1 Neb. 16 | Neb. | 1871
The city of Omaha was incorporated in 1857. By the act of incorporation more than three thousand acres weré included within its limits. The charter has been amended at almost every session of the legislature since ; some times the boundaries of the city have been extended, and sometimes contracted.
At the last session of the territorial legislature, the last amendment was made. Before that amendatory act was passed, the city limits on the north were, a mile beyond lands laid off into lots. On the other side, the distance was not so great, but it was very considerable.
This legislátion has been very mischievous ; lands included within the limits of an incorporated city are not subject to entry under the preemption law of 1841. — Root v.
The last legislative act amends the charter of the city only.in its first section, which defines the boundaries of the corporation. By it, the boundaries are extended beyond the former lines, on the north, half a mile, on the west, a mile, and on the south, from a half a mile to a mile. An .area of over twenty-five hundred acres is thus added to the former very extended city jurisdiction.
An explanation of this very extraordinary measure may be found in the fact perhaps, that at the same session of the legislature, the city was authorized to aid the building of the bridge over the Missouri by the Union Pacific railroad, to the extent of $100,000, and has contracted other large debts, in securing the valuable railroad connections, which have lately stimulated its growth to a city of the first class.
It is charged in the petition in this cause, that the amendment. was made in order to lighten from the shoulders of people living within the city proper, the burden of the taxation which will be necessary to pay these debts and the interest on them, by dividing it with those who live or own land beyond the former corporate limits. And the charge seems to.be justified, because admitted by the demurrer.
This action was brought to restrain by injunction, the
Questions of this nature always require the first attention.
It is to be observed, at the outset, that there is no provision in our constitution which in terms limits the legislative power of imposing, or distributing or enforcing taxes. I speak of provisions aimed directly at this power. In the constitutions of most of the States, express provisions on this subject will be found ; as, for instance, that the levy of taxes shall be uniform, that the property of non-residents shall not be taxed higher than the property of residents, &c. We have no such clauses in our constitution. ' But, as we shall see hereafter, we have some general provisions, under the protection of which, the taxing as well as any other power of the legislative or executive branches of the government, may be restrained.
Of the former he is a member both rightfully and legally.He owes to it certain high and sacred duties, not the least of -which is contributing to its support. Of the latter he may not be a member, he may owe to it no duties, he may derive from it no benefits.
To illustrate: suppose the city of Omaha were by its proper authorities to determine to build a sewer on one of its streets ; its citizens would be interested in and benefited by this work and would be justly required to pay for it. But would it be right to .require a farmer, living ten or five, or even two miles from the city, to share the burden of this expense with those who justly should pay for it ? Obviously not. On the other hand, suppose the State should determine to build a road through some section, remote from some other, and attempt to raise the money for defraying the expense by taxing all parts alike. This would not be unjust. By opening up, improving, developing one district of country, drawing in settlers, planting farms, building schools, churches, homes, nursing commerce, and fostering, rearing, extending communities, the State and every district of the State is benefited, and every citizen is benefited. It is by the aiding of one section at a time, by developing it, by building it up, that the State grows to that great majestic, glorious stature, which sheds its lustre on every citizen, and fills his breast with pride, no matter how humble he may be.
In a word, a city’s taxes are for local, a State’s for general
Extreme cases may be stated on the one hand and on the other. The supposed instances may come so near together that, the distinction may be without a difference. But it is not the duty of the courts to lay do wn exact rules to which every case must be brought. It never attempts to lay down more than general rules, which are flexible in their just application to particular cases.
The distinction which is pointed out above, applies to the power or propriety of the court interfering, with what the counsel call “ legislative discretion,” when conferring taxing power for the benefit of the State, and when conferring them for the benefit of a city. In the former case, in almost every instance, the exercise of the taxing power is political, but in the latter it is purely administrative in almost every instance. I can only point out these obvious distinctions, without following them out or illustrating them at length. The fallacy of the argument of the learned counsel for the city, consists in laying down what he deems just considerations as to the jurisdiction of the court, and then applying them to an entirely different subject of municipal taxation.
The question is then narrowed down to this: Can a legislature authorize a city to tax for its support, lands not reasonably to be considered city property ?
We are able do go along with the counsel for the city in many of his positions. We think with him that the legislature has exclusive authority to amend the charter of municipal corporations, enlarge or diminish their power, :extend or limit their boundaries or evento abolish them altogether. And this may be done with a view to the future, as well as to the present wants of the city. So too,
But it is a question of property and private rights, whether such lands should bear a burden or a share of a burden, for another’s benefit. And therefore it may be a question for the determination of the court.
But we may, and we are bound in determining the constitutionality of a law, to examine all enactments bearing on the-question; and if in so doing we discover that their effect, all taken together, is unjust, and oppressive,-and violative of some principle of the constitution, we are bound to raise the shield of that fundamental charter over the otherwise prostrate and powerless citizen. While we shall always thus interfere with hesitation, and only with any act which the legislature may pass when our way is clear before us, we_ shall not consciously fail in this our highest and most sacred duty.
Of course it is admitted that if the legislature pass an act which takes private property for public use, without just compensation, it is unconstitutional, and must be so declared by the court.
The counsel for the city assumes that that constitutional provision does not apply here, because for some reason the subject is committed exclusively to legislative discretion.
Is the nature of the act complained of changed because the money raised by the tax goes to a city? We think not. We. shall content ourselves by presenting on this point the views of learned courts which seem to us decisive.
The case In re Albany Street, 11 Wend. 149, was a motion on behalf of the city of New York to confirm an assessment of the damages arising from the proposed extension of Albany street. It was resisted by Trinitys Church, on the ground that more of its church-yard was taken than the pi’oposed extension of the street required.
This was justified by the act of the legislature, which provided that where part only of any lot or parcel of land shall be required, if the commissioners deem it expedient to include the whole lot in the assessment, they shall have power so to do, and the part not wanted for the particular street or improvent, shall upon confirmation of the report, become vested in the corporation, which may appropriate the same to public uses, or sell the same in case of no such appropriation.
Chief Justice Savage delivered the opinion of the court, and said on this point: “ If this provision was intended merely to give the corporation capacity to take property under such circumstances, with the consent of the owner, and then to dispose of the same, there can be no objection to it: but if it is to be taken literally, that the commissioners may, against the consent of the owner, take the whole lot, when only a part is required for public use, and the residue to be applied to private use, it assumes a power, which with all respect, it did not possess.
“ I am clearly of the opinion that the commissioners had no right to take the strip of land in question, against the consent of the corporation of Trinity Church.”
“ It is said that the city of New York is a public corporation, and that therefore all its property is for public use. The argument is equally applicable to all other municipal corporations by which the State is covered. If it be good for a city, it is equally so for a county, town or village, all of’ which may become legislative purchasers upon summary appraisal and then sell out to .individuals, using the avails for the benefit of the corporation. Such a construction would make the constitutional clause a dead letter.”
Other cases to the same effect might bo quoted, but from -the two above cited, the law appears plain, that when a city seeks to appropriate to its use, whether with or without compensation, the object for which it does so, must be for the use of the public and not merely for some matter of advantage to it, as an entity distinct from the individual
If it does take property for its own aggrandizement instead of the public use, it offends against the constitution just as much as if it were to take A’s property, without his consent and confer it upon B.
The other question mentioned, is whether or not doing this by means of the taxing power, changes the principle. I never heard it suggested before, that that power was above the jurisdiction of the court and above the constitution. It has been restrained by ordinances of French parliaments, by charters of English parliaments, and by provisions in American constitutions.
Burke says that “the great contests for freedom in England were from the earliest times chiefly upon the question of taxing. On this point of taxes, the ablest pens and the most eloquent tongues have been exercised, the greatest spirits have suffered. They proved not only that the right of granting money had been acknowledged to reside in the House of Commons, but that in theory it ought to be so, whether the old records had delivered this oracle or not.”
And in this country, where the danger to liberty is not from the one against the many, but from the many against the few, and where written constitutions have been framed mainly to protect minorities from majorities, the power of taxing has been granted by the sovereign people, to the legislature, with many guards and strict limitations. And as the contest for freedom in' England has been chiefly upon this question of taxing, claiming it for parliament and denying it to the king, if the theory put forth now is to obtain, that conquest in America must be renewed upon the same point, restraining the legislature by fundamental laws, made by the people, for the control of every depart
The taxing power, even when exercised by the legislature, hah recognized the restraints of the constitution. As, witness the great number of cases in'the courts reported in all the volumes of the law on this very subject. But I do not think it necessary to follow the counsel for the appellant into the discussion of some theories on this subject which he has .presented.
He lays down the proposition, that the property of A cannot be taken away from him and given to B. He says that while this principle of natural justice has not the sanction of constitutional provisions, the conrts will yet enforce it. And he cites a number of the highest authorities in support of this line of argument and of this position. -With all respect for the great writers and judges whose opinions he cites, I think that line of argument is opening a field of discursive theorizing altogether too wide ; for what is needed in constitutional discussions, is plain, obvious, strong reasoning, carrying conviction to the mind. If we are to theorize about abstract principles of natural justice outside of the .fundamental law, we are introduced into a vague, hazy, uncertain region, where we Cannot tell whether we are walking the solid earth, or floating among the clouds. It is not necessary to consider this matter on any abstract principles. The property of A can not be taken from him and given to B, in this country, not because it is contrary to natural justice, but because it is in violation of the constitution. To that effect is the case last before cited, and there are many others in which the Same view has been held.
When the constitution says that private property shall not be taken for public use without just compensation, it implies very clearly that it cannot be taken for private use, either with or without compensation.
The other principle evoked, that a citizen can not be deprived of his property without due process of law, is obnoxious in its application here to the same objection, although not to the same extent. I have no doubt that the benefit of that clause from magna charta is retained to us under our constitution, if not by a special provision, at least by the general terms of section twenty of the bill of rights; for unquestionably it is a fundamental doctrine of liberty as held in modern times. — 2 Sullivan's Lectures, 243 et pas.; Chancellor Kent in Gardner v. Newbergh, 2 John. Ch., 162.
Confining ourselves to the single provision of the constitution which inhibits the taking of property for public use without just compensation, is there anything in the nature of the taxing power which should prevent the court from inquiring whether a particular legislative act authorizing a city to levy and enforce taxes for its purposes, violates that provision ?
In The People v. The Mayor, &c., of Brooklyn, 4 Coms. 419, Ruggles, J., delivering a most elaborate and well considered opinion, says on this subject: “Private property may be constitutionally taken for public use in two modes : that is to say, by taxation and by right of eminent domain. These are rights which the people collectively retain over the property of individuals, to resume such portions of it as may be necessary for public use. ' The right of taxation and the right of eminent domain, rest substantially on the same foundation. Compensation is made when private property is taken either way. Money is property, taxation takes it for public use,' and the taxpayer receives or is supposed to receive his just compensation in the protection which the government affords to his life, liberty and property, and in .the increase of the
It is clear then, that no particular tax can be justified under the restraint of this provision of the constitution, unless some benefit accrue to the tax-payers from the purposes to which it is applied. In case of a general tax as we have seen above, this is always presumed. In the case of a city tax, that may not be the case. Hence it follows that when it is-not the case, the court will intervene. It was on this principle that Wells v. The City of Weston, 22 Mis. 385, was ruled. There the legislature authorized the city to tax lands beyond and adjoining its limits. The Court held that this was taking one man’s property under the form and.name of taxation and giving to another, which we have seen is prohibited by the constitutional provision which we are considering. On this ground the tax was held illegal.
I have now shown upon principle that the legislature does not possess unlimited power over this subject, and that the case at the bar is not in its nature beyond our jurisdiction.
We now approach the peculiar features of this case. We have now to inquire whether lands situated as the lands here in question are above stated to be. situated, and of the character above described, are liable to taxation by the city for city purposes. Several cases were cited at the bar upon this very question which relieve us of the labor of an independent consideration of this question.
Cheeny v. Hooser, 9 B. Mon. 330, was an action of trespass, brought by Cheeny to recover damages for the taking and conversion of his horse by Hooser, who justified as Marshall of Hopkinsville, by virtue of an assessment of
Chief Justice Marshall delivered the opinion of the court. In his very carefully considered judgment, he concedes to the legislative branch of the government all that can possibly be claimed for it, in respect of the power to. incorporate towns, to extend their limits, to confer upon their authorities power to impose taxes for local purposes, and to designate the subjects of property and the class of persons to be taxed, He says : “ It is palpable that persons or their property are not subject to a burthen for the bene-, fit of others, or for purposes in which they have no interest and to which therefore they are not bound justly to contribute, no matter under what form the power is professedly exercised; whether it be in the form of laying or authorizing a tax, or in the regulations of local divisions or boundaries, and which results in a subjection to a local tax, and whether the operation be to appropriate the property of one or more individuals without their consent, to the use of the local or general public, or the use of other private individuals, or of a single individual, the case must be regarded as coming within the prohibition contained in this clause of the constitution. That we are impotent for the protection of individual rights or property from any aggressions however flagrant, which may be made upon them, provided it be done under color of some recognized power, we are not prepared to concede,”
“ We do not admit that persons who have thus concurred and assisted in making a town in fact, could say they had not consented, or that their ■ actual consent was necessary to its being made a town in law; and although, if the two towns were incorporated into oiie, some inequalities might exist in the appropriation of the taxes between the two towns considered separately, and to the advantage of-the larger one, this would not necessarily nor probably follow to an extent greater than is found to exist between the closely and thinly settled portions of any town ; and., it certainly would not be assumed, from the incorporation of the new with the old town, and its. consequent subjec
“The essential difference between the case supposed, is that when the limits of a town are not filled up, and it has not in fact extended itself beyond them on either side, and upon the petition of the town the adjacent vacant land or cultivated farm not necessary or wanted for streets or houses, is brought within it by an extension of its boundary, the whole force and effect as well as the obvious intent of the act is, to subject those exterior lands to the taxation of the town, without even a pretext for extending the protection or control of the town over them ; and the power of local regulation and government would furnish no legitimate or real basis for the act; while with other cases, the actual .growth of the town beyond its legal limits or any of its borders, furnishes a basis and motive for legislative interposition not merely for the purpose of subjecting the exterior part to the taxing power of the town, but also for extending over it the government and care of the municipal authorities, with the equal right of participating not only in their elections, but also in the benefits to result from the appropriation of the common revenue of the town, to the convenience and security of the new portion in common with the rest.”
The case of Covington v. Southgate, 15 B. Mon. 491, was an action brought by Southgate to recover against the city $625, which he had been compelled to pay as city taxes, upon one hundred and sixty acres of land of which he was owner, and which without his consent had been included within the city limits by act of the legislature. The land' was used exclusively for agricultural purposes. The former boundary of the city adjoined it. On the east boundary of Southgate’s land, was a tract of several bun
“ Even if the land of Southgate be lawfully within the city, it cannot be coerceively appropriated for streets without that compensation which the constitution secures for private property taken for public use. And there is certainly no power to take any part of it for buildings or other private use, but by contract with him. Then the only apparent purpose tó be effected by including his land within the city without his consent, is that of subjecting it to taxation for the benefit of the city, and without any advantage to him. As Southgate has made no town and desires none, as there appears to have been no legitimate necessity which might justify the extension of the boundary so as to include it within the city against his consent, and as the obvious effect and probable purpose on the. part of the city was to. subject it to taxation, for the exclusive benefit of the town, it would seem that if there ever was a case of taking private property for public use in the form of taxation, under color of the extension of the boundaries
The next case is that of Morford v. Weger, 8 Iowa, 82. The facts are briefly stated in the opinion of the court by Stockton, J.: “The only question to be considered in this case, is whether the act of the legislature of Iowa, approved July 14, 1856, entitled ‘An act to amend the act to incorporate the city of Muscatine/ is constitutional. By this act it is conceded the limits of the city of Muscatine were-extended about one mile on the east, and about two miles on the north and west, beyond its former boundary. The plaintiff' lived upon the territory brought into the city by the act aforesaid, upon land used exclusively for farming purposes, about one mile from the old city limits, and about the same distance from any land laid out into city or town lots, or used as city property. His land so used, was taxed by the city at the sum of one dollar per acre. This tax he refused to pay, and his property being distrained for the payment thereof, he brought this action of replevin to test the contitutionality of this act, extending the limits of the city.”
On the subject we are here considering, he holds this language:
“ The municipal corporation is the mere creature of the law. The town itself in its material constituents, is the result of the voluntary act of the inhabitants. When there is a town or city de facto, there can be no question of the power of the legislature to provide for it a local government, and to authorize local taxation for its support. The greater burden of taxation is compensated for, in the greater advantages conferred by the municipal government. The consent of every individual to the authority of the local government is not deemed requisite, in order to subject him or his property to its jurisdiction, or is it
“ If the legislature, ixxclependexxt of the question of taxation, may rightfully impose the authority of a local goverxxxxxent on persons, who, by building in close proximity, have made a town de facto, it would seem hardly reasonable that the expexise of such government should be borne by the couxity and State; and as little reason, we think, can exist, why the legislature xnay not require the local populatioix to support by local taxation, .the government provided for it: ****** *
“Legitimate taxation, whether under the State or the municipal authority, is not the taking of private property for public use without compensation, within the meaning of the constitution. The protection afforded by the governmexxt to the citizen is usually conceded the just compensation referred to by the constitution for all private property he,is required to surrender to the public use in the shape of taxes. Axxd it is only whex;e an undue proportion of the burden of taxation is laid upon him, or wkexx the power of local taxation is made to operate upon those who, being out of the reach of the local benefit, ought xxot to be subject to the local tax, that thex’e can be axxy plausible ground for alleging that property taken for taxes authorized by law is takexx without compensation.”
The learned judge then states at length the case of Cheeny v. Hoover, cited above. He then proceeds :
“If there be such a flagrant and palpable departure fi-om equity in the burden imposed, if it be imposed for the benefit of others, or for purposes in which those objecting have no interest, and are therefore xxot bound to contribute, it is no matter in what form the power is exercised ; whether in the unequal levy of the tax, or in the regulation of the boundaries of tlxe local goverment, which results in
“But if the case is that of vacant land, or a cultivated farm -occupied by the owner for agricultural purposes, and not required for either streets or houses or other purposes of a town, and solely for the purpose of increasing its revenue, it is brought within the taxing power by the enlargement of the city limits, such an act though on its face, providing only for such extension of the city limits, is nothing more than authority to the city to tax the land to a certain distance outside of its limits and is in effect the taking of private property without compensation.”
The opinion proceeds further to support the views above expressed in a most exhaustive manner. Enough has been quoted, not only to show what was the judgment of the court upon the subject, but also to indicate pretty clearly the sound and conclusive reasoning upon which it is based. -
The next case was that of Langworthy v. The City of Dubuque, 13 Iowa, 86. Wright, J. says in the opinion, that it appears “that the lands were not necessary for city purposes ; that they were not lots nor out-lots, but lands used for mining, horticulture, grazing, farming and other similar purposes; that the sole object of bringing them within the city limits was to increase the city revenue ; that the complainants did not, nor did they propose to lay them off into lots, or invite purchasers to settle upon and occupy them.” He cites the ease of Morford v. Unger, supra, as conclusive of the question contenting himself with that judgment and a few general words of his own in support of it.
The next case is that of Fulton v. The City of Davenport, 17 Iowa, 404, in which the situation of the lands is
Loave, J. delivered an extended opinion approving and applying Morford v. Weger, and laying down a rule for determining what lands are, and what are not justly liable to taxation by. the city, thus: “When the proprietor of undedicated property being locally within corporate limits holds such close proximity to the settled and improved parts of the town, that the corporate authorities can not open.and improve its streets and alleys, and extend to the .inhabitants thereof its usual police regulations and advan
“Now, applying this rule to the property involved in this case in the light of the facts and circumstances above reported to us by the referee, we can not be at a loss where to place this property, and to hold at once that locally it occupies no such attitude towards the improved parts of the town, that it can be legally taxed for municipal objects.”
After these extended citations, it will bring out the strength of the case at the bar, to rehearse the situation of 'the lands' successively protected by these numerous adjudications, and compare them with those now in question. In the two Kentucky cases, the cities had, in their actual growth, reached to and in one case beyond the lands.
In the first Iowa case, the lands were about a mile from any lands laid out as town lots, or used as town property, and were used for farming purposes.
In the secondly cited Iowa case, all that is said of the lands is that they were not needed for, or used as city property.
In the last case cited, the lands were within twenty-six rods on one side and ninety on the other of improvements, and the city had been built up on each side and beyond it. But no streets had been opened to it, and it had been used exclusively for farming purposes. It contained only sixteen acres.
In all these five cases the legislation subjecting them to city taxation was held unconstitutional.
In this case the land is alleged to be two miles from the settled part of the city, and one mile from any lands improved or occupied as town lots-; the adjoining lands
From these cases, and from the abundant reasons by which they are sustained, may be deduced the following tests of the liability of lands to taxation by a city, Avithin which they have Avithout the owner's consent been included.
1. If the lands have been divided into town lots, if purchasers of small parcels have been invited to settle thereon and occupy them, if the owner has done any’ affirmative act leading the city to treat the property, as town property, or if town settlements have approached near to them, so that the enjoyment of them in peace and good order, demands the police regulations of a municipal corporation, then the lands are liable to taxation. 2. On the other hand, if the owner has done no act, as by laying the lands off into lots, or asking for city grades, or applying for opening streets, if he retains them in a large body of such size as is manifestly inadmissible in a city, and if they are situated at a distance of a mile or half a mile from the settled part of the toAvn, and no streets are or need to be opened for the use of OAvners of adjoining lots, and their quiet, enjoyment does not require a city
We do not .attempt to draw the line between such lands as are taxable and such as are not. Each case must be determined by its own circumstances. But the tests above mentioned will furnish an easy solution to any case which may arise. Tried by them, the legislation here complained of, cannot be sustained. It is unconstitutional and void.
The demurrer should have been sustained, with leave to the defendants to answer if they desired to do so.. The judgment of the District Court must be reversed, and the cause remanded, for such further proceedings, in pursuance of the principles of this opinion, as to the court may seem just to be had or permitted. The defendant must pay the costs of this appeal.
Judgment reversed and cause remanded.