tion). The decision was that the provision did not extend to local taxation, but only to general taxes for the State or county, town or city.

The first street-paving tax case to come before the Supreme Court of Missouri was that of City of St. Joseph v. Anthony, 30 Mo. 537 (A. D. 1860). The tax was "according to the frontage."

"The owners of the lots charged therewith shall be bound to pay said costs charged like liabilities contracted by themselves and may be sued therefor accordingly." And the tax-bill on each lot is a lien on that lot. The act incorporating St. Joseph was held unconstitutional by the lower court, on what ground does not appear from the opinion except by vague inference:

"The principal point on which this case is brought here has been several times before this court. In the case of Inhabitants of Palmyra v. Morton, 25 Mo. 594, and Egyptian Levee Co. v. Hardin, 27 Mo. 495, and Garrett v. St. Louis, 25 Mo. 505, the question was discussed and determined."

The above fifty words in four lines is the whole opinion on the subject. But the decision was a mere "brutum fulmen." The case is one example out of thousands where constitutional safeguards are disregarded. Says a recent writer (James M. Gray, on Limitations of Taxing Power and Public Indebtedness, A. D. 1906, sec. 1842, p. 943):

"The fact is that the practice in making these assessments grew up as a matter of public convenience without much regard to constitutional restrictions. The courts have twisted constitutional theories to suit the established practice."

The first Missouri case, cited supra, made the property-owner personally liable for the tax without any lien on the land. The statute gave only an action

of debt. The second case is decided on the ground that the tax is a benefit to the extent of the amount of it and that the benefit can be better estimated by the acre than by the value, and the third is not considered with reference to the provision of the Constitution in controversy in this and similar cases.

"It is evident that the advantages or benefits must have some limit" (Garrett v. St. Louis, 25 Mo. 512). If the advantages or benefits to Garrett must have some limits to avoid infringement of the constitutional provision that "private property shall not be taken for public use without just compensation," then the same rule applies to any other landowner on the street, no part of whose land is taken for the street.

The rule that sells his land to pay a benefit which is general, not special, peculiar, exceptive, is just as inimical to the rule of constitutional law in question as the rule that withholds part of his "just compensation" or condemnation money for a general benefit to that part of the land not taken, or that sells his adjoining land to pay it.

In St. Joseph v. Anthony, if the rule of law had been to assess the cost of the street-paving on the adjoining land according to the benefit, then the benefits in the St. Joseph case "must have had some limit" as well as in Garrett v. St. Louis. Then to sell the abutting land in the St. Joseph case for general benefits conferred by the paving, would be just as inimical to this rule of constitutional law as to retain part of the just compensation due to Mr. Garrett or to sell any abutting land for general benefits.

If this special tax-law, authorizing the levying of a special tax according to benefit, infringes the rule of constitutional law that "private property shall not be taken for public use without just compensation," in cases where the benefit is general, will it be a less in

fringement of that rule if the same amount is taken apportioned according to value or according to frontage, or by the acre or by the square yard?

In condemnation cases it is general constitutional law that the "just compensation" required by the Constitution may be diminished by these special, peculiar, exceptive benefits not enjoyed in common with other landowners in the vicinity. This just compensation is made up of the value of the land taken and damages to the remainder of the land not taken. So far no power is exercised except that of eminent domain. When benefits or advantages are considered, then the power of taxation is exercised. The power that ascertains these special, peculiar, exceptive benefits and deducts them. from the "just compensation" of the owner of the land taken for public use, is the taxing power.

If in place of deducting these advantages or benefits from the "just compensation," they be made a lien or charge on the abutting land or on other land or other property, the power exercised is still the taxing power. The constitutional provision that "All property subject to taxation shall be taxed in proportion to its value," does not apply to local taxation. For general and special taxation the taxing power may take one hundred per cent. No constitutional restriction as to rates will apply to special taxes, unless so expressed in very plain terms. It is an exemption from taxation to be strictly construed against the lotowner, but liberally for the city and contractor. In Garrett v. St. Louis, 25 Mo. 505, Garrett's "just compensation" was assessed at $2,208. The public can not acquire title to Mr. Garrett's land without paying him for it. The necessary funds can be obtained only by taxation, general or special, on all the property of the State, or on all the property of the county, or on all the property of the city. The legislative power is restricted in tax

ation of property; it must be according to value. It was not (prior to 1875) restricted as to rates and if some other constitutional provision does not prevent, the legislative power may tax one hundred per cent. In every condemnation, the "just compensation" of the owner may be taken by taxing it one hundred per cent.

If a man own two acres of land, may the public take one acre at its value ($100) and then tax the $100 one hundred per cent to pay it, or sell the other acre to pay it? Sell the acre not taken to Smith for its value (one hundred dollars) and pay the owner his "just compensation." He had two acres of land worth $200; now he has no land and only one hundred dollars.

What prevents the State from opening a road through all the lands of any farming district and ascertaining the "just compensation" therefor, and then tax the adjoining property (damaged though it may be) to pay the amount. We, indeed, hold our real estate by a mere "rope of sand." This boasted Constitution, indeed, "Holds the word of promise to the ear but breaks it to the hope."

This "just compensation" must in all cases be subject to be taxed the same as all other property in the State. If the road be made a state burden, then this "just compensation" must or may be taxed along with all other property of the State in proportion to its value. This "just compensation" may in like manner be subjected to a county tax or city tax for a like purpose. The whole fund necessary to pay this "just compensation" may be raised by a general state tax, or general county tax, or general city tax. If the legislative power may thus tax this fund to a small degree, that power may tax it to a large degree in the absence of any constitutional restrictions as to rate or per cent (and there is none in terms in local taxation).

The express rule of constitutional law that "Pri

vate property shall not be taken for public use without just compensation," controls this implied rule that the power to tax is without any restraints because none are expressed "eo nomine" and in terms.

Now to levy a local tax is unconstitutional if there is a general benefit. It is constitutional to levy the same tax by the front foot even if there be a damage.

A general benefit defeats the one law as unconstitutional; a general damage saves the other as being perfectly constitutional.