Brewer Brick Co. v. Inhabitants of Brewer

Appleton, O. J.

This is an action of assumpsit to recover three hundred and nine dollars and seventy-five cents paid by the plaintiffs for taxes. The proceedings on the part of the defendants are admitted to have been correct, and the only question presented is whether the property of the plaintiff, upon which the tax in question was .assessed, is liable to assessment.

The business of brick-making has been carried on in the defendant town for more than fifty years until the present time, by the old process of making bricks with horse power.

The plaintiff corporation was organized under the general law of the State, on the fourth day of June, 1870, for the purpose of manufacturing brick in the defendant town, and after its organization, proceeded at once to erect thé necessary buildings and machinery for the manufacture of brick by new processes, in which business it has been engaged to the present time.

At the annual town meeting of the defendant town held March 11,1870, the following vote was passed, viz : “Yoted that the town will exempt from taxation for a term, of ten years, manufacturing and refining establishments hereafter erected in town, and the capital used for operating the same, together with such machinery hereafter put into buildings already erected, but not now used as such, and. the capital used for operating the same, provided that the capital invested shall not be less than $10,000, and provided, further, that this vote shall not be construed to apply to manufacturing or business now carried on in the town, and no distillery of intoxicating drinks or malt beer, shall be entitled to the benefit of this vote.”

The estate, of the plaintiffs was duly assessed for its just and proportional share upon the whole valuation of the property of the town liable to assessment. The plaintiffs claim exemption from contributing toward the public expenses, under and by virtue of this vote of the town.

*70 By an act approved March 8, 1864, c. 234, § 1, it is enacted, that “all manufacturing establishments, and all establishments for refining, purifying, or in any way enhancing the value of any article or articles already manufactured, hereafter erected by individuals or by incorporated companies, and all the machinery and capital used for operating the same, together with all such machinery hereafter put into buildings already erected, but not now occupied, and all the capital used for operating the same, are exempted from taxation for a term not exceeding ten years, after the passage of this act, where the amount of capital actually invested, shall exceed the sum of two thousand dollars; provided, towns and cities in which such manufacturing establishments or refineries may be located, or in which it may be proposed to establish the same, shall in a legal manner give their assent to such exemption, and such assent shall have the force of a contract, and be binding for the full time specified; and provided further, that all property so exempted, shall be entered from year to year on the assessment books, and returned with the valuations of the several towns and cities, when required by the State for the purposes of making the State valuation.” By an act approved Feb. 8, 1867, c. 76, § 1, the exemption referred to in the act of 1864, c. 234, § 1, takes effect from the date of the contract authorized by that act. By an act approved March 12, 1869, c. 65, § 1, the exemption referred to takes effect “from the date of the assent given by the town to such exemption.” The preceding legislation on this subject is found condensed in R. S., 1871, c. 6, § 6, ninth clause.

Taxation exacts money from individuals as and for their contributory share of the public burdens. A tax is generally understood to mean the imposition of a duty or impost for the support of government. Pray v. Northern Lib., 31 Penn., 69 . “Taxes are burdens or charges imposed by the legislature upon persons or property,” says Dillon, C. J., in Hanson v. Vernon, 27 Iowa, 28 , “to raise money for public purposes orto accomplish some governmental end.” 'Private property may be taken under the power of eminent domain for public purposes, if just compensation there *71 for be made. But for private purposes it cannot be wrested from its owner even with compensation.

It has been settled by a series of decisions that the legislature cannot constitutionally authorize towns to raise money by taxation to give or loan to individuals or corporations for private purposes. A good public house may be very desirable, but in Weeks v. Milwaukee, 10 Wis., 242 , the Supreme Court of Wisconsin, justly treated with little consideration, the claim of a right to favor, under the power of taxation, the construction of a public hotel, though the aid was to be rendered expressly “in view of the great public benefit which the construction of the hotel would be to the city.” It was there decided that the public could not be compelled to aid such an enterprise from any regard to the incidental benefits to be derived therefrom. It may be very desirable to have a sawmill in a town, and those who wish it, have full liberty to erect it; but the inhabitants cannot legally be taxed to raise money to give or to loan to those, who propose, for their own benefit, to erect one, pr to take down one already erected, and to remove it from one town to another. Allen v. Jay, 60 Maine, 124. A terrible conflagration sweeps over a city destroying its wealth by millions. Its rebuilding is absolutely necessary for its commercial wants. But each lot of land is private property; each building to be erected thereon will be private property. Its erection is for private use. After full consideration, it was decided that the inhabitants of the city could not be taxed to raise money to loan to the sufferers to enable them to rebuild. Lowell v. Boston, 110 Mass. In the Commercial Bank v. the City of Iola, 2 Dillon, 353, it was held that the legislature of a State had no authority to authorize taxation in aid of private enterprises and objects; and that municipal bonds issued under legislative authority to be paid by taxation, as a bonus or donation to secure the location, or aid in the erection of a manufactory or foundry, owned by private individuals, are void even in the hands of owners for value.

Contingent and incidental benefits may arise from the introduction of manufacturing capital whenever the enterprise is successful. *72 But the reverse may equally ensue, and the enterprise become an injurious failure. The inhabitants of a town cannot legally be taxed to raise money to give or to loan to individuals or corporations for private purposes on account of any supposed incidental advantages which may possibly accrue therefrom. The benefits are precisely those arising from the introduction of capital or labor, and none other. It matters not whether it be the building of the huge factory of the capitalist or the cottage of the laborer, the benefits are the same in kind and differ only in degree. There are benefits arising from the introduction of capital well invested and of labor well employed ; but they are of the same nature as those arising from the existent capital of the place in which the incoming capital is to be invested, and the incoming labor employed. One is just as much entitled to protection as the other, and no more. But this benefit, whatever it may be, if any, arises from all capital and all labor ; and as all labor and all capital is equally entitled to equal protection according to its extent, it follows that equal protection to all leaves the matter as it found it. Hence, it is universally held that the incidental benefits of capital afford no justification for partial taxation.

It is conceded in the argument that given away. The plaintiff’s share of tb ant town for all public purposes, is cone the town were empowered to raise that sum to give the plaintiffs, it is admitted that the act so empowering them would be unconstitutional, for if the town may raise money to give to A., they may do the same for B., and so on ; and the property of the minority would be subject to the will of the majority. But Jthe remission of ajax_by a vote of tfiejnwn is in substance and effect the same asNgift. What matters it to the plaintiffs or the defendants whether the town votes to give $309.75 to the plaintiffs, or to exempt their property from its just and proportional tax, and assess the amount of such exemption upon the remaining estate liable to taxation ? It is a gift. The money raised by the rest of constitutionally be authorized to raise *73 the tax-payers is raised to give away ; and if it may be done for these plaintiffs, it may be done for any other inhabitant as well.

But there are other and grave objections to the constitutionality of the statute upon which the plaintiffs rely.

“By the constitution, article 9, § 7 : “while the public expenses shall be assessed on polls and estates, a general valuation shall be taken at least once in ten years.”

The expenses for which assessments are to be made shall be public; those appertaining to the public service. No authority is given, either expressly or by implication, to assess for merely private purposes ; as to give away, or to loan .to individuals.

By article 9, § 8: “all taxes upon real estate, assessed by authority of this State, shall be apportioned and assessed equally, according to the just value thereof.” Though this section applies specially to real estate, yet the very idea of taxation implies an equal apportionment and assessment upon all property, real and personal, “according to its just value.” It cannot for a moment be admitted that the constitution authorizes an unequal apportionment and assessment upon real and personal estate, without any reference to 'its “just value.”

The power to impose taxes is broad and liberal: — for roads, that there may be facilities for travel; for schools, that the people may be educated; for libraries, that them means of improvement may be increased ; for the poor, lest they may suffer from want; for the police of the State, for the safety of the public, that crime may be detected; for the courts of’ law, that individual rights may be protected and enforced, and that crime, when proved, may receive its fitting punishment; — in fine, for any and all purposes which, in the most liberal sense, can be deemed public. “Taxation having for its only legitimate object, the raising of money for public purposes and the proper needs of government, the exaction of moneys from the citizens for other purposes, is not a proper exercise of this power, and must therefore be unauthorized.” Cooley’s Const. Lim., 487.

The legislature may determine the amount of taxation and select *74 the objects. They may exempt by general and uniform laws certain descriptions,of property from taxation, and lay the burden of supporting government elsewhere.

But while there are no limits in the amount of taxation for public purposes, nor in the subject matter upon which it may'be imposed, the requirement that it shall be uniform and equal upon the valuations made is universal.

The general tax áct is based upon the whole valuation of the State. The taxes are apportioned among the several towns in the ratio of their respective valuations. The manufacturing capital to be exempted by this statute is included in the .valuation of the town in which the investment is made. Whether there shall be an exemption or not depends upon the vote of the town. Now it is for the legislature to impose taxes and to exempt from taxation. But exemption from taxation includes the imposition of taxes. To the precise extent that one man’s estate is exempted from taxation, to that same extent is there an imposition of the amount exempted upon the rest of the inhabitants. The $309.75 of which the plaintiffs would escape the payment, would be imposed upon the residue of the inhabitants of Brewer. This imposition of, and this exemption from, taxation are by the town and not by the legislature.

To have uniformity of taxation, the imposition of, and the exemption from taxation, must be by one and the same authority — that of the legislature. It is for the legislature to determine upon what subject matter taxation shall be imposed; upon land, upon loans, upon stock, &e., &o.; but the subject matter once fixed, the rule is general, and applies to all property within its provisions. So it may relieve certain species of property from taxation, as the tools of the laborer, the churches of religious societies, &o.; but upon the non-exempted estate the taxation must be uniform as the exemptions are uniform. It cannot be pretended that it would be constitutional to impose a tax on a church in A., and to exempt one of the same character in B.; to say that all or a part of the farms in the former shall be subject to a tax, while those in the ■latter shall be free from taxation. But if it be conceded that each *75 town has the right to tax part and exempt part of the property located therein, whatever its character, uniformity in relation to the subject-matter, as well as to the ratio of taxation, is at an end.

If, of the innumerable varieties of manufacture, different towns exempt different, or the same species of manufacture, the utter want of uniformity is obvious. The cotton manufacturer in one town is exempt, while in the next the woolen manufacturer pays his proportional share of the public burden. . Nor is this all: — if the same kind of manufacture has been heretofore carried on as is proposed to be exempted from the payment of taxes, then in the same town in case of exemption, will be seen the remarkable spectacle of two manufacturers, engaged in the same industrial pursuits, the one with his capital freed from all public burdens, the other bearing his just and proportional share. The larger the investment of exempted capital, the heavier the burden upon the non-exempted capital. Of. two competing capitalists, in the same branch of industry, one goes into the market with goods relieved from taxes, while the goods of the other bear the burden. One manufacturer is taxed for his own estate and for that which is exempted, to relieve his competing neighbor, and to enable the latter to undersell him in the common market; — and that is precisely the relation these plaintiffs bear to their competing brick makers; — a grosser inequality is hardly conceivable !

Nor -is there any conceivable benefit to any one from this injustice. The town voting the exemption will be one in which the proposed manufactures thereby to be exempted could, or could not, be advantageously carried on. If the former, the very principle of self-interest will induce such manufacturer to establish himself in the town so voting, without the inducement of such vote. It would, then, be the unnecessary giving of money to one whose interests would he promoted by manufacturing in the place in question. It would be compelling the rest of the inhabitants to add to the gains of a capitalist without participation therein. If otherwise, and the town so voting is an injudicious place for the location of the manufactures to be exempted, it is an invitation to *76 the manufacturer to engage in a losing business with a proffer to bear the loss to the extent of the exemption. The exemption is either unnecessary or unwise.

The plaintiffs have only paid, their proportional share of the taxes in the defendant town according to its valuation. The plaintiffs are not entitled to recover. To permit them to do so would be to approve unconstitutional taxation for private purposes and to sanction a system which would destroy all uniformity as to the property upon which taxes are to be imposed, and all equality as to the ratio, so far as regards the valuation. It can never be admitted that the constitution of this State permits or allows the taxation of a portion of its citizens for the private benefit of a chosen few, and that the taxes raised for such a purpose shall be assessed without reference to uniformity of taxable property, or equality of 1‘a'tio.

It becomes, therefore, entirely unnecessary to consider whether or not the plaintiffs are within the provisions of the statute or the terms of the vote under which they claim exemption from taxation.

Plaintiffs nonsuit.

Walton, Dickerson, Barrows, Daneorth and Virgin, JJ., concurred. Cutting, J., concurred in the result. Peters, J., having been of counsel for plaintiffs, did not sit in this case, but he concurred in a similar opinion and result in Andrews v. Oxford, involving precisely the same question.