« ForrigeFortsett »
KENTUCKY COURT OF APPEALS.
J. B. BRIGGS, Trustee, etc., Appt., tax which had been assessed against plain-
tiff's property. Reversed.
The facts are stated in the opinion.
Messrs. Wilbur F. Browder and M. P.
Sloss for Briggs and Beall.
Messrs. J. H. Bowden and S. R. Crewd.
son for town of Russellville.
Landes, J., delivered the opinion of the
court: Land within the limits of a town, although These two cases originated in the Logan cirit has never been divided into building lots, is cuit court, involve the same questions and subject to municipal taxation if it is near rail- stand upon substantially the same state of facts, road depots and shops, has convenient access except as to the condition, use, and situation of to the highways, and lies only a short distance the parcels of land, which it is claimed on the from the business portion of the town, so that it
one band and denied on the other are subject to enjoys the police protection and otber benefits of
muuicipal taxation. On that account they the towp. (June 20, 1896.)
were heard together, both in the court below
and in this court. The litigation is friendly, PPEAL by plaintiff from a judgment of the object being to ascertain whether or not the ing to enjoin defendant from proceeding to taxes for municipal purposes on certain land collect a tax wbich had been assessed against belonging to the appellant J. B. Briggs, trustee, plaintiff's property. Affirmed.
in one case, and to the appellee, J. H. Beall, in the Circuit Court for Logan County en- within the limits of the town by an act of ihe joining defendant from proceeding to collect general assembly entitled "An Act to Extend
NOTE.- Municipal taxation of rural lands within city cannot have the aid of the courts to relieve the limits of the corporation.
him from municipal taxation. Cary v. Pekin, 88 I. Validity of exemption or discrimination in
III. 154, 30 Am. Rep. 543. rates.
Under a constitutional provision that all laws exJI. Construction of statutory exemption or dis. empting property from taxation other than that crimination.
provided for in the Constitution shall be void, an III. Right to repeal exemptions.
exemption of agricultural property from municiIV. Validity of taration of farm lands.
pal taxation when such property is not provided V. Power of courts.
for in the Constitution is void. Smith v. Americus, VI. What property is taxable.
89 Ga. 810. VII. Power of municipality to erempt.
On the other side, it is held that the provision of VIII. Original incorporation.
the Indiana Constitution requiring a uniform and IX. Assexsments.
equal rate of assessment and taxation does not apX. Method of raising question.
ply to municipal taxes. Hamilton v. Ft. Wayne,
40 Ind. 491. There is much contrariety of opinion among the So, a provision in a city charter exempting from courts upon all branches of this question.
taxation for fire-department purposes all upplatted 1. Validity of eremption or discrimination in rates. sively for farming purposes, is a reasonable and
land containing 10 or more acres, and used excluLearing out of consideration for the present the valid provision. Baldwin v. Hastings, 83 Mich. 639. conflict upon the question whether farm property The Michigan Constitution requires a uniform can be constitutionally taxed for municipal pur- rule of taxation (art. 14, 8 11), but the court does poses, there seems to be a hopeless conflict, in prac- not seem to have considered the effect of that retical application of the rule if not in actual deci- quirement upon the question. sion, upon the question whether or not an attempted The land used for agricultural purposes may be exemption of such property is valid.
taxed at a lower rate than that used for city purIt is beld that where the Constitution requires poses. Gillette v. Hartford, 31 Conn. 351. that all taxes shall be uniform the legislature can- There seems to be no provision in the Connectinot provide for the exemption or lower taxation cut Constitution upon the question. of farm land within the limits of the municipality. A law exempting agricultural tracts of more Knowlton v. Rock County Supers. 9 Wis. 410. than 10 acres in size, wbile allowing tracts of less
So, wbere the Constitution provides for the taxa- than that size to be'taxed, does not violate consti-
So, under a constitutional provision that all 73 Iowa, 29.
A statute exemptiog agricultural land from taxaUnder a constitutional provision that all taxes tion in extending the limits of a town is not in must be uniform the owner of agricultural land in conflict with the provisions of a Constitution
and Detine the Corporate Limits of the Town poll-tax of not exceeding $2" on each titbableof Russellville, Authorize the Election of a Po- inbabitant of the town, for municipal purposes. lice Judge, and Provide a Sinking Fund for Subsequently another act was passed, entitled Said Town," approved March 12, 1869 (2 Sess. “An Act to Amend and Reduce into Ope the Acts 1869, p. 236). Previous to the passage of Acts Relating to the Town of Russellville," said act, the boundary of the town was in a very approved May 1, 1880 (2 Sess. Acts 1879, irregular and unsatisfactory shape, and wbile, p. 874), which was substantially a new charter, in 1869, it was a thrifty, though quiet, town, and under which the municipal affairs of the having a population of near 2,000 souls, with a town were conducted, until the passage of the reasonable prospect of growth and of steady act for the government of towns of the fifth improvement, having the advantage of one class, approved July 3, 1893, to wbich class tbe railroad, with the prospect of the early con- town of Russellville now belongs. By tbe act struction of another, the main object of the ex of 1880 the boundary of the town was contintension of the limits seems to have been to cor- ued as fixed by the act of 1869, and the muni. rect the irregular shape of the lives defining the cipal authorities were empowered to assess and limits of the town, and at the same time to ex. collect taxes for municipal purposes annually tend the jurisdiction of tbe municipal govern- upon all of the real and other property in the ment over a considerable territory claimed to be town as of the 10th day of January, upon a list actually suburban, although not within the of the “taxable inbabitants and owners of lawful limits of the town. This the act ac- property in said town," and the marshal of the complished by describing a perfect square of town was invested with "all the powers and territory, each of the four sides extending 410 authority within the town of Russellville to poles, with the county court-bouse and public collect the town tax as sheriffs have in collect square in the center. By a previous act, enti- ing the state tax and county revenue.” Nottled “An Act to Amend the Charter of the withstanding the ample power of taxation thus Town of Russellville," approved March 5, 1868 conferred on the municipal authorities to assess (2 Sess. Acts 1867–68, p. 219), the chairman and and collect taxes on their property within the board of trustees of the town were authorized corporate limits of the town, no effort was and empowered to assess and collect annually made by the said authorities to assess or levy or an ad valorem tax "of not exceeding 50 cents on collect from the appellant Briggs and the apthe $100 worth of real and personal estate pellee Beall taxes upon their land which was within the corporate limits of said town, and a brought into the limits of the town by the act of
which probibit the exemption of private property, was not retroactive in its operation. Stilz v. Infrom taxation and require all property to be taxed dianapolis, 81 Ind. 582. in proportion to its value. Kansas City v. Cooly, Although the land is platted for the purpose of 69 Mo. 127.
sale in parcels, each of which contains more than The legislature may exempt from city taxation 5 acres, it is not within the provision of the Indiana land held for farming purposes. Lee v. Thomas, statute taxing platted land if it is vacant and not 49 Mo. 112.
used for town purposes. South Bend v. Cusbing. But under a new Constitution the Missouri court | 123 Ind. 290. bas changed its rulings.
In Henderson v. Lambert, 8 Bush, 607, it appeared A statutory provision permitting the assessment that farm lands had been expressly exempted from of land in a city not laid off into lots and blocks city taxation by act of the legislature. only by the acre as agricultural land is in conflict In St. Louis v. Allen, 13 Mo. 400, the power to tax with a constitutional provision that all property the added land was made dependent on the making subject to taxation shall be taxed in proportion to of certain suggested improvements in the vicinity its value. State, Griswold, v. O'Brien, 89 Mo. 631. of the added territory.
A statute providing that no tract of land in a But when the improvement was made the land city over 3 acres in extent sball be subject to might be taxed at city rates for the remainder of taxation so long as it remains undivided and is the year, Benoist v. St. Louis, 19 Mo. 179. used for agricultural purposes is in conflict with a A requirement that the land shall be assessed by constitutional provision requiring taxes to be uni- the acre does not require the assessment to be made form upon the same class of subjects within the at the value of the land for farm purposes, but the territorial limits of the authority levying the same taxing power may take into consideration tbe value and forbidding exemptions other than those de- of the land for any purpose. Benoist v. St. Louis, clared in the Constitution. Copeland v. St. Joseph, 15 Mo. 668. 126 Mo. 417.
In Serrill v. Philadelphia, 38 Pa. 355, the court
construed certain tax exemptions which were given II. Construction of statutory exemption or discrimi- by statute in favor of rural lands, holding that one nation.
covering all rural lands was repealed by a subseThere are several cases in which statutory ex- quent one covering only marsh lands so as not to emptions or discriminations have been construed give a double exemption to the latter. or enforced without any discussion as to their The mere fact that the land is held with the exvalidity.
pectation of a rise in value will not make it taxable Under the Indiana act of 1852 a tract of land, if it is used for farm purposes or is unoccupied, less than 20 acres of which were used for farm pur- under a charter making farm lands or land vacant poses, was nor exempt from city taxation. Conklin or unoccupied taxable at a lower rate than general v. Cambridge City, 58 Ind. 130.
city property. Gillette v. Hartford, 31 Conn. 351. A particular statute exempting farm lands within Under the Louisiana act of 1850 a distinction is a certain city from municipal taxation is not re-made between rural and urban property. Munici: pealed by a general statute subsequently passed pality No. 3 v. Michoud, 6 La. Ann. 605. without negative words, giving a general power of Under the Indiana statutes agricultural land taxation but without necessary conflict between within a city is subject to city school taxes and the two. Blain v. Bailey, 25 Ind. 165.
such special assessments as affect it in the same The Indiana act of 1877 providing for an exemp- manner as other property, but it is only subject to tion of agricultural lands from municipal taxation general city taxes to an amount equal to the rate
1869, and afterwards by the act of 1880, until ments were erected thereon in 1872. The the efforts made for that purpose which fur- track of the Louisville & Nashville Railroad nished the occasion for the present litigation. | lies in front of this ground and is the south As we take it, the taxes now involved were as- boundary of it. We do not deem it necessary sessed in 1893; under the authority of acts in to go into lengthy detail of the facts material force previous to the passage of the said act of especially in the Briggs case. It is sufficient July 3, 1893. Action was instituted by each to say that the facts show that, although there of ihe parties seeking to enjoin the town and was no public street or alley or sidewalk the collector of the town tax from proceeding contiguous to his ground, he and his family had to collect these taxes, which had been assessed convenient access to the public streets of the by the municipal authorities on their said re- town by a driveway out of his lawp across the spective parcels of land within the limits of said railroad track, and thence across a meadow the town. The issues having been made up in in which Mrs. Briggs had an interest, to the each case, in the case of the appellant Briggs Hopkinsville pike, laid down on the map of the the court adjudged, in substance, that his land town as “Hopkinsville Street,” which leads to was lawfully assessed, and that he was liable the public square and the principal business part for the tax, and his petition was dismissed; of the town, and which is a prolongation of the but in the case of the appellee Beall, the court main center street in the original boundary. adjudged, in brief, that his land was not law. His ground is 32 poles from the passenger defully assessed, or subject to the tax, and that pot of the said railroad, at which is the nearhe was not liable therefor, and the municipal est sidewalk. The same may be said concernauthorities were pepelually enjoined from pro- ing the land of appellee Beall. Brigg's res. ceeding to collect the tax that they were then idence is also something more than 1,000 seeking to collect from him on his said land. fcet from the electric-light plant which supThese appeals are) prosecuted to reverse the plied the town, and from which his residence judgment in each case.
was supplied, over a line erected at his own In the case of Briggs, trustee, it appears expense, with light, which was the nearest that he was living with his family upon 12 point in the business part of the town to his acres of land that were included witbin the house. He had a number of tenement houses limits of the town by the acts of 1869 and situated south of the said railroad track, and 1880, wbich have been referred to, and tbat somewhat nearer to his ground than the electhe dwelling house and all other improve tric-light plant. The facts show further that assessed in the several townships for general town- / stitutional. Giboney v. Cape Girardeau, 58 Mo. 141; ship purposes. Leeper v. South Bend, 106 Ind, 375; / State, Patterson, v. McReynolds, 61 Mo. 203. Dickerson v. Franklin, 112 Ind. 178.
The charter may authorize taxation of all the
property within the corporate limits. Barker v. III. Right to repeal exemptions.
State, 18 Ohio, 514. An exemption from municipal taxation may be
Farm land enjoying no direct advantage from repealed at any time. McCallie v. Chattanooga, 3 the municipal improvements is not exempt for Head, 317.
tbat reason from payment of municipal taxes. The limitation of the rate of taxation to be placed Hummelstown v. Brunner, 17 Pa. Co. Ct. 140. on agricultural land may be repealed at any time.
The question of the taxation of rural property Washburn v. Oshkosh, 60 Wis. 453.
within the limits of a municipality rests solely with The legislature may repeal a provision for the the legislature, and such taxation is not unconstituexemption or lower taxation of agricultural prop- tional because not equal and uniform for the reason erty at any time. Powell v. Parkersburg, 28 W.
that the rural property does not receive the same Va. 698; Probasco v. Moundsville, 11 W. Va. 501.
benefit that urban property does, nor because it is A statute fixing the size of the tract which is a taking of private property for public use without exempt from taxation lower than was the rule compensation. Norris v. Waco, 57 Tex. 635. when certain property was annexed to the city will
The taxation of a dairy farm included in the city apply to that property if it is within its provisions. limits for general municipal purposes is not an unWinzer v. Burlington, 68 Iowa, 279.
constitutional taking of private property without
just'compensation,--at least wbere the Constitution IV. Validity of taxation of farm lands.
requires that taxes shall be uniform in respect to
persons and property within the jurisdiction of Upon the question of the power to tax farm land the body levying the tax. Ferguson v. Snohomish, there is also direct conflict.
8 Wash. 668, 24 L. R. A. 795. One line of cases holds that
If the legislature includes the new territory in The taxation of farm property within the limits the municipality without any direction as to its of a city for city purposes cannot be said to be a liability for taxation it will be liable to municipal taking of property without due process of law how- taxation for past debts as well as for current exever great the bardsbip or unequal the burden. penses. Madry v. Cox, 73 Tex. 538. Kelly v. Pittsburgh, 104 U. 8. 78, 26 L. ed. 658.
If the proceedings to incorporate the land into A statute giving a municipal corporation power the city are valid the taxes will be valid. Lancasto tax all land within its limits is not in violation ter County v. Rush, 35 Neb. 119. of the Indiana Constitution, cannot be held void If the legislature has power to annex the terribecause it is unjust, and does not take private tory to the municipality, when it is annexed the property for public use without compensation. municipality has the right to tax it. Weeks v. Logansport v. Seybold, 59 Ind. 225.
Milwaukee, 10 Wis. 242. The probibition against taking private property On the other side it is beld thatfor public use without compensation has no appli- Subjecting to municipal taxation farm property cation to the taxation of property. Groff v. Fred which cannot be benefited by municipal expend. erick City, 44 Md. 67; Martin v. Dix, 52 Miss. 53, 24 itures is a taking of private property for public purAm. Kep. 661.
poses witbout just compensation. People v. DanThe extension of city limits so as to include farm iels, 6 Utah, 290, 5 L. R. A. 444; Ellison v. Linford, 7 lands and subject them to taxation, is not uncon- | Utah, 166.
bis ground was not divided up into lots, but | road is situated on the Greenville pike, which that it constituted one lot, upon which, with is a prolongation northward of Main street, ample means, he had erected a splendid urban and is laid down on the map as “Greenville residence, where he and bis family were in a Street,” which the municipal authorities in position to enjoy, and had the privilege of en. 1882 and since improved at considerable exjoying, if they chose to avail themselves of it, all pense and for some distance out, and in front of the advantages and conveniences which were of Beall's land, but just how far, or to what to be afforded by or derived from the presence point, the record does not show with certainty, and energy of the municipal government, not but probably to a point nearly half way the only for comfort, but for protection as well. length of his line fronting on said street or Appeilee Beall was the owner of 180 acres of pike. Along this street, and on both sides of land situated on the western and northwestern it, and adjoiving Beall's land on the west side, boundary of the town as established by the act there are several houses, which were occupied of 1869, but all of his land, up to the commence mostly by colored persons, erected on lots ment of his action, bad always been used as which were originally a part of the tract farming lands, and only 774 acres of it were in question, but they were laid off, and sold included in the said town boundary, through prior to 1869. The occupants of said bouses which, as shown on the map of the town, the used the said street as the only way of ingress Owensboro & Nashville Railroad track runs and egress from the premises, and appellee from north to south. No part of this land bad Beall used it also when going to and from that ever been divided into lots since the act of part of his land wbich he entered through a 1869. His residence was on that part of his gate opening on the said street or pike. That farm that lay outside of the limits of the town, part of this parcel of land lying belween the and the approach to it was from the Hopkins- line of the Owensboro & Nashville Railroid ville pike, and from a point thereon beyond and Greenville street is wet, but good meadow the west line of the town boundary. That land, and water rises on and flows from it part of his land within the town boundary, as under a culvert constructed across the said street it appears from the map of the town is about at the expense of the town. There is an area equally divided by the track or line of the of 34 acres of land between appellee Beall's Owensboro & Nashville Railroad, but no land and the business part of the town, upon streets or alleys bad been laid out tbrough any which there were not any improved lots, expart of it, but that part of it east of said rail. Icept that of appellant Briggs. “Appellee Beall
The extension of the limits of a city over outly- | taxed as city property. Simms v. Paris (Ky.) 1 S. ing farm lands is in reality nothing more than an W. 543. attempt to tax land'a certain distance outside the Local taxation authorized by law cannot be limits of the city, and is in effect the taking of pri- deemed a taking of private property without just vate property without compensation. Morford v. compensation, unless it is palpable that persons or Unger, 8 Iowa, 82; Langworthy v. Dubuque, 13 Iowa, their property are subjected to such burden for 86.
benefit of others for purposes in which they have In Cheaney v. Hooser, 9 B. Mon. 330, it is intimated po interest and to which they are therefore not that the extension of the limits of a city over an justly bound to contribute. Elkton Trustees s. adjoining farming land siniply for the purpose of Gill, 94 Ky. 138. increasing the revenues of the city without any benefit to the farm would be an unconstitutional
.V. Power of courts. taking of private property for public use without Some of the courts assume that under the departcompensation. And that intimation was adopted mental system of government the question of muand applied as law in Covington v. Southgate, 15 B. nicipal taxation, the same as that of the apnexation Mon. 491.
of territory to the municipality (see note to State, Ap upinbabited tract of land nowhere adjoining Richards, v. Cincinnati, 27 L. R. A. 731), is purely an existing village, and in which the village bas no one for the legislature, and that the courts will not special interest, cannot be made a part of the vil- interfere with legislative action. lage for the mere purpose of increasing the corpo. If tbe limits of the municipal corporation have rate revenues by the exaction of taxes. Smith v. been constitutionally extended the courts are pow. Sherry, 50 W is. 210. This is put upon the ground erless to interfere with the taxation of agricultural that such action would be an abuse of the consti- lands within the extended limits. Santa Rosa r. tutional power that the legislature shall provide Coulter, 58 Cal. 537; Dixon v. Mayes, 72 Cal. 166. for the organization of cities, and incorporated vil- In a case involving validity of a tax on the proplages.
erty of a mining company the court said it would If the city limits are extended to include agricul- not enter upon an inquiry as to whether the owner tural property which is not benefited by the ex- of the property is benefited by the tax or not, for tension and cannot be, but is farming land simply, the purpose of determining its validity. Gold Hill the attempt to tax is taking private property for v. Caledonia Silver Min. Co. 5 Sawy. 575. public use without compensation contrary to the When the lawmaking department of tbe governprovisions of the Constitution. Parkland v. Gaines, ment has exercised its judgment in relation to the 88 Ky. 562.
assessment of taxes, the courts have no power to But a subjection of land to taxation by the ex- interfere unless the fundamental law of the land tension of town limits is not unlawful unless the bas been violated. Linton v. Athens, 53 Ga. 588. legitimate object of improving the town shall have Where agricultural land is not within the exempbeen palpably perverted to the unauthorized pur- tions made by the Constitution and statutes of the pose only of lessening the burden of taxation on state, it will not be exempt. Mendenhall v. Bur. the inhabitants who would not be otherwise bene-ton, 42 Kan. 570. fited by the extension. Swift v. Newport, 7 Bush, 37. It the property has been included within the
It is no invasion of constitutional rights to require limits of the city, the question of the right to tax land wbich enjoys the benefits of a town and is sur- it is precluded, and the rule is that all property sitrounded by buildings and has enjoyed the enhanced uated within the city must bear its proper portion price because of the building of the town to be of taxes and must be assessed as city property. The had never voted for town officers, or held apy On the other hand, it is contended by counsel office in said town, but was engaged in mer for the town that the situation of the two cantile and other business in the town, and properties is such, with reference to the streets owned orber property in the town. The lands of the town, and with reference to other houses of both Briggs and Beall, the taxes on which and lots within the limits that are subject to are involved in this litigation, are in the vicinity municipal burdens, as to make it proper and of the passenger and freight depots of the right that tbey should be subject to their fair Louisville & Nashville Railroad, and the shops proportion of these burdens, wbich are necesof the Owensboro & Nashville Railroad, as sary to the maintenance of municipal governshown by the map of the town, but they are ment for the benefit and convenience of situated on the side of the line or track of the the inhabitants of the town, and for the presformer road opposite to them, which has to be ervation of public order. Numerous cases of crossed in passing from their lands to the busi. a character similar to these cases, and in ness part of the town, the court-house and the which the same questions were raised, have public square.
been decided by this court, and in no such The foregoing statement contains the princi. case bas it been held that the general assembly pal facts that are material to the questions did not have the constitutional power to fix raised in the two cases. It is contended by the territorial limits of municipal corporations, counsel for the appellant Briggs, and the ap- either by acts of original incorporation, or by pellee Beall that peither parcel of ground was subsequent acts extending their boundary lines. subject to municipal taxation, briefly, because we do not understand counsel here to deny it is not urban property, and had never been that the general assembly had the constituused as such, or divided into lots; that the tional authority to pass the acts of 1869 and owners had never consented to the extension 1880 by which the limits of the town of Rusof the boundary of the town so as to include sellville were extended. Nor do we undertheir land within the town limits; that they stand counsel to hold that the municipal power had never received any benefits from the or authority within the limits of the town as municipal government, or consented to be defined by those acts is restricted, except in taxed by it; and that to compel them to pay respect of the power to tax the added territory. taxes on their said lands to the town for There were other purposes for which the genmunicipal purposes would be the taking of eral assembly had the constitutional power to private property without any compensation. I extend the jurisdiction of municipal governcourt says: “It would breed unwarrantable con- municipality is committed to county commissionfusion with our assessments, and produce endless ers, the court cannot interfere with the exercise of strife in our taxation, to permit any body of land such discretion on the ground that the resulting that bas been declared a part of an incorporated taxation will bear unjustly on individuals within the city to be taxed as farming land, the same as if it annexed territory. Powers v. Wood County Comrs. was not embraced within the city limits.” Hurla 8 Obio St. 285; Blanchard v. Bissell, 11 Ohio St. 96. v. Kansas City, 46 Kan. 738.
The question of the taxation of rural land for The question whether the benefits resulting from municipal purposes is for the legislature, and not the extension of the limits authorized the burden for the courts. Kelly v. Pittsburgh, 85 Pa. 170, 27 of contributing to existing debts of the city is for Am. Rep. 633. the legislature to determine. Stoner v. Flournoy, The courts are powerless to afford relief if agri* La. Anp. 850.
cultural lands are taxed. Davis v. Point Pleasant, The question of the taxation of rural property 32 W.Va. 289. within the city limits is for the legislature, and not In Land, Log & L. Co. v. Brown, 73 Wis. 294. 3 L. R. for tbe courts, and the courts will not interfere al. A. 472, the court, in considering the power of the though the tax is harsh and oppressive. New Or- legislature to authorize a village to levy a tax on all leans v. Micboud, 10 La. Ann. 763.
the property in the town in which the village was In New Orleans v. Cazelar, 27 La. Ann. 156, where situated, said it is for the legislature to fix the limit appeared that complainant's property was sev- its of a taxing district, and not for the court. eral miles distant from the outskirts of the city and Under a constitutional provision that all propconsisted in part of original forest, the court helderty within the limits of a taxing power shall that the power to extend the limits of the city was be equally taxed, a court will not (withdraw land absolute, and that the Constitution required the from the taxing district after the incurring of taxes within the city limits to be equal and uni- indebtedness so that the result would be to throw form, so that there was no relief to complainant greater burdens on the remaining land. Galesfrom such taxation.
burg v. Hawkinson, 75 III. 152. In St. Louis v. Russell, 9 M0.507, it is held that the Conversely, some of the courts assume the power power of the legislature to extend the limits of a to supervise the action of the legislature, and some municipality are unlimited and it is assumed that others, which have decided that the power rests abthe power of taxation accompanies the extension solutely in the legislature, bave intimated that they of the limits.
would control any abuse of such power. The poRural land which lies within the limits of a mu- sition of the latter courts seems inconsistent benicipal corporation, and which belongs to a class cause if the power is absolute in the legislature it of property selected for taxation, cannot be re- would seem ibat the court would have pothing to lieved from a levy for municipal purposes on the say about it, and in the states in which the courts ground that it receives po, or an inadequate, bene- exercise the right to interfere it is because of alfit from the expenditure of the money so raised. leged abuse of power by the legislature. So that State, Bailey, v. Brown, 53 N. J. L. 162.
the difference between the two rules rests rather In Manly v. Raleigh, 4 Jones, Eq. 370, where a suit upon the degree of abuse than upon the question was brougbt to enjoin the collection of taxes on of power. tbe added territory, the court says the power of the The legislature cannot authorize a city to tax for legislature to extend the limits of the town is ab. its support land not reasonably considered to be city solute.
property. Bradshaw v. Omaba, 1 Neb. 16. If the discretion as to apnexation of land to a But in Turner v. Althaus, 6 Neb. 54, that case was