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bidden that a tax shall be apportioned according to the benefit which each tax-payer is supposed to receive from the object on which the tax is expended. In all these particulars the power of taxation is unrestrained."

"The application of any one of these rules or principles of apportionment, to all cases, would be manifestly oppressive and unjust. Either, may be rightfully applied to the particular exigency to which it is best adapted."

Taxation is sometimes regulated by one of these principles, and sometimes by another; and very often it has been apportioned without reference to locality, or to the tax-payer's ability to contribute, or to any proportion between the burthen and the benefit. The excise laws, and taxes on carriages, and watches, are among the many examples of this description of taxation. Some taxes affect classes of inhabitants only. All duties on imported goods, are taxes on this class of consumers. The tax on one imported article, falls on a large class of consumers. While the tax on another, affects comparatively but a few individuals.

"The duty on one foreign commodity, is laid for the purpose of revenue mainly, without reference to the ability of its consumers to pay; as in the case of the duty on salt. The duty on another, is laid for the purpose of encouraging domestic manufacturers of the same article; thus compelling the consumer to pay a higher price to one man, than he otherwise could have bought the article for, from another. These discriminations may be impolitic, and in some cases unjust; but if the power of taxation upon importations had not been transferred by the people of this state to the federal government, there could have been no pretence for declaring them to be unconstitutional in state legislation."

The taxing power may be concurrently exercised by the state and national governments, to a certain extent, but the national government has the power to withdraw from the exercise of state, the power of taxation as to such property as comes within the powers conferred upon the general government, and as to which, when exercised by the general government, their powers are exclusive and supreme. The right of taxation in the states, extends to all subjects over which its sovereign power extends; and no further. The sovereignty of a state extends to everything which exists by

its own authority, or is introduced by its permission; but it does not extend to those means which are employed by congress to carry into execution their constitutional powers. The power of state taxation, is to be measured by the extent of state sovereignty, and this leaves to a state the command of all its resources, and the unimpaired power of taxing the people, and property of the state. This principle relieves from conflicting sovereignty between the two powers. a For what purposes the state may exercise this power, will be shown hereafter.

"A property tax for the general purposes of the government, either of the state at large, or of a county, city, or other district, is regarded as a just and equitable tax. The reason is obvious. It apportions the burthen according to the benefit more nearly than any other inflexible rule of taxation. A rich man derives more benefit from taxation in the benefit and improvement of his property than a poor man, and ought therefore to pay more. But the amount of each man's benefit in the general taxation cannot be ascertained and estimated with any degree of certainty; and for that reason, a property rule is adopted instead of an estimate of benefits. In local taxation, however, for special purposes, the local benefits may, in many cases be seen, traced and estimated to a reasonable certainty. At least, this has been supposed and assumed to be true by the legislature, whose duty it is to prescribe the rules on which taxation is to be apportioned; and whose determination of this matter, being within the scope of its lawful power, is conclusive."

It had been held, in a case decided in the second judicial district in this state, b "that legitimate taxation was limited to the imposing of burdens or charges for a public purpose, equally upon the persons or property within a district known and recognized by law as possessing a local sovereignty for certain purposes, as a state, county, city, town, village, &c., excluding from the operation of taxing power all those cases in which the expenses of laying out public squares, and of opening or widening of streets, or other like improvements are charged upon certain persons or property in consequence of supposed benefits. And that a tax to be valid,

a 1 Kent's Com. 425.

b The People v. The Mayor of Brooklyn, 6 Barb. 209.

must be apportioned upon principles of just equality. And also, that this was a fundamental principle of free government, which, although not contained in the constitution, limits and controls the power of the legislature.


The case which enunciated this doctrine, was taken to the court of last resort in this state, where the doctrine was declared not only to be new, but dangerous. Said the Court of Appeals, a this doctrine clothes the judicial tribunals with the power of trying the validity of a tax by a test, neither prescribed nor defined by the constitution. If by this test we may condemn an assessment apportioned according to the relation between burthen and benefit, we may, with far better reason, condemn a capitation tax, on the ground, that numerical equality, is not just equality; or a general property tax for a local object, because it compels one portion of the community to pay more than their just share for the benefit of another portion. All discriminations in the taxation of property, and all exemptions from taxation on the grounds of public policy, would fall by the application of this test. If this doctrine prevails, it places the power of the courts above that of the legislature, in a matter affecting not only the vital interests, but the very existence of the government. It assumes that the apportionment of taxation is to be regulated by judicial, and not by legislative discretion. It obstructs the exercise of powers which belong to, and are inherent in the legislative department, and restrains the action of that branch of the government in cases in which the constitution has left it free to act."

The doctrine which was thus repudiated by the Court of Appeals, it seems originated in the state of Kentucky, under an especial, or peculiar clause in their state constitution, not found in ours. But the whole doctrine of the constitutionality of the power of assessment and taxation in this state, was thoroughly considered in our court of dernier resort, and the clear, elaborate and able opinion of Ruggles, J., adopted by the whole court, forms of itself, an exhaustive view of the subject, never since questioned, and makes of itself, a chapter on this subject worthy of being perpetuated as elementary law.

Various cases which were supposed to have been decided upon a The People v. Mayor of Brooklyn, 4 N. Y. 429.

the contrary principle, were ably reviewed by the Court of Appeals, and the distinction either pointed out, or the dicta contained in them intimating a contrary doctrine overruled. And the court say, "There never was any just foundation for saying, that local taxation must necessarily be limited by, or co-extensive with any previously established district. It is undoubtedly wrong, that a few should be taxed for the benefit of the whole; and it is equally wrong, that the whole should be taxed for the benefit of the few. No one town ought to be taxed exclusively for the payment of county taxes; and no county should be taxed for the expenses incurred for the benefit of a single town. The same principle of justice requires, that where taxation for any local object benefits only a portion of a city or town, that portion only, should bear the burthen. There being no constitutional prohibition, the legisla lature may create a district for that especial purpose, or they may tax a class of lands or persons benefited to be designated by the public agents, appointed for that purpose without reference to town, county, or district lines. General taxation, for such local objects, is manifestly unjust. It burthens those who are not benefited, and benefits those who are not burthened."

"This injustice has led to the substitution of street assessments, in the place of general taxation; and it seems impossible to deny, that in the theory of their apportionment, they are far more equitable than general taxation for the purpose they are designed for."

"The same principle of apportionment, has been applied to bridges, and turnpike roads. The money paid for their construction and maintenance is reimbursed by means of tolls. Tolls are delegated taxation; and this taxation is charged and apportioned upon those only, who derive a benefit from the original expenditure, and in proportion to that benefit. General taxation upon a town or county for the building of a bridge, is valid and lawful, but obviously unjust; and because, it compels one to pay for the benefit of another. Tolls are more equitable, because they equalize the burthen with the benefit."

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But this theory of apportioning taxation, is not confined in practice to street assessments and tolls on bridges and turnpike roads. The main revenues of the state, canal tolls, are regulated upon the same principle; and so far as the objection to street

assessments applies to the principle of selecting those only who are benefited, and laying the burthen upon them in proportion to their respective advantages, it applies with equal force to tolls on bridges and turnpikes, and on the public canals. The difference is only in the mode in which each tax-payer's share of the burthen is ascertained."

"It has been said, that the benefits derived from the grading and paving of a street, are sometimes fanciful and imaginary, and always uncertain and incapable of being estimated with that exactness which is necessary for the purposes of justice to the individuals assessed. But this is a consideration to be addressed to the legislature, and not to the judicial authorities The courts cannot assume that this proposition is true in point of fact. The legislature has evidently acted on the belief that it is untrue."

"That mistakes may have happened,-that abuses may have been practiced-and that injustice may have been done, in making street assessments, it is not necessary to deny. Mistakes, abuses, and injustice, have often occurred in general taxation. These are not grounds upon which either system of supplying the public treasury, can be denounced as unconstitutional. If the systems are imperfect, they should be reformed by the legislature. If the street assessments are in their practical operation oppressive and unjust, the statutes which authorize them should be repealed. The remedy for unjust or unwise legislation, is not to be administered by the courts. It remains in the hands of the people; and is to be wrought out by means of a change in the representative body, if it cannot otherwise be obtained."

"The constitution has imposed upon the legislature the duty of restraining the power of municipal corporations in making assessments, and preventing abuses therein. a To assume that this duty has been, and will be neglected, is a denial of that reasonaable confidence which one department of the government ought always to entertain towards the others. The danger of abuse which is supposed to exist in the making of street assessments, exists in a greater or less degree in every conceivable system of taxation according to value; and if the courts have authority to annul, any other tax assessed upon valuation on the same ground, a Const. of 1846. Art. 8 § 9

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