Dyar v. Farmington Village Corp.

Walton, J.

This is a' bill in equity asking the court to enjoin the Farmington Village corporation from the assessment of a tax to pay in part for an extension of the Androscoggin railroad. We think the injunction prayed for should be granted.

One portion of the real estate of a town cannot be burdened with a tax from which the remainder is exempt. We use the word tax in its legal sense, meaning an assessment for a public purpose. Assessments for local improvements, such as drains and sewers and the like, are not, properly speaking, taxes. Of such assessments we shall speak hereafter. We now confine ourselves to taxes proper, meaning assessments for public purposes. And we repeat, that in this state such a tax cannot be constitutionally imposed upon a portion only of the real estate of a town, leaving the remainder exempt. So held in Brewer Brick Company v. Brewer, 62 Maine, 62. It was there decided that to exempt any portion of the real estate of a town from taxation would violate that provision of our constitution which declares that all taxes upon real estate shall be apportioned and assessed equally, according to its just value. Art. 9, § 8. In that case the portion to be exempted was specified, while in this the portion to be taxed is specified. But this difference is unimportant. It cannot be material whether the exempt or the non-exempt portion is the one mentioned. The result is the same. One portion is taxed and the other is exempt. Or, to speak with entire exactness, *523 one portion has an additional tax placed upon it from which the remainder is exempt. And it is this result — this inequality of taxation — that renders the proceeding unconstitutional. It is upon this ground that the decision referred to rests. And the decision in the case cited was affirmed in Farnsworth Company v. Lisbon, 62 Maine, 451.

If live lots of land — and the Farmington Tillage corporation consists of no more' — may be burdened with a tax from which the remainder of the real estate of the town is exempt, no reason is perceived why one lot, or a less quantity even, may not be burdened in the same way. And if a small tax may bo laid upon it, of course a large one may. There can be no limit to the amount. And if the legislature may authorize the imposition of such a tax, provided a majority or two-thirds of the legal voters residing upon the territory consent, it may do so without such consent. Such consent, if it ought, in justice, to bind those who vote yes, should not affect those who vote no, and especially the women and children and non-residents, who have no right to vote at all. The constitution does not place their property at the disposal of their neighbors. The question is one of power, not how the power shall be exercised. If such a tax may be imposed to build a railroad, of course a like tax may be imposed to build an ordinary highway or bridge, or for any other public purpose. We then have this result, that for a public purpose any one parcel of real estate, or any number of parcels, may, at the will of the legislature, be selected and burdened with a tax, to the extent of its entire value, from which the adjoining real estate in the same town is wholly exempt. Does our bill of rights, and especially that clause of the constitution which declares that all taxes upon real estate, assessed by authority of this state, shall be apportioned and assessed equally, according to the just value thereof, allow of such a result % We think not. The conclusion shows that the premises must be wrong.

We attach no importance to the fact that in this case the territory to be taxed was first created into atertitorial corporation. It was not thereby separated from the town of Farmington, nor relieved from any portion of the taxes to which it was liable in *524 common with all the other real estate of the town. If the proposed tax is assessed, it will be a tax in addition to all other public taxes. The constitutional provision requiring equality cannot be evaded by first declaring the territory, on which an additional tax is to be laid, a corporation. If it could be thus evaded the provision would be absolutely valueless. Such an act of incorporation could always be passed. The objection to such a tax lies deeper than to the ways or means or agencies by which it is to be imposed. It rests upon the want of constitutional power in the legislature, through any agencies, or by any means, to create such an inequality of taxation. Such a- power would be the full equivalent of a power to confiscate. Private property would no longer be under the protection of the constitution'; it could only be held at the pleasure of the legislature. Such a power is denied to the legislature, even in states where no constitutional limitation upon the taxing power exists.

“There is no case to be found in this state, nor, as I believe, after a very thorough search, in any other — with limitations in the constitution or without them — in which it has been held that a legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. . . . It matters not whether an assessment upon an individual, or a class of individuals, for a general, and not a mere local, purpose, be regarded as an act of confiscation, a judicial sentence or rescript, or a taking of private property for public use without compensation ; in any aspect, it transcends the power of the legislature, and is void.” Per Sharswood, J., in Hammett v. Philadelphia, 65 Pa. St. 146.

“A legislative act, authorizing the building of a public bridge, and directing the expenses to be assessed on A, B and C, such persons not being in any way peculiarly benefited by such structure, would not be an act of taxation, but a condemnation of so much of the money of the persons designated to a public use.” Chief Justice Beasley, in Tidewater Co. v. Carter, 3 C. E. Green, 518.

“It would be wholly beyond the scope of legislative power to authorize a municipality to levy a local tax for general purposes. *525 . . . A law which would attempt to make one person, or a given number of persons, under the guise of local assessments, pay a general revenue for the public at large, would not be an exercise of the taxing power, but an act of confiscation.” Wagner, J., in McCormick v. Patchin, 53 Mo. 33 .

Similar expressions in condemnation of the attempts which have been made from time to time to impose local taxes for a public purpose, could be multiplied almost indefinitely; and in some of the cases much stronger expressions are used; but we forbear to quote them ; for, after all, the strength of an argument must depend, not upon the number of times it is repeated, nor upon the violence of the language used, but upon the soundness of the reasoning employed.

The result of all the cases is that, a local tax (by which term is meant a tax assessed upon a community or a territory which is less than that on which the general assessment for other public purposes are made) cannot be made for a public purpose; because, as already stated, such a power would be the full equivalent of a power to confiscate ; which, in this country, is nowhere conceded to the legislature, not even in those states where there are no constitutional limitations upon the taxing power. A fortiori, such a power cannot exist, where, as in this state, there is an express limitation upon the taxing power of the legislature, intended to guard against the possibility of such oppressive legislation.

And we wish again to repeat, that no importance should be attached to the fact that the community or territory to be taxed is first created into a territorial corporation for some local purpose ; as, for instance, in this case, to provide the means of extinguishing fires and establishing a local police. So long as it remains a component part of the town, and remains liable to taxation for all purposes for which the rem ainder of the town is taxed, it cannot be separately taxed for another public purpose, and we are not now speaking of assessments for local purposes. Such an act of incorporation relates only to the means — it does not affect the end. The objection is to the end; to t he inequality of taxation for public purposes thereby produced, not to the machinery by which it is accomplished.

*526 Nor .must such special taxation be confounded with a distribution of the public burdens. Such a distribution-has always existed. County expenses are distributed among the several counties; town expenses among the several towns; and a portion of the expenses of our public schools among the several school districts. But there are no exemptions. All are burdened alike and by the same public laws. And, although such a distribution creates temporary inequalities of taxation, these differences ultimately adjust themselves, and that degree of equality which the constitution contemplates is obtained. Not so, when, by an act of special legislation, a tax for one of these purposes, or any other public purpose, is laid upon a portion only of the territory, of a town, leaving the remainder wholly exempt. As well might a school disti’ict, after being taxed in common with all the rest of the town for highway purposes, have a special tax laid upon it to open some new highway, or to build an expensive bridge; or, after being taxed in common with all the rest of the town for the support of paupers, have the additional burden of supporting some particular pauper placed upon it. The constitution will not allow of such special taxation — the taxation of selected and limited portions of territory for a public purpose.

We now come to the inquiry whether this tax can be supported as an assessment for a local improvement. Yery clearly it cannot. And for two reasons, either of which would, alone, be sufficient to defeat it.

I. It is taxation in aid of a railroad, and it has been judicially determined again and again that such taxation is for a public purpose. It is only on the ground that the purpose is public that the constitutionality of the legislation in aid of railroads has been or can be sustained. Such is the doctrine of all the well considered eases. It is said that railroads are no more than improved highways ; that the burden of building and supporting highways always rested upon towns ; that it is one of the purposes for which they are created ; that to allow or require them to aid in the construction of railroads places no new burden upon them ; that it is one of the public burdens already existing, and becomes more onerous only because the community has become more *527 exacting, and requires that these improved facilities for inter-communication shall be more generally enjoyed. It is therefore a sufficient answer to the inquiry whether this tax cannot be supported as an assessment for a local improvement, to say that the purpose for which it is to be assessed is public, not local, within the meaning of the law; that no tax in aid of a railroad has ever been justified or sustained upon the ground that it is an assessment for a local improvement. The courts have had much difficulty in their efforts to discriminate between local and public works, and the dividing line is but ill-defined. But all agree that taxation in aid of railroads must be justified as taxation for a public purpose or it cannot be justified at all.

II. Another fatal objection is this : Beason as well as authority dictates that taxation for local purposes, such as the building of drains and sewers and the like, should be assessed upon the property thereby benefited, and in proportion to the benefits thereby conferred upon it. This question was very fully considered in Hammett v. Philadelphia, 65 Penn. St. 146 ; Am. Law Reg. for July, 1869, 111; and it is there stated as the result of all the authorities that assessments for local improvements can only be constitutional when imposed for improvements clearly conferring special benefits upon the property assessed, and to the extent of those benefits ; that an assessment upon an individual for a local improvement which is not grounded upon and measured by the extent of his particular benefit, would be clearly unconstitutional and void. To hold otherwise would sanction the doctrine that one man may be made to pay another’s debt — to pay for improvements, not upon his own estate, but upon another’s. As well might A be compelled to pay for B’s house, as for a drain, or other local improvement, alone beneficial to it.

If this tax is assessed, it must, by the terms of the act authorizing it, be assessed upon the basis of valuation, and not upon the basis of benefits conferred. It will be laid upon all the taxable property within the limits of the village corporation, whether the extension of the railroad was beneficial to it or not. Neither the act authorizing the tax, nor the act creating the village corporation, provides for any other mode of assessment. On the contrary *528 the latter act requires all taxes assessed by authority of the village corporation, to be assessed in the same manner as is by law provided for the assessment of town taxes; which, as every one •knows, is upon the basis of value, and not upon the basis of benefits conferred. Such an assessment, if made for a local improvement, would be clearly unconstitutional and void.

We do not mean to question the authority of the legislature to confer upon towns and cities the right to use the coercive power of taxation to raise money to build railroads. In this state the question is re's judicata, and further discussion of it would not be profitable. But it may not be out of place to say that the constitutionality, as well as the expediency, of such an exercise of the taxing power, has always met with a.vigorous opposition. The reasoning by which its constitutionality is maintained is not satisfactory to some of the best judicial minds of the country. In several of the states it has been rejected altogether. Unfriendly competition, wasteful expenditures of money, and an amount of municipal indebtedness that must end in repudiation or the most oppressive taxation have been the result. And, as was well remarked by Mr. Justice Barrows, in his reply to the legislature, 58 Maine, 612, “the fact that one step of doubtful propriety has been taken is never a good reason for taking another in the same direction; but rather, on the contrary, it should induce us to pause and revert to fixed principles.”

Nor do we mean to say that for public purposes the state may not be divided into districts and the public burdens distributed among them. Nor do we mean to say that for local purposes these public districts may not be again divided and separately assessed for local improvements. What we mean to say is that one public district cannot be created within another, nor be allowed to overlap another, so that for the same public purpose, or for any other public purpose, one portion of the real estate is taxed twice, while the remainder is taxed only once; that local assessments for local improvements cannot be laid upon the basis of valuation alone, without regard to benefits. This tax, if viewed as an assessment for a public purpose (as it undoubtedly is) violates the first rule; if viewed as an assessment for a local *529 improvement, it violates the second. We think it is therefore clear, that it cannot be constitutionally assessed, and that the injunction prayed for must be granted.

Injunction granted, as prayed for.

Libbey, J., having been of counsel in the case, took no part in the decision. Nickerson, J., bad the opinion in his- possession for examination at the time of his death, and it is not known whether he concurred or not. Appleton, C. J., Yirgin and Peters, JJ., concurred.