47 Miss. 367 | Miss. | 1872
The question which was argued in this cause and submitted for decision is, whether the levee law of 1871 conflicts with the 20th section of the 12th article of the constitution. We have bestowed such reflection upon the subject as the pressure of other duties would allow.
It is well settled in this state, in nearly all the states,
It is also conceded, as settled, in Williams v. Cammack, 27 Miss. 270, and Alcorn v. Hamer, 38 Miss. 652, that leveeing the Mississippi river, so as to protect the low lands subject to inundation from overflow, is a proper local object, that may be constructed, by means of taxes collected within a district defined by the legislature.
The debatable ground begins with an alleged violation of the constitution in the “imposition” of the taxes. The section (20) is, “ taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law.” The 8th section of the statute is, “ for the purpose of building, maintaining, constructing and repairing the levees, a uniform charge of two per cent per annum, on the value of every acre of unimproved and improved land. The unimproved land, for the purposes of the assessment, is fixed at $5 per acre, except Sunflower and Tallahatchie, which is valued at $3 per acre; the improved and cultivated lands at $30 per acre, except in the two counties above, shall be estimated at $20 per acre.”
The taxing power in the state and the United States is concurrent on most subjects. Whilst the state may not tax the agencies and instrumentalities employed by the latter, within the state, to carry out its legitimate policy, it may nevertheless impose upon all the inhabitants, and upon all the property within its limits, such taxes for the purposes of its administration and policy
The delegation of the taxing power is quite as old as the legal history of the country and people, from which we have descended, and from which our jurisprudence and many of our constitutional principles were derived. The municipal taxation of cities and towns, for local uses, and other territorial subdivisions, for assessing poor-rates and repair of highways, are of very ancient origin in Great Britain. The colonists brought over with them these ideas of local polity; and, according to the circumstances of a new country, adopted them. Hence the territorial division of the colonies into counties, towns, other districts, etc., and the authority to make assessments within the locality for special local purposes; when the elder colonies passed into states, the system was continued. There cannot be found a period of time upon this continent, after society was large aM compact enough to be organized, that it was not settled upon this basis. The several state constitutions were adopted with reference to this system thoroughly established in the traditions and practice of the people. The needs of these local bodies could hardly be uniform. The construction of court-houses, jails, bridges, school houses,- the opening and paving of streets, sewerage, etc., would vary from year to year, requiring increased local taxation. There would be a class of local improvements necessary in a city, or a rural district, which would bring special benefits to a class of the people, or a .class of property holders, which would not be common to- all the inhabitants of
It is quite notorious that the needs of a city are manifold. Eleemosynary institutions, hospitals for the indigent sick, schools, fire department, police, streets, pavements, are of them. To supply these common and indispensable demands upon the corporate funds requires a rate of taxation very much higher than the state ever need impose for its necessities. It is quite well known, too, that the system of taxation in the city has greatly
The constitution was framed for a people who were accustomed to local bodies with the power of taxation, who had derived the system, in part, from the mother country. The constitution should be read in the light of this fact, and so read, if no violence be done to its letter and spirit, as to produce harmony, and not interrupt the operations of the body politic in its larger and lesser organisms. For an excessive use, or an abuse of taxation (within constitutional powers to tax), the remedy was wisely referred by Chief Justice Marshall, in McCullough v. Maryland, 4 Wheat. 428, to the constituent body, upon whom' the evil lies,, and not to the courts. Oft returning elections give to the people an ample corrective for such evils. In the same judgment, it was said that “ taxes cannot be imposed without apportionment, and the power of apportionment is unlimited, unless it be restrained as a part of the taxing power.”
The constitutional injunction is, “that .taxes shall be uniform throughout the state.” “All property shall be taxed proportioned to its value.” What is meant by “ uniform ” ? If it means that the property holder in every county in the state shall pay the same rate upon one hundred dollars worth of property (which. would approximate absolute equality and uniformity), the answer is, such an interpretation, put in practice, would make it impossible to administer government on the plan and according to the scheme contemplated in the constitution. For the duty of building and repairing
- Taxation, as used in the 20th section, means such taxation as is imposed by the legislature for the uses of the state at large, or the county. The constitution of 1832 did not contain the restrictions contained in this section. The convention sought to devise a rule by which taxation, imposed for the general and ordinary expenses of the state, county and administrations, should operate equally in all parts of the state. No discriminations shall be made which would disturb uniformity. And when the rate has been determined, the assessment shall be on the ad valorem principle. These two principles, it was believed, would more equally and equitably apportion the burden of supporting the government than any other. There has been a good deal of discussion of late years, whether the power of taxation rested
In this age, where so much is undertaken and accomplished by associated effort, voluntary and otherwise, these subjects in one form or other must have been the frequent subjects of judicial discussion.
First, how far do general constitutional provisions and statutes apply to local bodies like towns, cities, counties and districts.
The general statute of New York enacted, “no real estate belonging to any church shall be taxed by any
The constitution is a law, differing only from a statute as it is of superior and paramount force, irrepealable by the legislature, and which prescribes, where it conflicts with a statute. When the framers of the constitution employ terms which, in legislative and judicial interpretation, have received a definite meaning and application, which may be more restricted or general than when employed in other relations, it is a safe rule to give to them that signification sanctioned by the legislative and judicial use. We find that, going back to the earliest colonial times, and thence through the history of these states, there have existed two distinct-systems of taxation ; one, the more general, referring to the impositions and assessments, for the general, usual and ordinary purposes of the state and the county
■ It would not be a wise rendering' of the constitution, to so construe it, as to interrupt and destroy this old and established order of things, unless we can discover a plain and manifest purpose to do so. To hold that the 20th section must apply to these local and district assessments would utterly abolish the system. To confine it to those taxes which are for the usual and ordinary revenues of the state and counties would accomplish no such result. The tenor of the instrument in other provisions germain to the subject of taxation shows that it must have had that limitation. The 14th section of the 12th article contemplates that a-county, city or town may afford material aid to public works which add to their wealth, prosperity and convenience, such as a railroad, by becoming a stockholder therein, or lending its credit thereto. To a very large degree, the great railroads in this state have been built by county, city and town aid; loaning their credit in the form of bonds, and providing for the interest and ultimate redemption of the principal, by taxation. This section looks to a continuation of that mode of lending
As we have remarked, the 20th section was for the first time placed in the new constitution ; it is not to be found in either that of 1817 or 1832. We must suppose also, that the convention were conversant with the interpretation which had been put upon a similar provision in other state consitutions; and' that they meant also to adopt, with the words, the judicial construction of them in the other states. The 20th section is a literal transcript of the constitution of California. In Burnett v. Mayor of Sacramento, 12 Cal. 83, the same question as arises here was presented. It was held that the section only applied to that charge or imposition upon property to raise funds to defray the expenses of the state government, or of some county or town. It has no reference to “ special assessments for local improvements, in which individuals are benefited by the increased value of their lands, and in which the ■public has only a limited interest. The same question was thoroughly reconsidered in Emory v. San Francisco Gas Co., 28 Cal. 348, and the doctrine of the previous case re-affirmed. A similar provision is contained in the constitution of New York. In the People v. the Mayor of Brooklyn, 4 Comst. 84, the subject received an exhausting examination. The Reasoning of that court is so satisfactory and conclusive, that it has been accepted as putting the question at rest. The result reached, followed by a great many of the states, is, that the constitutional restriction does not apply to assessments to defray the expenses of local improvements and that it is competent to apportion the assessment, according to the benefits received ; and that any general plan of apportionment may be adopted by the
The cases are very numerous, where the controlling consideration was the benefit supposed to be received in the enhanced value of property. Reeves v. Treasurer of Wood County, 8 Ohio St. 337. The assessment was for the purpose of draining the low lands of northwestern Ohio. In Railroad Company v. Connolly, 10 Ohio St. 162, under constitutional restrictions like ours, it was held (to grade and pave a a street) an assessment according to front measurement, as by the foot, or upon the value of the lots, were either within the competency of the taxing power. To the same effect is Woodbridge v. City of Detroit, 8 Mich. 276 ; City of St. Joseph v. Anthony, 30 Mo. 541 ; Garrett v. St. Louis, 25 Mo. 509.
Necessarily, a tax, whether levied for state revenue or for a local object, must be uniform in the sense of being apportioned equally upon all property selected by the legislature or the delegated taxing authority for its application. If imposed upon real estate, it must be upon all real estate in the same situation and condition, so that the burden on each parcel will bear a proportion to every other. The judicial department, in reviewing the acts of a co-ordinate department of the government, must impute proper motives, and a faithful effort to discharge public duties. It is not to be supposed, therefore, that it was the intent of the legislature to discriminate in favor of the property of one citizen at the expense of that of another, when both properties are in a like situation. We must assume that the imposition of local assessments, whereby the value of land within a district will be increased, that the legislature designed to distribute the expense among the
The authorities establish the proposition that such assessment may be made on the basis of benefits, and further, that the legislature is not shut up to any one mode of apportionment to grade and pave the streets of a city. The expense may be apportioned among those who own the lots adjacent, either by the running foot of frontage, the square feet of the area, or upon the ad valorem, basis. It is legislative discretion to adopt the one mode or the other; if the front foot be selected as the rule, it is not for the judiciary to say that, in their opinion, the square foot or the ad valorem plan will be more equitable and uniform.
To provide a fund, the legislature could impose the tax, specially, according to acreage or ad valorem. The plan, as defined in the eighth section of the act, possesses the feature of “ uniformity,” and also of “ value.” An analysis of the “act” discloses, quite clearly, that the cost of this work was to be apportioned upon all the lands within the district, according as their owners may be benefited. And secondly, to the end that the apportionment might be equal, each acre should be assessed according to value. But it is objected, that the legislature declared, arbitratarily, the value — cultivated lands in the • river counties, at $30 per acre, similar lands in Tallahatchie and Sunflower, $20; wild lands in the former counties, $5 per acre, and in the latter, $3 per acre — and upon this valuation assessed a tax of 2-J per cent, ad valorem.
If the legislature had appointed a specific tax per acre, so as to impose upon the improved and cultivated lands in the river counties, the exact amount that would be produced by 2|- per cent on $30, the value of an acre, to wit, 75 cents per acre; and a like specific tax on all other lands, as classified in the act, it would
The same result is reached as if the legislature had determined to impose a specific tax upon the acreage, but in order to vary and apportion the rate according to all those considerations and facts, had concluded to assess the cultivated lands in the river counties 7 5 cents per acre; the wild lands 12|- cents per acre, and so on, for such lands in Sunflower and Tallahatchie. The Egyptian Levee Co. v. Hardin, 27 Mo. 495, brought into adjudication a similar question. The legislature had chartered a similar company where corporators were the land owners embraced in the district between the Des Moines, Pox and Mississippi rivers, “ to construct levees and dig canals, and to raise the funds necessary, by taxation upon the lands, not exceeding one dollar per acre. The towns of Churchville and Alexandria, within the district, were excepted out of the operations of the act. The objection to the tax was, that it ought to have been ad valorem. The constitution of Missouri requiring “ all property subject to taxation, to be taxed according to value,” the court held that the constitutional provision only applied to taxation in its ordinary, usual, and received sense, when the money so raised goes into the state, county, city or town treasury, for usual and general purposes, and does not extend to such local assessments; therefore, the legislature was not limited to the ad valorem basis, but may apportion on the theory of advantage to the land proprietors; nor is it the
In all of the levee laws the discriminating feature exists. In that of 1850, applicable to Issaquena county, 10 cents per acre was levied on lands within ten miles of the river; on those more remote, 5 cents per acre; whilst lands outside the levee, between it and the river, were exempted altogether. The law was assailed in all these features in Williams v. Cammack, but without success. The court resting upon the ground that the legislative power was plenary, and the courts would not interfere for a supposed abuse.
These taxes need not be assessed by the county assessor, nor collected by the sheriff as tax collector. The usual practice has been to provide other agencies.
Much has already been said in answer to the objection, that the legislature need not appoint a commission, or provide for the levee board, or the board of supervisors making such appointment to assess the lands. That has been done by the legislature in the 8th section, by directly apportioning the tax upon each acre of land according to its own estimate of the- worth. If it may impose a specific tax on the acre, it may also declare a rate according to a value ascertained and determined by itself. Both are referred to its full power over the subject, unrestained by the constitutional pro
The process is somewhat like that practiced by the boards of supervisors. They, within certain limits, impose a rate upon the state taxes, which requires no further assessment, and when that is done, the order of the board is all the apportionment necessary, and nothing remains to be done except to make collections.
If the complaint be well founded, that the rate of assessment is too high, and that too much power, without proper restrictions and guards, is conferred upon the “board” of commissioners to create debt, by borrowing money and issuing bonds (which may be to the extent of a million of dollars), the only place to which tax-payers can go for relief is the legislature. The judicial department can not declare a statute to be inoperative and void because it may be hard and oppressive. If experience has shown that wasture, extravagance and improvidence have characterized the management of these “boards,” entailing heavy debt Upon the Delta region, that representation, if well-founded, made to another department of government, might bring about a reformation of the system; here it is unavailing.
We are of opinion that the statute, in the particulars alleged, does not conflict with the constitution. It was error, therefore, to overrule the defendants’ demurrer to the declaration.
The judgment of the circuit court will be reversed, and judgment here sustaining the demurrer, and dismissing the plaintiff’s suit.