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it by individuals, but from all unequal and undue assessments on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citi

zens, but by their representatives in the legislature. *332 The citizens are entitled to require, that the legisla

ture itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property may be unequally or unduly assessed.a

A just and perfect system of taxation is still a desideratum in civil government; and there are constantly existing well founded complaints, that one species of property is made to sustain an unequal, and consequently, an unjust pressure of the public burthens. The strongest instance in New-York, and probably in other states, of this inequality, was in the assessment of taxes upon waste and unproductive lands; and the oppression upon this description of real property, has been so great as to diminish exceedingly its value. This property is assessed in each town, by assessors residing in each town, and whose interest it is to exaggerate the value of such property, in order to throw as great a share as possible

tablished in those states by the county court, and affixed up at inns, like manner as the rates of toll at toll-gates and bridges.

• Property taken and appropriated to public uses or easements as highways, bridges, turnpikes, railroads, and the erections necessary or incident thereto and buildings for public uses as court houses, churches, school houses &c. are not a proper subject of taxation, and are generally exempted as being works for public use and benefit. Inhabitants of W. v. W. R. R. Com. 4 Metcalf R. 554. The constitution of Arkansas declares a sound principle in saying that all property subject to taxation shall be taxed according to its valuo and the value to be ascertained by laws making the same equal and uni. form, and that no one species of property should be taxed higher than another species of property of equal value, art. 9. In New-Hampshire, the law gives a very efficient power to the collectors of taxes. The collector is not bound to search for property on which distrain, but if the party does not pay the tax on due notice, the collector may arrest his person unless he produces property sufficient, and with an indemnity as to title, if required. Kinsley v. Hall, 9 N. H. Rep. 190.

of the taxes to be raised within the town upon the nonresident proprietor. The unreclaimed lands, which the owner finds it impossible to cultivate, or even to sell, without great sacrifice, and which produce no revenue, are assessed, not only for such charges as may be deemed directly beneficial to the land, such as making and repairing roads and bridges, but for all the wants and purposes of the inhabitants. The lands are made auxiliary to the maintenance of the poor, and the destruction of wild animals ; and the inhabitants of each town have been left to judge, in their discretion, of the extent of their wants. Such a power vested in the inhabitants of each town, of raising money for their own use, on the property of others, has produced, in many instances, very great abuses and injustice. It has corrupted the morals of the people, and led to the plunder of the property of non-resident landholders. This was carried to such an enormous extent in the county of Franklin, as to awaken the attention of the legislature, and to induce them to institute a special commission, to inquire into the frauds and abuses committed under this power, and also to withdraw entirely from the inhabitants of new towns, the power of raising money by assessments upon property, for the destruction of noxious animals.a *333 The ordinance of congress, of July 13th, 1787,5 passed for the government of the north-western territory, anticipated this propensity to abuse of power, and undertook to guard against it, by the provision, that in no case should any legislature within that territory tax the lands of non-resident proprietors higher than those of residents. There is a similar provision in the constitution of Missouri, and one still broader in that of the state of Illinois. It is declared, generally, in that of the latter state, that the mode of levying a tax shall be by valuation, so that every

L. N. Y. sess. 45. ch. 26. Bot. 9, 10––ch. 126.
Journals of the Confederation Congress, vol. xii, p. 58

person should pay a tax in proportion to the value of his property in possession.

The duty of protecting every man's property, by means of just laws, promptly, uniformly, and impartially administered, is one of the strongest and most interesting of obligations on the part of government, and frequently it is found to be the most difficult in the performance. Mr. Humea looked upon the whole apparatus of government as having ultimately no other object or purpose but the distribution of justice. The appetite for property is so keen, and the blessings of it are so palpable, and so impressive, that the passion to acquire is incessantly busy and active. Every man is striving to better his condition ; and in the constant struggles, and jealous collisions, between men of property, and men of no property, the one to acquire, and the other to preserve ; and between debtor and creditor, the one to exact, and the other to evade or postpone payment; it is to be expected, especially in popular governments, and under the influence of the sympathy which the poor and the unfortunate naturally excite, that the impartial course of justice, and the severe duties of the lawgiver, should, in some degree, be disturbed. One of the objects of the constitution of the United States, was to establish justice ; and this it has

done by the admirable distribution of its powers, *334

and the *checks which it has placed on the local

legislation of the states. These checks have already, in their operation, essentially contributed to the protection of the rights of property.

Government is bound to assist the rightful owner of property, in recovery of the possession of it, when it has been unjustly lost. Of this duty there is no question. But if the possessor of land took possession in good faith, and in the mistaken belief that he had acquired a title from the rightful owner, and makes beneficial improve

Essayı, vol. i. p. 35.

ments upon the land, it has been a point of much discussion, whether the rightful owner, on recovery, was bound to refund to him the value of the improveinents. This was the question in the case of Green v. Biddle,a which was largely discussed in the supreme court of the United States, and which had excited a good deal of interest in the state of Kentucky. The decision in that case was founded upon the compact between the states of Virginia and Kentucky, made in 1789, relative to lands in Kentucky, and therefore it does not touch the question I have suggested. The inquiry becomes interesting, how far a general statute provision of that kind is consistent with a due regard to the rights of property. The Kentucky act, of January 31st, 1812, declared, that the bonæ fidei possessor of land should be paid, by the successful claim. ant, for his improvements, and that the claimant must pay them, or elect to relinquish the land to the occupant on being paid its estimated value in its unimproved state.b

By the English law, and the common law of this coun try, the owner recovers his land by ejectment without being subjected to the condition of paying for the inprovements which may have been made upon the land. The improvements are considered as annexed to the freehold, and pass with the recovery. Every possessor makes such improvements at his peril. But if the owner be

• 8 Wheaton, 1.

b. This act, or occupant law, was held by the supremo court of the United States to be unconstitutional. The legislature of Kentucky then passed the act of January 7th, 1824, with a view to counteract the decision in Green v. Biddle ; and it subjected to forfeiture, without office found, or judgment, all patented lands of more than one hundred acres, unless the owner, by the 1st of August, 1825, caused a rateable portion of the land to be cultivated, and on forfeiture, the title was to vest in the occupant. This act was held by the Kentucky courts to impose an arbitrary, unjust, oppressive, and illegal condition upon the patentees, and was in violation of their grants, and unconstitutional and void. Gaines v. Buford, 1 Dana's Ken. Rep. 481.

• Frear v. Hardenbergh, 5 Johns. Rep. 272. This is the rule in the

obliged to resort to chancery for assistance in the *335 recovery of the rents and *profits, Lord Hardwicke

once intimated, in Dormer v. Fortescue, a that the rule of the civil law, which is more equitable on that point than the English law, would be adopted ; and consequently the bonæ fidei possessor would be entitled to deduct the amount of his expenses for lasting and valuable improvements, from the amount to be paid, by way of damages for the rents and profits. The same intimation was given in the court of errors in New York in Murray v. Gouverneur ;b and that in the equitable action at law, for the mesne profits, the defendant might have the value of his improvements deducted by way of set-off. These were extra judicial dicta ; and there is no adjudged case, professing to be grounded upon common law principles, and declaring that the occupant of land was, without any special contract, entitled to payment for his improvements, as against the true owner, when the latter was not chargeable with having intentionally laid by and concealed his title. We have a statute in New York relative to lands, in what was for

Scotch law, as to improvements made by a tenant for his accommodation. Lord Stair's Institutions, vol. 1. 137. edit. 1832. . 3 Atk. Rep. 134.

2 Johns. Cases, 441. • The suggestion, in the cases referred to in the text, have been considered as forming just ground for mitigation of damages in an action for the mesne profits; and the value of permanent improvements, made in good faith, has been allowed, to the extent of the rents and profits claimed by the plaintiff. Hylton v. Brown, C. C., April, 1808. Wharton's Dig. tit. Ejectment, pl. 74. Jackson v. Loomis, 4 Cowen's Rep. 168. Ruffin, Ch. J., in Dowd v. Fawcett, 4 Dev. N. C. Rep. 95. A court of equity on a bill for rents and profits, after a recovery at law, against a bona fide possessor for valuable consideration, will allow for beneficial improvements. Green v. Biddle, 8 Wheaton's Rep. 77–81. Bright v. Boyd, 1 Story's Rep. 478. 495. Mathews v. Davis, 6 Humphrey Tenn. R. 324. Judge Green, in this last case said that the case of Bright v. Boyd, was the first case in which the bona fide purchaser was allowed compensation against tho true owner, for his beneficial improvements.

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