illegal tax, it is manifestly impossible afterwards to make the distinction, so that the act shall be partly a trespass and partly innocent. But when a party asks relief in equity before a sale against the collection of taxes, a part of which are legal, he will be required first to pay that part, or at least to so distinguish them from the others that process of injunction can be so framed as to leave the legal taxes to be enforced; and failing in this, his bill will be dismissed. Conway v. Waverley, 15 Mich. 257; Palmer v. Napoleon, 16 Mich. 176; Hersey v. Supervisors of Milwaukee, 16 Wis. 182; Bond v. Kenosha, 17 Wis. 288; Myrick v. La Crosse, 17 Wis. 442; Roseberry v. Huff, 27 Ind. 12.

As to the character and extent of the irregularities which should defeat the proceedings for the collection of taxes, we could not undertake to speak here. We think the statement in the text, that a failure to comply with any such requirements of the law as are made for the protection of

general rule is applicable here, that where property is taken under statutory authority in derogation of common right, every requisite of the statute having a semblance of benefit to the owner must be complied with or the proceeding will be ineffectual.1

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*CHAPTER XV.

THE EMINENT DOMAIN.

EVERY Sovereignty possesses buildings, lands, and other property, which it holds for the use of its officers and agents, to enable them to perform their public functions. It may also have property from the rents, issues, and profits, or perhaps the sale, of which it is expected the State will derive a revenue. Such property constitutes the ordinary domain of the State. In respect to its use, enjoyment, and alienation, the same principles apply which govern the management and control of like property of individuals; and the State is in fact but an individual proprietor, whose title and rights are to be tested, regulated, and governed by the same rules that would have pertained to the ownership of the same property by any of its citizens. There are also cases in which property is peculiarly devoted to the general use and enjoyment of the individual citizens who compose the organized society, but the regulation and control of which are vested in the State by virtue of its sovereignty. The State may be the proprietor of this property, and retain it for the common use, as a means of contributing to the general health, comfort, or happiness of the people; but generally it is not strictly the owner, but rather the governing and supervisory trustee of the public rights in such property, vested with the power and charged with the duty of so regulating, protecting, and controlling them, as to secure to each citizen the privilege to make them available for his purposes, so far as may be consistent with an equal enjoyment by every other citizen of the same privilege.1 In some instances

1 In The Company of Free Fishers, &c. v. Gann, 20 C. B. N. s. 1, it was held that the ownership of the Crown in the bed of navigable waters is for the benefit of the subject, and cannot be used in any such manner as to derogate from or interfere with the

right of navigation, which belongs by law to all the subjects of the realm. And that consequently the grantees of a particular portion, who occupied it for a fishery, could not be lawfully authorized to charge and collect anchorage dues from vessels anchoring