value. That Constitution did not confer the power of taxation on the Legislature in direct terms. It did not in terms then restrict taxation otherwise than by providing that all property subject to taxation should be taxed in proportion to its value. The Bill of Rights of that Constitution provided that private property should not be taken or applied to public use without just compensation.

A tax of one-half of one per cent was levied on the lands of Mr. Wells lying outside of the city limits, but within one-half mile of such limits. The lands were advertised for sale regularly according to statutes and ordinances. Mr. Wells applied for and obtained a temporary injunction restraining the sale on the ground of the constitutional invalidity of the tax and that the sale would cast a cloud on the title to his land. The con

stitutional invalidity of the statute arose on a demurrer to the petition. The demurrer to the petition was sustained in the court below, but the judgment was reversed above.

Judge Leonard in rendering the opinion of the court said:

"The question that has been argued before us upon this record, and the only one that we have considered is, whether it is competent for the Legislature to confer upon the city of Weston authority to tax, for local purposes land, lying beyond the corporate limits. We have considered the matter with all the care that it is our duty to do, when we are required to decide upon the constitutional validity of a legislative act, but clearly of opinion that this provision of the charter violates the constitutional rights of the citizen, which we are to protect, we are constrained to pronounce accordingly. The judgment upon the demurrer will therefore be reversed and the cause remanded.

"It is true the Legislature possesses the uncontrolled power of taxation, with the single limitation

that 'All property subject to taxation shall be taxed in proportion to its value,' and this authority to tax, they may undoubtedly delegate to subordinate agencies, such as county tribunals and municipal corporations, to be assessed and applied locally; but here the attempt is to authorize a municipal corporation-charged with the subordinate government of persons and things within its limits, and having, as incident to this, the power to tax these persons and things for local purposes-to impose a tax upon the lands lying beyond its limits; or, in other words, arbitrarily, under the mask of a tax, to take annually from those who are without its jurisdiction a certain portion of their property lying within a half mile of the corporate limits; which we think can not be done."

The tax was here one-half of one per cent. There was here no infringement of the rule of constitutional law requiring all property subject to taxation to be taxed in proportion to its value. The charter is unconstitutional. Why? Some other provision of the Constitution has been infringed. Notwithstanding Wells' land was taxed 'in proportion to its value,' in precise accordance with this constitutional provision still this provision of the charter violates the constitutional rights of the citizen.

"As the very purpose of instituting government is the protection of the citizen in his person and property, power to violate these rights would seem to be quite beyond the lawful authority of any government; and certainly the legislative department of this government cannot arbitrarily take the property of one citizen and give it to another, and, of course can not authorize others to do so. This is not within the power of any properly constituted government, and our American governments are expressly prohibited from taking private property, even for public use, without just compensation to the owner. To justify even such an invasion of

private property, it must be shown that the use for which it is about to be taken is a public one, and that the compensation to be given has been sufficiently secured to the party; and certainly from the very purpose of all just governments, and this express provision we may safely imply a constitutional prohibition against the arbitrary taking of private property for private use without any compensation. This, however, seems to be substantially the authority here given: those who live in the town are authorized to exact annually from those who live adjacent to it, a certain portion of their property, to be applied, under their direction, to their own local purposes. And this we think can not be done under our government, which was instituted exclusively for the protection of individual rights, and where private property is expressly protected from any appropriation of it, even to public use, without full compensation to the owner." And now by express constitutional provision in all the States, with few exceptions, private property can neither be taken nor damaged for public use without "just compensation" paid in advance. The citizen is not now required or obliged to enter into an unequal contest against a powerful adversary being either the State or some corporation having all the powers of the state government.

This municipal tax law is judicially determined to be an authority "To take annually from those who are without its jurisdiction a certain portion of their property lying within a half mile of the corporate limits, which we think can not be done."

The reader will note the difference between taxation by the State on the one hand and taxation by a city, town, village or county or other corporation exercising a delegated authority, on the other hand. The state legislature can tax in all cases not prohibited by the Constitution of the State or the Constitution or

laws of the United States; the county, city, town, village or other municipal corporations can tax only in the cases authorized. When the State taxes, the question is, "Is the authority to tax prohibited?" When the county, city, town, village, or other municipal authority taxes, the question is "Is the authority given?”

In this case the court recognized the validity of a delegation (to the city of Weston) of this taxing power notwithstanding the general rule of constitutional law that legislative power can not be delegated. "No instance it is believed, can be found where these corporations have been clothed with power to tax others not within their local jurisdiction for their own local purposes and if the Legislature possess the power now claimed, over private property, they ought to exercise it themselves and not delegate it to those whose interest it is to abuse it."

This Weston tax law takes the property of one man and gives it to another. While this delegated power in the Weston charter is invalid as a delegated authority to take the property of one man and give it to another I do not understand the case to hold that the Legislature of the State may take the property of one man and give it to another. The Weston taxation law took private property of Mr. Wells and vested it in a number of citizens. If that act of taxation had been done directly by the State it would still have been a taking of the citizen's private property for private use.

The taxing ordinance of Weston and the sale thereunder threatened and enjoined will cast a cloud on Mr. Wells' title to his land. The threatened sale would be invalid because the ordinance is invalid; the ordinance is in form authorized by the town charter of Weston and if the authority to tax is valid the sale and deed will convey his title to the land, i. e., it takes Mr. Wells' land and gives it to the people of Weston. A direct enactment by the Legislature would be no better. The

authority is to take private property for private use. The Legislature can not do this directly. It can not authorize Weston to do so. Hence this charter of Weston is on this point invalid; it contravenes a provision (implied) of the Constitution that private property shall not be taken from one man and given to another for private use. This decision was rendered in 1856. While under this tax law Mr. Wells' land could have been taken and sold and the title passed to others but for the injunction, yet this is not a condemnation proceeding. It was not proposed to condemn Mr. Wells' land to public use. It is in no sense an exercise of the right of "eminent domain." The taxing was a taking to the extent of the tax. If the Legislature may tax onehalf of one per cent it may tax one hundred per cent in the absence of some constitutional limitation as to rates. This taxation law would have been void if we had never adopted the constitutional provision that "All property subject to taxation shall be taxed in proportion to its value."

The City of St. Charles v. Nolle, 51 Mo. 122, decided at October term, 1872, is a case of taking personal property under the guise of taxation.

The city of St. Charles, Missouri, had power by her charter to tax wagons used to carry property from places without to places within the city, and from places within the city to other places within the city. The ordinance deemed proper to carry out this power was passed. Fritz Nolle, not a resident of the city of St. Charles, but living on a farm five miles from the city, was employed by a lumber firm in the city of St. Charles to haul lumber for the firm from the river landing seven miles below St. Charles to the firm's lumber yard in St. Charles. Mr. Nolle had no license and he was prosecuted for violation of the city ordinance. The court in rendering the opinion (51 Mo. 122, loc. cit. 124) say:

"Besides, if the Legislature had given the power

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