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the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purposes for which the funds are raised must be clear and palpable; so clear and palpable as to be perceptible by every mind at the first blush. . . . It is not denied that claims founded in equity and justice, in the largest sense of those terms, or in gratitude or charity, will support a tax. Such is the language of the authorities." 1

But we think it is plain, as has been said by the Supreme Court of Wisconsin, that "the legislature cannot . . . in the form of a tax, take the money of the citizens and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute."2 Or, as stated by the Supreme Court of Pennsylvania, "the legislature has no constitutional right to . . . lay a tax, or to authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. No such authority passed to the assembly by the general grant of the legislative power. This would not be legislation. Taxation is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected. with the public interest or welfare, it ceases to be taxation and becomes plunder. Transferring money from the owners of it into the possession of those who have no title to it, though it be done under the name and form of a tax, is unconstitutional for

1 Brodhead r. City of Milwaukee, 19 Wis. 624, 652. See Mills v. Charleton, 29 Wis. 411, 9 Am. Rep. 578; Spring v. Russell, 7 Me. 273; Williams v. School District, 33 Vt. 271. Taxation to supply natural gas to a city valid. Fellows r. Walker, 39 Fed. Rep. 651. It is not competent for a city to levy taxes to loan to persons who have suffered from a fire. Lowell . Boston, 111 Mass. 454, 15 Am. Rep. 39, and note, p. 56; Feldman v. City Council of Charleston, 23 S. C. 57. Or to supply farmers, whose crops have been destroyed, with provisions, and grain for seed and feed. State v. Osawkee, 14 Kan. 418. Or to aid manufacturing enterprises Allen v. Jay, 60 Me. 124, 11 Am. Rep. 185; Commercial Bank v. Iola, 2 Dill. 353; Loan Association v. Topeka, 20 Wall. 655; Opinions of Judges, 58 Me. 590; Coates v. Campbell, 37 Minn. 498, 85 N. W. 366; Mather v. Ottawa, 114 Ill. 659, 8 N. E. 216; Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. Rep.

442; Cole v. La Grange, 113 U. S. 1, 5 Sup. Ct. Rep. 416; though it be under pretence of sanitary improvements. Clee v. Sanders, 74 Mich. 692, 42 N. W. 154. Power to tax in aid of a water grist mill, recognized in Nebraska: Traver v. Merrick Co., 14 Neb. 327, 15 N. W. 690; contra, in aid of steam mill, Osborn v. Adams Co., 109 U. S. 1, 3 Sup. Ct. Rep. 150. Taxation to pay a subscription to a private corporation is not for a public purpose. Weismer v. Douglas, 64 N. Y. 91, 21 Am. Rep. 586. A city cannot be empowered to erect a dam, with the privilege afterwards at discretion to devote it to either a public or private purpose; but the public purpose must appear. Attorney-General v. Eau Claire, 37 Wis.

400.

-2 Per Dixon, Ch. J., in Brodhead v. Milwaukee, 19 Wis. 624, 652. See also Lunsden v. Cross, 10 Wis. 282; Opinions of Judges, 58 Me. 590; Moulton v Raymond, 60 Me. 121; post, p. 704, and note.

all the reasons which forbid the legislature to usurp any other power not granted to them." And by the same court, in a still later case, where the question was whether the legislature could lawfully require a municipality to refund to a bounty association the sums which they had advanced to relieve themselves from an impending military conscription, "such an enactment would not, be legislation at all. It would be in the nature of judicial action, it is true, but wanting the justice of notice to parties to be affected by the hearing, trial, and all that gives sanction and force to regular judicial proceedings; it would much more resemble an imperial rescript than constitutional legislation: first, in declaring an obligation where none was created or previously existed; and next, in decreeing payment, by directing the money or property of the people to be sequestered to make the payment. The legislature can exercise no such despotic functions."

1 Per Black, Ch. J., in Sharpless v. Mayor, &c., 21 Pa. St. 147, 168. See Opinions of Judges, 58 Me. 590.

2 Tyson v. School Directors of Halifax, 51 Pa. St. 922. See also Grim v. Weisenburg School District, 57 Pa. St. 433. The decisions in Miller v. Grandy, 13 Mich. 540; Crowell v. Hopkinton, 45 N. H. 9; and Shackford v. Newington, 46 N. II. 415, so far as they hold that a bounty law is not to be held to cover moneys before advanced by an individual without any pledge of the public credit, must be held referable, we think, to the same principle. And see cases, ante, p. 332, note 3. Compensation for money voluntarily contributed for levee purposes by allowing such sums as a credit on future levee taxes is not allowable. Those incidentally benefited cannot be compelled to refund money thus spent. Davis v. Gaines, 48 Ark. 370, 3 S. W. 184. We are aware that there are some cases the doctrine of which seems opposed to those we have cited, but perhaps a careful examination will enable us to harmonize them all. One of these is Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143. The facts in that case were as follows: Cornell and Clark were formerly commissioners of highways of the town of Guilford, and as such, by direction of the voters of the town, had sued the Butternut and Oxford Turnpike Road Company. They were unsuccessful in the action, and were, after a long litigation, obliged to pay costs. The town then re

2

fused to reimburse them these costs. Cornell and Clark sued the town, and, after prosecuting the action to the court of last resort, ascertained that they had no legal remedy. They then applied to the legislature, and procured an act authorizing the question of payment or not by the town to be submitted to the voters at the succeeding town meeting. The voters decided that they would not tax themselves for any such purpose. Another application was then made to the legislature, which resulted in a law authorizing the county judge of Chenango County to appoint three commissioners, whose duty it should be to hear and determine the amount of costs and expenses incurred by Cornell and Clark in the prosecution and defence of the suits mentioned. It authorized the commissioners to make an award, which was to be filed with the county clerk, and the board of supervisors were then required, at their next annual meeting, to apportion the amount of the award upon the taxable property of the town of Guilford, and provide for its collection in the same manner as other taxes are collected. The validity of this act was affirmed. It was regarded as one of those of which Denio, J., says, "The statute book is full, perhaps too full, of laws awarding damages and compensation of various kinds to be paid by the public to individuals who had failed to obtain what they considered equitably due to them by the decision of administrative officers acting under the provi

A like doctrine has been asserted by the Supreme Court of Michigan in a recent case. That State is forbidden by its consti

sions of former laws. The courts have no power to supervise or review the doings of the legislature in such cases." It is apparent that there was a strong equitable claim upon the township in this case for the reimbursement of moneys expended by public officers under the direction of their constituents, and perhaps no principle of constitutional law was violated by the legislature thus changing it into a legal demand and compelling its satisfaction. Mr. Sedgwick criticises this act, and says of it that it "may be called taxation, but in truth it is the reversal of a judicial decision." Sedg. on Stat. and Const. Law, 414. There are very many claims, however, resting in equity, which the courts would be compelled to reject, but which it would be very proper for the legislature to recognize, and provide for by taxation. Brewster v. City of Syracuse, 19 N. Y. 116. Another case, perhaps still stronger than that of Guilford . The Supervisors, is Thomas v. Leland, 24 Wend. 65. 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 especially 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. 76, 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 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. 664, 680, 9 Am. Rep. 622. The legislature may require a county to pay for a road: Wilcox v. Deer Lodge Co., 2 Mont. 574; and may apportion to a township such part of the cost as the length of it in the township bears to its total length. Mahoney v. Comry, 103 Pa. St. 362. nis, 10 Ill. 405. 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. r. Hooper, 2 Met. (Ky.) 350, is also instructive. The 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 twenty-five 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

See also Shaw v. Den

tution to engage in works of public improvement, except in the expenditure of grants of land or 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 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 reimbursement 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. And it

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. Southgate, 15 B. Monr. 491; Lovingstone. Wider, 53 Ill. 302; Curtis v. Whipple, 24 Wis. 350; People v. Flagg, 46 N. Y. 401; People v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480; 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;

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Anderson v. Hill, 54 Mich. 477, 20 N. W. 549. Uniformity in taxation implies equality in the burden of taxation." Bank v. Hines, 3 Ohio St. 1, 15. "This equality in the burden constitutes the very substance designed to be secured by the rule." Weeks v. City of Milwaukee, 10 Wis. 242, 258. See also Sanborn v. 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. Gordon v. Cornes, 47 N. Y. 608, 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. 664, 9 Am. Rep. 622; Mayor of

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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 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 the 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 aggression however made, and whether under color of recognized power or not."1

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When, therefore, the legislature assumes to impose a pecuniary burden upon the citizen in the form of a tax, two questions may always be raised: First, whether the purpose of such burden may properly be considered public on any of the grounds above indicated; 2 and second, if public, then whether the burden is

Mobile v. Dargan, 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 is 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 Constitution." Merrick v. Inhabitants of Amherst, 12 Allen, 500, 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 Purdue University, 37 Ind. 155, follows Merrick v. Amherst, and Burr v. Carbondale, 76 Ill. 455; Hensley Township v. People, 84 Ill. 544, and Livingston County v. Darlington, 101 U. S. 407, are to the same effect. 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. 491; People v. Township Board of Salem, 20 Mich. 452; Tide Water Co. v. Costar, 18 N. J. Eq. 518; Hammett v. Philadelphia, 65 Pa. St. 146, 3 Am. Rep. 615.

1 Morford v. Unger, 8 Iowa, 82, 92. See Durant . Kauffman, 34 Iowa, 194.

2 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

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