effect the transfer of private property to the public, so as to deprive the courts of the power of determining whether the constitutional restrictions upon this subject had been honestly complied with. However this may be, the question here is, does the court act in its judicial capacity, and can it exercise, in its control over the subject confided to it by the charter, the general powers and jurisdiction of a court, or is the court, quo ad hoc, a mere commissioner, a special tribunal selected for a special purpose and functus officio when the special powers confided to it by statute have been exhausted." After some observations as to the statutes the court say, p. 527:

"There are some provisions in this section which undoubtedly might be construed to limit the power of the judge, as a mere commissioner, to the specific acts delegated; but in the main the general scope of the section looks to the action of the court in its judicial capacity, and gives the court authority, not only to pronounce a judgment which will pass a title to the land to the company and a right to the damages to the landowner, but 'To make all orders and take any steps' which in the opinion of the court will best promote the ends of justice. Although the act is carelessly drawn, and framed in a mode to justify doubts as to its true intent, we will not presume, notwithstanding the absence of any special provisions for an appeal, that it was the intention of the Legislature to deprive the parties interested of this right; especially as the provisions of the general law, both of 1849 and 1845, seem large enough, without any strained construction, to embrace the case. We are the more inclined to this opinion, because an appeal is the most convenient and least expensive mode in which the supervising jurisdiction of this court can be exercised, and because it may be safely said that it is at least doubtful whether that jur

isdiction could be entirely cut off if the Legislature had so intended. Could the Legislature provide an illusory compensation for private property taken for public use, totally at variance with the true spirit of the Constitution, and by placing its enforcement under the control of a selected tribunal and declaring the decisions of that tribunal final, thus place the subject beyond the reach of the courts?"

The legislative department of every city, town and village is just such a tribunal now. It would seem that the question what is "just compensation" for property taken for public use is a judicial question and if a property-owner may be paid in benefits as well as in cash-if "just compensation" may be made in benefits as well as cash-then what is a benefit and how much, are judicial questions for the courts.

"But it was not admitted that the road was any benefit to the party, and the court, we think, could not infer this as a matter of law from the agreed facts and pronounce against allowing the plaintiff any compensation for the property of which he was deprived. [Newby v. Platte County, 25 Mo. 258, at 275.]

Continuing in the same case the court say:

"As to the proper rule by which to compute the benefits in cases of this character, it may not be improper, as the case is to be remanded for further proceedings, to remark," etc., etc., about the rule in Massachusetts that special, peculiar, exceptive benefits alone can be considered. Here the court computes benefits and ascertains and determines the fact and amount of benefits.

The court can not do this if the question be properly a legislative question. The courts have no legislative powers. The Legislature has no judicial powers. This is American constitutional law.

'The council does not nor can it assess damages or benefits." [Baird v. Kansas City, 98 Mo. 215, 1. c. 221 (A. D. 1889).]

CHAPTER 6.

POWER OF TAXATION A PART OF SOVEREIGNTY.

We have seen in the preceding chapters that benefit is the foundation of the power of local taxation. Without such benefit local taxation is confiscation. We have seen that the benefit must be special, peculiar, exceptive, not enjoyed in common with the owners of property in the neighborhood or vicinity. We have seen that a tax law which allows general advantages to be set off against "the just compensation" for land taken for public use, is an infringement of the rule of constitutional law which provides that "Private property shall not be taken for public use without just compensation." We have seen that any tax law which, in place of deducting a sum of money from this just compensation, places it as a charge or lien on adjoining land when that land does not receive this special, peculiar, exceptive benefit, is likewise an infringement of the same rule of constitutional law. We have seen that in the early establishment of this rule of constitutional law, its opponents admitted that a benefit was necessary and without a benefit there could be no tax. The only point of difference was that a general benefit was thought to be sufficient, and this was overruled.

We have seen (25 Mo. 258, at 263) that "if the state government possessed no authority over private property except that of taking it for public use, upon rendering the owner a just compensation, it would seem that, under this provision, the owner would be entitled to the full money value of his property without any deduction." We have seen that deducting any portion of this just compensation, or placing it as a charge or lien

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on adjoining land, is an exercise of the taxing power in each case (25 Mo. 505, at 514). We have seen under the principles anounced in Zoeller v. Kellogg, 4 Mo. App. 163, before it was overruled, that under local taxation private property can no more be taken for public use without just compensation than in the exercise of any other governmental power. The restrictions for the security of private property applied to all branches of the government, legislative, executive and judicial. We come now to the other theory of taxation, and it has very weighty reasons in its support.

The power of taxation exists in the State without being conferred by the people of the State or by the Constitution. The power is a part of sovereignty; it is inseparable from it. Let us return to a period prior to 1875, in the constitutional history of Missouri. We had then a constitutional provision that all property subject to taxation shall be taxed in proportion to its value. There was no other restraint in terms in the Constitution. Hence, it is said the Legislature may tax one hundred per cent. The constitutional requirement that all property subject to taxation shall be taxed in proportion to its value is complied with if a tax of one hundred per cent is levied, and the tax is valid if it is not in contravention of some other provision of the Constitution. The city of Weston levied a tax of onehalf of one per cent on all land without the city limits and within a half mile thereof. This was a general tax. This was in form authorized by the charter of Weston. It was not invalid; it was not claimed to be invalid by reason of coming in conflict with the only express limitation in the Constitution on the subject of taxation; the property if validly taxed at all was taxed according to value in precise compliance with this express limitation on the taxing power, and yet the tax was invalid by reason of the fact that the statute authorizing