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CHAPTER XII.

OF THE CONSTITUTIONAL AUTHORITY TO TAKE PRIVATE PROPERT)

FOR PUBLIC PURPOSES UNDER THE TAXING POWER.

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In the preceding chapter we have taken a survey of the power to take private property for public uses under the right of eminent domain, notwithstanding the constitutional prohibitions contained in the federal and state constitutions. In this chapter we propose to take a brief view of, and to bestow a few considerations upon the nature, extent and power to take private property for public ases under the taxing power of the constitution itself, and of both the federal and state constitutions.

The right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and inalienable rights of

Men have a sense of property ; it is necessary to their subsistence, and correspondent to their natural wants and desires ; its security was one of the objects that induced them to unite in society. No man would become a member of community, in which he could not enjoy the fruits of his honest labor and industry. The preservation of property is one primary object of the social compact, and it is by the constitution made a fundamental law. But still, every person ought to contribute his proportion to the public burthens, to public purposes, and to the public exigencies, though no one can properly be called upon to surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving a recompense in value. This would be laying a burthen upon an individual, which ought to be sustained by the society at large. Such an act, if attempted, would be monstrous legislation, and would shock all mankind. Nor can the legislature divest one citizen of his estate and vest it in another, with or without compensation. It is inconsistent with the principles of reason, justice, and moral rectitude; it is incompatible with the comfort, peace and happiness of mankind;-—it is contrary

to the principles of social alliance in every free government; and to the letter and spirit of the constitution. a

“The right of taxation, and the right of eminent domain, rest substantially upon the same foundation. Private property may be constitutionally taken for public use in two ways, that is to say, by taxation, and by right of eminent dornain. 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. Compensation is made, when private property is taken in either way. Money is property. Taxation takes it for public use; and the tax-payer receives, or is supposed to receive, his just compensation in the protection which government affords to his life, liberty and property; and in the increase of the value of his possessions, by the use to which government applies the money raised by the tax.” b

When private property is taken by right of eminent domain, special compensation is made for the following reasons: It is not taken as the owner's share of contribution to a public burthen, but as so much beyond his share. Special compensation is therefore to be made in the latter case, because government is a debtor for the property so taken; but not when taken for taxes, because the payment of taxes is a duty, and creates no obligation to repay otherwise than in the proper application of the tax. Taxation operates upon a community, or upon a class of persons in a community, and by some rule of apportionment. The exercise of the right of eminent domain, operates upon an individual, and without reference to the amount, or value exacted from any other individual or class of individuals. Keeping these distinctions in mind, it will never be difficult to determine which of the two powers is exerted in any given case.

Having given the provisions of the national and state constitutions, relating to the protection of the private property of the citizen, in language broad, and clear, it is still seen, that these words of protection, cannot be taken in their strictest and most literal sense as against the necessities of the government itself; and these clauses, furnish a good illustration of the impossibility

a Van Horne's Lessee v. Dorrance, 2 Dallas, 310. b People v. Mayor of Brooklyn, 4 N. Y. 422, 424.

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of construing constitutional provisions in a spirit of literal strict

When a tax is levied, “private property” is clearly taken for public use, and taken without direct actual compensation ; the compensation is in theory, and indirect, on account of supposed benefits; as an equivalent for the property taken. If therefore this was rigidly interpreted, it would at once arrest the operations of any government to which it was applied. Such, however, is not its construction. The restriction on taking private property without compensation, does not apply to the power of taxation. The powers of the state over property, embraces not only taxation, but also other public purposes; eminent domain, police, public health, public morals, and perhaps other public interests where state exigencies demand its exercise. The legislative power, being in this respect sovereign, in extraordinary emergencies, like that of public safety, or defence, and to which power, individual rights must be surrendered when the general welfare of the state demands it.

Under the eighth section of article one, of the constitution of the United States, congress is given power “to lay and collect taxes, duties, imposts, and excises.” This power to tax, is not an exclusive power in the national government; the several states possess the power for the regulation of their own internal policy—to preserve the public health, or peace, or to promote their own peculiar interests. a

Chief Justice Marshall has given this subject of the taxing power, his especial consideration. b He says,

of legislature, and consequently of taxation, operates on all the persons and property, belonging to the body politic. This is an original principle, which has its foundation in society itself. It is granted by all, for the benefit of all. It resides in government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies. However absolute the right of an individual may be; it is still in the nature of that right, that it must bear a portion of the public burthens; and that portion must be determined by the legislature. This vital power may be abused; but a Story on Const. § 447. b Providence Bank v. Billings, 4 Peters, 562–3.

“ The power

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the constitution of the United States, was not intended to furnish the correction for every abuse of power which may be committed by the state governments. The interest, wisdom, and justice of the representative body, and its relation with its constituents, furnish the only security, where there is no express contract, against unjust and excessive taxation, as well as against unwise legislation generally.”

In another case, he said, a "The power of taxing the people, and their property, is essential to the very existence of government, and may be legitimately exercised on the subjects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. The people of a state, therefore, give to their govern

. ment a right of taxing themselves, and their property; and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse." And it is unfit for the judicial department, to enquire, what degree of taxation is the legitimate use, and what degree, may amount to an abuse of the power.” b

One of the arguments against the exercise of this right, is, that the admitted power of taxation, may be so exercised under legislative authority, as greatly to impair the value of private property This is doubtless, sometimes true; the power may be wisely or unwisely, justly or unjustly exercised ; but, as a power, it rests upor the theory, that full compensation is received by the individual in the benefit conferred by the tax itself. The support of government, and other objects of public utility promoted by taxation. are supposed to return to the individual the value which has been taken from him as his share of the public burthen. This is neither depriving a man of his property in a constitutional sense, nor taking it for public use under the right of eminent domain.c. It is a MoCulloch v. Maryland, 4 Wheat. 428.

6 Id. 430. c Wyndham v. The People, 13 N. Y. 404–405.

not sufficient that a law impairs the value of property, in ever so

a great a degree, because this destroys no right. It leaves to the owner unimpaired, his right to keep, to use, and to dispose of his property. It therefore does not deprive him of any right in it. The levying and collecting of taxes, is not within the meaning of the clause in the constitution, which provides that private property shall not be taken for public use, without just compensation. a Nor is a statute, which directs the expenses of street improvements to be assessed on those owners who are benefited thereby, rendered unconstitutional from the fact that the money thus assessed, was to reimburse the city for money advanced for that purpose. b

Applying these principles, to the powers of our own state constitution, which are recognized to be sound by the highest court in this state, it is held, c that taxation proceeds upon the principle of the maxim, that "he who receives the advantage ought to sustain the burthen." And it is added, "that the power of taxation, and of apportioning taxation, or of assigning to each individual his share of the burthen, is vested exclusively in the legislature, unless this power is limited or restrained by some constitutional provision. The power of taxing, and the power of apportioning taxation, are identical and inseperable. Taxes cannot be laid without apportionment; and the power of apportionment is therefore unlimited, unless it be restrained as a part of the power of taxation."

“ There is not, and since the original organization of the state government, there has not been, any such constitutional limitation or restraint. The people have never ordained that taxation shall be general, so as to embrace all persons, or all taxable persons within the state, or within any district, or territorial division of the state ; nor that it shall or shall not be, numerically equal, as in the case of a capitation tax; nor that it must be in the ratio of the value of each man's land, or of his goods, or of both combined, nor that a tax must be co-extensive with the district, or upon all the property in a district which has the character of, or is known to the law of a local sovereignty. Nor have they ordained or for

a Howell v. City of Buffalo, 37 N. Y. 267. b Id ; People v. Lawrence, 36 Barb, 177. c People v. Mayor of Brooklyn, 4 N. Y. 425 to 432.

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