[ocr errors]

it discounted at the Lumberman's Bank, and claimed to rule in this case. But a very slight had the proceeds put to the credit of his sepa- examination of the facts in that case shows it rate account.

But that Hall had drawn to be radically different from this. The draft ostensibly for his separate accommodation, was drawn in the firm name, in favor of Halde. sufficiently indicated that bis firm's indorse man, who was one of the partners. Ostensibly, ment was also for bis separate accommodation, therefore, and on the face of the paper, it purand made it the duty of the bank to inquire ported to be the obligation of the firm to one into his authority for the act, as it would have of its own members. Upop such paper the been bound to do bad be indorsed the pame of payee was apparently the owner of the paper, the firm on the note of a stranger. The bank and, in regular course of business, would be then, and the present holder, are affected with entitled to bave the proceeds of the draft. knowledge that the transaction was a separate There was nothing 10 give notice to the bank one; and we have the naked case of a note that the transaction was out of the usual course, indorsed with the name of a firm, in a trans- or was, or was intended to be, a fraud upon the action out of the line of its business; from firm. It was upon these grounds that the case which the conclusion is unavoidable, that it was ruled. Said Knox, J., in delivering the was discounted on the faith of an indorsement opinion: “The case depends upon the question which was void for want of previous authority whether the bank was bound to inquire as to the or subsequent confirmation." The present case authority of Haldeman to draw the draft in the is stronger than this, because there was no firm names. It is not pretended that the bank intervening third party, outside of the firm, had actual notice that the discount was for who had made a genuine indorsement for the Haldeman's separate use; but it is alleged that accommodation of the maker. Here the trans- the form of the draft was sufficient to put the action was direct. The partner made his own bank upon inquiry. The draft was made pay. note to his own firm, and then indorsed the able to Peter Haldeman's order. Was this an firm pame, and, with the knowledge and par. indication that it was not drawn by the firm in ticipation of the bank, took the proceeds to his the usual course of its business? Certainly it own use. It was affirmatively testified by the was not; for although it may not be the ordiother partner that he knew nothing of the trans- Dary form in which bills are drawn, it is by po action; that the firm got no part of the pro. means an unusual transaction, when the object ceeds, directly or indirectly; and it was not of drawing a draft is to raise money for a shown tbat there was any course of dealing by firm that it should be made payable to the which indorsements of the firm name by Webb order and indorsed by one of the members of Evans on paper such as this was erer sanctioned the firm... Where a draft or bill drawn or approved by the firm. The nature of the in the name of the firm by one of the partners transaction directly informed the bank that is offered for discount, the presumption is that the firm indorsement was made by Evans for drawing the draft was a partnership transaction, his private use, and that knowledge put them even although it was made payable to the upon inquiry. In the case of Miller v. Consoli- order of one of the members of the firm. dation Bank, 48 Pa. 514, 88 Am. Dec. 475, Actual knowledge that a bill or note purportAgnew, J., in commenting on Tanner v. Hall, ing to be drawn or made by a firm was given 1 Pa. 417, and pointing out the difference without the consent of some of the partners, is between the two cases, said: “The case of a good defense as to the nonconsenting partTanner v. Hall differs widely from this. There pers, but the presumption that the paper is Hall drew bis separate note for his own accom- what it purports to be, cannot be overthrown modation to the order of another firm who upon a mere matter of form in inserting the indorsed it. Then he indorsed the name of name of one of the members of a partnersbip his own firm, and procured it to be discounted. as payee.” The case of Ihmsen v. Negley, 25 It was held that the form of the note and the Pa. 297, is also of the same character, as is circumstances sufficiently indicated to the bank fully explained in the opinion in the last case that the pote was for his individual accommo- cited. We think the assignments of error are dation, and thus put the bank upon notice." all sustained.

The case of Haldeman v. Bink of Middle- Judgment reversed, and cenire de toron, 28 Pa. 440, 70 Am. Dec. 142, is cited for awarded. the appellee with much confidence, and is



REELFOOT LAKE LEVEE DISTRICT | 2. A tax on land alone in a certain et al., Appts.,

levee district, but excepting land under wa0.

ter, violates Const. art. 2, $ 28, reguiring all propC. C. DAWSON, Sheriff, et al.

erty, real, personal, or mixed, to be taxed.

3. A special tax on land in a levee dis(........ Tenn.....

trict, which is especially benefited by a levee for

whicb the tax is made, is a tax within Const. art. 1. A tax on any property in specie or by the 2, & 28, requiring taxes to be levied on all propacre is contrary to Const. art. 2, $ 28, requiring all erty, real, personal, and mixed, and levied acproperty to be taxed according to its value.

cording to value. NOTE.-Similar to the above case and against the sessments, see Re Madera Irrig. Dist. Bonds (Cal.) 14 authorities in some states, is Mauldin v. Greenville | L. R. A. 755, and note; and Oregon & C. R. Co. v. (S. C.) 27 L. R. A. 284.

Portland (Or.) 22 LR. A. 713. As to the theory of special benefits to sustain ag.


4. The police power of the state does not v. St. Clair & M. Levee & D. Co. 51 III. 130;

extend to the levying of special assessments on Hessler v. Drainage Comrs. 53 Ill. 111. property benefited by a levee.

The act violates art. 2, $ 29, of the Tennes5. The legislature cannot delegate to a see Constitution in delegating the taxing power levee district the legislative power to levy a to other than a municipal corporation or a tax other than under Const. art. 2, authorizing it

county. to delegate such power to counties and in- Marr v. Enloe, 1 Yerg. 452; Waterhouse v. corporated towns, since this impliedly excludes Cleveland Public Schools, 8 Heisk. 857; Lipscomb delegation to any other agency.

V. Dean, 1 Lea, 550; Luehrman v. Shelby 6. A levee district created by special County Taxing Dist. 2 Lea, 550; Keesee v. Civil

law is not within a constitutional probibition Dist. Bd. of Edu. 6 Coldw. 130; Pope v. Phifer, against creating corporations by speciallaw.

supra. ny. Taxation of property in a levee dis

Messrs. M. A. Lowe and Leech & Say. trict for a levee to protect the property is for a


for appellees: public purpose because beneficial to a large com

This statute is not a delegation of the taxing munity of people and also to the state.

power. The body incorporated by this statule (June 30, 1896.)

has for its purpose to accomplish a public use and purpose.

Turlock Irrig. Dist. v. Williams, 76 Cal. 360. the Chancery Court for Dyer County dis- Such corporations are quasi corporations missing a bill filed to have declared the result which are political in their character and are of an election which had been held to deter- agencies for exercising the powers and duties mine whether or not a certain levee sbould be of local government. constructed and a tax levied to meet the ex- State, Baltzell, v. Stewart, 74 Wis. 620, 6 L. penses. Anfirmed.

R. A. 394; Carson v. St. Francis Levee Dist. The facts are stated in the opinion.

59 Ark. 513; State v. Armstrong, 3 Sneed, 634; Messrs. M. M. Marshall, Harwood & Morristown v. Shelton, 1 Head, 24. Tyree, and Deason & Rankin, for appel- The power to make laws has been surrenlants:

dered by the people and vested in the legislaThis act has three provisions that are repug. ture, so that no law can be made by or emanant to the constitutional requirement of equal pate from them; but this does not prove that it ity and uniformity of taxation according to would be an infringement of the Constitution value:

for their representatives to call for and defer 1. It provides for the levy of a tax of 10 to their opinion on the subject of a new law cents per acre on all the land taxed, indiscrim- fully matured by them in all its parts before it inately, whether the land be worth 30 cents or shall go into effect. $50 an acre.

Louisville & N. R. Co. v. Davidson County 2. It exempts from taxation all the land Ct. 1 Sneed, 675, 62 Am. Dec. 424. "now covered by the waters of Reelfoot lake.” This statute is an exercise of the police

3. All the personal property within the power, boundaries of the levee district is entirely ex- Cooley, Const. Lim. 6th ed. 733; Carson v. empt, as no provision is made by said act for St. Francis Levee Dist. supra; Donnelly v. the taxation of anything but land.

Decker, 58 Wis. 461, 46 Am. Rep. 637; O'Reiley Mc Bean v. Chandler, 9 Heisk. 349, 24 Am. v. Kankakee Valley Draining Co. 32 Ind. 169: Rep. 308; Mugler v. Kansas, 123 U. S. 661, 31 Wurts v. Hoagland, 114 U. S. 611, 29 L. ed. L. ed. 210; Wilcox v. Paddock, 65 Micb. 23; 230; Tide- Water Co. v. Coster, 18 N. J. Eq. 518, People v. Gillson, 109 N. Y. 398; Lake Viero 90 Am. Dec. 634; State, Baltzell, v. Stewart, v. Rose Hill Cemetery Co. 70 Ill. 191, 22 Am. and Turlock Irrig. Dist. v. Williams, supra; Rep. 71; People, Butler, v. Saginar County Hagar v. Reclamation Dist. No, 108, 111 Ü. S. Supers. 26 Micb. 29; Jenal v. Green Island 701, 28 L. ed. 569. Draining Co. 12 Neb. 163.

Taxation in the sense of art. 2, SS 28 and 29, The act violates art. 2, § 8, of the Constitu- of our state Constitution means the exactions tion of Tennessee in undertaking to create a by the state government paid by the citizens to corporation by special act.

the state as a state, and for its support and exState v. Wilson, 12 Lea, 247; Keesee v. Civil actions paid by the citizens to the county and Dist. Bd. of Edu. 6 Coldw. 127; School Dist. municipal corporations as such for their purNo. 56 v. St. Joseph F. & M. Ing. Co. 103 U. poses as municipalities and counties. It means S. 707, 26 L. ed. 601; Board of Directors For revenue for the purposes of government. The Lerying Wabash River v. Houston, 71 III. 318; assessment form of taxation has as its foundaCypress Pond Draining Co. v. Hooper, 2 Met. tion special benefit to the property of the citi. (Ky.) 350; Schultes v. Eberly, 82 Ala. 242.

The act violates art. 7, 8 1 et seq., of the Mlinois C. R. Co. y. Decatur, 147 U. S. 190, Constitution of Tennessee in that it creates tax 37 L. ed. 132; Raleigh v. Peace, 110 N. C. 32, assessors and tax collectors and other officers 17 L. R. A. 330; Cooley, Const. Lim. 6th ed. without an election of the voters or the people. 613; Weeks v. Milwaukee, 10 Wis. 242; St. Jo.

Pope v. Phifer, 3 Heisk. 699; State v. Ross, seph, Gibson, v. Oven, 110 Mo. 445; St. Joseph, 7 Yerg. 75; People, Le Roy, v. Hurlbut, 24 Mich. Gibson, v. Farrell, 106 Mo. 437; Broad Street, 44, 9 Am. Rep. 103: People, Hubbard, v. Spring- 165 Pa. 475; Norfolk v. Chamberlain, 89 Va. wells Toop. Board, 25 Mich. 153; People, Park 196: People, Griffin, v. Brooklyn, 4 N. Y. 419, Comrs., v. Detroit, 28 Mich. 224, 15 Am. Rep. ; 55 Am. Dec. 266; Louisiana, Southern Bank, 202; Wilcox v. Paddock, and Schultes v. Eberly, v. Pilsbury, 105 U. S. 290, 26 L. ed. 1094; Mcsupra; Keasy v. Bricker, 60 Pa. 16; Cypress Bean v. Chandler, 9 Heisk. 350, 24 Am. Rep. Pond Draining Co. v. Hooper, supra; Harward | 308.


The judgment of the legislature expressed in of directors hereby created by this act, to open the method of taxation shown in the statute and hold said election in the usual manner precannot be questioned by the courts.

scribed by law for popular elections, after givReclamation Dist. No. 108 v. Hagar, 66 Cal. ing not less than ten days' public notice at five 54; Spencer v. Merchant, 125 U. S. 355, 31 L. (5) different public places in the overflowed ed. 767; Cooley, Const. Lim. 6th ed. 623; Ha- district, of each county named, and at the time gar v. Reclamation Dist. No. 108, 111 U. S. 705, ard places named by them; all the leading and 28 L. ed. 571.

qualified electors according to law shall be enThe court will not interfere "unless it appear titled to vote at such election, and at such electhere is an absence of power, or that the par- tion the proposition shall be written or printed ticular method prescribed for the assessment on the tickets so voted, 'For assessment,' or of the peculiar benefits to the abutting prop- 'No assessment,' and the said sheriffs shall erty is so plainly inequitable as to offend some make returns of the said election to the secreconstitutional principle.

tary of the levee board, and also to the secSt. Joseph, Gibson, v. Owen, St Joseph, Gibson, retary of state, Nashville, Tennessee, and if it v. Farrell, Raleigh v. Peace,and Norfolk v. Cham- appears that three fourths of those voting are berlain, supra.

in favor of the assessment, it shall then be the The bottom of the lake and the land outside duty of said board of directors to levy said tax the levee are excepted from taxation under $ 21 for that year, and annually thereafter, so long of the act. This ie in keeping with the founda- as it shall be found necessary to accomplish tion of a special or assessment tax,- that it is the objects of this act." Section 7 requires the an equivalent for a benefit conferred.

board of directors to elect four citizens of the Cypress Pond Draining Co. v. Hooper, 2 Met. district, one from each county--to act as a (Ky.) 350, cited in note to Cooley, Copst. Lim. I board of tax assessors for the district; and $ 8 6th ed. 604.

requires the board of directors to elect from

the citizens of the district four tax collectors, Caldwell, J., delivered the opinion of the one in and for the included portion of each court:

county. The 20th section empowers the board In June, 1895, the legislature of the state, of directors to issue and sell long-term, 6 per while in extraordinary session, by special act, cent bonds, from time to time, not to exceed created the Reelfoot Lake levee district, com- $700,000 in all, “to raise funds to carry out prising certain territory in the counties of Lake, the purposes” of the act; and the 21st section Obion, Dyer, and Lauderdale, "known as a is as follows: "That for the purpose of propart of Reelfoot Lake Basin of overflowed viding for the payment of the interest on the lands," and appointed two citizens of each of bonds authorized by $ 20, annually, and to those counties as “a board of directors” there provide a sinking fund for their ultimate refor, to serve until the 1st Monday in March, demption, it is hereby enacted that a tax per .1898, and until the appointment and qualifica- acre on all the lands embraced within ihe tion of their successors; the said board to have boundary described in § 1 of this act (except power to “sue and be sued, plead and be im- the area now covered by standing water of pleaded, and bave continual succession,” for Reelfoot lake, and the lands outside of the the purpose, and with the power and duty, of levee), sufficient in total amount to pay the in. erecting and maintaining a levee sufficient to terest on the boods issued, shall be assessed and shield and protect the territory mentioned from collected annually; provided, the said tax shall recurring overflows by the waters of the Mis- not exceed 10 cents per acre; and provided sissippi river. Acts 1895 (Ex. Sess.) chap. 1, further, that an assessment on the valuation of $$ 1-4. The 5th section of the act provides the lands, not exceeding two (2) per cent, shall for the organization of the board; for an esti- be assessed annually, and collected as provided mate by it of the amount of land within the for in Ss 6, 7, and 8 of this act, and the same district subject to overflow, of the length and shall be paid over to the treasurer of said height of the levee required for its protection, board, giving priority to the bonds of first and of the probable cost of the same; and for a date." submission of the question of the necessary On the 14th day of November, 1895, the taxation to a vote of the people of the district. Reelfoot lake levee district, by and through And the 6th section is as follows: "That for its board of directors, and jointly with certain the purposes of building and maintaining the other persons, landowners of Lake county, levee aforesaid, and for carrying into effect the filed the present bill in the chancery court of objects and purposes of this act, the board of Dyer county against the sheriff of the latter Jevee directors shall have the power, and it is county and other citizens thereof, some of hereby made their duty, to assess and levy a them being election officers and others land. contribution tax, not exceeding 10 cents per owners and taxpayers in that part of Dyer acre, and 2 per cent valuation tax on all the county within the levee district. ComplainJand embraced within the said boundary of ants alleged, among other things, and in subsaid levee district herein named; provided that stance, that the board of directors provided for the board of directors, through their president by the act was promptly organized, and that and secretary, shall notify the sheriffs of Dyer, it entered upon its duties as therein directed; Lake, Lauderdale, and Obion counties to open that it made all requisite estimates for conand hold an election at the various voting struction and taxation, and thereupon subplaces in the parts of the four (4) counties em- mitted to the vote of the people of the district, braced within the area and bounded and de. in the manner prescribed in the 6th section, scribed in the 1st section of this act; and it is their recommendation of a present annual tax hereby made the duty of the said sheriffs afore- of 10 cents on the acre, and of 2 per cent on said, upon receiving such notice from the board the value, of all taxable lands within the levee

district; that an election was held through mixed, shall be taxed, but the legislature may the district, upon this recommendation, on the except such as may be held by the state, by 10th day of September, 1895, and resulted, counties, cities, or towns, and used exclusively as shown by the reluros sent to the secretary for public or corporation purposes, and such of the board, in a total of 732 votes “For as may be held and used for purposes purely assessment,” and 632 votes for “No assess religious, charitable, scientific, literary, or edu. ment,” that 497 of the votes for “No cational, and shall except $1,000 worth of per assessment” were fraudulently cast in Dyer sonal property in the bands of each taxpayer, county by persons known not to be and the direct product of the soil in the hands legally qualified to vote in that election; of the producer or his immediate vendee. All that, counting such fraudulent and illegal bal. property shall be taxed according to its value, lots, the proposed taxation was defeated, and, that value to be ascertained in such manner as rejecting them, it was approved. And upon the legislature shall direct, so that the taxes these allegations complainants prayed the court shall be equal and uniform througbout the to purge the returns from specified precincts state. No one species of property from wbich in ihat county, and eliminate therefrom the al- a tax may be coīlected shall be taxed bigher leged illegal and fraudulent ballots, so that than any other species of property of the same the true result might be declared, and its legiti- value. mate advantages enjoyed by the people of the **Sec. 29. The general assembly shall bave levee district. The defendants, demurrer, power to authorize the several counties and indisputed the jurisdiction of the court, and also corporated towns in this state, to impose taxes impeached the act in question, as being in vio- for county and corporate purposes respectively, lation of the state Constitution in several par- in such manner as shall be prescribed by law; ticulars. Chancellor Cooper, hearing the and all property shall be taxed according to its cause upon these pleadings, sustained the de- value upon the principles established in regard murrer so far as it assailed the act for violation to state taxation. of the revenue provisions of the Copstitution, The language of both sectious is plain and but overruled it as to other questions. The positive. Its meaning, cannot be mistaken, act was adjudged unconstitutional, and the bill nor its force evaded. Both sections are mandismissed. Complainants have appealed, and datory in at least two points that are urged the debate of learned counsel before this court, against the present act. Section 28 imperathough embracing the whole demurrer, has tively requires (1) that all property, of whatþeen addressed chiefly to the grounds sustained ever kind, except that mentioned for condi. by the chancellor; one side denying, and the tional and unconditional exemption, shall be other affirming, the correctness of the decree taxed; and (2) that all such taxable property in respect thereto.

shall be taxed according to its value. . Section The power of taxation is an incident of 29, though not repeating the first sentence of sovereignty,

,-a prerogative, coeval with the $ 28, makes the same imperative requirements; government itself, and indispensable to its per so that whether a given tax law falls under the petuity. It is essentially a legislative power, one section or the other, or under both of them, and as such, in the general appointment of those requirements are equally applicable and governmental powers, falls to the legislative mandatory. In every instance the requiredepartment, under $ 3, art. 2, of the Constitu- ment that all property (except that mentioned tion which vests “the legislative authority” of for exemption) shall be taxed, rohibits the leg. the state in the general assembly.” Marr v. islature from making additional exemptions. Enloe, 1 Yerg. 454; Keesee v. Ciril Dist. Bd. of Nashville & K. R. Co. v. Wilson County, S9 Edu. 6 Coldw. 130; Waterhouse v. Cleveland Tenn. 608; Memphis v. Memphis City Bank, 91 Public Schools, 8 Heisk. 859; Memphis v. Union Tenn. 588. And likewise the requirenient & P. Bank, 91 Tenn. 550; Cooley, Taxd. 2d that all such property shall be taxed according ed. pp. 4, 41; Burroughs, Taxn. $ 6; 25 Am. to its value prohibits the legislature from lay. & Eng. Enc. Law, p. 18. In respect to taxa ing a tax on any property in specie, or by the tion, therefore, as to all other subjects of legis- acre. Under the Constitution of 1796, lands lation, the general assembly has full power to were taxed by the 100 acres; but the Constitupass any law not in conflict with the delegated tion of 1834, like that of 1870, contained the powers of the Federal government, or with the provision that “all property shall be taxed acrestrictions of the state Constitution; and he cording to its value. This means that every who would show the unconstitutionality of the property tax shall be graduated by the value tax legislation, as of other legislation, must be of the property on which it is laid. Jenkins able to put his finger on the provision of the v. Ewin, 8 Heisk. 478; Chattanooga v. NashConstitution, Federal or state, violated thereby. ville, C. & St. L. R. Co. 7 Lea, 561; South Bell v. Bank of Nashrille, Peck (Tenn.) 269; Nashville Street R. Co. v. Morrow, 87 Tenn. Hope v. Deaderick, 8 Humph. 8,47 Am. Dec. 406, 2 L. R. A. 853. The 6th section of the 597; Demoville v. Davidson County, 87 Tepp. act before us utterly ignores the first-named 220; Stratton Claimants v. Morris Claimants, requirement, in ibat it expressly limits taxes 89 Teon. 511, 12 L. R. A. 70. Confessedly, therein provided for to land alone, and thereby the act before us does not violate any provision exempts all property,—that without as well as. of the Federal Constitution. The restrictions that witbin the exceptions inentioned in the of the state Constitution on the subject of laxa fundamental law; and it also ignores the section are found in $S 28 and 29 of art. 2 of the ond-named requirement, in that it provides for Constitution of 1870. Such parts of those sec- taxation mainly by the acre, regardless of tions as it is desirable now to quote are in the value, and not exclusively according to value. following language, namely:

Section 21 of the act ignores both of those re"Sec. 28. All property, real, personal, or quirements in the same manner, and the first one additionally, in that it expressly exempts 2 Tenn. Legal Rep. 26, and in that of State v. from all taxation the area now covered by Butler (1883) 11 Lea, 419, and has in no instanding water of Reelfoot lake;" that area stance been departed from. We have been being of some value, however small, and not able to find no decision of the court, prior or being otherwise exempt.

subsequent, in conflict with that construction. There can be no doubt, therefore, that 58 6 In 1845 it was decided in the case of Franklin and 21 of the act violate the Constitution in v. Maberry, 6 Humph. 369, 44 Am. Dec. 315, the particulars mentioned, if the taxation con that the legislature might lawfully authorize templated by those sections is within and sub- the passage of a municipal ordinance requiring ject to the aforesaid limitations of the organic | lotowners to construct suitable sidewalks law. Complainants deny that it is within or along the streets in front of their property at subject to those limitations, and seek to sustain their own expeuse, and, in case of defauli, to that denial and to vindicate the act by the con pay to the corporation the cost of having the tention that the burden intended to be imposed same done for them, although the burdens imupon the citizen is a special assessment for the posed thereby were not equal and uniform as benefit of his land, and not a tax for the sup- to value, and were not intended to be so; but port of the state, os any county or municipality the ordinance involved in that case was sustherein, and, consequently, that those limita- tained as a legitimate police regulation, and tions are inapplicable in this case. The dis- not as a piece of tax legislation. Referring to tinction thus urged has been frequently con. the ordinance, Judge Green, speaking for the sidered by the courts. Judge Cooley, after recourt, said: "We do not think that this law ferring to some of the cases on both sides of levies a tax. A tax is a sum which is required the question, says: “The fact very clearly ap- to be paid by the citizens annually for revenue pears tbat, wbile there is not such a concur- for public purposes. But this ordinance levies rence of judicial opinion as would be desirable, no sum of money to be paid by the citizens. It the overwbelming weight of authority is in fa- requires a duty to be performed for the wellvor of the position that all such provisions for being and comfort of the citizens of the town. cquality and uniformity in taxation, and for It is in the nature of a puisance to be removed. taxation by value, have no application to these : . The ordinance in question is therefore special assessments.

It is safe to as not unconstitutional on the ground of being an sume, as a result of the cases, that the consti- unequal tax.” Id. 372. That ruling was fol. tutional provisions refer solely to state taxation, lowed in Washington v. Nashcille, 1 Swan, 180;. or, when they go further, to the general taxa in Whyte v. Nashville, 2 Swan, 369; and in tion for state, county, and municipal purposes; Nashville v. Berry, 2 Tenn. Legal Rep. 26. and though assessments are laid under the tax- | The last-named case, which was decided in ing power, and are in a certain sense taxes, yet 1877, refers to and approves the case of Mc Bean that they are a peculiar class of taxes, and not v. Chandler, 9 Heisk. 349, 24 Am. Rep. 308, within the meaning of that term as it is usually decided five years earlier; and this 9 Heisk. employed in our Constitutions and statutes. case approves the 6 Humph. and 1 Swan cases, They may therefore be laid on property speci- supra; saying, however, that they should not ally benefited, notwithstanding such constitu- be extended. tional restrictions as have been mentioned.” Coming back to the language of our ConstiCooley, Taxn. pp. 634, 636. It could serve tution, wbich, after all, must be controlling, no valuable purpose for us at this time to re- we can entertain no other opinion than tbat the view, or even cite, the numerous adjudged limitations of $ 28 of art. 2 apply equally and cases on this vexed question. Our examina- alike to every kind of taxes that the legislature tion of them justifies full concurrence with has the power to levy, whether they be levied Judge Cooley in the statement that the great for the support of the state government, as weight of authority, for one reason and an. such, in the strict sense, or more especially for other, favors the distinction insisted upon by the benefit of particular governmental agencies the complaicants in this case. Nevertheless, or instrumentalities duly ordained for the acit must be confessed tbat the adjudications complishment of authorized local ends. They found to be in the minority are not without apply to all taxes in which the state bas either a support in sound reasoning. The great diver- direct or indirect interest; and, if an exaction be gence in judicial decisions is due in part to a made of a citizen for an object in which the state substantial difference in constitutional pro- is entirely without an interest, that exaction visions, and in part to uplike interpretations is not taxation, whatever it may be called. put upon similar provisions. This court con. Such an exaction cannot be justified by the sidered the question elaborately in 1872, and assertion that it flows from an exercise of the ranged itself with those courts holding what is taxing power of the government. To come now the minority view. It thought and held within that power, the demand upon the citithat the distinction then asserted, and now zen must be made for a public purpose; and, contended for,-being a distinction between in order that a purpose be public, it must inlocal assessments and taxes,—was not allow.clude some advantage to the state in the aggreable in this state, and therefore that local as- gate, or in some one of its counties, incorporsessments according to lot frontage, and not ated towns, or other authorized governmental according to value, were “absolutely void,” agencies or instrumentalities. If the purpose because in conflict with SS 28 and 29 of art. 2 be exclusively private, then it is totally foreign of the Constitution, which requires tbat all to the taxing power, “It is the first requisite taxes shall be equal and uniform, according to of lawful taxation that the purpose for which value. Mc' Bean v. Chandler, 9 Heisk. 349, 24 it is laid shall be a public purpose.”. Cooley, Am. Rep. 308. That construction was ap Taxn. p. 55. Every legitimate function of the proved in the case of Nashville v. Berry (1877) | taxing power of the goveroment is embraced

« ForrigeFortsett »