CHAPTER 2.

LOCAL TAXATION IN CONNECTION WITH THE EXERCISE OF THE POWER OF EMINENT DOMAIN.

The mischievous effects resulting from the overthrow of constitutional laws in reference to taxation first appear in connection with the exercise of what is usually called the power of eminent domain. Here is the origin of the citizens' troubles troubles which well nigh render the holding of property impossible because of the excessive burdens imposed upon it. Look at its history in the courts. Meacham v. The Fitchburg Railroad Company, 4 Cush. 291, is erroneously cited in Newby v. Platte County, 25 Mo. 258, loc. cit. 276. (Citation of page 392 is erroneous.) In this case Meacham was the owner of several tracts of land in the town of Watertown, Massachusetts. Commissioners were appointed to assess damages to Mr. Meacham for his land to be taken for a railroad. He owned several other tracts of land in Watertown. The commissioners made their report and Mr. Meacham being dissatisfied with it filed in the common pleas court his petition to revise the damages awarded to him. The case was tried before a jury. The railroad company was respondent or "respondents" (in the plural). In the course of the trial the railroad company "proved that the petitioner (Meacham) at the time of the laying of the railroad, and ever since, was the owner of certain other lands and buildings in Watertown, near but not adjoining the lands described in the petition; they then offered evidence for the purpose of showing that since the laying out and construction of the railroad and in consequence thereof, the lands and buildings of the pe

titioner, other than the lands described in the petition, and separate therefrom, as aforesaid, had increased in value to the petitioner. But the evidence so offered being objected to, the presiding officer decided that it was inadmissible; and to this decision the respondents (the railroad company) excepted. After all the evidence was in, the presiding officer instructed the jury, "that if they were satisfied the laying out and construction of the respondent's railroad had created or occasioned any benefit or advantage to the lands of the petitioner, described in his petition or immediately adjoining or connected therewith, rendering the part not actually occupied by respondent more convenient or useful to the petitioner, or giving it some peculiar increase of value in the vicinity, it would be their duty to allow for such benefits or increase of value by way of set-off in favor of the respondents; but that, on the other hand, if the construction of the respondent's railroad, by increasing the convenience of Watertown generally as a place of residence, and by its anticipated and probable effect or influence in increasing the population, business and general prosperity of the place had been the occasion of an increase in the saleable value of real estate generally near their depot, including the petitioner's said lands, and thereby occasioning a benefit or advantage to him in common with other real estate owners in the vicinity this benefit would be too contingent, indirect and remote, to be brought into consideration in this question of damages to a particular parcel of land." To these instructions the railroad excepted.

After remarking on the general character of the statutes allowing general benefits to the owners of the lands, the court say:

"The Revised Statutes, chapter 24, section 31, in like manner, provide generally for an allowance by way of reduction for such advancement in value of other property. That there must be some limitation of the

proposition that the respondents may show in reduction of damages any collateral benefit which the petitioner has received in his other property, seems quite obvious. The party whose land has been taken for a railroad, has a right, in common with his other fellow citizens, to the benefit arising from the general rise of property in the vicinity, occasioned by the establishment of the railroad and the facilities connected therewith." If he has such right then the railroad company cannot compel him either to pay cash for such benefit or what is the same thing. The railroad company can not tax it or deduct it from his compensation in the condemnation proceeding. This opinion is followed in Newby v. Platte County, 25 Mo. 258. The Massachusetts statute provided "Generally for an allowance by way of deduction for such advancement in the value of other property." The Missouri statute provided that the commissioners "Shall take into consideration the advantages as well as the disadvantages of the road to such person.

This Missouri statute did not nor did the Massachusetts statute in terms restrict these advantages or benefits to such as were peculiar, special and exceptional to the part left not enjoyed in common with other landowners in the vicinity.

The statute of Missouri and that of Massachusetts would both have been adjudged unconstitutional if either had allowed general advantages to be deducted from his "just compensation." The constitutional provision infringed was, "Private property shall not be taken for public use without just compensation."

There is no pretense of any infraction of the rule of constitutional law that "All property subject to taxation shall be taxed in proportion to its value." A statute can not be enacted to diminish "the just compensation" required by the Constitution to be paid to the

owner for land taken for public use if such diminution rests on the ground that there is in fact only a general benefit to the owner of the land. There must be not only a benefit to the land from which a part was taken; that benefit must be special, peculiar, not enjoyed by the owner in common with other land in the vicinity. The exaction of this general benefit can not be made from this "just compensation" allowed, nor from the owner personally, nor as a charge on other land or property of the owner. The power that diminishes this "just compensation" by reason of benefits to other lands is the tax power. In the road law of the District of Columbia (27 U. S. Statutes at Large, p. 535, sec. 2) similar language is used and construed in like manner by the Supreme Court of the United States in Bauman v. Ross, 167 U. S. 554, at 577.

"It would operate with great inequality to hold that where there are various individuals, each owning large manufacturing or trading establishments in the immediate vicinity of a railroad, but without being adjoining to or connected with the located limits of such railroad, one of whom is the owner of a parcel of land situated in another part of the town over which the railroad is actually located, that as to the latter, he is by way of reduction of damages for his land thus taken, to be charged for all the incidental benefits which he receives from the location of the railroad in the vicinity of his other land, while the land of others is exempt from any contribution. The great and leading principle, to authorize such reduction of damages, is the direct benefit, or increase of value to the remaining tract or parcel of land, by reason of the railroad passing through the lot or tract as to which damages are assessed." [S. C., 4 Cush. 292.]

The exaction can not be made by deducting general benefits from this "just compensation," or by ex

action of the amount from the owner personally or as a charge or lien on other lands or property. This exaction can not be made under the power of eminent domain, or the police power, or the power of taxation general or special.

In McQuiddy v. Smith, 67 Mo. App. 205, et seq., Mrs. Smith's lot by the grading was damaged $2,750 according to the decision by court and jury. Under the old Constitution of Missouri this damage was not a taking, and hence," damnum absque injuria," but would the court have put a special tax or sustained a special tax on this damaged lot to pay this presumptive benefit (in fact a damage of $2,750) ?

The case of James River and Kanawha Company v. Turner, 9 Leigh's Reports 313, loc. cit. 334, is well reasoned on principle. The reporter's headnote is thus:

"And it seems that if the charter had provided that advantages of a general character, which the owner of the land condemned may derive from the improvement in common with the country at large, should be set off against the actual value of the land condemned and actual damages sustained by the owner, such provision would have been unconstitutional." The opinion of the court "Puts the finger on the provision of the Constitution" violated, viz., the Constitution of Virginia, art. 3, sec. 2 which has provided, that the Legislature shall pass no law "Whereby private property shall be taken for public uses, without just compensation."

ion:

Says Judge Brockenbrough in rendering the opin

"It could not have been intended to authorize the company to seize on and sequester the property of an individual, and under pretext of making him a compensation for that property, to claim a set-off for a general advantage, which will deprive him of the just compensation intended by the Constitution. It is not credible,