56 Tenn. 349 | Tenn. | 1872
delivered the opinion of the Court.
The bills in these cases
This work was to be done, under the control of the city engineer, by direction of the Board, and be let out to the best responsible bidders, under such restrictions and regulations as should be prescribed by city ordinance. The mode of assessment, as provided for by the act is, “ that ás soon as any contract for
Without going at present into any detail as.to the terms of the contracts, or into minoi questions raised in argument, we enter upon the discussion of the question, whether this law is valid under the Constitution of the State of Tennessee, or not? It is proper to add, that the cost of the work done is estimated at
The discussion of this question involves the consideration of the nature and extent of the taxing power in this State, with its limitations, as found in our Constitution, and the objects and purposes to which the exercise of that power may rightfully be applied. In addition to this, it involves the question as to whether there is a power in the State government, and which may be delegated to counties or incorporated towns, to impose a burden of the character here presented, in the form of a local assessment, which is not subject to the restrictions or regulations of. our Constitution, but independent of them, and subject only to the discretion of the law-making power — with only such checks upon its exercise as are imposed by the influence of the constituent upon the representative — and then the question, as to whether the exercise of this power can be justified under what is known as “the police power,” to be carried out and effectuated by the taxing power, or in connection with the taxing power.
The learned counsel who has so ably and earnestly maintained the constitutionality of this law, has added however, by way of concession, that the power to burden the citizen . by way of local assessment, is however subject to one limitation, that is, of apportionment, and that the Legislature could not arbitrarily impose such assessments on any one individual or class nf individuals, as such, but that the burdens must be
The power to impose and collect taxes is one growing of necessity out of the very idea of a governmental organization; and with great distinctness it springs, by such necessity, from a government organized on the principles of all our American governments, whether Federal or State, having their organizations in written constitutions, in which the powers of those governments are defined, and duties thereby imposed; and for the exercise of those powers and performance of those duties, the agencies created by these constitutions are distributed among several departments, to-wit: Legislative, Judicial aud Executive. These departments being assisted by another large class of what may be called subordinate official agencies, that may be properly denominated ministerial offices. In the exercise of these powers, and the performance •of the duties imposed by the constitution upon its government thus distributed, large burdens are necessarily incurred, for payment of salaries and the othei expenses incident to the administration of proper governmental control over the great interests confided to such agencies, which must be met and paid by the people whose government it is, and who have organized and set in motion this machinery by virtue of their sovereign will, in convention assembled, as is our Republican custom. This is done by the exercise, through the Legislature, or law-making power — as the
The general features of taxation, or of a public burden that may be imposed as such, are thus laid down by Judge Cooley in the case of “The People v. Township Board, reported in 9 Am. Law Reg., 488 :
1. “ It must be imposed for a public; and not for a mere private purpose. Taxation is a mode of raising revenue for public purposes only; and, as said in some of the cases, where it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.
2. "The tax must be laid according to some rule of apportionment — not arbitrarily or. by caprice, but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A State burden is not to be imposed upon any territory*357 smaller than the whole State, nor a county burden upon a territory smaller or greater than the county. Equality is of the very essence of the power itself, and though absolute equality and absolute justice are never •attainable, some rule tending to that end is indispensable.
3. As a corollary from the preceding, if the tax is imposed upon one of the municipal sub-divisions of the State only, the purpose must not’ only be a public purpose, as regards the people of that sub-division, but it must also be local; that is to say, the people of that municipality must have ,a special and peculiar interest in the object to be accomplished, which will 'make it just, proper, and equitable, that they should bear the burden rather than the State at large, or any more considerable portion of the State.”
He then says: “ The three principles here stated are fundamental maxims in the law of taxation. They ‘inhere as conditions in the power to impose any taxes whatsoever, or to create any burdens for which taxation is to provide; and it is only when they are observed, that the legislative department is exercising an authority over this subject, which it has received from the people, and only then is that supreme legislative •discretion, of which the authorities speak, called into action.”
With the fundamental principles which we have premised, and the three quoted from Judge Cooley, which we deem sound, and perhaps as strictly accurate as we shall be able to make them, we proceed to the investigation more directly of the questions presented.
We will first notice a few of the’ cases urged upon
Passing from this we proceed: The ease of “The People v. Mayor of Brooklyn, 4 Comst., 420, is the
The case of Emery v. San Francisco Gas Co., 28 Cal., has been strongly pressed upon our attention as sustaining the views of counsel in support of the validity of this tax. We have examined that case, and find it an exceedingly able discussion of the question. That case, however, can not be made to support the views of counsel, for one reason, if no more, that is, that it goes on the principle of a distinction between “local assessments” and “taxation for raising revenue for the ordinary purposes of government,” as sustained by the language of the Constitution of that State, and while the court recognized the application of the principle of their Constitution, Art. XI., that “taxation shall be equal and uniform throughout the State,” and “ all property shall be taxed in proportion to its-value, to be ascertained as directed by law,” as eon-troling the assessment of taxes for the general purposes of government. Yet there is another provision of their Constitution, See. 37 of Art. IV., which is almost a literal copy of the Constitution of the State of New York, and is as follows: “ It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict
We proceed to examine the proposition thus maintained, and the one most relied on by counsel for complainant. He insists that taxation applies, as in the cases cited, and many others not cited, alone to revenues to be collected from the people for general and ordinary purposes of government, and this form of taxation is subject to the restrictions contained in Sec. 28, Art. II. of our Constitution; but that, on the contrary, taxation in the form of local assessment, is not thus regulated and restricted, and is equally lawful and constitutional, or within the province of the Legislature to authorize. This last mode of taxation, he concedes, is subject to some necessary limitations, one of which is, it must be apportioned. If, however, the Constitution does, not regulate this mode of taxation, either by express limitation or by fair implication, from its general provisions, it is difficult to see where a State Legislature would find the limitations that would operate as a restraint upon a body which, it is maintained, is as omnipotent as the British Parliament in all matters legitimately legislative, that is, in all matters involving law making, and the regulation of the future conduct and rights.of the citizen
But without pressing this view further, as it is conceded that all taxation for the general purposes of government is subject to the restrictions and regulations in Art. II., Sec. 28, we proceed to the .next clause of our Constitution. It provides that “the
Here, then, is the authority on which the Legislature can authorize a county or municipal corporation to impose taxes for county and corporation purposes. Why are not' counties and incorporated towns as much bound to impose all taxes for all the general purposes of their government, and certainly for each one of their defined purposes and powers, as given and prescribed in their charters of incorporation, on the same principle that regulates the collection of revenue by taxation for the general purposes, or the constitutionally defined purposes of the State Government? If the State Government is bound by the limitations of Sec. 28 in its mode of collecting revenue for the general purposes and duties imposed on that government, it would seem equally clear that the municipal government of each town was equally bound by the restrictions imposed in Sec. 29 of same article, and that for these purposes it could only impose taxes; and in imposing such taxes, “ all property shall be taxed according to its value, and upon the principle established in regard to State taxationIn other words, there being but one kind of taxation authorized by the Constitution for the raising of revenue for the general purposes of the State Government, and that
It is argued that the influence of the constituent on the representative, either in the Legislature, or in the legislative body of the corporation, is the check upon a wrong exercise of this power, and a sure preventive of oppression. But when we look at this for a moment, must we not see that, practically, this amounts to nothing, as the influence of a small body of property holders, on a few streets in a city of the size of Memphis, would be powerless against the large mass of voters owning no such property, and
Another view of this question; "Whatever powers may be conferred by the Legislature- on incorporated towns, as to imposition of taxes, may equally be conferred on counties; and we can see no reason why, upon the same principle contended for in support of this assessment, the same exception in favor of the power to make “ local assessments,” independent of these clauses of the Constitution, may not equally exist in favor of counties. Why may not the counties of this State, under the direction of its County Surveyor, lay off and construct its roads as expensively as the Nicholson pavement, or lay down the pavement itself along them, and then assess the owners of lands abutting these roads in proportion to their frontage, for payment of this assessment? This, it is true, would probably absorb most of the adjoining lands, or much of them; but, according to much of the argument, this could make no difference; the power to take all is equally clear, as the simple power to take a small per centaga on value for' public burdens, provided it is only taken by some rule of apportionment. From these consequences of the doctrine, the
Again, it has been held, in case of Nichol et als v. Mayor and Aldermen of Nashville, 9 Hum., 268, that the of building a railroad — the Nashville & Chattanooga Road — to the city of Nashville,.-was a corporation purpose, and so embraced in this article and section of the Constitution, and the Legislature was authorized to empower the city to subscribe for twenty thoiisand shares of stock in said company. On the theory of the argument here, why might not the corporation have been authorized to make “a local assessment,” to raise this amount, on the property holders abutting on the leading streets of the city, or on the owners of property adjoining to the depot grounds, and apportion the burden among th’em?
If this kind of taxation has no limit upon it except the implied one of apportionment, no constitutional regulation reaching it, it is not perceived why this course might not have been pursued. It surely was not a tax for the general pnrposes of a municipal corporation, either general or local; yet we venture to say that it would hardly be contended that the railroad subscriptions of any city or town can be imposed upon any portion of its citizens in any form of assessment, or collected from them in any way, except as regulated in the Constitution of the State, Art. II., Secs. 28 and 29.
The history of the introduction of this 29th' section into our Constitution will serve to strengthen.' the
Again, it was proper that this exercise of sovereignty should be regulated alone by the Constitution,
The whole argument, so far as it. rests on principle, in favor of this tax as a local assessment, rests on the ground, that there is no distinction in our State, between taxation by assessment, for local purposes — and .,general taxation, for the ordinary purposes of government —and that this distinction consists in the purpose or objects for which the tax is laid, and not in the manner of apportioning the tax among' the taxpayers. The answer to this is found in the opinion of the Supreme Court of Illinois, in the case of The City of Chicago v. Larned, 34 Ill., 203: “That, if this assessment is to be regarded as an exercise of the taxing power, then it is a flagrant violation of the provisions of our Constitution.” The Court illustrates this as follows: “A and B may own respectively, two lots lying side by side. The natural surface of A’s lot may be twenty or more feet above the established grade, and composed of rocks unfit for building purposes. The natural surface of B’s lot may be at grade. An order is passed by the Common Council to open •and grade the street projected in front of these lots. It will cost B nothing, or a mere trifle — it will cost A all his lot is worth after the street is. opened. To what, does this amount to, but a confiscation* of A’s lot for B’s benefit, and that of others situated like him?” “Is it not,” say the Court, “absurd to call this equal and uniform taxation?” And we add, can
We need but refer to the above opinion, in a State-which has a Constitution embodying the precise rule as is found in our own, on this question, for a clear and sound statement of the true principles on this, subject. We but say, that no change of name can change the essential features of the thing, por can it escape constitutional regulation by a mere play on words,. or by giving it a different designation. See, also, Lexington v. McQuillon’s Heirs, 9 Dana, 513; Hammett v. Philadelphia, 3 Am. R., 619.
Then, as taxation for legitimate purposes is regulated by the Constitution, in sec. 29 of art. 2, we-need but inquire, whether this be a legitimate corporation purpose. The counsel for plaintiff concedes that the corporation might have well paid for this improvement, by imposing a general tax on the property of the inhabitants of the' city, or its property-holders. If so, then it- was and is a legitimate corporation purpose, and when such a purpose or duty is to be carried out, or performed, by such a- body, the legitimate-
In conclusion of this branch of the discussion, we lay down the proposition, that taxation, in the sense of the constitutional provisions, and in the form therein prescribed, being the legitimate and appropriate mode of providing revenue to discharge the general charges upon the State, and upon counties and corporations, that the implication is fair, and we think irresitible, that this means is imperatively demanded to be used, and imposed upon the government by the spirit and meaning of the Constitution, and must be resorted to, in all cases falling fairly within the range of what
But it is earnestly insisted, that two decisions of the Supreme Court of our State have already settled this question in favor of complainants. We proceed now to an examination of these decisions. The first case is Mayor and Aldermen v. Mayberry, 6 Hum., 371. That was a question of the validity of an ordinance of the town of Franklin, authorizing the Mayor and Aldermen to cause footpavements and sidewalks to be constructed in the streets of the town, and on the public square, by the owners of the lots adjoining the same; and if the owners failed to do so, within the time prescribed, the Mayor and Aldermen were to do the work, or have it done by contract, and pay for it — the amount so paid to constitute a charge against the owners of the lots, to be recovered by suit in the name and for the use" of the corporation, before the Corporation Court, or before a Circuit Court, or Justice of the Peace. Mayberry having failed to construct a pavement in front of his lot, the corporation had it done, at the expense of seventy-five dollars, and sued him for this sum. The Court sustained the
■The other case is Washington v. Mayor and Aldermen of the City of Nashville, 1 Swan, 177. This is a case of like character with the case of Mayberry, where the corporation sought to recover the cost of constructing a pavement in front of plaintiff’s lot. The opinion sustaining the action, is based on 'the same ground as in the former case. The Court, the same learned Judge delivering the opinion, say, that “to require the owners of town lots to construct pavements along their sidewalks, is not the exercise of the taxing power,, nor is it taxing private property for public use. Upon these two subjects, there are express provisions of the Constitution restraining the exercise of legislative discretion.” We may say, in reference to this' case, as the other, that putting the case, as was done by the learned Judge, outside the taxing power, the decision might well be sustained; but in the case now before us, the learned counsel has conceded that this is an exercise of the taxing power, but in the form of “assessment for local purposes,” and by this concession, under the principle stated by Judge Green, fairly brings it under the constitutional regulation. Judge Green saw clearly, that the imposition must be put outside of the taxing power, or else it could not be maintained. While we do not disturb these decisions, we hold, that they are to be limited strictly to the precise facts on which they are made, and that to ca»ry them so far beyond these facts, as to cover and include an exaction, or burden of the magnitude involved in the case now
We will not further extend this discussion, nor further refer to decided cases, only remarking, that as the cases sustaining an exaction like the one under discussion, all go on a principle which we can. not approve, that of distinguishing between taxation for general purposes of government — and a local assessment, laid equally to carry out the same character of purposes, we cannot yield to them as authority for our conclusions. We feel sure of the correctness of our conclusions in this case, and satisfied, that when we place the right to exact the money of the people, under the broad shadow of the Gonstitution, no one can complain, but that under that protection, both the government that taxes, and the people who pay these taxes, may each rest and find safety and security to all their
We conclude, by holding, that the assessments in these cases are absolutely void, as being in violation of the Constitution of the State, and of fundamental principles; and direct that the bills be dismissed, and that the complainant pay the costs of this court and the court below.